8014 v. Registrar of Motor Vehicles, 2013 CanLII 27293

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-05-16

FILE: 8014/MED

CASE NAME: 8014 v. Registrar of Motor Vehicles

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 47(1) of that Act - to Appeal a Suspended Licence

8014 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, MD

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Kyle M. Biel

Heard in London, Ontario May 8, 2013

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the "Registrar") pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

PRELIMINARY MATTERS

None.

FACTS

1. The Applicant is a 44-year-old warehouse man with a nocturnal seizure disorder beginning in July 2006. His driving privileges were suspended in a letter dated September 10, 2006 (Exhibit 3, Tab 3).

2. An electroencephalogram (EEG) on November 21, 2006, showed epileptiform activity in the right temporal lobe suggestive of a structural abnormality which was not apparent on a Magnetic Resonance Imaging (MRI) scan (Exhibit 3, Tab 4). The Applicant's neurologist prescribed an anticonvulsant (Dilantin, 300 mg daily).

3. Being seizure-free for six months and compliant with therapy, the Applicant's driving privileges were restored in a letter from the Registrar dated February 27, 2007 (Exhibit 3, Tab 5).

4. Another Medical Condition Report dated July 7, 2010 (Exhibit 3, Tab 7) indicated a cerebral seizure disorder. A consultation note from his neurologist dated July 23, 2010 (Exhibit 3, Tab 7) recommended to the Registrar that the Applicant's driving privileges not be suspended. The Applicant's Dilantin medication was increased to 500 mg daily, even though the neurologist stated, "we cannot be sure that this last episode was, in fact, a seizure."

5. Awaking from a nap at work on February 5, 2013, he had another generalized seizure. An Emergency Room (ER) physician, reporting under Section 203 of the Highway Traffic Act (HTA) sent a Medical Condition Report to the Registrar in a letter dated February 5, 2013 (Exhibit 3, Tab 8), indicating "Seizure(s) – Cerebral."

6. At a clinic visit February 20, 2013 (Exhibit 3, Tab 12), the Applicant told the neurologist he wanted "a diet supplement to lose a few pounds" for an upcoming winter vacation and found a product on the Internet he believed could help.

In sworn testimony, the Applicant said he didn't want to be "another bald fat guy, sitting on a beach."

7. Beginning in January 2013, rather than taking the recommended daily dose of one tablespoon of the powder, the Applicant took three tablespoons daily.

8. The neurologist in his February 20, 2013 consultation note (Exhibit 3, Tab 12) stated the powder contained "red ginseng" which has some stimulatory properties and may have been responsible for precipitation of this (February 5, 2013) seizure.

The powder was immediately stopped and his Dilantin dose was increased to 550 mg daily.

9. In a letter dated March 5, 2013 (Exhibit 1), the Registrar suspended the Applicant's driving privileges under Section 47(1) of the HTA and requested the Applicant to provide medical information to the Registrar's Medical Review Section.

10. The information was provided by his neurologist (Exhibit 3, Tab 11) in the "Epilepsy and Seizures" form, dated March 15, 2013, which also referred to his clinic note of February 20, 2013 (Exhibit 3, Tab 10).

11. In a letter dated April 2, 2013 (Exhibit 3, Tab 13), having reviewed the neurologist's medical information, the Registrar deemed the Applicant's driving privileges should remain suspended.

12. The Applicant filed a Notice of Appeal form (Exhibit 2), dated April 18, 2013.

13. An in-person hearing was scheduled by the Tribunal for Wednesday, May 8, 2013.

ISSUES

Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?

Does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver's licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

(2) In determining whether an applicant for or a holder of a driver's licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver's licence set out in the CCMTA Medical Standards for Drivers; and

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver's licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

Section 50 of the Act states:

50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.

APPLICATION OF THE LAW TO FACTS

The Registrar has made the case that the Applicant's driver's licence should remain suspended.

The Registrar was correct in suspending the Applicant's driving privileges (Exhibit 1), effective March 15, 2013, having received an unsolicited letter from a physician dated February 5, 2013 (Exhibit 3, Tab 8) indicating a seizure disorder.

His neurologist, in a consultation note dated February 2013 (Exhibit 3, Tab 10), states the Applicant has a history of nocturnal seizures, adding "most of them have been nocturnal in nature as previously outlined."

In the same note, the Neurologist refers to nocturnal seizures on July 2006, August 2008 and July 2010. The Registrar has no record of a Medical Condition Report in August 2008. There is reference to a 2008 EEG showing right temporal epileptiform activity suggesting a partial complex seizure disorder.

The Registrar refers to Chapter 17, "Seizures and Epilepsy" of Draft12, September 2012, of the Canadian Council of Motor Transport Administrators (CCMTA), "Determining Medical Fitness to Drive" (Exhibit 3, Tab 15). Nocturnal seizures are dealt with on Page 250.

17.6.7 Epilepsy with seizures only while asleep or upon awaking – Non-commercial

STANDARD

Non-commercial driver eligible for a licence if

• it has been 6 months since the last seizure OR.
• The driver is experiencing seizures but seizure pattern has been consistent for at least 1 year- and therefore no seizure free waiting period required
• The conditions for maintaining a licence are met

Conditions for maintaining licence

• Routinely follow treatment regime and physician's advice

Regarding prevention of seizures, if the driver is treated

• Routinely follow physician's advice regarding continued monitoring of your seizures
• Report to the authority and physician if the pattern of seizures changes

Reassessment

• Routine

Information from health care providers

• Description of the seizure pattern
• Whether the seizure pattern has been consistent for at least 5 years
• Details of the driver's treatment regime
• Opinion of treating physician on whether the driver is compliant with their treatment regime

Draft 12: September 2012

The "Epilepsy and Seizures" form, completed by the same neurologist (Exhibit 3, Tab 11) dated March 15, 2013, states:

• Page 5/5 - Part 3, Medication, Treatment, 10(b). In response to the question "Are the seizures prevented by the current medication regime?" – checked "yes" – qualified with "usually".

The Registrar looks for compliance with prescribed therapy. In the neurologist's consultation note dated July 23, 2010 (Exhibit 3, Tab 7) – "this gentleman is quite adamant that he takes his Dilantin with exquisite compliance" (the Applicant admits missing a dose on July 19, 2010.

The serum Dilantin level obtained at the day of the seizure (February 5, 2013) was 55, the normal range (40-60). The neurologist immediately raised the daily Dilantin dose to 550 mg daily.

A repeat Dilantin determination on February 20, 2013, was 67. Significantly, his experienced neurologist told the Applicant that he should not drive, was obligated to notify the MTO of his seizure and that his driving privileges would likely be rescinded for at least six months (Exhibit 3, Tab 10).

The Applicant believes the February 5, 2013 seizure was directly related to his excessive ingestion of the weight loss powder which contained ginseng.

The Applicant is embarrassed that his pre-occupation with his physical appearance for an upcoming vacation has led to his driver licence suspension.

He provides transportation to friends and family members. It is now difficult for him to tell them he is not able to help them and explain why he lost his driving privileges. The Applicant denies daytime seizures – "didn't happen," and doesn't want to wait another three months to have his driving privileges restored.

The Tribunal acknowledges his driving licence suspension has caused hardship on his many transportation commitments to friends and family, but the statute does not recognize hardship in considering restoration of driving privileges.

The Tribunal is entrusted to look out for both the Applicant and the motoring public, and refers to Regulation 340/94, 14.1 (a) of the HTA.

O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver's licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

The Tribunal recognizes there are no absolutes in predicting future seizure activity while driving; a seizure could have catastrophic consequences.

The Tribunal is concerned enough to endorse the Registrar's suspension dated March 5, 2013 (Exhibit 1) and the requirement of confirmation of compliance with anticonvulsant therapy. The Applicant's last seizure was February 5, 2013.

In considering the entirety of the evidence and sworn testimony and the HTA, the Tribunal is mindful of the safety of both the Applicant and the motoring public.

The Tribunal finds the evidence supports the conclusion that on a balance of probabilities, the Applicant may suffer from a seizure disorder which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the application by the Applicant to appeal the decision dated March 5, 2013 of the Registrar to suspend his driver's licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;

IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar confirmed.

LICENCE APPEAL TRIBUNAL

__

D. Ian Turnbull, MD, Presiding Member

RELEASED: May 16, 2013