Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-05-15
FILE:
8016/MED
CASE NAME:
8016 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 Minister of Transportation Pursuant to Section 32(5)(b)(i) - to Change the Class or Classes of Motor Vehicle in Respect of Which the Licence was Issued
Applicant
Applicant
-and-
Minister of Transportation
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patrick Coffey M.D.
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Russell McKnight , Agent
Heard in Peterborough:
May 9, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Minister (the “Respondent”) pursuant to 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Registrar’s Evidence
Emergency Room Physician Dr. C sent a Medical Condition Report to the Ministry of Transportation (MTO), dated April 25, 2010, in which he indicated that the Applicant suffered the medical condition of Seizure-cerebral on April 25, 2010. The doctor further wrote the following:
Seizure. Underlying etiology not clear at this point. Will be referred for EEG and consultation with Dr. T.
When the MTO received this report, it was decided to suspend the Applicant’s driving privilege.
Neurologist Dr. T saw the Applicant in consultation and wrote to the Applicant’s family physician, Dr. B on May 12, 2011. It reads, in part, as follows:
X (the Applicant) is seen in complex specific reassessment regarding background history of seizure disorder. You will recall he had an episode of nocturnal seizure in May witnessed by his wife. During the hospital stay he was found to have a mass in the lung with diagnosis of cancer, followed by radiation and chemo. The CT of the head was normal and EEG done in May last year showed no abnormality. He was put on Dilantin 2 capsules BID and he has had no further seizures. He admits to forgetting medication sometimes but the blood levels were done monthly and they show a wide range, from 8-37. This suggests that the drug compliance is poor.
Apart from the history of CA of lung he has no other medical problem. He is not on any medications at present, He smokes a bit, is trying to stop. He drinks 4-5 shots per week on the average. This shows in his blood test. Gamma GT is always elevated, but normal AST and ALT and normal MCV. A repeat sleep-deprived EEG on April 14, 2011 was normal.
Further on in this May 12, 2011 letter of Dr. T, the neurologist described the neurological examination of the Applicant as being essentially normal.
In the summary of his letter, he wrote:
The patient has had one single episode of nocturnal seizure in April 2010. The etiology of this is not clear and there was no definite information to suggest alcohol related issue or alcohol withdrawal seizure. He has been doing well without seizure for over a year. His licence was suspended and he wants to ask for review.
Despite the absence of any abnormality on the MRI scan and EEG, I think it is better that he keeps on anticonvulsants for a total of three years, and after that he can reduce the dose by one capsule per month, so that he goes off it. In the meantime he has to make sure that he takes his medication regularly, using a drug organiser.
Finally, in Dr.T’s letter, the doctor suggested that the Applicant stop his alcohol intake, even though the amount of alcohol he takes is not excessive.
The Applicant was seen in consultation for a MAC (Medical Advisory Committee) assessment on July 22, 2011. This was reported as follows:
Reinstate and downgrade to Class ‘G’. Will consider reinstatement with a report from driver’s treating physician to confirm the driver has remained seizure-free for a period of five years on or off medication.
Driver has had a single nocturnal seizure with noted seizure disorder and has been placed on Dilantin therapy for prophylaxis measure. All investigations are normal. However driver is known to be non-compliant with his medication. Driver has also been advised to cease consumption of alcohol notwithstanding he does not have a diagnosis of dependence or misuse. Requires 5 years on or off medication prior to consideration of reinstatement. As driver has been seizure-free on medication for one year, he may resume driving at Class ‘G’.
The Certified Driving Record for the Applicant, dated April 17, 2013, showed no convictions, discharges or other actions, and the current demerit points were shown as 0.
The Applicant’s Evidence
The Applicant said that the seizure he had three years ago was the only one he has ever had. He does not know of any reason for having had it. He does not seem to have suffered any lasting effects from it. He was asked if he was informed what kind of seizure this was. He replied that his wife told him that she was woken in the night and saw that he was sleeping but his arms were moving around.
He said that he is feeling fine and wants and needs to get his commercial licence back so that he can return to his work. He considers that he is good at this job of driving trucks and it is the only job he knows.
After his seizure, he was admitted to hospital and investigations showed that he had cancer of his lung. He said that if he had never been admitted to hospital then, it might have been a long time before anyone knew of this cancer because he never had any symptoms from it. But, soon after this was found he received chemotherapy and surgery for it. He is seeing his doctors regarding the cancer of lung regularly and they seem to be pleased with his condition. His neurologist, Dr. T, has retired. He sees his family physician periodically. He is still taking medication for his seizure.
ISSUES
Should the decision of the Minister to change the class or class of motor vehicles in respect of which the licence is issued in accordance with the result of the examination be varied, modified or set aside?
Does the Applicant suffer from a mental, emotional, nervous or physical disability to an extent that he should no longer be entitled to exercise the privilege of a Commercial Class licence?
LAW
The relevant statutory provisions state as follows.
Section 32 (5)(b)(i):
- No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act.
(5) The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,
(b) in the case of a person who holds a driver’s licence,
(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements, or
Further, 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.
Section 50 sets out the right of appeal:
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
In the CCMTA Medical Standards for Drivers, Version: Draft 12, Guideline 17.6.12 (Epilepsy with seizures only while asleep or upon wakening—Commercial Drivers) the Standard is written as follows:
STANDARD Commercial drivers eligible for a licence if
The driver is experiencing seizures but the seizure pattern has been consistent for at least 5 years, no prolonged postictal impairment in wakefulness.
The Tribunal notes that the Applicant suffered a nocturnal seizure on April 25, 2010. He has not had one before or since.
The Applicant was examined by neurologist Dr.T who started him on anti-convulsant treatment. The MRI and EEG were normal. Dr.T expressed the opinion that the etiology of the seizure was not clear.
The Tribunal notes that the recommendation of the Medical Advisory Committee (July 22, 2011) was for “Resumption of driving at Class ‘G’ level’ and “Requires 5 years on or off medication prior to consideration of reinstatement for commercial driving.”
The Tribunal also notes that neurologist Dr. T, in his letter of May 12, 2011, did not comment on the length of time that should elapse before consideration be given to reinstatement of the Applicant’s licence, but he advised that the Applicant remain on the initial anti-convulsant drug dosage for three years and then gradually reduce the dosage.
After consideration of all the evidence and the Guidelines of the CCMTA, the Tribunal has decided that the commercial licence of the Applicant should remain suspended.
In conclusion, the Tribunal finds that the Applicant does suffer from a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Applicant to appeal the decision dated June 29, 2010 of the Minister (“Respondent”) to change the class or classes of motor vehicle in respect of which the licence was issued pursuant to Section 32(5)(b)(i) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Respondent 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 Minister be confirmed.
LICENCE APPEAL TRIBUNAL
Patrick Coffey M.D., Member
Released: May 15, 2013