Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-06-13
FILE:
8057/MED
CASE NAME:
8057 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 Suspend a Licence
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
David W. Hurst, M.D., Member
APPEARANCES:
For the Applicant:
Jeffrey R. Robles, Counsel
For the Respondent:
Russell McKnight, Agent
Heard in Toronto:
May 28, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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”).
FACTS
The Respondent’s Case
Mr. McKnight, Agent for the Registrar, presented a Medical Condition Report (“MCR”) dated January 3, 2011, which was quite illegible. From the report, Mr. McKnight was able to determine that the Applicant had suffered a loss of consciousness and/or seizure while at work. She had no memory of the event. The report was signed by Dr. M.
On January 6, 2011, Dr. J., a neurologist for the Applicant, sent a report to Dr. M. regarding the history of the Applicant’s recent problems. He stated that on January 3, 2011, as observed by a co-worker, at 6:00 a.m., the Applicant suddenly stood up, seemed confused, turned around and then made a strange noise. She then hunched over and began to shake and fell backwards. She continued to make a strange noise and shook for two to five minutes. The Applicant became aware of herself in the emergency room.
The history also noted that at the age of 10, around 1984, because of abnormal behaviour and possible temporal lobe seizure, she was examined and it was found that she had a large arteriovenous malformation (“AVM”) over the right temporal parietal area. A neurosurgeon removed this lesion. She continued to function well except that she had developed a dropped foot problem on the left side and repairs were done regarding this difficulty. She was prescribed Tegretol 200mg twice a day following that surgery. The duration of this treatment is not known. Physical and neurological examinations were normal.
Dr. J. gave his impressions as follows: The patient has likely had a seizure which can be a complex partial type with secondary generalized ionic-clonic convulsion. She was to be sent for EEG and MRI of the head. She was told not to drive. Tegretol CR 400mg was prescribed taking up to four of these tablets a day. She was referred to Dr. B., an epileptologist.
On January 10, 2011, an MCR was sent to the Ministry stating that the Applicant had suffered a blackout or loss of consciousness or awareness with the possibility of seizures, which were under investigation. An optional note stated that the Applicant had been diagnosed as having an AVM of the brain in 1984 with temporal lobe seizures and had undergone a right temporal lobe resection in November 1984. A possible recent seizure was mentioned in this MCR and a CT scan showed an intracranial mass being investigated by a neurologist. This report was signed by Dr. M.
On January 11, 2011, the Applicant was seen by Dr. C. (neurologist). His consultation note stated that the Applicant had a history of a possible complex partial seizure on January 3, 2011.
On January 11, 2011, Dr. M. provided the Ministry with an MRI scan report stating that there was previous partial resection of the right temporal lobe with post-operative changes but no evidence of recurrence of residual disease. On the same date, an X-ray of the skull with two views was done which showed that bony structures were symmetrical and unremarkable and there was no radio opaque foreign body. Also included at this time was a CT of the head without contrast, and an opinion that the imaging showed possible post-operative changes on the right temporal lobe. No obvious mass and no acute haemorrhage were found.
This doctor provided a detailed description of an EEG on this occasion. He stated that the EEG showed some persistent higher voltage with more wide spread alpha rhythms over the right hemisphere with some slowing and sharply contoured activity or mixed sharp and slow and sometimes a little background low voltage delta appreciated in the posterior temporal parietal region particularly, but also centrally on the right side. No actual definitive epileptic discharges were seen, but there was higher voltage sharp activity present that could point to an area of epileptogenesis in the brain over the right hemisphere. Clinical correlation required.
On January 17, 2011, the Ministry informed the Applicant that with her reported syncope/loss of consciousness, her driving privilege was suspended under section 47(1) of the Act. To consider reinstatement, the Registrar asked for:
The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the condition was controlled and that there were no other disqualifying medical concerns that may impact her ability to safely operate a motor vehicle;
The results of all recent and pertinent investigations (i.e. ECG, EEG, Holter Monitor), a narrative of this and any previous syncope/loss of consciousness history and confirmation that there have been no further episodes.
On February 3, 2011, Dr. J. provided Dr. M. with a progress note that the patient was doing well with no recurrent loss of consciousness. She had Tegretol CR prescribed and decided not to take it. An EEG showed some activity in the right temporal area which can be an epileptiform abnormality. MRI of the head demonstrated an encephalomalacia and gliosis as results of the previous brain surgery. Dr. J. felt she should be on her medication. She was to see Dr. B. (epileptologist) shortly.
On March 15, 2011, MTO informed the Applicant she must file an up-to-date Assessment Form. This assessment was to ensure that her condition was adequately controlled and to confirm that she had established a 6-month seizure free period. She would then be considered for reinstatement.
On April 3, 2011, Dr. B. (epileptologist) consulted on the Applicant for Dr. J. The details of her loss of consciousness and seizure were noted, as well as the events surrounding her trip to hospital and her CT scan. It was noted that Tegretol had been prescribed but not taken. Dr. B. reviewed the previous brain surgery at the age of 10 and the AVM and noted that there had been no subsequent seizures. A recent MRI was noted with only post-operative changes and no evidence of recurrence of residual vascular malformation. There was also noted some encephalomalacia. An EEG showed some changes on the right side without definite epileptic form discharges. The physical examination showed minor changes in the left arm and leg but were not considered important.
Reviewing the problem with the Applicant, Dr. B. agreed that this episode appeared to have been an epileptic seizure. He discussed potential triggering factors including fatigue and sleep loss. He pointed out that having had the AVM removed with residual encephalomalacia and gliosis this would further increase her seizure threshold and propensity to recurrences. He did discuss with her the pros and cons of anti-seizure prophylaxis. He said no one could predict when she might have a recurrent seizure and noted at this time the patient preferred not to be medicated. He reminded her that anti-seizure medication would reduce propensity to recurrences. He felt that for the time being she had had adequate neurological investigations. Dr. B. sent a corresponding MCR to the Ministry, signed October 12, 2011.
On July 3, 2011, the Applicant’s family doctor, Dr. M., wrote to the Ministry describing the events and asked that her licence be restored.
On September 1, 2011, the Medical Advisory Committee of MTO requested a further report from Dr. J. with diagnosis, current status, and details about any further seizures. Also requested were details regarding the Applicant’s non-compliance with the medication. This MAC report requested a consultation with Dr. B., an epileptologist, as the Applicant had chosen not to take the prescribed medication. MAC considered the Applicant to be at risk for further episodes and she remained a driving risk.
On September 8, 2011, the Ministry informed the Applicant that they would require a current report from Dr. J. with the necessary information.
On October 6, 2011, the MAC again reviewed this case and decided that the suspension would continue. Reconsideration could occur with a detailed report from the treating physician confirming either a five year seizure free period off medication or a one year seizure free period on medication, supported by a series of laboratory results of anticonvulsant levels which must remain in the therapeutic range. The MAC concurred with Dr. B. (epileptologist) that based on history, the individual was at risk for further seizures given her previous history of AVM surgery, residual encephalomalacia and gliosis and that the driver had refused the recommended treatment [with Tegretol].
On October 20, 2011, the Ministry informed the Applicant that they would need an assessment from an eye specialist with specific reference to her reported left homonymous upper quadrant field defect.
It has been agreed by both parties that for the purposes of this hearing, the matter of the visual problem need not be considered.
On November 2, 2011, the Ministry informed the Applicant that her driving privilege would remain under suspension. To consider reinstatement, it required:
Confirmation that she has established either a five year seizure free period off medication or a one year seizure free period on medication supported by a series of laboratory results of anticonvulsant levels remaining in the therapeutic range;
A report on visual defect (not to be considered at this hearing).
On November 23, 2011, Dr. J. reported to Dr. B. that the Applicant had tried Tegretol but found it made her quite drowsy and unable to function so she stopped it. No recurrent seizure noted. There was concern about her driver’s licence.
Through the Employee Assistance Program provided by her company, a review of the Applicant’s problems was provided by Dr. D., a professor in a division of epilepsy, EEG and sleep neurology in the United States. This report was sent to Dr. G. Dr. D. did not see the Applicant. This proved to be a very lengthy report. The Tribunal has summarized her answers to key questions put to her by Dr. G.:
- Provide a layman’s description of the findings on the recent imaging and EEG.
The presence of a craniotomy (opening of the skull at the age of 10) brain activity would have higher amplitudes due to the disruption of the bone. No epileptic sharp discharges are described under recent EEG; however, even a completely normal EEG does not rule out the possibility of a recurrent seizure or epilepsy.
- Which of the possibilities (differential diagnosis) has provoked seizure, recurrent unprovoked seizure (or epilepsy), basal convulsive syncope, behavioural event (stress related), cardiac arrhythmia?
Dr. D. said the diagnosis is likely complex partial seizure with secondary generalization and likely provoked by sleep deprivation and viral illness. If sleep is a chronic problem, a polysomogram could be done to look for sleep apnoea as a trigger. It would be prudent to obtain an ambulatory EEG over 24 to 48 hours. If this test shows definite right temporal sharp waves, it would help support need for medication. Many patients with complex partial seizures are completely unaware they are having seizures until a convulsion occurs. If the patient hasn’t had an EKG, this would be an important test to do. The doctor stated that the natural history of partial epilepsy is quite variable, but it is not unusual for a person to have a prolonged period of seizure freedom and then recurrence. However, given the right temporal lobectomy (age 10) the Applicant may never have another seizure as this is the definitive treatment to stop seizures.
- The doctor then addressed the matter of medical options for therapy with the pros and cons. She said that as the Applicant had only had the single recurrence in January of 2011, she should continue with no treatment other than getting a good sleep, eating well, and avoiding alcohol. Sleep deprivation and alcohol withdrawal tend to lower the seizure threshold. If partial seizures continue, she favours treatment with an antiepileptic medication. As to avoiding medication, in this case, she felt that since there has only been a single event a year ago the risk of no medical therapy is quite small.
Further comments by Dr. D. pointed out that a post-operative angiogram apparently showed no further blood vessels so it sounds likely surgery was successful with respect to the AVM. In addition, the patient has had no known seizures for 26 years and was off medications. The duration of no seizures off medication suggests a very good outcome. Dr. D. observed that it is critical to know whether the patient had only that one seizure on January 3, 2011, and has not had any further seizures. If that is the case, it is very clear that she need not be on any medication, as it has already been one year. If she has had any further episodes, then she would need to be on medication. Other than that, there is no mention of another episode other than the single event; it seems clear that no further medication is needed.
On January 12, 2012, the Medical Advisory Committee confirmed their previous decision about suspension. They were appreciative of Dr. D.’s report but observed that she had never examined the Applicant and her opinion was outweighed by that of the two treating physicians.
The Ministry reviewed the subsequent reports filed on the Applicant’s behalf and on February 20, 2012 decided that this suspension must continue. They stated that they must have confirmation that she has established a five year seizure free period off medication or a one year seizure free period on medication with the medication to be in the therapeutic range.
On March 7, 2012, an MCR report by Dr. B. regarding the seizure and loss of consciousness indicated that on no medication the risk of recurrent seizure was low.
On March 20, 2012, Dr. C., a neurologist, wrote to Dr. K.D., a local physician. This was considered to be a reply to his consultation request in the hope that some resolution could be achieved with MTO. Dr. C. gave a detailed report of the Applicant’s previous history. He stated that the Applicant has had one seizure under stress and sleep deprivation. Her EEG in the past is similar to the one done at present. An MRI performed in 2005 showed complete resection of the AVM. He also noted that there had been an infarct (death of local tissue) in the right posterior temporal and posterior parietal lobe. The current EEG shows moderate intermittent disturbance and cerebral activity in the right temporal region with only rarely sharp waves present and that was also present prior to the surgery. Dr. C.’s guess was “what’s reasonable in this situation?” The doctor stated that anticonvulsants are not going to give complete seizure control in any case and there is no definite evidence of epileptic discharges on imaging. It just shows chronic changes.
Further comments include:
She agrees to keep stress to a minimum and not taking on two jobs and avoiding sleep deprivation that’s to say change in lifestyle habits that would be conducive to improving seizure control. She will have gone a year without seizures without medication. I think being reasonable about it, unless a second seizure occurred, there is no good evidence to support that being on an anticonvulsant is going to affectively reduce her chance of recurrent seizures.
I think the issue at hand is her driver’s licence should be returned to her because she is seizure free for the past year and has made some alteration in lifestyle or habit which has decreased her chance of having further epileptic events. This is similar to what applies to every other person who has seizures and wishes to have their licence returned. I don’t think that it is reasonable to force her to take an anticonvulsant so she could have her licence returned.
On June 6, 2012, the MAC again reviewed this case wondering why further review was required. They appreciated that Dr. C. was supportive but said the medical facts of this case had not changed since the Applicant remains at risk for seizures. The Ministry also reviewed this case at this time and stated that the suspension must continue. They asked for a report confirming that the Applicant had established a seizure free period of five years off medication or one year on medication supported by a series of anticonvulsant levels confirming the therapeutic range.
Mr. McKnight entered the Applicant’s driving record of the suspension for medical reasons effective January 27, 2011. He noted that the Registrar must take a stringent stance on this matter as the Applicant has not used the anticonvulsant medication. The matter of the previous surgical resection was underlined and he made the comment that the encephalomalacia was still present (actually being a matter of no medical concern). He observed that MTO cannot be sure of no further recurrence of seizures with higher risk unless anticonvulsants are used. He again affirmed the Ministry’s position that there must be a recorded interval of five years without seizures off medication or one year free of seizures on medication.
Questioning from the Tribunal confirmed that the Applicant had suffered no seizures from 1984 to the events in 2011.
The Applicant’s Case
The Applicant testified about her medical history. Her memory of the events when she was 10 years old was a little clouded, but she knew that she had a temporal lobectomy (removal of a portion of the brain) including an arteriovenous malformation. She described this quite accurately as a cluster of veins and arteries in brain tissue creating confused blood circulation in that area resulting in poor oxygenation of the tissues of the brain.
She said that the doctors never stated that she had a seizure but she had developed behavioural problems. Following the surgery, she found that her left extremities were a little weak but no great problem. Since then, there have been no seizures for 23 years. She denied that she suffered physical difficulty in her ability to drive a car.
On January 3, 2011, she was working during the night as a security guard. She had worked the previous day in a parking garage where there were significant exhaust fumes and a shift there was 12 hours. She tried, on an hourly basis, to get extra air by putting her head out through a window but found that this wasn’t adequate. After that, she was suffering from fatigue and nausea the next day. The next day, she worked another 12 hour shift having slept only five hours. She felt worse than on the previous day. She felt obligated to go to work in order to help out because a colleague was ill. The latter shift was involved in security against theft. At the end of that shift, she suffered a seizure. She was taken to a nearby hospital and recalled being told that a seizure was suspected but not confirmed, leading to some tests. She was seen by Dr. J. (neurologist) for a 20 minute examination; no tests were completed and there was no treatment. Dr. J. wrote to the Applicant’s family doctor (Dr. M.) and reviewed the events found in the seizure. Also, he reported details of the surgery in 1984. It was Dr. J.’s impression that the Applicant had suffered a seizure so he made arrangements to do an EEG and MRI of the head and told her not to drive. He prescribed Tegretol CR 400mg, a dose to increase to 1600mg a day. Dr. B. reviewed a recent MRI report to demonstrate only post-operative changes with no evidence of recurrent or residual vascular malformation. There was evidence of some encephepalomalcia. The EEG showed some abnormalities on the right side without definite epileptiform discharges. Dr. B.’s physical examination contributed nothing of consequence.
His impression was that the Applicant had suffered an epileptic seizure. He discussed with her potential trigger factors including fatigue and sleep loss. He indicated that with the previous surgery to remove her AVM with residual encephalomalacia and gliosis, these events would further increase her seizure threshold and propensity to recurrences. Therefore, he discussed the pros and cons of anti-seizure prophylaxis and indicated that Tegretol would be an appropriate medication. Despite this, the patient prefers not to be on medication because of its side effects.
Subsequently, with the help of her company’s Employee Assistance Program, Dr. G. arranged to send the details of this case to Dr. D. in the United States for her appraisal. This long distance consultation was again presented to the Tribunal by the Applicant’s Counsel. Counsel drew attention to Dr. D.’s comments stating that no epileptic sharp discharges were described on a recent EEG; however, even a completely normal EEG, does not rule out the possibility of a recurrent seizure or epilepsy. The Applicant’s Counsel also noted Dr. D.’s statement that given the right temporal lobectomy, the Applicant may never have another seizure as this is the definitive treatment to stop seizures.
Mr. Robles noted Dr. D.’s observation that the Applicant has only had the single occurrence last January and she should continue with no treatment other than getting a good night sleep and avoiding alcohol consumption completely. These useful measures were noted to raise the seizure threshold. Further in Dr. D.’s review, she made it very clear that the Applicant need not be on any medication as she had already passed the 12 month mark since the seizure.
Counsel reviewed Dr. C.’s (neurologist) consultation indicating that it was quite reasonable for the Applicant to have her licence returned having gone a year without seizures and without medication. Unless a second seizure occurred, there is no good evidence to support that being on an anticonvulsant is going to effectively improve her chance of recurrent seizures or define whether or not she should have her driver’s licence returned to her.
Counsel presented a list of grounds for this appeal:
The Applicant has been driving since the age of 16 and has never been physically incapable of safely operating a motor vehicle in 22 years of driving.
Since she started driving, the Applicant has never had a seizure nor has she had a seizure since January 3, 2011.
Dr. J. incorrectly concluded that the Applicant likely experienced a complex partial epileptic seizure. He did so without the benefit of an EEG or MRI and with a limited medical history. He did have plans for further studies and referrals.
Dr. B., an epileptologist, noted an absence of definitive evidence of epileptic seizure and concluded that the episode on January 3, 2011, was triggered by sleep loss and declined to prescribe any further therapy.
Dr. D., another epileptologist and professor in the U.S., similarly observed the lack of definitive evidence of epileptic seizure and also concluded that sleep deprivation along with viral illness likely would lower the Applicant’s threshold for seizure. Dr. D. also concluded that the Applicant may never have another seizure due to the right temporal lobectomy, and considered it definitive treatment to stop seizures. Dr. D. recommended no treatment other than getting a good night sleep, eating well and avoiding alcohol.
Dr. C., a neurologist, concurred with the observations of Dr. B. and Dr. D. regarding the lack of definitive evidence of epileptic seizure. Dr. C. concluded that treatment with anticonvulsive medication was not reasonable. Avoiding sleep deprivation was reasonable instead.
Mr. Robles submitted that the Registrar’s decision was based on the incorrect assessment of Dr. J. who did not have a complete medical record needed to reach the proper conclusion. The Registrar did not properly take into account the conclusions reached by three different specialists, all of whom concurred that there is no definitive evidence of epileptic seizure and that anticonvulsive medication was not necessary.
Counsel suggested that the Registrar incorrectly applied CCMTA guideline 6.3.1 concerning epileptic seizures and should have applied CCMTA guideline 6.3.2 concerning solitary seizures instead. This latter guideline provides that an individual who has suffered a single seizure may be considered for any class of motor vehicle if their full neurological assessment is normal and an EEG is also satisfactory. Even where the EEG shows signs of epileptiform activity, reinstatement may be considered on a favourable recommendation from a neurologist.
Based on the foregoing, Counsel asked that the Tribunal set aside the decision of the Registrar pursuant to the Tribunal’s authority under section 50(2) of the Act.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with 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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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
Mr. McKnight’s review disclosed that the Applicant’s current problems may actually date back to 1984. No seizure was clearly identified at that time, but because of her abnormal behaviour, investigation ultimately disclosed that she had an arteriovenous malformation in the right temporal parietal area of the brain and she underwent surgery. Other than some minor residual weakness of the left arm and leg, the results have been excellent. No further problems occurred until this event on the 3rd of January 2011. The Tribunal has the description by the Applicant’s co-worker of her loss of consciousness but no convulsions are mentioned in her narrative. Physical exam including a neurological examination at that time showed no abnormalities and Dr. J.’s impression clinically is, “the episode that she had is likely to be a seizure”. MRI study showed partial resection of the right temporal lobe with post-operative changes and no evidence of recurrent or residual disease. CT study confirmed these findings including an area of encephalomalacia from previous surgery. EEG studies showed some persistent higher voltage activity over the right hemisphere but no actual definitive epileptic discharges were seen. This area of higher voltage activity could point to an area of epileptogenesis in the brain over the right hemisphere.
The Applicant has been followed mostly by neurologists, and follow up imaging studies and EEGs showed no changes subsequent to the event. The Applicant has not driven. She has enjoyed over two years symptom free. She told the Tribunal at the hearing that she is enjoying good health but is suffering marked stress and anxiety because the loss of her licence has made it impossible for her to work. Dr. D., an epileptologist from the United States, reviewed all of the pertinent documents relevant to this case and in regard to the EEG findings she stated that “even a completely normal EEG does not rule out the possibility of a recurrent seizure or epilepsy”.
Dr. D. said the likely diagnosis is “complex partial seizure and secondary generalization, likely provoked by sleep deprivation and viral illness”. She also said,
It is likely that the sleep deprivation, along with the possible viral illness, lowered the Applicant’s threshold for seizure. Risk factors for partial seizures include vascular malformations, strokes, head trauma, brain tumours, or any other focal lesion in the cerebral cortex. The natural history of partial epilepsy is quite variable, but it is not unusual for a person to have a prolonged period of seizure freedom and then recurrence. However, given the right temporal lobectomy, the Applicant may never have another seizure, as this is the definitive treatment to stop seizures.
Pertinent to this case is the Applicant’s description of the 24-hour period when she worked two 12 hour shifts with only five hours of sleep in between. Also noted was the description of the air quality that she had to breathe in her job in a parking garage, where there was a significant component of exhaust fumes causing her to make short trips outside or even put her head out the window to breathe some fresh air. These circumstances could cause a seizure if one is so predisposed. The neurologists have also said that careful avoidance of such extenuating circumstances (sleep deprivation, air conditions, stress) can markedly reduce the risk of epileptiform activity.
It is also noteworthy that the Applicant had no troubles of this nature since her brain surgery in 1984. As well, more than two years have passed since this episode causing the loss of her driving privilege with virtually no preventative medications and no further events.
In his submissions, Counsel for the Applicant stated that this loss of consciousness was a single event and not proven to be epileptic in nature (there is only the description by the co-worker; imaging and EEG tracing were unable to find any possible epileptive form). He has underlined the fact that until this event in January of 2011, the Applicant has shown no evidence of seizure activity for more than 20 years since her brain surgery. As well, there has been no evidence or threat of seizure activity for more than two years since the loss of consciousness.
Counsel reviewed the pertinent sections of the law which state that the Applicant must not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely. His observation was that the Applicant complies. He referred to section 6.3.2 of the CCMTA Medical Standards for Drivers:
The individual who has suffered a single unprovoked seizure should not be considered for any class of motor vehicle until a detailed neurological assessment and EEG have been performed and are satisfactory. The individual whose seizure cannot directly be related to a toxic illness can continue to drive safely provided full neurological assessment is normal and EEG reveals no epileptiform activity.
He noted that according to Drs. B., D. and C., the EEG results show no definite epileptiform discharges.
No concrete evidence of a full blown seizure has been presented to this Tribunal; however, on the balance of probabilities for the purposes of this decision, it is reasonable to assume that a seizure did occur although not proven. The most important factor under consideration here is highway safety.
The Ministry acted correctly on receipt of the Medical Condition Report describing the Applicant’s loss of consciousness. They had no alternative but to suspend the Applicant’s driving privilege.
However, the Applicant’s condition has been thoroughly assessed by highly qualified neurologists and epileptologists. Mitigating circumstances on behalf of the Applicant are:
Discovery and excellent treatment of her AVM in 1984 leading to full recovery and continued good health over a period greater than 20 years;
By the Applicant’s description of her period of two very long shifts and sleep deprivation combined with very poor air quality where she worked, it is as though she had deliberately set out to define her threshold of seizure activity;
More than two years of taking good care of her health (she is also a non-drinker), and there has been nothing to suggest even a risk of further episodes.
The medical experts are uniformly supportive indicating that anticonvulsive therapy would not be particularly helpful and also, apart from this single episode, she has enjoyed excellent health for more than a quarter of a century since her brain surgery.
The risk of another event is very low particularly in that the Applicant understands the importance of a healthy lifestyle, adequate rest, avoidance of alcohol, which in fact is her normal routine.
DECISION
Upon the application by the Applicant to appeal the decision, effective January 27, 2011, of the Registrar to suspend her 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 be set aside.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Member
Released: June 13, 2013