2013 Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8286/MED
CASE NAME: 8286 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: Garry Fisher M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard in Toronto September 10, 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 Applicant is a 48 year old man who was at work on December 27, 2012, when he was witnessed to have a tonic-clonic seizure. He was taken to a nearby Emergency Room (ER) where he was assessed by Dr. E.P. who filed a report with the Ministry of Transportation (the MTO) under Section 203 of the Highway Traffic Act.
Seizure(s)-Cerebral was checked off in the box menu.
Dr. E.P. added a note:
“I suspect this seizure was due to sleep deprivation. There were no other risk factors and his CT scan was normal. He is scheduled for follow-up with neurology (at the health centre) for further assessment.”
The section 203 form to the MTO was dated January 2, 2013. The Deputy-Registrar wrote the Applicant February 27 2013, suspending his driver licence under Section 47(1) of the Highway Traffic Act.
The MTO required:
- Confirmed diagnosis by your specialist
- Confirmation of compliance with and response to prescribed treatment
- A normal sleep latency test
- Confirmation that you do not have a history of cataplexy
- I addition, the enclosed form(s) completed in full and all questions answered
Dr. A.S-B., neurologist, saw the Applicant in consultation on March 11 2013. On physical examination, she found the Applicant to be normal. She noted that he required oral medication for diabetes and medication for mild hypertension. A CT scan was normal and subsequent MRI and EEG tests were unremarkable.
The doctor noted in her history that the Applicant had had a brief “psychotic” breakdown in the late-spring-summer of 2012 and his driver licence was suspended from late May to early September. At that time liver enzymes were elevated and blood tests were positive for alcohol.
Follow-up was with another neurologist, Dr. M.C. Each of the doctors observed that liver enzyme tests (especially, elevated GGT) together with the Applicant’s admission that he did consume a variable amount of beer led them to “suggest an alcohol withdrawal seizure”.
Dr. M.C. advised that, because of concern over the elevated liver enzyme tests, the Applicant should refrain completely from alcohol use.
The Ministry (MTO) sent a new letter to the Applicant dated June 20, 2013. Based on new medical notes:
“your reported condition(s) is (are):
- Alcohol Abuse/Dependence
- Seizure
Dr. V.B. is the Applicant’s family doctor. He filled out the seizure questionnaire 3 months ago on June 8, 2013. The Applicant had a single seizure 9 months ago.
He notes that the Applicant has abstained from alcohol since mid April 2013 I.e. 5 months to present. Drug screening blood tests on Jun 5 2013 are negative for all the common drugs of abuse and significantly, negative for alcohol.
Liver enzymes remain high, especially GGT and to a lesser extent ALT and AP.
Dr.V.B. sheds some light on the continuing marked elevation of liver enzymes. This was investigated several years ago and led to a liver biopsy in 2010. (from the Applicant’s description, it was probably an ultrasound guided needle biopsy) The Applicant has a “fatty liver” or steatohepatitis.
The Applicant has returned to work in high rise construction. He required a confirmation letter from his doctor and the letter was accepted by his employer. He requires his driver licence to get to and from scattered job sites.
He emphasized that he remains abstinent from any alcohol.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Is the Applicant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his 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
The original ER doctor to see and assess the Applicant suggested “sleep deprivation” as the likely cause of his seizure. No blood tests were done at the time (in December 2013) to support a diagnosis of alcohol-related seizure activity. To suggest “alcohol-dependence” seems tenuous.
Alcohol didn’t become a more likely causative factor until liver enzyme tests were available 2 ½ months after the seizure, and the Applicant admitted that he drank beer. Neither of the neurologists were aware of the steatohepatitis. An assumption was made that because liver enzymes were elevated, he must be alcohol dependent.
CT, MRI and EEG are all normal. There has not been another seizure. The Applicant is 9 months post seizure.
He is 5 months abstained from alcohol.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a condition 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 effective February 27, 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 be set aside.
LICENCE APPEAL TRIBUNAL
Garry Fisher, M.D., Member
Released: September 24, 2013