Licence Appeal Tribunal
FILE: 8302/MED
CASE NAME: 8302 v. Minister of Transportation
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 Vehicles in Respect of Which the Licence was Issued
8302 Applicant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Sudbury September 20, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant respecting a decision of the Minister of Transportation (the “Respondent”) pursuant to Section 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Respondent’s Evidence
Following an unsolicited Medical Condition Report in compliance with section 203 of the Act, of a seizure disorder, in November 2011 the Applicant’s driving privilege was suspended under section 47(1) of the Act.
The Applicant held a commercial licence.
His neurologist, Dr. V. submitted a report in February 2012 that stated that there were no abnormalities in the Applicant’s MRI and EEG and that he was compliant with anti-seizure medication which remained in therapeutic range with no recurrence of seizures. The Applicant was withdrawing from an anti-depressant at the time the seizure occurred, and there was a background of stress at home and at work.
He noted that there was a history of two seizures in 2009 which were not reported or treated.
Neurological and cardiological examination were normal,and Dr. V. recommended reinstatement of his driving privilege.
The Applicant’s Class ‘G’ licence was reinstated in April 2012.
He was informed that in order to have his commercial licence reinstated he must file a report from his physician stating that he has remained seizure free on or off medication for five years and confirmation that his medication is within therapeutic range and is compliant.
In June 2012 Dr. V. submitted a letter in support of reinstatement of the commercial licence. He wished to clarify the seizure activity that was reported in November 2011. Originally it was stated that four seizures had occurred. In fact there was one seizure recurring three times in the space of an hour.
There was also an unreported, untreated seizure episode in 2009.
Dr. V. supported reinstatement of the commercial licence.
In response the Medical Advisory Committee for the Registrar recommended the five year period of seizure free on or off medication. The Registrar concurred and informed the Applicant accordingly. The Applicant saw his neurologist in June 2013 and the following letter was submitted to the Registrar:
He has had no seizures and he has been feeling well and healthy. He is taking Dilantin 100 mg 6 times daily. His last Dilantin level was 47 within therapeutic range taken April 1, 2013. He discontinued Effexor in 2011. At very rare intervals, he takes Ativan perhaps once every 3 or 4 months when he feels stressed and he is not on any other medications. At present he is not working, but he worked for 5 months in the mine and was then laid off. He does have a job involved in transportation to go back to.
All seizures occurred when he was wide awake and was aware that they were imminently coming on. In fact the last time, he phoned 911 and when the ambulance arrived, he was found on the floor just having had a seizure. There was thus a warning. His last EEG was in 2011 and as I previously stated was negative for seizures.
In July 2013 the Registrar reiterated the requirements for reinstatement to a commercial licence.
The Applicant then appealed the decision to downgrade..
The Applicant’s Evidence.
The Applicant stated that in 2009 he was involved in a motor vehicle accident and sustained a back injury. There was no head injury or seizure but he was confused and disoriented and was taken by ambulance to hospital where an EEG was performed.
He had been on an anti-depressant medication, Effexor, for two years due to stress at home and at work. He was seen in follow-up by his then family physician.
He started to see a walk-in clinic doctor in July 2012.
In November 2011 while driving late in the evening he began to feel unwell and he pulled his vehicle off the road and called his wife. He had ringing in the ears and an echo feeling in his hearing. He felt better when his wife arrived to take him home.
The following morning while his wife was at church he felt insecure while alone and he called 911. When the ambulance arrived he was found passed out on the couch, There was no tongue biting or loss of bladder control. While in the Emergency Room he had a series of four seizures within the space of about an hour. The last two were witnessed by his wife.
His wife was affirmed as a witness. She described him as shaking, clenching. She has witnessed epileptic seizures in her work and she did not see a similarity.
The Applicant was kept overnight and was started on Dilantin, an anti seizure medication and allowed home. He was not provided with documentation of his hospital visit.
He went to see Dr. V. a neurologist in Toronto and was informed that there was no evidence of epilepsy in the EEG but that he must remain on Dilantin for the rest of his life.
In reply to the Tribunal, the Applicant stated that he did not experience the symptoms described under section 17.1 of the CCMTA Guidelines for persons who have seizures and epilepsy.
ISSUES
Should the decision of the Respondent 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 Class ‘A’ 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
The Respondent relies on:
The Medical Condition Report filed in compliance with section 203 of the Act on November 6, 2009, that reported a diagnosis of seizure(s). This authorised the Registrar to suspend the Applicant’s driving privilege.
Following receipt of the report by the Applicant’s neurologist that cardiological and neurological assessments were normal, including EEG and MRI, the Applicant’s Class ‘G’ licence was reinstated in April 2012.
The Registrar was authorised by Regulation 340/94 to continue the suspension of the Class ‘A’ licence on the recommendation by the Medical Advisory Committee.
The Canadian Council of Motor Transportation Administrators (CCMTA) Section 17.6.11 is directed to commercial drivers who have been diagnosed with epilepsy except:
- Those who have had surgery for epilepsy
- Whose seizures only occur while they are asleep or immediately after awakening, and
- who have only simple partial seizures (no impairment in level of consciousness), the symptoms of which do not impair their functional ability to drive.
STANDARD: Eligible for a licence if no seizure for 5 years and conditions for maintaining a licence are met (routinely follows treatment regime and physician’s advice regarding prevention of seizures and cease driving and report to the authority and physician if a seizure occurs.
The Applicant relies on the reports following examination by the neurologist, Dr. V. that stated that no abnormalities were found on physical examination and EEG and MRI. He has been free of seizures for almost two years without any of the warning symptoms that were present before starting Dilantin. He has accepted that he must remain on Dilantin for the rest of his life and has a good relationship with his neurologist. He now takes Dilantin 300 mg twice daily.
He has been in counselling together with his wife to deal with the stress which he believes was a factor in the seizures.
He has learned to recognise the warning signs of an impending seizure episode with sufficient time to stop driving.
He has been under severe financial difficulty since the loss of his commercial licence and he has an offer of employment as soon as his commercial licence is reinstated.
The Tribunal finds that:
The Registrar was justified in suspending the driving privilege of the Applicant in 2011 upon receipt of a report of seizure, filed by a physician in compliance with section 203 of the Act.
Following a neurologist report that no abnormalities were found in the EEG and MRI and that no seizure had occurred following initiation of an anti-convulsant medication, the Registrar was justified in reinstating the Class ‘G’ licence with revocation of the Class ‘A’ licence.
Since there was no evidence to support a diagnosis of epilepsy, the Tribunal does not apply the CCMTA section 17.6.11 that is directed to commercial drivers who have been diagnosed with epilepsy.
The evidence by the neurologist Dr. V. who has repeatedly examined the Applicant and has not diagnosed epilepsy, carries more weight than the neurologist on the Medical Advisory Committee who has not seen the Applicant.
- Instead the Tribunal refers to CCMTA section 17.6.5 that is directed to commercial drivers who have:
- single unprovoked seizure,
- and are eligible for a licence if it has been at least 12 months since the seizure occurred and
- complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed,
- and CNS imaging and EEG results are satisfactory
In conclusion, the Tribunal finds that the Applicant does not suffer from any mental, emotional, nervous or 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 April 4, 2012 of the 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 Respondent be set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: September 27, 2013