Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 8353/MED
CASE NAME: 8353 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
8353 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: Kyle M. Biel, Agent
Heard in Owen Sound: October 21, 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
A periodic medical report performed by Dr. S. for renewal of a Class “A” licence on September 3, 2002, reported under History Details:
Marfan’s Syndrome with mild tricuspid regurgitation (Asymptomatic and of no significance), no change.
The Respondent informed the Applicant that he no longer met the medical standards for a Class “A” licence. He was requested to apply for a waiver of the medical standards.
His cardiologist, Dr. A., signed the medical waiver and he was approved on May 20, 2003 for a Class “A” licence with periodic 3 year medical reports.
On November 14, 2009, Dr. R., a physician at the local medical centre informed the Respondent that the Applicant had had an apparent seizure and that investigations were ongoing.
The Respondent informed the Applicant on December 16, 2009 that his driving privilege was suspended under section 47(1) of the Act.
He was requested to arrange for an up-to-date medical report with details of his medical history (with EEG, CT scan), prescribed treatment and cause for the seizure.
On March 1, 2010, Dr. B., a neurologist at a university health sciences centre wrote, summarized:
While in the garden on November 13, 2009, he had worsening headaches, unexplained yawning and spinning. He checked his blood sugar which was normal.
He went to the hospital where he continued to be dizzy and suddenly lost vision in the right eye for 5-10 minutes. He was allowed home and next morning had a tonic/clonic convulsion witnessed by his wife who described typical signs of grand mal seizures. He had post-ictal symptoms and was taken by ambulance to the Emergency where he had another seizure. He was started on Dilantin, which was changed to Lamictal because of difficulty achieving a therapeutic level.
His family history includes a brother with Marfan Syndrome, a first cousin’s daughter has epilepsy at age 3. He had a seizure episode in 2005 associated with hypoglycemia.
He was advised that he must stay on anti-seizure medication for the rest of his life.
On March 24, 2010, the Respondent informed the Applicant that the licence suspension would continue. His Class “G” licence would be considered for reinstatement after he submitted a detailed, up-to-date report from his treating physician or neurologist confirming that he had remained seizure free for a period of six months, and that his anti-seizure medication had been continued in the therapeutic range.
On May 24, 2010, Dr. S., his family physician, wrote that the Applicant’s last seizure was on November 14, 2009 and on June 15, 2010 his Class “G” licence was reinstated.
His Class “A” licence would remain suspended until he had remained seizure free for a period of five years.
On September 24, 2013, Dr. T., a family physician at the same clinic, wrote:
He has been seizure free for over four years. He has undergone lab work which gives evidence of adequate lamotrigine (Lamictal) levels, and is compliant with his treatment. He would like to increase his class of licensure. There is no medical contraindication to driving.
The Respondent informed the Applicant on October 3, 2013, that the five year seizure-free period would be required. The Canadian Council of Motor Transport Administrators (CCMTA) Guideline 17.6.11 - Epilepsy-Commercial drivers, the Standard is:
Commercial drivers eligible for a licence if
they have not had a seizure with or without medication for 5 years, and
the conditions for maintaining a licence are met.
The Applicant’s Evidence
The Applicant states that he has been employed as a Parks Supervisor with the Public Works Department for 14 years. During the summer, he operates small equipment and he operates small snow plows in the winter.
Because of his height (6 foot 6 inches) he has difficulty operating small machines and with a Class “A” licence he would qualify for operating large snow plows, which would also increase his earning power as well as qualifying for a more senior position. He has a motorcycle licence and therefore has some flexibility for transportation.
He has two drinks a week and is not a binge drinker. He understands that he must take anti-seizure medication for the rest of his life and that he must maintain a history of compliance with regular laboratory testing for therapeutic levels.
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:
- (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 Respondent 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 Respondent.
The Respondent relies on the CCMTA criteria for holding a commercial driver’s licence following a downgrade for medical reasons. This stipulates a five year period seizure free since the last seizure. The diagnosis of epilepsy requires that the Respondent impose this period from the last seizure, which was November 14, 2009.
Therefore, the Respondent’s Agent submits that the Applicant should make application in the Fall of 2014, when an up-to-date medical report will be required, confirming the completion of the five years seizure free and confirmation of compliance including regular laboratory proof of anti-seizure medication within the therapeutic range.
The Applicant made no additional submissions.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified in suspending the Applicant’s privilege that applies to a Class “A” commercial licence upon receiving confirmation of the diagnosis of seizures on November 14, 2009.
The evidence supports the conclusion that the Respondent is justified in continuing the downgrade until the Applicant submits a medical report, which confirms that he has remained seizure free for a period of five years and is compliant with anti-seizure medication.
In conclusion, the Tribunal finds, after careful consideration of the evidence before it, that the Applicant does suffer from a physical condition 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 effective June 15, 2010 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 confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: October 25, 2013