8333 v. Registrar of Motor Vehicles, 2013 CanLII 69332

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-18

FILE:

8333/MED

CASE NAME:

8333 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:

D. Ian Turnbull, M.D., Member

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Russell McKnight, Agent

Heard in Kitchener:

October 10, 2013

DECISION AND REASONS

This is an appeal to the Licence Appeal 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

1. The Applicant is a 37-year-old small businessman who sustained a nocturnal seizure April 26, 2013.

2. An Emergency Room physician at a local hospital sent a Medical Condition Report, dated April 26, 2013, to the Registrar, reporting pursuant to Section 203 of the Highway Traffic Act (HTA), (Exhibit 3, Tab 1), checking the "Seizure(s) - cerebral" box.

3. In a letter dated May 2, 2013 (Exhibit 3, Tab 2), the Registrar suspended the Applicant's driving privileges under Section 47(1) of the HTA and asked the Applicant to supply information to its Medical Review Section (MRS) for consideration of restoration of his driving privileges.

4. The Applicant saw a neurologist in early May 2013 who arranged various tests, beginning with an electroencephalogram (EEG) without sleep deprivation. A Magnetic Resonance Imaging (MRI) procedure followed.

5. In a letter dated August 7, 2013 to the Registrar (Exhibit 3, Tab 3), the neurologist stated the nocturnal seizure was "unprovoked" and "we have not treated him for the single event." The EEG was normal and the MRI showed minor microangiopathic changes.

The neurologist stated, "I am writing this letter to advocate for licence re-instatement as it would seem reasonable to consider licence re-instatement," and continued, "he has had no further events for three months now." No follow-up visit was scheduled.

6. The neurologist appended the completed "Epilepsy and Seizures" form to his letter of August 7, 2013, stating the cause of the Applicant's seizure was unknown. No anticonvulsants were prescribed.

7. In a letter dated August 30, 2013 (Exhibit 1), the Registrar requested two further information before consideration of restoration of the Applicant’s driving privileges:

• confirmation of a seizure-free period of six months, and

• confirmation of the Applicant's compliance with recommended treatment (if prescribed) and/ or insight in his condition.

8. The Applicant reviewed the Canadian Council of Motor Transport Administrators (CCMTA) "Determining Driver Fitness in Canada", Edition 13, August 2013 (Exhibit 3, Tab 5).

Reading Chapter 17, "Seizures and Epilepsy," the Applicant thought he should seek early re-instatement of his driving privileges and filed a Notice of Appeal (Exhibit 2), dated September 11, 2013.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?

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.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver’s licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

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 Registrar has not made the case that the Applicant's driving privileges should remain suspended.

The Registrar was correct in suspending the Applicant's driving privileges following receipt of a Medical Condition Report, dated April 26, 2013, indicating the Applicant had sustained a seizure.

The Registrar was correct in asking for medical information to be forwarded to its MRC in a letter dated May 2, 2013.

Following receipt of this requested information in a letter dated August 30, 2013, the Registrar was correct in asking for additional medical information.

The Registrar requires a six-month seizure-free period, i.e. from April 26 - October 26, 2013, as proof of stability of the Applicant's clinical condition. The Registrar has received no additional medical information in response to the letter dated August 30, 2013, from either the Applicant's family doctor or neurologist. In sworn testimony, referring to his neurologist's letter dated August 7, 2013, The Applicant states "the neurologist's personal timeline for seizure-free interval is three months," but the neurologist adds, "the Registrar will have the final say."

The Applicant sees his family doctor annually, and no return visit was scheduled with his neurologist in August 2013. There is only the Applicant's sworn testimony that he has been seizure-free since April 26, 2013.

The Registrar’s six-month seizure-free requirement is based on CCMTA Section 17.6.7 on page 249 which states as follows.

17.6.7 - Epilepsy with seizures only while asleep or upon awakening – Non-commercial drivers

STANDARD

Non-commercial driver eligible for a licence if:

• it has been 6 months since the last seizure OR,
• the driver is experiencing seizures but seizure pattern has been consistent for at least 1 year- and therefore no seizure free waiting period required
• the conditions for maintaining a licence are met

Conditions for maintaining licence:

• Routinely follow treatment regime and physician’s advice regarding prevention of seizures, if the driver is treated
• Routinely follow physician’s advice regarding continued monitoring of your seizures
• Report to the authority and physician if the pattern of seizures changes

Reassessment

• Routine

Information from health care providers

• Description of the seizure pattern
• Whether the seizure pattern has been consistent for at least 5 years
• Details of the driver’s treatment regime
• Opinion of treating physician on whether the driver is compliant with their treatment regime

But on page 240 of the August 2013 version of the CCMTA Guidelines, epilepsy is defined as “recurrent seizures”.

“Epilepsy:

Epilepsy refers to a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause. The cause of the epileptic seizures may be known or unknown (idiopathic).”

The Applicant states that 17.6.7 and the six-month seizure-free period do not apply to him because he has not had another seizure since April 26, 2013. CCMTA Paragraph 17.6.7 would apply if and when the Applicant had another seizure.

The Registrar’s Agent acknowledges the CCMTA document is “silent” on the handling of a single nocturnal seizure and says the Registrar is being “cautious” in adhering to a six-month seizure-free period.

The Applicant is a credible witness and candid regarding his predicament. He has managed his business by bicycle this summer, but wishes to regain his driver's licence. The Tribunal believes his sworn testimony when he says he has been seizure-free since April 26, 2013.

The Tribunal agrees with the Applicant's contention that he is close enough to the six-month seizure-free period for the Registrar to consider restoration of his driving privileges.

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;

The Tribunal has determined, based on the evidence, that it is unnecessary for the Applicant to wait another few days for consideration of restoration of his driving privileges.

In considering the entirety of the evidence, sworn testimony and submissions of the Registrar and the Applicant, the Tribunal is mindful of the safety of both the motoring public and the Applicant.

The Tribunal finds the evidence supports the conclusion that based on a balance of probabilities, the Applicant does not suffer from a seizure disorder 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 dated August 30, 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

D. Ian Turnbull, MD, Presiding Member

RELEASED: October 18, 2013