Licence Tribunal
Tribunal d'appel en matière de permis
FILE: 8400/MED
CASE NAME: 8400 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
8400 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Kitchener: November 20, 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 51-year-old warehouse man who sustained a complex partial seizure on June 5, 2013.
The Registrar received a Medical Condition Report (MCR) dated June 14, 2013 (Exhibit 3 – tab 1) from his neurologist reporting pursuant to Section 203 of the Highway Traffic Act (HTA).
Details of the witnessed seizure (including a 2 minute loss of consciousness) are described in an attached note dated June 7, 2013 (Exhibit 3- tab 1a) from his neurologist. The Applicant was discharged from hospital June 7, 2013 on an anticonvulsant, (Exhibit 3 – tab 1b).
In a letter to the Applicant dated July 26, 2013 (Exhibit 3 – tab 2) the Registrar suspended his driving privileges pending receipt of additional medical information.
The Applicant completed the Registrar’s “Epilepsy and Seizures” form with his neurologist, (Exhibit 3 – tab 3) on September 5, 2013.
The neurologist states this was not this patient’s first seizure and the patient’s previous seizure was a “simple, partial seizure” occurring March 8, 2013.
The neurologist states the June 5, 2013 complex, partial seizure is different than the March 8, 2013 simple, partial seizure i.e.: a loss of awareness or consciousness.
An attached letter dated September 5, 2013 from his neurologist (Exhibit 3 – tab 3a) said “he has a history of a spell suspicious for a simple, partial seizure occurring on March 8, 2013.” The summary states “this gentleman had a history of a single complex seizure” and “please consider him favourably for return to driving.”
In a letter dated October 8, 2013 (Exhibit 3 – tab 4) the Medical Advisory Committee (MAC) of the Registrar reviewed all of the Applicant’s medical information. The Ministry required “confirmation that he had remained seizure-free for a period of 6 months.”
The Applicant filed a Notice of Appeal dated October 22, 2013 (Exhibit 2), and the Tribunal arranged an in-person hearing for November 20, 2013.
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 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 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 in a letter dated July 26, 2013 following an unsolicited MCR from his neurologist dated June 14, 2013.
Following receipt of the Epilepsy and Seizures report from the Applicant’s neurologist dated September 5, 2013 the Registrar is correct in maintaining the Applicant’s driving license suspension in a letter dated October 8, 2013.
The Registrar is correct in using the generally accepted definition of epilepsy (recurrent seizures) as described on page 240 of the Canadian Council of Motor Transport Administration (CCMTA), draft 13 - August 2013.
“Epilepsy refers to a condition characterized by recurrent (at least 2) seizures, which do not have a transient provoking cause.”
The Tribunal places great weight on the “Epilepsy and Seizures” form completed by his neurologist on September 5, 2013. Clearly he believes the Applicant has had 2 seizures both requiring hospitalization.
simple, partial March 8, 2013 and
a complex, partial on June 5, 2013.
Anticonvulsants were prescribed following the June 5, 2013 complex, partial seizure.
The Registrar is correct in citing CCMTA guideline, p 250, section 17.6.8
“Epilepsy with simple, partial seizures – Non-commercial driver” which asks for confirmation of a 6 month seizure-free period.
The Applicant states, with help from both “Dr. Google” and “Mr. Wikipedia”, that he does not believe he has epilepsy.
He theorizes that a pinched nerve in his low back in August 2011 accompanied by a “low immune system” morphed into a peripheral neuropathy which could have caused increased cerebral activity and a subsequent seizure. He describes the event of March 8, 2013 as a “slow cramping” of his right arm, in contrast to his neurologist’s description of a one minute episode of posturing and spasm of his right arm. He was hospitalized overnight.
The Applicant cites the Canadian Medical Association’s (CMA) publication (Exhibit 4) “Driver’s Guide Determining Medical Fitness to Drive” – 8th Edition, page 42, Section 11 “Nervous System”.
11.4.1 – “Single, unprovoked seizure before a diagnosis”. The CMA standard states no driving for at least 3 months. This does not apply to the Applicant since his neurologist states the Applicant has had at least 2 seizures (March 8, 2013 and June 5, 2013).
The Applicant produces Frequently Asked Questions (FAQs) from the website of the Epilepsy Foundation (Epilepsy Foundation.org). He states that “seizures are symptoms of epilepsy”, and do not prove a diagnosis of epilepsy. The Tribunal notes on the front page of the website epilepsy is defined as follows.
“Epilepsy is a medical condition that produces seizures affecting a variety of mental and physical functions. It’s also called a seizure disorder. When a person has two or more unprovoked seizures, they are considered to have epilepsy.”
In the Applicant’s summary he describes how difficult it has been for him without a driver’s license to maintain his part time job which requires him to respond on short notice, which he currently must do either by bicycle or walking. He worries the onset of winter weather will make it unsafe to get to and from work day or night. He has prospects for a 40 hour per week job if he can regain his driving privileges.
The Applicant’s relative lack of insight into his seizure disorder troubles the Tribunal. The Tribunal’s assessment of the Applicant’s insight into his seizure disorder is slightly different than his neurologist’s opinion.
The Applicant agrees another complex, partial seizure while driving could be catastrophic, but steadfastly maintains he does not have epilepsy. Yet, on June 5, 2013 he began anticonvulsant therapy which he will continue for at least 2 years.
Since all the repeated investigations, electroencephalograms (EEG), magnetic resonance imaging (MRI) and computerized axial tomography (CAT) scans are normal this is both “good news and bad news” to the Applicant. He repeatedly states – “there is no medical evidence that I have epilepsy”, (Exhibit 2), “there is no positive proof that I have epilepsy” and “there is no medical proof I have epilepsy”.
The Applicant is weeks short of a six month seizure-free period (December 5, 2013) required by the Registrar to consider restoration of his driving privileges. The Registrar’s last contact with the Applicant’s neurologist was Sept. 5, 2013. There has been no up-to-date confirmation of the Applicant being seizure free. The Applicant’s affirmed testimony states he has been seizure free since June 5, 2013 and the Tribunal believes him.
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.
The Tribunal is mindful of the safety of both the Applicant and the motoring public. Despite the Applicant’s curious denial of his clinical diagnosis of epilepsy, the Tribunal has determined that based on the evidence, affirmed testimony of the Applicant, submissions of both the Registrar and Applicant that it is not necessary for the Applicant to wait until December 5, 2013 before considering restoration of his driving privileges.
Accordingly, the Tribunal finds the evidence supports the conclusion that based on a balance of probabilities; the Applicant does not currently 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 (G) safely.
DECISION
Upon the application by the Applicant to appeal the decision dated October 8, 2013 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, M.D., Member
Released: November 26, 2013