Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-11-14
FILE:
8361/MED
CASE NAME:
8361 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
Applicant
Applicant
-and-
Minister of Transportation
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard in Toronto:
October 30, 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”).
INTRODUCTION
The 32-year-old Applicant lost his commercial driver's licence because of a seizure disorder. Although his Class “G” licence was restored by the Respondent, the Applicant needs his Class “D” licence re-instated for career advancement.
The Applicant challenges the Respondent's reliance on Section 17.6.11 of the Canadian Council of Motor Transport Administrators (“CCMTA”), "Determining Driver Fitness in Canada" on two counts.
Firstly, Section 17 titled, "Epilepsy - Commercial Drivers" - The Applicant says he has asked physicians many times if he has epilepsy and none have said "yes".
Secondly, the Applicant thinks a one-year seizure-free period is adequate and disagrees with the CCMTA standard of five years seizure-free before consideration of restoration of his commercial driving licence.
FACTS
The Respondent received a Medical Condition Report (“MCR”) dated February 1, 2013 from a physician, reporting pursuant to section 203 of the Act, following the Applicant's seizure (Exhibit 3, Tab 35) on the same date.
In a letter dated March 20, 2013 (Exhibit 3, Tab 36), the Respondent suspended the Applicant's driving privileges under section 47(1) of the Act and requested up-to-date medical information for consideration of restoration of his driver's licence.
The Applicant's previous documented seizure history is:
In a letter dated July 27, 2000 (Exhibit 3, Tab 1), a neurologist notified the Respondent he had advised the Applicant to no longer drive because of a seizure disorder.
In a letter dated October 11, 2000 (Exhibit 3, Tab 3), his neurologist refers to a previous neurologist's report -- "it appears that he did have bona fide seizures in 1993 on two occasions".
In a letter dated January 10, 2001 (Exhibit 3, Tab 6), the same neurologist added, "…, in November this gentleman did actually have a grand mal seizure". (The Tribunal infers this is November 2000).
An MCR, dated March 25, 2011 (Exhibit 3, Tab 25), was sent to the Respondent indicating "Seizure(s)-Cerebral". The Applicant "had a generalized or tonic-clonic seizure” on March 23, 2011 and was taken to a local hospital.
In a letter dated June 27, 2011 (Exhibit 3, Tab 27), another neurologist -- "he (the Applicant) had had three generalized convulsive seizures in his early teens".
In a letter dated April 9, 2013 (Exhibit 3, Tab 38), the same neurologist states “the Applicant had seizures in his youth, recurred 2011 with fatigue during a trip, and recurred again February 2013 with stress-associated fatigue”.
The Applicant was seizure-free, without medication, between July 27, 2000 and March 23, 2011.
In a letter to the Respondent dated August 8, 2013 (Exhibit 3, Tab 40), the Applicant's neurologist states, "it would seem reasonable to consider the reinstatement of
In a letter to the Applicant, dated September 16, 2013 (Exhibit 1), the Respondent approved the Applicant for a Class “G” driver's licence, requesting confirmation that he had remained seizure-free for a period of five years on/off medication. To retain his Class “G” licence, the Applicant was required to file a further submission from his treating physician by August 8, 2014.
ISSUES
Should the decision of the Respondent to change the class or classes 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 “D” 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 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.
APPLICATION OF THE LAW TO FACTS
The Respondent has made the case that the Applicant's driving privileges should be downgraded from a commercial licence to a Class “G” licence.
The Respondent was correct in suspending the Applicant's driving privileges in a letter dated March 20, 2013, following receipt of an MCR indicating a February 1, 2013 seizure.
The Respondent acted correctly in a letter dated September 16, 2013, approving the Applicant's medical report for a Class “G” licence, stating the Applicant no longer met the National Medical Standards for a commercial licence due to his seizure disorder.
The Respondent cites the CCMTA publication, "Determining Driver Fitness in Canada," Edition 12, September 2012 (Exhibit 3, Tab 45).
In Chapter 17 - "Seizures and Epilepsy" (page 241), epilepsy is defined as "a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause".
The Respondent also cites Section 17.6.11 (page 254) titled "Epilepsy - Commercial Drivers" which states the standard is:
Commercial drivers eligible for a licence if:
they have not had a seizure for 5 years, and
the conditions for maintaining a licence are met.
The Applicant says he is a "low risk" for another seizure. He attributes the March 2011 seizure to fatigue after a long drive to a convention and the February 2013 seizure to stress.
The Applicant is ambitious and wants to be promoted. He has worked hard at maintaining and upgrading professional standards, spending time away from his family to seek additional training and qualifications, in a job he has clearly enjoyed for the past 10 years. He believes he could be promoted if his commercial driver's licence is restored.
The Applicant is frank about recent stress in his personal life:
a "messy divorce" - loss of sleep
three children - concerns about their custody - loss of sleep
untoward reactions with a new anticonvulsant - change in mood, stomach-ache.
He says everything is now "on track". He is recently engaged, has shared custody of his children, sleeps much better, works days only and with his current anticonvulsants, he "feels like himself again".
He maintains driving a truck is no more dangerous than some of his occupational hazards. His last seizure was February 1, 2013.
In two letters to the Applicant's employer, his neurologist completes "Return to Duty Fitness Certificates". In a letter dated February 11, 2013, (Exhibit 2, Page 17/17), he says that "provided triggers are avoided, he should be able to function free of problems as he has in the past two years". An August 8, 2013 letter (Exhibit 2, Page 12/17) says he is "physically fit to return to active duty (with no limitations), once the MTO has cleared him for driving a motor vehicle".
The Applicant referred to three items in the CCMTA "Determining Driver Fitness in Canada" (Exhibit 3, Tab 45), which he believes support his case for a shorter seizure-free period, as follows:
- On page 243, second paragraph, "Recurrence of Seizures" - If the seizure is idiopathic and the individual's EEG is normal, the risk of recurrence is reduced.
The Applicant emphasized all his repeated laboratory and imaging investigations have been normal -- electroencephalograms (EEG) and magnetic resonance imaging (MRI). His seizures may be idiopathic; his neurologist suggests they may be due to being "overtired" and "missing medication".
- On page 244 - Section 17.6 Guideline for assessment:
Rationale for all epilepsy and seizure standards
The general approach of the guideline for drivers with epilepsy or who experience seizures is that seizures must be controlled as a prerequisite to driving.
Most of the guidelines include a requirement for a seizure-free period. The purpose of this requirement for a provoked seizure is to establish the likelihood that the provoking factor has been successfully treated or stabilized. For an unprovoked seizure, the purpose is to allow time to assess the cause, and where epilepsy is diagnosed, to establish the likelihood that
a therapeutic drug level has been achieved and maintained
the drug being used will prevent further seizures, and
there are no side effects that may affect the driver’s ability to drive safely.
The Applicant states he has never been told he has epilepsy, even after repeatedly asking physicians if he has epilepsy. Neither neurologist used the word "epilepsy", yet both describe recurrent seizures which is the current definition of epilepsy, i.e. recurrent seizures as noted on page 241of the CCMTA, Chapter 17, "Epilepsy".
- On page 248 - Section 17.6.5.
The Applicant stated "this category is the best fit", titled, "Single, unprovoked seizure - Commercial drivers".
17.6.5 Single unprovoked seizure – Commercial drivers
STANDARD: Commercial drivers 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.
Section 17.6.5 does not apply to the Applicant since he has recurrent seizures, not a single seizure.
The Applicant is relying on the fact that "epilepsy is not diagnosed". The Tribunal believes that the Applicant’s previous documented seizure history indicates recurrent seizures, and the Respondent's citation of Section 17.6.11 of the CCMTA "Determining Driver Fitness in Canada" is correct.
The Applicant has a documented history of recurrent seizures which, on a balance of probability and for the safety of both the Applicant and the motoring public, should be regarded as epilepsy as defined by the CCMTA (Chapter 17, page 241).
The Tribunal believes the Respondent has acted correctly in the letter dated September 16, 2013, in requesting a further assessment from the Applicant’s neurologist by August 8, 2014, to retain his Class “G” licence.
In conclusion, based on the balance of probability and mindful of the safety of both the Applicant and the motoring public, the Tribunal finds 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 dated September 16, 2013 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
D. Ian Turnbull, M.D., Member
Released: November 14, 2013