Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-12-06
FILE:
8388/MED
CASE NAME:
8388 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:
Anastasia Dagounakis
For the Respondent:
Russell McKnight/ Agent
Heard by teleconference:
November 29, 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
While vacationing abroad the Applicant fell while riding a moped on May 11, 2013 and struck her head. A computerized axial tomography (CAT) scan at the time was unremarkable.
Weeks later the Applicant began suffering headache and dizzy spells. Because the symptoms increased in severity the Applicant returned to Canada on July 1, 2013.
The Applicant attended a teaching hospital on July 4, 2013 and was told “there is nothing we can do for you”, and was sent home.
The Applicant had a grand mal seizure in her bed on July 7, 2013 and was hospitalized. A CAT scan showed a right subdural hematoma which was removed the same day through a burr hole.
The Applicant was discharged to her family physician and placed on an anticonvulsant (Dilantin).
When the Applicant met with her regular family physician on October 1, 2013, the physician was “shocked” that the Registrar had not already suspended the Applicant’s driving privileges.
Accordingly, in a letter dated October 1, 2013 (Exhibit 3 – tab 1) and pursuant to Section 203 of the Highway Traffic Act (HTA) she reported the Applicant’s seizure to the Registrar.
In a letter dated October 4, 2013 (Exhibit 3 – tab 2) the Registrar suspended the Applicant’s driving privileges (effective October 14, 2013).
The same letter attached the Registrar’s “Epilepsy and Seizures” form for the Applicant to complete with her physician and to be forwarded to the Registrar’s Medical Review Section (MRS).
In a letter dated October 28, 2013 the Applicant sent pages 1 and 5 of the “Epilepsy and Seizures” form. On page 1 her doctor stated – “seizure secondary to traumatic subdural hematoma”, and summarized on page 5 – “Burr hole surgery to release hematoma July 7, 2013 has been effective. No further headache or seizures.”
In a letter dated November 6, 2013 (having reviewed the Applicant’s “Epilepsy and Seizures” form, the Registrar maintained the Applicant’s driver’s licence suspension pursuant to Section 47 (1) of the HTA.
- The Tribunal arranged a teleconference hearing for November 29, 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 her 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 made the case that the Applicant’s driving privileges should remain suspended.
The Registrar acted correctly in suspending the Applicant’s driving privileges upon receipt of the Applicant’s physician’s letter dated October 1, 2013 reporting a seizure on July 7, 2013.
The Tribunal notes the Applicant would have been attended by several physicians July 7, 2013 for removal of her right subdural hematoma, but no Medical Condition Report (MCR) was received by the Registrar at that time.
In her Notice of Appeal, the Applicant refers to her “Acute subdural hematoma”. The Tribunal understands this is a life-threatening condition, and notes the CAT scan of May 11, 2013 did not show a subdural hematoma.
The development of symptoms (headache and dizziness) over the next few weeks is in keeping with a chronic subdural hematoma, seen on a July 7, 2013 CAT scan.
The Registrar turns to Ontario Regulation 340/94 Section 14 where it states in (2) (a) “The Minister may take into consideration the relevant medical standards…set out in the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers, August 2013, draft 13.”
In Chapter 17 Seizures and Epilepsy, page 244; Section 17.6.1. it states:
17.6.1 Provoked seizures caused by a structural brain abnormality:
This standard applies to drivers who have experienced provoked seizures caused by a structural brain abnormality such as:
a brain tumour
stroke
subdural hematoma, or
aneurysm.
STANDARD:
All drivers eligible for a licence if:
they have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
it has been 6 months since the provoking factor stabilized, resolved, or was corrected, with or without treatment, and they have not had a seizure during that time
the treating neurologist or neurosurgeon indicates that further seizures are unlikely
Conditions for maintaining licence: None
Suggested Reassessment:
If a seizure occurred within the past 12 months, reassess in 1 year
If a seizure occurred more than 1 year ago, or if no further seizures are reported after the initial reassessment, reassess in 5 years
If no further seizures are reported during those 5 years, at the discretion of the Authority.
Both the Applicant and the MRC believe the subdural hematoma was the cause of the grand mal seizure on July 7, 2013 and are equally certain the removal of the right subdural hematoma has corrected the provoking factor. The postoperative CAT scan dated August 1, 2013 (Exhibit 4) shows no intracranial abnormality.
Currently, the Applicant only lacks confirmation of a 6 month seizure free period. By CCMTA definition (page 240) the Applicant does not have epilepsy i.e. recurrent seizures. There is no indication from her family physician that further seizures are likely. The Tribunal concurs with the Registrar that waiting until January 2014 before considering restoration of the Applicant’s driving privileges is reasonable.
The Applicant is compliant with her anticonvulsant medication as prescribed, and has monthly blood testing for Dilantin levels. She has insight into the possible consequences of driving and having a seizure – “she would never put anybody in danger”. She currently feels “fine” and has no headaches. The loss of her independence in not being able to get into a car is “beyond painful”, and wishes to be reinstated as soon as possible.
The Tribunal is mindful of the safety of both the Applicant and the motoring public.
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 considered all the evidence and finds, on a balance of probabilities, the Registrar has acted properly in continuing the suspension of the Applicant’s driving privileges.
DECISION
Upon the application by the Applicant to appeal the decision dated October 4, 2013 of the Registrar to suspend her driving privileges and having evidence filed with the Tribunal and the submissions of the Registrar and 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 confirmed.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Presiding Member
Released: December 6, 2013