8432 v. Registrar of Motor Vehicles, 2013 CanLII 83564

Licence Appeal Tribunal

DATE: 2013-12-13

FILE: 8432/MED

CASE NAME: 8432 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

8432 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Kevin Flynn, M.D., Member

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Kyle Biel, Agent

Heard in Brockville: December 4, 2013

DECISION AND ORDER

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 Respondent’s Case

The Applicant suffered a grand mal seizure secondary to a craniotomy for removal of a benign brain tumour in June 2000. His driving privilege was suspended under section 47(1) of the Act after his physicians, Dr. M., family physician and Dr. W., neurologist notified the Registrar in compliance with section 203 of the Act. The medical condition reported was a complex partial seizure which was treated and controlled by anti-seizure medication, Epival 250 mg four times daily, with no recurrence of seizure.

His driving privilege was reinstated on November 17, 2000.

On September 7, 2012, Dr. M. reported a seizure due to non-compliance while on a motorcycle trip in the United States. The Applicant’s driving privilege was again suspended under section 47(1) of the Act.

On October 4, 2012, the Registrar informed him that in order to be considered for reinstatement he must submit a completed Epilepsy and Seizure Form. He was advised of his right to an administrative review and of his right of appeal.

A letter to the Registrar was sent by Dr. M. in February 2013, which stated as follows:

While on a motorcycle trip in the USA he became somewhat complacent about his medication compliance and suffered a seizure on August 4, 2012 and was found to have sub-therapeutic levels of valproic acid. He had his dose increased and then suffered a second seizure in late September, 2012. At that time he was started on Keppra as a second agent and has been seizure free since that time, total duration five months. His compliance has been diligent.

I hope that consideration will be given to re-instatement of his driver’s licence once he reaches the six month seizure free period on medication.

The Registrar informed the Applicant on March 8, 2013 that he must submit a letter by his physician that he has remained seizure free for a period of six months and confirmation that he is compliant with recommended treatment and/or has insight into his condition.

Dr. M. submitted a letter to the Registrar on March 13, 2013 confirming that the Applicant has been seizure free since September 27, 2012 and that his compliance has been diligent and successful.

The Registrar informed the Applicant on April 19, 2013 that his driving privilege was reinstated. He would be required to submit a further medical report on March 26, 2014.

On August 15, 2013, the Registrar received a Medical Condition Report in compliance with section 203 of the Act from an Emergency Physician, Dr. Z., reporting a seizure.

On September 23, 2013, Dr. M. wrote to the Registrar as follows:

His condition has been completely controlled on a combination of Keppra 500 mg twice daily and Divalproex 500 mg three times daily.

On August 15, 2013 he inadvertently ran out of his Keppra and made arrangements with his pharmacy for an immediate refill. While he was awaiting this refill he had a generalized seizure for which he was transported to the hospital. Subsequent to this he saw Dr. D. (neurology) who reviewed his medication regimen and history and felt that this regimen was appropriate. He recognized the temporary relapse in medication and acknowledged that this could result in a breakthrough seizure.

realizes that even a one day relapse could result in a seizure and is committed to maintaining an adequate and back-up supply of medication and be compliant at all times.

It is my opinion that (he) is safe to operate a motor vehicle; this single seizure was the result of extenuating circumstances and as such SHOULD NOT have his driver’s licence suspended. I have been supervising his medical care for many years and can attest to his compliance as well as the fact that this occurrence was due to extenuating circumstances out of his immediate control.

The Epilepsy and Seizure Form was completed by Dr. M. on October 7, 2013, and provided the following responses:

Primary medical condition: Seizures, Post craniotomy

Latest seizure: less than 3 months ago; Generalized tonic/clonic or Grand Mal

Previous seizure: less than 12 months ago

Was the previous seizure different than the current seizure? No

The seizure pattern has been consistent for more than 5 years

EEG within the last 12 months: yes

Did EEG show signs of epileptiform activity? No

Was this a sleep deprived EEG? No

Has the patient had an imaging test within the last 12 months? Yes. Result was not abnormal.

The etiology of the seizure was post craniotomy.

Was the patient taking prescribed medication? Yes

Has anti-seizure medication been prescribed? Yes

Has the patient been compliant with recommended treatment regimen (i.e. no significant pattern of misuse of medication or missed appointments)? No

Does the patient have appropriate insight of his medical condition and the impact on their functional ability to drive? Yes

Has the provoking factor stabilized, resolved or been corrected? Yes

Has the patient had surgery to prevent further seizures? No

Comment: This single seizure resulted from one day lapse in medication due to refill gap. He was arranging to refill his meds at the time.

On November 5, 2013, the Registrar informed the Applicant that it had been determined that his driving privilege should remain under suspension.

In order to be reinstated he must submit a report that confirms six months seizure free; compliance with recommended treatment and insight into his condition.

The Applicant’s Case

The Applicant confirmed that he had a seizure secondary to a craniotomy for removal of a benign brain tumour in 2000 and that he remained seizure free while on medication under supervision by his family physician until he became complacent with his medication while on a motorcycle trip with others in the USA in August 2012. He was able to pull off the road and lie on the ground before the seizure occurred. His friends called an ambulance and he was taken to a local hospital where laboratory tests showed lower than therapeutic levels of his anti-seizure medication. He was started on Keppra and when he returned to Canada, his family physician reported to the Registrar under section 203. He then became more compliant and his licence was reinstated in April 2013.

Four months later on August 15, 2013, he was in the position of being short of funds and while at the employment insurance office for his cheque, before picking up his refill at the pharmacy, he had a seizure due to missing two doses of his medication. He was taken to the local ER.

Since then, he has developed several back-up plans to ensure that he never misses his doses, supported by his family physician, his wife and friends who are aware of the risk of missing his medication. In addition, he has become active in addressing epilepsy groups on the importance of compliance.

He is presently on Keppra 250 mg four times daily and Divalproex 500 mg three times daily.

He has applied to the Ontario Trillium Drug Plan in order to supplement his income for these life-long medications.

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 grounds set out in section 14(1) of the Regulation as 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.

The Respondent relies on:

1. The Registrar was justified in issuing a suspension of the Applicant’s driving privilege upon receipt of medical reports of seizure due to missed doses of anti-seizure medication.

2. The Canadian Council of Motor Transport Administrators (“CCMTA”) Standard 17.6.6 is addressed to non-commercial drivers who have been diagnosed with epilepsy.

3. These drivers are eligible if it has been six months since the seizure occurred with or without medication.

4. The driver must follow treatment and physician’s advice regarding prevention of seizures. The treating physician is expected to give an opinion on whether the driver is compliant with their treatment regimen.

5. O. Reg. 340/94, section 14, which states that the driver 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.

6. The family physician in completing the Epilepsy and Seizure Form in the question:

Is the patient compliant with recommended treatment regimen (i.e. no significant pattern of misuse of medication or missed appointments? Checked “NO”.

7. The Ministry requests a period of six months stability since the last seizure.

The Applicant relies on the unforeseen circumstance of his last seizure due to lack of funds for his medication. Lack of ability to drive deprives him of employment and financial stability and has caused stress on his marriage. He submits that he has taken extreme measures in order to prevent a recurrence of the situation that led to the last seizure.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant’s driving privilege under section 47(1) of the Act, upon receipt of medical reports of epileptic seizure, in compliance with section 203 of the Act.

The Applicant became complacent with his anti-epileptic medication during a motorcycle trip in the USA in 2012 and as a result he suffered a seizure. He subsequently became stabilized with a new regimen. Due to temporary financial difficulties, he missed one day’s medication dosage in August 2013 and suffered another seizure.

In the context of the whole of the information put forward by Dr. M., the Tribunal interprets the negative response by the family physician to the question on compliance referred to in the submission by the Respondent as meaning that the Applicant demonstrated no significant pattern of misuse of medication or missed appointments rather than lack of compliance.

The Tribunal is satisfied that the lessons learned by the Applicant as a result of these two failures will have a lasting effect, especially since the precautions taken by him and his family, with the support of his family physician, will result in significantly reduced risk of recurrence of missed doses of his anti-seizure medication.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a condition 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 effective October 7, 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

Kevin Flynn, M.D., Member

Released: December 13, 2013