Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-05-07
FILE:
8713/MED
CASE NAME:
8713 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
Appellant
Appellant
-and-
Minister of Transportation
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant:
David Marynuik, Paralegal
For the Respondent:
Kyle M. Biel, Agent
Heard in Toronto:
April 23, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant 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”).
FACTS
The Respondent’s Evidence
In April 2008, the Appellant suffered a seizure, with loss of consciousness, while loading a garbage truck. The Ministry of Transportation (“MTO”) was not notified.
On January 31, 2012, the Appellant experienced a seizure, in the morning, while loading a garbage truck and he was taken by ambulance to the local Emergency Room.
A Medical Condition Report was completed by Dr. S., an Emergency Room physician, pursuant to section 203 of the Act.
The condition reported was:
Seizure
Follow-up with Dr. S., neurologist.
The Appellant was informed by the Respondent on February 22, 2012 that his driving privilege was suspended under section 47(1) of the Act.
He was requested to take the letter of suspension to his physician and to have the following information forwarded to the Medical Review Section:
Probable cause of seizure(s)
A description of this and any previous seizure history
Confirmation if a diagnosis of epilepsy has been determined
Results of an EEG
Confirmation that medication is within therapeutic range and compliance, if prescribed
Confirmation of remaining seizure free
Date of last seizure(s)
(a) the results of all investigations conducted
(b) a diagnosis
(c) treatment
(d) current status
(e) confirmation that the condition is controlled
- Details of residual deficits and other disqualifying medical concerns, if any.
A report by the Appellant’s neurologist, Dr. S., was forwarded to MTO on August 30, 2012. The report was based on examinations on February 21, 2012 and May 16, 2012.
The report on February 21, 2012 stated that the first seizure in April 2008 consisted of loss of consciousness, frothing at the mouth and confusion. An MRI was performed and no medication was prescribed. An EEG was normal. Dr. S. reviewed the 2008 MRI and noted that there were some minor abnormalities not reported in 2008. There was no history of sleep deprivation or drinking.
She noted that the event on January 31, 2012 consisted of full body seizure while at work loading a garbage truck. She prescribed an anticonvulsant, Lamictal, at an escalating dosage.
On May 16, 2012, she found that the Appellant had not refilled the prescription for Lamictal after April 2012 and she changed the prescription to Vimpat, also an anticonvulsant. She told him that he had epilepsy and that he should see her in three months and should not drive.
The EEG was normal and the CT Scan showed some minor variations.
The Respondent informed the Appellant on July 5, 2012 that he must provide confirmation that he has been seizure free for six months, compliant with treatment and confirmation that he has restarted medication.
On August 1, 2012, Dr. S. confirmed that the Appellant had remained seizure free for six months and was continuing to take Vimpat which was well tolerated. She recommended reinstatement for a Class “G” licence.
On November 14, 2012, the Appellant’s Class “G” licence was reinstated.
He was informed that in order to be considered for a commercial licence, he must submit confirmation that he had remained seizure free, on or off medication, for a period of five years.
On January 25, 2013, Dr. S. switched his anticonvulsant medication to Dilantin 300 mg daily because of the cost of Vimpat. On examination on October 29, 2013, she found that he had not been taking his medication for the past year. She felt that he was lacking some insight of his condition. She renewed his prescription for Dilantin and informed the family physician that he must have regular laboratory monitoring.
The Respondent informed the Appellant that he must have an Epilepsy and Seizure form completed.
The family physician, Dr. M., completed the form which was sent by fax to MTO on January 24, 2014. The Appellant was under this doctor’s care since April 2012.
The form confirmed that the first seizure was over 5 years ago and the most recent seizure was 2 years ago and noted that both seizures were similar. No EEG or imaging was performed within the last 12 months. No etiology was found for the seizures. The Appellant was in compliance since November 2013, but no seizures had occurred while off medication between April and October 2013.
The Appellant submitted an appeal against the downgrade on March 25, 2014.
The Appellant’s Evidence
The Appellant described his occupation as a driver/loader of a municipal garbage truck.
This entails alternating driving and loading with his partner approximately every hour.
He stated that in April 2008, while loading, he had sudden loss of consciousness with some confusion and was off work for two weeks. He saw his family doctor, who arranged an MRI examination, but no report was sent to MTO and no medication was prescribed.
On January 31, 2012, he started work at 7:00 a.m. and he switched from driving to loading with his partner about three times. Between 11:30 a.m. and 12:00 noon, he was loading and collapsed. He discovered later that a homeowner saw him collapse at the rear of the truck and called an ambulance. He did not wet himself or bite his tongue. He regained consciousness in the Emergency Room.
He informed the Tribunal that he had normal sleep the night before the event and that he had not been drinking.
He has attended the neurologist, Dr. S., every three months and has also seen his family physician for laboratory tests since starting Dilantin. After the neurologist prescribed Lamictal, his sister paid for three refills and then he was off medication for six months due to the cost. He has been taking Dilantin 300 mg daily, since October 2013.
He has returned to work as a loader with significantly reduced pay due to the loss of his commercial licence.
ISSUES
Should the decision of the Respondent to change the class or class 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 Appellant 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:
- (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.
SUBMISSIONS
The Respondent relies on the Canadian Council of Motor Transport Administrators, (“CCMTA”), Section 17.6.11, criteria for holding a commercial driver’s licence following a downgrade for medical reasons. This stipulates a five year seizure free period since the last seizure.
Section 17.6.11 - Standard for commercial drivers states:
Commercial drivers are eligible for a licence if:
they have not had a seizure with or without medication for 5 years, and
the conditions for maintaining a licence are met
Routinely follows treatment regime and physician’s advice regarding prevention of seizures.
The diagnosis of epilepsy by the neurologist requires that the Respondent impose this five-year period since the last seizure, which was January 31, 2012.
The neurologist found that the Appellant showed a lack of insight into his condition when he remained off his medication for a period of six months.
Therefore, the Appellant should make an application in January 2017, when an up-to-date medical report will be required, confirming completion of the five year seizure free period and confirmation of compliance including regular laboratory proof of anti-seizure medication within the therapeutic range.
The Representative for the Appellant submitted that there is a case for waiving the CCMTA guideline for his client if he attends his neurologist every three months, has regular laboratory monitoring, and also because he works with a partner who is capable of detecting early warning signs of an impending seizure.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified in suspending the Appellant’s privilege that applies to a Class “D” commercial licence upon receiving confirmation of the diagnosis of epileptic seizure that occurred on January 31, 2012.
The Respondent is justified in continuing the downgrade until the Appellant submits a medical report, which confirms that he has remained seizure free for a period of five years and is compliant with anti-seizure medication.
The neurologist has expressed doubt as to the Appellant's insight into his condition when he stopped or failed to renew his anti-convulsant medication for approximately six months.
The Appellant has failed to produce medical evidence that he has remained seizure free for a period of five years as recommended by the Canadian Council of Motor Transport Administrators.
In conclusion, the Tribunal finds that the Appellant 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 Appellant to appeal the Respondent’s decision, effective November 14, 2012, 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 Appellant;
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
Kevin Flynn, M.D., Member
Released: May 7, 2014