8793 v. Registrar of Motor Vehicles, 2014 CanLII 30053

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-27

FILE:

8793/MED

CASE NAME:

8793 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 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:

D. Ian Turnbull, M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Kyle M. Biel, Agent

Heard by teleconference:

May 21, 2014

DECISION AND REASONS

This is an appeal from a decision of the Minister, pursuant to Section 32(5)(b)(i) of the Highway Traffic Act, to change the Class or Classes of Motor Vehicles in respect of which the licence was issued.

PRELIMINARY MATTERS

The Appellant, with consent of the Minister’s Agent, entered Exhibit 4 (three pages) consisting of an imaging report and a laboratory report, both dated April 29, 2014.

FACTS

The Appellant is a 55-year-old transport truck driver who had a seizure April 8, 2013.

The Minister received a Medical Condition Report (MCR) dated April 8, 2013 (Exhibit 3, Tab 1) from a hospital Emergency Room physician reporting pursuant to Section 203 of the Highway Traffic Act (HTA) stating the Appellant had a cerebral seizure.

In a letter dated April 16, 2013 (Exhibit 3, Tab 2), the Minister suspended the Appellant’s driving privileges under Section 47(1) of the Highway Traffic Act (HTA) and asked the Appellant to take the attached "Epilepsy and Seizures form" to his physician to be completed and send it to the Medical Review Section (MRS) for consideration of restoration of his driving privileges.

In his neurologist's letter dated September 25, 2013 (Exhibit 3, Tab 4), "the seizure started with right-hand clonic movement then progressed to a generalized clonic tonic seizure with good recovery."

In his clinical note of September 25, 2013 (Exhibit 3 Tab 4) his neurologists states

“His MRI scan shows findings that are strongly suggestive of MS (multiple sclerosis). Indeed he has typical lesions in the white matter of the brain with a “solitary left frontal enhancing lesion, which is subcortical. This is the presumed origin of his seizure.”

Having reviewed the neurologist's completed form (Exhibit 3, Tab 3), dated September 23, 2013 and the accompanying clinical note,( dated September 25, 2013) in a letter dated October 29, 2013 (Exhibit 1), the Registrar downgraded the Appellant’s driver’s licence from Class A (Commercial) to Class G (Passenger).

The letter further stated the Appellant would need to provide confirmation that he had remained seizure-free for five years before restoration of his commercial driver’s licence could be considered.

A follow-up letter from the Appellant’s neurologist, dated March 7, 2014 (Exhibit 3, Tab 7), was sent to the Minister’s MRS stating the Appellant had been entirely well with no seizures. The neurologist continued, "an MRI (Magnetic Resonance Imaging) of the brain showed stable intracranial findings suggestive of multiple sclerosis with no evidence of contrast enhancement in the left frontal region, indicating the inflammation in that region had subsided."

The neurologist summarized:

• This man had a seizure in the context of radiologically isolated syndrome of possible multiple sclerosis
• He is seizure-free on Carbamazepine
• His neurologic exam remains normal
• Another MRI scan was scheduled for six months to verify stability
• and "he is very reliable and conscientious individual who takes his medication regularly"

A letter to the Appellant dated March 24, 2014 (Exhibit 3, Tab 8) reiterated the Minister’s position of October 29, 2013 – i.e. confirmation that the Appellant had remained seizure-free for a period of five years on or off medication.

A Notice of Appeal (Exhibit 2), dated April 27, 2014, was sent to the Tribunal and a teleconference hearing was arranged for Wednesday, May 21, 2014.

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 A licence?

LAW

The relevant statutory provisions state as follows.

Section 32(5)(b)(i):

32. 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 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 Minister has made the case that the Appellant’s driving privileges should remain downgraded until confirmation of being seizure-free for five years on or off anti-convulsant medication.

The Minister cites the Canadian Council of Motor Transport Administrators (CCMTA) and “Medical Standards for Drivers”, Version 13, August 2013.

There is no dispute the Appellant had a single seizure April 8 , 2013 and has had none since. He has been on anti-convulsant medication.since April 8, 2013

In Section 17.1, Page 240, of the C.C.M.T.A. guidelines, epilepsy is defined as:

a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause. The cause of the epileptic seizures may be known or unknown.

The Appellant has had a single, unprovoked seizure and a possibly epileptogenic lesion consistently identified by repeated MRIs over the past 13 months in the left frontal lobe of his brain.

The Minister recognizes some individuals with a single unprovoked seizure and structural abnormalities (demonstrated by MRI) have an increased risk of a second provoked seizure

Section 17.1 of the CCMTA Guidelines, Page 242, "Recurrence of Seizures" states:

The estimated risk of a recurrence after an initial unprovoked seizure ranges from 23% to 71% with the average risk of recurrence for adults being 43%. If the seizure is idiopathic (i.e. the cause is unknown) and the individual's electroencephalogram (EEG) is normal, the risk of recurrence is reduced. Individuals who experience a partial seizure and have an abnormal EEG or other neurological abnormality, have an increased risk for seizure recurrence. A family history of epilepsy also increases the risk of recurrence.

The electroencephalogram (EEG) (Exhibit 3, Tab 4b) report, dated October 9, 2013, mentioned in the neurologist’s note was reported as "normal EEG during wakefulness and drowsiness.

The Minister cites Section 17.6.11 (Page 253) – Epilepsy – Commercial Drivers."

This standard applies to commercial drivers, who have been diagnosed with epilepsy, except:

• whose seizures only occur while they are asleep or immediately after awakening, and (17.6.12)

• who have only simple partial seizures (no impairment in level of consciousness), the symptoms of which do not impair their functional ability to drive (17.6.13).

See guideline 17.6.12 for commercial drivers who meet this standard and then change medication.

STANDARD

Commercial drivers 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

Conditions for

Maintaining Licence

• Routinely follows treatment regime and physician's advice regarding prevention of seizures
• Cease driving and report to the authority and physician if a seizure occurs

Reassessment

• Routine

Information from

Health Care Providers

• Date of the last seizure
• Details of the driver's treatment regime, including length of time the driver has been on or off antiepileptic medication
• Opinion of treating physician on whether the driver is compliant with their treatment regime

The Minister believes the STANDARD is prudent since another seizure while driving a transport truck could have “catastrophic” results

The Minister’s agent states there is no recommendation from his neurologist that the Appellant is safe to drive a commercial vehicle. The Appellant states he has two letters from his neurologist indicating "my condition was a one-time event and little chance of recurrence."

The Neurologist’s September 25 2013 is supportive of the Appellant. His follow-up note of March 7, 2014 is non-committal, only saying “the patient would like a reassessment of his Class A licence suspension, if possible”. The neurologist does not offer an opinion in either letter as to whether the Appellant could operate a commercial vehicle safely or not.

The MRS is concerned the Appellant’s daily dose of Carbamazepine has been increased from 800 mg daily to 1,000 mg daily. The Appellant states this is to get within the therapeutic range, “the sweet spot,” i.e. between 25-51 umol/L.

In his direct testimony, the Appellant says, "this has been the scariest episode of my life," and has "gotten worse." In his Notice of Appeal, he states "he has lost $15,000 income this year and stands to lose a lot more if I don't get my AZ licence back.”

He says he has been a year without symptoms or a seizure and feels he does not pose any risk for recurrence and "that he can do his job safely and well."

The neurologist states in a follow-up note dated March 7, 2014, “an MRI scan on October 23, 2013 showed stable intracranial findings suggestive of multiple sclerosis with no evidence of contrast enhancement in the left frontal lobe.” He continues, “this man has had a seizure in the context of a radiologically isolated syndrome of possible multiple sclerosis.” He notes “the patient is a very reliable and conscientious individual.”

The Tribunal finds the Minister acted correctly in suspending the Appellant’s driving privileges, effective April 13, 2013, following receipt of a MCR from a physician reporting pursuant to Section 203 of the HTA.

The Appellant did not sustain a provoked seizure "caused by transient factors with no structural abnormality." The Appellant has a structural abnormality in the left frontal region of his brain, possibly multiple sclerosis seen on five M.R.I. scans, since April 8, 2013

There are no precise seizure recurrence rates for individual patients; but, if the estimated risk of another seizure after two seizures is 23% to 71%, and the risk is similar in a patient with a structural brain lesion and a single seizure, then the Tribunal must be cautious. The Tribunal agrees with the Minister's Agent that restoring a commercial licence without an extended period of observation would not be prudent. There are no hardship provisions in the HTA for long suspensions.

The Tribunal agrees with the Minister that the Appellant is at increased risk for a recurrent seizure following his single unprovoked seizure, probably caused by a lesion in his left frontal lobe, possibly multiple sclerosis.

The Tribunal concurs with the Minister that a five-year seizure-free suspension, with or without anti-convulsant therapy, is appropriate.

The Tribunal is mindful of the safety of both the Appellant 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;

In conclusion, the Tribunal finds that the Appellant is currently suffering from a medical condition (possibly epilepsy) 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 October 29, 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: May 27, 2014