Licence Tribunal
Appeal d'appel en Tribunal matière de permis
2014-06-04
FILE:
8786/MED
CASE NAME:
8786 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Dr. David Borenstein, Member and Dr. Katherine Whitehead, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Mr. Kyle Biel, Agent
Heard in Toronto:
May 22, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Appellant 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
On September 20, 2013, the Appellant’s psychiatrist Dr. H.R completed a Medical Condition report and sent it to the MTO. It stated the Appellant suffered from “Narcolepsy – uncontrolled (possible)”. The MTO notified the Appellant of a suspension of driving privileges in writing on November 1, 2013. The MTO requested documentation showing compliance and response to treatment for 3 months and a list of any sleep episodes in the previous 12 months with dates.
On January 24, 2014, Dr. H.R. wrote a letter in which he states that he sees her for medication management but is not her sleep specialist. There have been no sleep attacks since October 2013. The physician asked that her driving privileges be reinstated as soon as possible.
In March 2014, her psychiatrist also forwarded a consult note dated November 5, 2013 from Dr. E.S. who works as a sleep specialist at a recognized centre. The Appellant had undergone a sleep study and Multiple Sleep Latency Testing (MSLT). The physician noted that the Appellant didn’t take her regular medication, modafinil, on the day of testing but did take her other medications (Effexor and Lamictal) and that they would likely affect the daytime sleep results. She had normal sleep efficiency. There was an unusual amount of slow wave/deep sleep but that could be due to medications. This sleep type is consistent with her parasomnia-like symptoms. No REM sleep was noted during naps and thus the data does suggest pathological daytime sleepiness but this is usually unlikely to be narcolepsy and the patient’s psychoactive medications could play a role in the results. However, the patient was clear that her symptoms started prior to being on medications, thus narcolepsy would be the preferred diagnosis. The Appellant is now taking the brand name medication Alertec, instead of the generic modafinil, and she no longer experiences symptoms of sleepiness. Dr. E.S. recommended increasing the dose of Alertec in the morning for longer affect. The overall feeling of the sleep specialist is that it would be reasonable to inform the MTO that the Appellant’s sleepiness is controlled.
Upon review of these findings, the MTO still required 12 months of stability prior to removal of driving suspension, and informed the Appellant in writing on March 31, 2014. This was based on the advice of their neurology expert.
The Registrar’s case:
The sleep specialist’s note indicated that narcolepsy is the most likely diagnosis for the Appellant’s symptoms given that the symptoms started prior to medication use. The CCMTA standards dictate 12 months of stability of symptoms. The MTO strongly suggests that this standard is set by medical consensus and needs to be met.
The Appellant’s case:
She feels that there has never been an actual diagnosis of narcolepsy. She testified that the sleep specialist told her to change when she takes her medications and she has done so. There have been no further sleep attacks since October 2013. The medications that made her sleepy were Lamictal and Effexor and she now takes those at night.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
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.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver’s licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
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.
DECISION
Section 18.6.2 of the CCMTA standards for drivers covers recommendations for narcolepsy. The standard is;
- There have been no daytime sleep attacks, with or without treatment, during the past 12 months.
This 12-month period is the medical consensus in Canada, as it is felt that it allows for sufficient time to ensure a therapeutic drug level has been achieved and maintained, the drug being used will prevent further attacks and to ensure that there are no side effects that may affect the driver’s ability to drive safely.
Based on these standards, a period of 12 months observation from the last sleep attack is reasonable. This is especially true due of the fact that there is not a 100% diagnosis, and either narcolepsy or medication timing may have led to the initial symptoms. A note from either the sleep specialist or the regular psychiatrist at 1-year anniversary of her last symptoms would be acceptable. The Appellant’s current medication may not require level testing and the true test would be the appearance of symptoms or side effects. Should a physician’s note in October 2014 be favourable, it would be recommended to lift the suspension.
Upon the application by the Appellant to appeal the decision dated September 11, 2013 of the Registrar to suspend her 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 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 Registrar be confirmed.
LICENCE APPEAL TRIBUNAL
David Borenstein, Presiding Member
LICENCE APPEAL TRIBUNAL
Katherine Whitehead, Presiding Member
Released: June 4, 2014