Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-07-04
FILE: 8865/MED
CASE NAME: 8865 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: David W. Hurst, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: June 24, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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”).
Mr. Biel, informed the Tribunal of a Medical Condition Report filed by Dr. A.B. dated February 4th, 2014 regarding the Appellant. The doctor had ticked the box for seizure(s) – cerebral. His note stated that the Appellant had been seizure free for seven years and was on Lamotrigine and had been sleep deprived recently. He noted a tonic-clonic seizure with preceding aura.
The Ministry of Transportation (M.T.O.) wrote to the Appellant on February 7th, 2014 stating they had received a report indicating that he had a condition that affected his ability to drive safely. The reported condition was seizure. This letter went on to state that the Registrar of Motor Vehicles had decided to suspend his driving privilege under: Section 47(1) of the Act. In this letter, the Ministry required for reinstatement: the enclosed form to be completed in full and stated how they would proceed, upon its receipt. The enclosed form was one that applies to epilepsy and seizures and is quite detailed.
The Agent then entered a report from Dr. R.S. dated March 4th, 2014 in which Dr. R.S. stated:
“This is to inform you that this patient was seen by me in the office on February 27th, 2014. He is known to have epilepsy but has had no further seizures in the last seven years but in the presence of a newborn crying at night, the patient suffered sleep deprivation for several days and on February 2nd, 2014, he had a generalized tonic-clonic seizure in the afternoon around 4 p.m. He has made a rapid recovery from this and is now avoiding sleep deprivation and has had no further spells.
His neurologic examination on February 27th, 2014 was completely normal.
He is taking Lamictal 200mg B.I.D.
I feel that his explanation is satisfactory and he is now avoiding the provoking factor of sleep deprivation. I have no reason to believe that he poses a danger to himself or others on the road and would advocate for the restoration of his driving privileges.
An E.E.G. has been ordered but frankly we do not expect to find any major abnormality but I am prepared to send the results of the E.E.G. to the Ministry when it comes in.”
The Agent’s next entry was the completed epilepsy and seizure form, by Dr. S.(a neurologist) which disclosed the following information. The Appellant was born March 3rd, 1978. He was noted to have had a recent general tonic-clonic or grand mal seizure. His last previous seizure was greater than five years ago. There was no record of substance dependence. The patient had been taking prescribed anti-seizure medication, was compliant with recommended treatment and has appropriate insight. The provoking factor has been corrected. He had no surgery to prevent further seizures. The note stated that the recent seizure (after seven years free) occurred on February 2, 2014 after a 24 hour sleep deprivation period with care of a newborn infant (the Appellant is now sleeping on a separate floor). The neurological exam was normal.
On March 20th, 2014 the Ministry again reported to the Appellant that his driving privilege should remain under suspension. The Ministry required:
Confirmation that you have remained seizure free for a period of six months
Confirmation of your compliance with recommended treatment, if prescribed, and/or insight into your condition.
The next entry by the Agent was a letter from Dr. R.S. (neurologist) stating:
“This is to inform you that this man was reassessed neurologically in my office on April 4th, 2014. Further to the comments I have made in the attached letter, it seems that this man’s domestic situation has improved to the point where he no longer has sleep deprivation. His seizures have been generally under excellent control over the last seven or eight years but the events I described in my letter of February 27th, 2014 explain the extenuating circumstances under which he had a further seizure. I have now changed his medication which consists of Lamictal 200mg. B.I.D., which is an adequate dosage. His neurological examination today was again quite normal.
Frankly, I do not feel this patient poses a risk to himself or others on the road and I would ask that perhaps the Ministry have a careful look at his situation again to see that his driving privileges can be reinstated immediately. I think it is a hardship for him to have to wait six months under these circumstances but of course the ultimate decision lies in the hands of the Ministry.”
The attached letter, a copy of his first Medical Report, noted that the Appellant was taking Lamictal 200mg B.I.D.
On May 14th, 2014 the M.T.O. wrote once more to the Appellant, stating that the information previously requested has not been received. The M.T.O. required confirmation that he remained seizure free for a period of six months
The Agent then entered a certified copy of the Appellant’s driving record, listing one citation for speeding and also on the 14th of February 2014 a suspension for medical reasons. Demerit points were zero.
The Agent then entered a copy of the pertinent sections in the C.C.M.T.A. document with the emphasis on page 248, 17.6 epilepsy – non-commercial drivers. Herein it states that the standard required is that it has been six months since the seizure occurred with or without medication. The Agent then referred to a four page letter faxed from the Appellant including the E.E.G. report which was normal.
The Appellant, in presenting his case, noted his letter requesting an appeal regarding his grand mal seizure on February 4th, 2014. He described the interval of seven years seizure free that he had enjoyed and before that he had been taking Dilantin regularly for his known epileptic condition. On the advice of his neurologist, he changed this drug to Lamotrigine in the spring of 2007.
The Appellant pointed out that the doctor in emergency and also his neurologist referred to the fact that this episode had been triggered by significant sleep deprivation. The Appellant is a father of a newborn infant who had a significant gastric reflux problem causing much disturbance with crying during the night. The Appellant had been up all night on several occasions and he observed that this was his first serious sleep deprivation in seven years. He noted that he now sleeps on a separate floor away from the infant and as well the young child has had significant improvement in the reflux problem.
The Appellant described himself as a clinical psychologist belonging to a professional organization with high ethical standards and this includes recognition of the importance of many serious rules including the requirements of safe driving as part of his driving privilege.
The Appellant noted that his neurologist Dr. R.S. did a complete physical which was normal and an E.E.G. done on March 27th, 2014 was normal. He said that in keeping with his ethical commitment as a professional psychologist he would never consider asking for a restoration of his licence if he was at risk on the road. He was in full compliance when requesting this hearing.
The Appellant was diagnosed as an epileptic at the age of 17. He is now age 36. The Appellant had suffered two seizures previously while on Dilantin. It emerged on questioning that the Appellant on those occasions was under considerable stress, with exhaustion pertaining to his strenuous learning and study program at university which also involved significant travel. The Tribunal also learned that the child, (the cause of the sleep deprivation) is now in much better health and that the Appellant is sleeping on a separate floor. There have been some domestic problems because of these arrangements. It is worth noting that the Appellant also has a two year old daughter and when she was younger there had been sleep deprivation problems then as well but these were well tolerated. The Appellant observed that this sleep deprivation was much more severe. Questioning by the Tribunal elicited the fact that two seizures occurred prior to this seven year interval while the Appellant was training in the United States. He informed the Tribunal that he was subject to licence suspension there at that time.
SUBMISSIONS
Mr. Biel referred to the relevant sections of the Act regarding suspension. He explained that the Registrar had been correct with this suspension and that medical standards must be obeyed. He informed the Tribunal that the Act, at section 14 clearly states that no disabilities can be allowed for safe driving. The Agent observed that the diagnosis of epileptic seizure is clear. A six month interval free of seizures is required though he conceded that the Tribunal has the authority to find exceptions.
The Appellant in summary explained that there are no medical or safety problems now. This is confirmed by his neurologist. The Appellant said that he is now fully healthy and all his abilities restored. He notes that the Agent is correct in saying that no exceptions are allowed but that the Tribunal can observe exceptional factors here. i.e. the serious sleep deprivation problem has been corrected.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
Does the Appellant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, Section 14 states:
(1) An Appellant 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 Appellant 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 Appellants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the Appellant 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.
APPLICATION OF THE LAW TO FACTS
In compliance with the Act, the Registrar had no alternative but to suspend, upon receipt of the Medical Condition Report on the 4th of February 2014 indicating that the Appellant had suffered a grand mal seizure.
The Agent has clearly underlined the M.T.O.’s position stressing that their action is not punitive but only in the interest of highway safety and the wellbeing of the Appellant. The Appellant explained to the Tribunal that while his neurologist had indicated that he had changed the medication (anti-seizure drug) he was probably mistaken and in fact since switching from Dilantin he has always been on the same drug and the same dose.
The Appellant, a psychologist, has clearly stated his case showing excellent insight into the whole matter of seizure disorders and the requirements of the Act. His presentation has been succinct, with observance of his ethics as a professional, clear understanding of the fact that serious sleep deprivation was the etiological factor in this seizure. (It is a well known medical fact that sleep deprivation can be used in the study of possible epilepsy.) The Appellant is also aware of the significance of an aura enabling him to move to the side of the road and stop if such an occurrence happened while he was driving. It is now about five months since the seizure and the Appellant has had no further troubles. He is fully compliant with good insight. It is highly unlikely that another seizure will occur in the remaining 30 days required by the Registrar before re-licencing can be considered. The initiating factor in this event (sleep deprivation) has been corrected. Common sense indicates that an exception should be made.
Based on the evidence before it, the Tribunal finds, on a balance of probabilities, that the Appellant does not suffer from a medical condition likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated February 7th, 2014 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 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 set aside.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Presiding Member
RELEASED: July 4, 2014