Licence Appeal Tribunal
Appeal en matière de permis
File: 8547/MED
Case Name: 8547 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
8547 Applicant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: D. Ian Turnbull, M.D., Member
Appearances:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard in London: February 4, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant 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 Applicant is a 56-year-old commercial driver whose Class C driver's licence was downgraded to a Class G licence in a letter from the Registrar dated December 19, 2012 (Exhibit 1) because of a history of loss of consciousness or awareness.
The Registrar received a routine Driver's Report from his family physician (Exhibit 3, Tab 1) dated April 17, 2012, indicating the Applicant has "a seizure in the past - no recurrence." The report stated the Applicant's initial seizure was November 2, 2011.
In June 2007, a passenger car struck his parked commercial vehicle head-on (an apparent suicide attempt), injuring the Applicant's right knee which required surgery. He also saw a psychiatrist for post-traumatic stress disorder (PTSD).
The Applicant believes this motor vehicle accident (MVA) had something to do with the events of November 2 and November 8, 2011. The initial event happened while he was driving a commercial vehicle, the second while he was driving with his family in his automobile.
The Applicant believed he had sustained a stroke. The episodes have been explained to him as being like a "charley horse" or muscle spasm.
After the second episode on November 8, 2011, he visited his family doctor who made appointments for him at the hospital Epilepsy clinic and Transient Ischemic Attack (TIA) clinic. The physician was uncertain (in a letter dated August 7, 2012) as to whether the Applicant had sustained a seizure or not in 2011. (Exhibit 3, Tab 7)
The Applicant was seen conjointly by a neurologist from the Epilepsy Clinic and a TIA Clinic physician on November 11, 2011. The medical information provided by the Applicant is described in the TIA physician's note dated November 22, 2011 (Exhibit 3, Tab 7). The note was significantly copied to the Epilepsy Clinic neurologist who concurrently ordered the standard tests for a possible seizure disorder:
- Cranial Magnetic Resonance Imaging (MRI)
- Cranial Computerized Axial Tomography (CAT/CT scan), and
- Electroencephalogram (EEG)
The detailed TIA physician's note, dated November 22, 2011, clearly states the Applicant had two simple partial seizures on November 2 and November 8, 2011.
In the TIA Clinic note of November 22, 2011, the Applicant also describes "one episode of hand-jerking movements during the night that caused him to wake up" and "he had a tongue bite while he slept in the last two weeks."
The Applicant was placed on anti-convulsant medication and advised to make another appointment with the Epilepsy Clinic.
The Tribunal is surprised neither the TIA Clinic physician, nor the neurologist sent a Medical Condition Report to the Registrar in November 2011.
In a letter dated July 26, 2012 (Exhibit 3, Tab 2), the Registrar asked the Applicant to provide "an up-to-date report from your treating physician or neurologist providing results of the scheduled Epilepsy Clinic assessment."
In a letter dated September 5, 2013 (Exhibit 3, Tab 15), the Registrar stated the Applicant's medical report had been approved for a Class "G" licence.
The Applicant sent a Notice of Appeal (Exhibit 2) dated January 9, 2014, and the Tribunal arranged an in-person hearing for February 4, 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 Applicant 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 C 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:
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 Registrar has made the case that the Applicant's re-instatement of his Class C driver's licence should not be considered until November 8, 2014, at the earliest.
The Registrar's medical evidence that the Applicant has epilepsy is convincing, particularly the two episodes while driving (November 2 and November 8, 2011) in Exhibit 3, Tab 1b). The Registrar focuses on the Canadian Council of Motor Transport Administrators (CCMTA) "Medical Standards for Drivers", Version 13, August 2013 (Exhibit 3, Tab 18), specifically Section 17.6.13, "Epilepsy with Simple Partial Seizures - Commercial Drivers".
17.6.13 Epilepsy with simple partial seizures – Commercial Drivers
STANDARD
Commercial drivers eligible for a licence if
- it has been 5 years since the last seizure OR,
- the driver is experiencing seizures but the seizure pattern has been constant for 3 years – and therefore no seizure free waiting period required
- favourable assessment from neurologist to drive
- no impairment in level of consciousness or cognition
- no head or eye deviation with seizures
- the conditions for maintaining a licence are met
Conditions for Maintaining Licence
- Routinely follow treatment regime and physician’s advice regarding prevention of seizures, if the driver is treated
- Must report to the authority and physician if the symptoms of seizures change
Reassessment
- Routine
The Registrar stresses that a three-year waiting period since the last seizure is required before consideration of restoration of the Applicant's driving privileges.
The Applicant steadfastly maintains he does not have epilepsy, so none of the CCMTA sections regarding epilepsy and commercial drivers are applicable. He states correctly that the MRI, CT scan and EEG done in November/ December 2011 were normal. He does not accept the current clinical definition of epilepsy on Page 240 of the CCMTA Guidelines, "a condition characterized by recurrent (at least two) seizures which do not have a transient provoking cause."
The Tribunal quotes the neurologist's Final Report from the Epilepsy Clinic in a letter dated January 16, 2013 (Exhibit 2), "The Applicant was seen in follow-up of his two seizures that occurred two weeks apart in November 2011 (exact etiology unclear)".
The Tribunal has difficulty reconciling the opinion of the Applicant's neurologist in a letter dated September 5, 2013 (Exhibit 3, Tab 16) with his earlier clinical notes. He concurred with the TIA physician's note of November 22, 2011, and prescribed an anti-convulsant.
Surprisingly the neurologist states on September 5, 2013 the Applicant "had two spells manifesting with sensory manifestations affecting the left upper extremity and face without impairment of consciousness" and continues "these may have been related to his MVA in 2007" and "a simple partial seizure should not have resulted in his ability to drive." The Tribunal notes the Applicant had two simple partial seizures in November 2011, confirmed by the same neurologist in letters dated September 19, 2012 (Exhibit 3, Tab 5), August 31, 2012 (Exhibit 3, Tab 8), January 18, 2013 (Exhibit 3, Tab 11) and May 1, 2013 (Exhibit 3 Tab 13).
The Applicant has been on anti-convulsant medication since November 22, 2011 and "usually" takes a tablet every morning. He has had no further episodes since November 2011 and wants to resume his regular way of life driving his commercial vehicle because "it's my life." Although he accepts the Class G licence, he believes the time should be shortened (from November 8, 2014) because "it's long enough" to be without his Class C licence.
Both for the safety of both the Applicant and the motoring public, the Tribunal considers:
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
The Tribunal finds, based on all the evidence, the Applicant does suffer from a physical condition (epilepsy) which is likely to significantly interfere with his ability to operate a motor vehicle of the applicable class (commercial class) safely.
The Tribunal agrees with the Registrar that the Applicant must provide evidence of a three-year seizure-free period before consideration of restoration of his Class "C" driver's licence.
DECISION
Upon the application of January 9, 2014 by the Applicant to appeal the decision dated December 19, 2012 of the Registrar to downgrade his driver's licence 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: February 11, 2014