Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE :
2014-01-06
FILE:
9220/MED
CASE NAME:
9220 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 Registrar of Motor Vehicles Pursuant to Section 32(5)(b)(i) – to change the Class or Classes of Motor Vehicles in Respect of Which the License was issued.
Appellant
Appellant
-and-
Minister of Transportation
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Ian Turnbull, MD, Member
APPEARANCES:
For the Appellant:
Mark Reynolds, Paralegal
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
December 10, 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
In November 1989, in the week prior to a Caribbean vacation, the Appellant (then age 26) took over the counter (“OTC”) cough syrup and decongestants. Two days before the trip, he sustained two witnessed tonic-clonic seizures (separated by 10-30 minutes) at work.
His driving privileges were suspended on December 14, 1989 and he started anticonvulsant medications. His Class A licence was restored July 10, 1992 and he stopped his anticonvulsant medication. He had no seizures until the current event, on March 27, 2013.
The Respondent received an unsolicited Medical Condition Report (MCR) dated March 28, 2013 indicating the Appellant had a single witnessed, unprovoked seizure on March 27, 2013. The Appellant states he had the flu in late March 2013 and took OTC cough syrups and decongestants.
In a letter dated May 27, 2013, the Respondent suspended the Appellant’s driving privileges and requested completion of the Epilepsy and Seizures form.
The Appellant has had any no seizures since March 27, 2013. Investigations show:
Clinical neurologic exams – no abnormality.
Electroencephalogram (EEG) – no abnormality.
Computerized axial tomography (CAT) of his head – March 28, 2013 “a 0.5 cm left temporal lobe low density focus…it is unlikely this would act as a seizure focus.”
Magnetic Resonance Imaging (MRI) – May 24, 2013 – “no abnormal enhancing focus.”
By letter dated December 24, 2013, the Respondent reinstated the Appellant’s Class G driver’s licence and asked him for confirmation that he had been seizure-free for 5 years, either on or off anticonvulsant medication.
A letter dated November 20, 2014 (Exhibit 3 – tab 22) re-stated the Respondent’s December 24, 2013 requirement for a 5-year seizure-free period to regain his commercial (A) licence.
ISSUES
Should the decision of the Respondent to change the Class or Classes of motor vehicles in respect of which the licence is issued be varied, modified or set aside?
Does the Appellant suffer from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely, with a Class A 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.
(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 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 THE FACTS
The Respondent has made the case that the Appellant needs to be seizure-free for 5 years i.e. until March 2018, with or without anticonvulsant medication.
The Respondent was correct in suspending the Appellant’s Driver’s licence in a letter dated May 27, 2013 under Section 47(1) of the Highway Traffic Act.
In a letter dated October 8, 2013, the Respondent, having received the completed Epilepsy and Seizures form was correct in continuing the suspension and asking for proof of a six month seizure-free period.
In a letter dated December 24, 2013, the Respondent restored the Appellant’s Class G licence. In the same letter, the Respondent asked for confirmation that the Appellant had been seizure-free for 5 years, either on or off anticonvulsant medication, in order to reinstate his commercial licence.
The Respondent cites the August 2013 version of the guidelines of the Canadian Council of Motor Transport Administrators (CCMTA), Medical Standards for Drivers. On page 253, the guidelines state as follows:
17.6.11 Epilepsy – Commercial Drivers
This Standard applies to commercial drives, who have been diagnosed with epilepsy
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.
The Appellant’s medical evidence is set out in a letter dated May 9, 2014 from his current neurologist. She writes, regarding reinstatement of his Class A driver’s licence:
“IMPRESSION AND PLAN “
The (Appellant) had two seizures in his lifetime, technically he meets the criteria for the diagnosis of epilepsy. However, the seizures were so far apart and he has been seizure-free not on any medication for so many years, so I think it is possible to make an exception for him and use the 12 month seizure-free route in this case.”
She also states “Both seizures occurred in the context of having a cold and taking anti cold medication”.
The Appellant’s representative queried if his client even has epilepsy, given the 23 years between seizures. He stated that all investigations have not turned up a cause for his seizures and suggested pseudoephedrine could play a role.
In affirmed testimony, the Appellant states “all I’ve done all my life” is drive a truck. Currently, he works for the same employer with reduced wages because he does not have his Class A driver’s licence
In addition to his current neurologist’s note of May 9, 2014, the Appellant’s 63 page Notice of Appeal includes the following information:
A letter dated August 30, 2013 in which his previous neurologist, Dr.J.L. states he had “seen a few cases where cold medications can induce seizures”.
In 1991 his family physician suggested his 1989 seizure could have been caused by a viral infection
He is compliant with anticonvulsant medication, currently taking 500 mg Keppra b.i.d., and is currently in good health.
The Appellant’s previous neurologist, in a letter dated July 4, 2013, states the Appellant “had been fighting the flu-like illness for 2 days before the (March 2013) seizure.”
Having received his neurologist’s clinical note dated September 19, 2014, the Respondent replied in a letter dated November 20, 2014.
Without giving reasons, the Respondent stated the Appellant no longer meets the National Medical Standards for a commercial licence due to his reported seizure disorder. (C.C.M.T.A. Section 17.6.11 ,Epilepsy-Commercial Drivers page 253)
The Tribunal is not convinced there is a cause and effect link between the Appellant’s ingestion of OTC remedies for colds and the flu, and his seizure(s).
- Dr. J.L. states the Appellant took the preparations the week before his 1989 seizure(s).
- In his note dated July 4, 2013, he stated the Appellant “… had never had any trouble with this medication” in reference to his March 27, 2013 seizure.
- The Appellant should continue to carefully read all pharmaceutical preparations, and avoid pseudoephedrine
- There is insufficient evidence to show that an ordinary amount of pseudoephedrine would cause the Appellant’s seizures. The Tribunal believes it would take extraordinary amounts of OTC preparations to suggest pseudoephedrine as a causative factor for the Appellant’s seizures,even factoring in variations in individual susceptibility.
The Tribunal refers to the CCMTA definition of Epilepsy in the August 2013 Version Edition 13 (page 240).
“recurrent (at least two) seizures which do not have a provoking cause”.
The Tribunal agrees with the Appellant’s neurologist, it is unusual to have a 23 year interval between seizures.
The unexpected March 27, 2013 seizure is the proof the Appellant has epilepsy.
The Tribunal cites the CCMTA guidelines, Section 17.1 Recurrence of Seizures.(pg.242)
‘The estimated risk of recurrence after an initial unprovoked seizure ranges from 23% to 71% with the average risk of recurrence for adults is 43%”.
The Tribunal believes the Appellant has an underlying tendency for generalized epilepsy, and the Tribunal is concerned he may have another unprovoked seizure.
Although the Appellant had no seizures for 23 years (November 1989 – March 2013) another unpredicted seizure could happen again.
The Tribunal again refers to the CCMTA guidelines Section 17.1 (pg. 242)” Treatment for Seizures and Epilepsy”:
“Seizure patterns in individuals with epilepsy may change over time, and seizures may eventually stop”.
The latter part of this carefully worded sentence suggests epilepsy may never be either resolved or cured.
“Many of those who achieve seizure-free control are eventually able to stop taking anti-epileptic drugs and remain seizure-free. However, the relapse rate with drug withdrawal is at least 30-40%”.
The current CCMTA Standard for Epilepsy-Commercial Drivers ( Section 17.6.11 ) which asks for confirmation of a 5 year seizure-free period , with or without medication, covers the majority of Class A drivers with seizures, The Tribunal has not been provided with sufficient evidence or reasons to depart from this standard.
The Appellant’s history of seizures is unique and although in some respects he is an “outlier “ the Tribunal believes the Appellant should be limited to a Class G driver’s licence.
The Tribunal agrees with the Registrar that the Appellant has epilepsy; the cause is not detectable by modern investigative techniques. Even though the Appellant’s risk of another seizure might be small, the Tribunal must carefully weigh that with the public safety considerations for a Class A licence. The Tribunal recognizes the effect of this decision on the Appellant’s livelihood, although regrettably the Act has no provision for hardship.
The Tribunal is mindful of the safety of both the Appellant and the motoring public. A seizure while driving his commercial vehicle could be catastrophic.
The Tribunal cites Ontario Regulation 340/94 section 14(1) (a):
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;
The Tribunal finds that based on the balance of probabilities, the Appellant does currently suffer from a neurological condition (epilepsy) likely to significantly interfere with his ability to drive a motor vehicle of the appropriate class (A) safely.
DECISION
Upon the application by the Appellant to appeal the decision dated December 24, 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, 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
D. Ian Turnbull, M.D., Member
Released: January 6, 2015