Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-09-16
FILE:
9040/MED
CASE NAME:
9040 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:
D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle M. Biel, Counsel/ Agent
Heard by teleconference:
September 11, 2014
REASONS FOR DECISION AND ORDER
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”).
FACTS
The Appellant is a 23-year-old paramedic who has been treated with carbamazepine (Tegretol) for epilepsy since 2005.
On June 11, 2014, he forgot to take one of his two daily doses of 500 mgm and had a tonic-clonic convulsion and attended a hospital Emergency Room (ER). His serum carbamazepine level was 14 umol/L (normal range 17-50), (Exhibit 2, Page 4).
An ER physician sent a Medical Condition Report (MCR), dated June 11, 2014 to the Registrar, pursuant to Section 203 of the Highway Traffic Act (HTA), (Exhibit 3, Tab 6), indicating the Appellant had a seizure with "slightly subtherapeutic levels (of Tegretol) in hospital."
In a letter dated June 16, 2014 (Exhibit 3, Tab 7), the Registrar suspended the Appellant's driving privileges (effective June 26, 2014) and asked the Appellant to provide:
A letter from his physician confirming the seizure disorder
and; confirmation that he had not had another seizure, and that his condition had remained stable for six months
- In a letter dated June 17, 2014 (Exhibit 3, Tab 8), his physician stated that the Appellant:
Had his first siezure in 2005 at age 13, and was started on anti-convulsant medication.
His next seizure was in 2009 at age 18, having missed a dose of medication.
His most recent seizure (June 11, 2014) also was caused by a missed dose of anti-convulsant medication.
The Appellant is otherwise stable and safe, "he is paying a phone service to call him twice a day as a reminder, and is making sure he has Tegretol with him at all relevant places in his life.”
- The Registrar responded in a letter dated June 25, 2014 (Exhibit 3, Tab 9), asking for the Appellant to provide:
Confirmation from his treating physician that he had remained seizure-free for a period of three months and has re-established previously effective treatment regimen for a Class G licence, and
Confirmation the Appellant had remained seizure-free for six months and has re-established previously effective treatment regiment for a Class "F" licence.
- The Registrar's Epilepsy and Seizure Form (Exhibit 3, Tab 10) was completed with his physician on July 2, 2014.
In Part 3, his doctor indicates:
Anti-seizure medication has been prescribed (Tegretol, 500 mg twice a day).
Seizures are prevented by the correct regimen.
The Appellant has been compliant with the recommended treatment regime, and
The Appellant has appropriate insight into his condition and impacts on his ability to drive safely.
In Part 4, "Additional Comments" - the doctor says:
The Appellant inadvertently missed a dose of medication (June 11, 2014) precipitating the seizure. His seizures have been 100% controlled by Tegretol.
The Appellant has put in place a phone reminder system to make sure he never misses another dose.
He is a reliable young man and he supports rapid re-instatement of his licence.
In a letter dated August 19, 2014, (Exhibit 3, Tab 12) the Registrar, having reviewed the Epilepsy and Seizure report, determined the Appellant's driving privileges should remain suspended because insufficient time (six months) had elapsed to ensure his condition had been adequately controlled, repeating the same conditions for "G" and "F" licences in the letter dated June 25, 2014.
The Appellant filed a Notice of Appeal (Exhibit 2) dated August 13, 2014. In his reasons for appeal, the Appellant wants to have his "G" and "F" licences restored concurrently and states as follows.
He maintains the low serum carbamazepine level at the hospital ER on June 11, 2014 (Exhibit 2, Page 4) is proof the seizure was due to a missed dose of Tegretol for which he bears full responsibility.
A random carbamazepine serum determination dated July 9, 2014 (Exhibit 2, Page 18), is 34 umol/L (normal range 25-51 umol/L). He states this proves he has normal therapeutic levels when taking the anti-convulsant as prescribed.
He needs an "F" licence to return to work as a paramedic. The Ontario Ambulance Act states a paramedic "must hold and maintain a driver's licence that authorizes that person to drive an ambulance."
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Does the Applicant suffer from a physical disability likely to significantly interfere with his ability to drive a motor vehicle safely?
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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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
The Registrar has not made the case to continue the suspension of the Appellant's "G" and "F" licences pursuant to Section 47 (1) of the Act.
The Registrar was correct in suspending the Appellant's driving privileges in a letter dated June 16, 2014, following receipt of a MCR from a physician reporting pursuant to Section 203 of the HTA, indicating the Appellant had sustained a seizure.
Ironically, the seizure occurred exactly three months prior to this hearing. The Appellant has an appointment with his physician on the afternoon of the hearing who will likely confirm he has been seizure-free for three months and is compliant with treatment. Currently, the Appellant does not hold a driver's licence.
The Registrar's Agent points out the Canadian Council of Motor Transport Administrators (CCMTA) Guidelines (Exhibit 3, Tab 13) does not directly address the issue of "missed" anti-convulsant medication doses and subsequent seizures.
The Medical Review Section of the Registrar believes Chapter 17 - Seizures and Epilepsy -Section 17.6.10 (Page 252) comes closest to addressing this issue.
The preamble of "Epilepsy with Medication Change - Non-Commercial Drivers" states:
the Standard only applies when the driver's epilepsy was controlled prior to the change, or withdrawal from medication.
this means they should not have a seizure for at least six months prior to the change or withdrawal of medication.
The Appellant's confirmed testimony is straightforward. He knows "he messed up and made a mistake." He is paying for a phone service which calls him daily at 9 am and 9 pm to remind him to take his medication.
The Tribunal believes the Appellant when he says he "will not be more stable in six months than he is today." His physician indicates he has insight into his condition, is compliant with therapy and at low risk of having another seizure.
He now carries anti-convulsant medication on his person, as well as in his vehicle, parent's home and workplace.
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;
The Tribunal is mindful of the safety of both the Appellant and the motoring public. Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective June 26, 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 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 Registrar be set aside.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Member
Released: September 16, 2014