Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 9459/MED
CASE NAME: 9459 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 V
ehicles 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
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Mr. Kyle Biel, Agent
Heard in Toronto: April 22, 2015
REASONS FOR DECISION AND ORDER
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 June 4, 2014 the Appellant sought consultation with a sleep specialist due to episodes of sleep walking occurring approximately two times per week since the age of 14 years. This also involved excessive daytime somnolence with brief micro sleeps during this same period of time. Dr. M (the sleep specialist) provided very detailed notes as to the Appellant’s sleep history. He specifically noted that “there is no history of her falling asleep while operating a vehicle or stopping to rest because of hypersomnolence while driving.” The Appellant’s history is more consistent with falling asleep while inactive. Other medical history includes a bout of pneumonia and a history of fainting consistent with vasovagal syncope.
On July 20-21, 2014, the Appellant underwent a sleep study in the sleep laboratory. Her Epworth Sleepiness Score was 9, consistent with mild sleepiness. The rest of her napping pattern the following day in the lab was consistent with a diagnosis of narcolepsy, although the time it took her to fall asleep is on the border of pathologic and non-pathologic.
The results were given on August 6, 2014 and at that time, the Appellant did describe to her physician some history of muscle weakness with intense laughter, which the physician felt was consistent with cataplexy. Dexedrine was started as a therapy. It has since been titrated to 10mg in the morning, 10mg at lunch and 5mg at dinner. During the following visit, the physician noted “we have also notified the Ministry of Transportation as we are legally obligated to do.”
On October 6, 2014 the sleep specialist provided an up to date report. The Appellant was doing “very well with Dexedrine describing normal levels of alertness throughout the day and no problems with excessive sleepiness. She has not been experiencing any symptoms of cataplexy since her last visit with me on August 27, 2014 nor does she have hypnagogic hallucinations or sleep paralysis.”
In several letters, the Ministry of Transportation (MTO) has confirmed review of this information and has upheld the suspension of the Appellant’s driving licence that ultimately took effect on March 10, 2015. Initially, there had been issues with failure to receive documentation that had not allowed the Appellant to proceed with an appeal to the Tribunal under section 47(1) of the Act. In their most recent letter to the Appellant, the MTO still requests confirmation of no cataplexy, no daytime sleep attacks or no sleep paralysis in the past 12 months.
The most recent information provided by the physician is the Sleep Disorders and Narcolepsy Assessment required by the MTO and dated March 9, 2015. It confirms Narcolepsy as a diagnosis, successful treatment for > 3 months, no cataplexy for > 12 months, and the latest sleep attack < 12 months ago. And the physician states when asked in the survey that the current medication regime, for which she is compliant, does not impair the Appellant’s ability to safely operate a motor vehicle. Based on the various documents provided, it appears as though the Appellant has been completely symptom free for just over seven months.
The Registrar’s Evidence
The representative of the MTO did not disagree with any of the evidence provided above as whole, although there was a concern about the inconsistency of describing episodes of cataplexy in the physician’s August 6, 2014 note, and then stating the Appellant to be free of cataplexy for over a year in the sleep disorders assessment dated March 9, 2015. More importantly, it is felt by the Registrar that the Canadian Council of Motor Transport Administrators (CCMTA) guidelines should be followed, and thus, the Appellant should be required to prove the absence of symptoms for at least 12 months for both her safety and the safety of others.
The Appellant’s Evidence
She appeared at the hearing with her mother, who supported her following claims and who had been with her to the various physician appointments. The investigations all started after she sought out treatment for her fatigue prior to leaving to attend university as a psychology major. She states she would never drive if she felt tired and there has never been an incident while driving. She did not feel she was actually describing cataplexy to her physician as she merely meant to describe the feeling one gets after laughing really hard, of being winded and tired for a few seconds. Furthermore, the only time she can remember feeling a sleep attack was on the day after sleeping in the lab, in a very unnatural environment. Her symptoms have always been very mild and are controlled with a relatively small dose of medication, which is supported by the physician’s notes.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant suffer from a mental or physical condition likely to significantly interfere with her 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.
(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
The Canadian Council of Motor Transport Administrators (”CCMTA”) standards are such that in cases concerning narcolepsy, one must have the following:
No daytime sleep attacks, with or without treatment, during the past 12 months.
No episodes of cataplexy, with or without treatment during the past 12 months.
The rationale for these criteria is to establish the likelihood that a therapeutic drug level has been achieved and maintained, the drug being used will prevent further attacks and that there are no side effects that may affect the driver’s ability to drive safely. The period of 12 months is based on consensus medical opinion in Canada.
The Tribunal accepts all the medical history detailed above as the facts. It is not felt that there are inconsistencies, as the physician involved never stated a specific date of the last cataplexy episode and thus it could very well have been greater than 12 months ago.
It may be reasonable to assume that people with narcolepsy could have a greater chance of a motor vehicle accidents. However, having narcolepsy is not an automatic bar to driving; people with narcolepsy can still be permitted to drive if deemed safe. The CCMTA Guidelines suggest that being symptom free of narcolepsy symptoms for 12 months allows for greater safety driving than being symptom free for a lesser or greater amount of time. While this may be true for many cases, there is nothing definitive about a specific cut-off at 12 months. Guidelines are important, but not absolute. In assessing whether to follow this CCMTA guideline, some important questions to be asked are: does a person understand the nature of their illness, the side effects of their illness, the side effects of their medications, and the limitations their illness may create? Furthermore, is the person compliant with their treatment and do those physicians following them feel they are safe to drive?
The Appellant in this case is a young woman who on her own accord actively sought out answers to a physical concern she did not understand. She has been diligent about follow up with her physician. She has been taking her medications. She has never reported an episode of sleepiness while driving and her physician feels she is safe to drive. Additionally, her mother – who obviously shows appropriate concern for her daughter, and is logically the person to most observe the symptoms – feels the Appellant is safe to drive. And she has been the closest observer of the effects of this condition. Dr. M appears to have written to the MTO based on his interpretation of his legal obligations, but he has not documented any real concern with the Appellant driving. In the follow-up survey, Dr. M stated the drugs the Appellant takes should not interfere with her ability to drive.
Based on this medical evidence and the testimony of the Appellant and her mother, the MTO has not made out their case to compel the Appellant to arbitrarily wait another 4 - 5 months to prove she is any safer to drive on the one-year anniversary of starting medication. The Tribunal finds that the Appellant does not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated December 18, 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 Borenstein, M.D., Member
Released: May 1, 2015