Licence Appeal Tribunal
FILE: 9600/MED
CASE NAME: 9600 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
9600 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia and Sonia De Santis, Agents
Heard in Toronto: June 25, 2015
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 following is a summary of the facts presented to the Tribunal at the hearing.
The Appellant is appealing the suspension of his Class “G” driver’s licence. His licence was suspended on February 16, 2015. This was in response to a Medical Condition Report filed by an Emergency Room (“E.R.”) physician after the Appellant went to the E.R., following a seizure on February 2, 2015.
The Appellant stated that he had been sick in the days preceding his seizure and as a result had been sleep deprived.
The Appellant stated that every time he has had a seizure in the past, he has felt the same way. He described his pre-seizure symptoms as an “aura” to his seizure. Some hours before each seizure, he experiences a “fogginess and delay in thought process while still being cognizant of my surroundings”. He also stated that he has had this feeling without it resulting in a seizure, and he has been able to resolve his symptoms by sleeping for several hours.
On February 2, 2015, the Appellant experienced his typical “aura”.
He rested for several hours and felt better, but not completely recovered. He had a meeting to chair at his local soccer club, and decided to go to the meeting. The Registrar’s Agent asked the Appellant why he went to the meeting if he felt poorly. The Appellant stated that it was of great personal importance for him to go to this meeting, that it was something he had been preparing for for a long time, and that the people at the meeting were “like his family”. He said he thought that he was well enough that he would not seize or become more unwell when he went to the meeting. Due to the fact that he was not feeling totally better, he asked someone else to chair the meeting and had another person drive him to the meeting as a precaution.
A member of the soccer club wrote a letter to say that the Appellant had told him “things are a little foggy; it’s better if you guys do all the talking”.
The Registrar’s Agent asked the Appellant if he felt he was putting the person who drove him to the meeting at risk had he seized in the car. The Appellant responded that the person who drove him was well versed in his condition and used to dealing with emergency situations. Given this, the Appellant felt that had a seizure occurred in the car, it would not have put anyone in danger.
He was at the meeting when he seized and went to the hospital by ambulance.
In the Medical Condition Report, the E.R. physician noted that the Appellant had suffered a seizure that night, that he had recently had an upper respiratory tract infection for which he had been treated with antibiotics, and that his last seizure had been 2-3 years ago.
The Appellant said that his last seizure was 14 years ago. He does not clearly remember all of the things that he said to the E.R. physician when he arrived as he was in a post seizure state and not his usual self. He believes that this is either a misunderstanding or an error in reporting and confirmed to the Tribunal that, with the exception of the seizure on February 2, 2015, he has been seizure free for 14 years.
The Ministry of Transportation provided the Appellant with an “Epilepsy and Seizures” form which was filed by the Appellant’s neurologist on February 24, 2015.
This form (along with a written narrative from the neurologist ) stated that the Appellant had his first seizure at the age of 19, had a lifetime history of six seizures, had suffered a tonic clonic seizure on February 2, 2015 in the setting of illness and sleep deprivation, the seizures were prevented by the current medication regimen, the medication (Phenytoin) was being taken as prescribed, the blood level of Phenytoin was therapeutic, and that the provoking factor of the seizure was stabilized, resolved or corrected.
The neurologist also provided the opinion that the seizure was probably provoked (by sleep deprivation) and as long as the provoking factor had been eliminated, he should continue his seizure free state.
Follow up letters from the neurologist said that the Appellant’s seizures have always been preceded by a warning which lasts several hours and that he does not drive if he has this warning. The neurologist said “The presence of a consistent aura prior to the seizure would certainly be an argument that his driving should not be an issue”.
The Appellant’s family doctor wrote a letter which generally re-iterated the neurologist’s assessment.
An EEG report from March 30, 2015 was mildly abnormal but the neurologist said that the general rule is to “treat the patient and not the test” and did not recommend any further neurological testing or medication change.
An MRI done on May 11, 2015 was essentially normal. The only thing noted was minor angiopathic change or gliosis. This is not likely to be related to seizures and is likely an incidental finding.
The Registrar’s Agent referred to the Canadian Council of Motor Transport Administrators (“CCMTA”) standards for epilepsy, which recommends 6 months seizure free before drivers are eligible for a licence.
Since only four months have elapsed since the last seizure, the Registrar’s position is that the licence should remain suspended.
The Appellant’s position is that his situation represented an exceptional case because his seizures can be predicted, the last seizure was provoked by sleep deprivation and the cause of the seizure is now removed.
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, emotional, nervous or physical condition or 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 grounds set out in section 14(1) of the Regulation set out above.
Section 50 of the Act states:
- (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
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is not suffering from a condition, which is likely to significantly interfere with his ability to operate a motor vehicle safely.
The Appellant does suffer from a seizure disorder. Seizures can suddenly and unexpectedly cause major functional impairments and/or loss of consciousness.
If a person with a seizure disorder is to drive safely, it must be demonstrated that they are unlikely to seize while driving. One way to demonstrate this is a period of stability without seizures. The CCMTA standards for epilepsy recommend 6 months seizure free before drivers are eligible for a licence. These standards can be considered but the Tribunal is not bound by them.
In this case, the uniqueness of the Appellant’s seizure disorder justifies departure from the standard guidelines.
The presence of a seizure warning, which precedes the seizures by several hours, allows the Appellant to predict times of danger and voluntarily stop driving. This is not a standard feature of a seizure disorder. The sudden and unexpected nature of seizures is what makes them dangerous for driving. The Appellant’s seizures are sudden but, due to his aura, when they come are not unexpected.
This aura feature only mitigates risk if the Appellant can appreciate the aura signs and has the capacity to act on them.
As one of the features of his aura is “fogginess”, there could be question of whether the Appellant has the necessary presence of mind to make the decision not to drive when he is in his pre-seizure state.
The fact that the Appellant made alternate arrangements for transportation and had someone else perform his executive function at his meeting, demonstrate that he does possess a critical level of reasoning ability and judgment when he is in his “foggy” state.
By these preventative actions, the Appellant has demonstrated the appropriate use of his warning symptoms. He has voluntarily avoided the situation that many people with a seizure disorder cannot. He has avoided potentially seizing while driving.
It might also be questioned why, if he thought he might seize, did he go to the meeting at all? The Appellant provided reasons for this (specifically that he thought his seizure probability was low and that the meeting was important), but the Tribunal need not concern itself with the finer points of his judgment on this issue.
It is sufficient to conclude that his mental capacity is intact enough, even in a pre-seizure state that he decides not to drive. Further, he decides not to drive even if he thinks his seizure potential is low.
Sleep deprivation was a provoking factor for this seizure. This was a known provoking factor for the Appellant. This suggests a reliable pattern of lowered seizure threshold (of which the Appellant is aware). This provoking factor is now removed and thus so is the seizure risk.
The presence of an aura and a provoking symptom, coupled with the Appellant’s demonstrated avoidance of driving in the face of risk factors, make his seizure situation safer than is usual.
His narrative was consistent and reliable. The neurologist’s reports supported the clinical facts that the Appellant told the Tribunal. The neurologist supported the argument that the Appellant’s consistent aura enables safe driving and that his seizures are prevented by his current medication.
In consideration of the above facts, the Tribunal concludes that the Appellant does not suffer from a physical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the Registrar’s decision, effective February 16, 2015, 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
Katherine Whitehead, M.D., Member
Released: July 6, 2015