Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9531/MED
CASE NAME: 9531 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 Vehicle in Respect of Which the Licence was Issued
Appellant Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher M.D. Member
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: May 26, 2015
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Appellant respecting a decision of the Minister (the “Respondent”) pursuant to 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Registrar’s Evidence
The evidence presented by the Registrar essentially covers two timeframes and two resulting licence suspensions.
The first episode occurred on September17, 2010.
The Appellant, presently aged 35, is a paramedic. He was driving his ambulance and had a minor collision. He was seen at an E.R. in a regional hospital and treated by Dr. G.O. A form 203 was sent to the Minister of Transportation (“MTO”). Dr. G.O.wrote “episode of L.O.C.- ?seizure”. He described a 5 minute period of loss of consciousness (LOC) with no tonic-clonic component and a brief period of post episode confusion.
On October 28, 2010, the Ministry responded, suspending the Appellant’s licence to drive.
Dr. J.G., the Appellant’s family doctor, coordinated a number of referrals and investigations and ultimately on January 10, 2011, wrote the following summary of the results to the MTO.
“he has undergone extensive neurological investigation that was negative, including no seizure activity identified. He also underwent extensive cardiac testing…these tests indicated a vasovagal episode as explanation for his loss of consciousness.”
Referrals were made to Dr H.D., neurologist, in a nearby academic centre who saw the Appellant five days after the episode, on September 22, 2010. He arranged an EEG and MRI.
The EEG on October 19, 2010 was “normal”. Dr. H.D. reported to Dr.J.G. that a CT scan raised the possibility of an abnormality, but an MRI was normal.
He deferred an opinion to Dr.W.H., cardiologist. Dr W.H. wrote a lengthy note that in summary said “healthy young man; episode of LOC; cause unknown.”
On October 7 and 8, 2010, the Appellant had an MRI in another regional hospital near Dr. J.G’s primary location. Dr. M.V., reported a “likely MENINGIOMA arising from the petroclinoid ligament”. None of the list of doctors noticed this report.
Thus, Dr.J.G. wrote the Registrar, confident that the LOC was a result of a vasovagal incident.
On March 21 2011, the MTO reinstated the Appellant’s ‘G’ licence. On the basis of a Medical Advisory Committee report, the MTO reinstated the Appellant’s commercial driver’s licence March 30, 2011.
The second episode occurred on Boxing Day – December 26, 2013.
The Appellant gently rear-ended a car while driving his own vehicle. He had a LOC and was seen in his local ER by Dr.A.J. The Tribunal found it somewhat curious that the ER doctor knew there was a “similar event in 2010 and possible meningioma on MRI”.
A referral was made to a neurosurgical team including Dr. J.B, a. neurologist, Dr M.C., a neurosurgeon, and Dr. D.D. a physiatrist.
The MTO was again notified about the LOC by Dr A.J. and by Dr. J.B. An apparently new MRI showed the same tumour, found in October 2010, by the regional hospital, to be larger and obvious at 2.5 cm.
The Appellant weighed the pros and cons of surgically removing a probable benign tumour for several months and elected resection. The meningioma was resected uneventfully on October 7, 2014.
On January 28, 2014, the MTO had again suspended the Appellant’s driver licence.
On January 22, 2015, Dr. J.B. completed a MTO information form noting: “2 complex partial seizures – 2010 and Dec 2013 secondary to meningioma – resected Oct 7, 2014. No recurrent seizures; Remains on medication for seizure prophylaxis”.
Dr. J.B. further wrote on March 17, 2015, much the same plus “not required” as to the need for a driving assessment.
On March 12, 2015 the MTO approved a class ‘G’ licence. To regain a commercial licence he requires “confirmation that he is seizure free for five years.”
The Appellant’s Evidence
It has been 17 months since the last known of two complex partial seizures. In order to work at his paramedic job, he needs to drive a commercial vehicle. He is supported by his physiatrist and neurologist in this endeavour.
His rehabilitation post craniotomy was uneventful. He remains on long term medication: Keppra 500 mgm b.i.d.
There is no question that in order to work at his paramedic job, he needs a commercial licence to drive. His doctors, experts in benign brain tumours, are clear that evidence points to no residual tumour and with adherence to his medication, the chance of a further seizure is something less than 2%.
ISSUES
Should the decision of the Minister 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 Appellant suffer from a physical disability to an extent that he should no longer be entitled to exercise the privilege of the class of licence currently under suspension or
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 32 (5)(b)(i) states:
- 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
Section 50 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 CCMTA guidelines are, at times, rigid in their application and may not to apply to seizures evolving from benign extirpated meningiomas.
The goal, justifiably, is to provide safety on the highways. But the Tribunal should not apply a rigid five year ban on driving in this instance. The Appellant had two occasions of loss of consciousness (LOC). In both instances, he was operating a motor vehicle.
The original diagnosis of vasovagal syncope was, probably, in retrospect wrong. A small tumour very gradually grew over three years until a second seizure occurred.
It has now been surgically dealt with and long term medication has been instituted and appears effective. The Appellant’s doctors are supportive. The medical evidence does not suggest any lingering ongoing physical disability that would disentitle him from his commercial vehicle licence.
DECISION
Upon the application by the Appellant to appeal the decision dated March 12, 2015 of the Minister (“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, and 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 Registrar be set aside.
LICENCE APPEAL TRIBUNAL
Garry Fisher M.D., Member
RELEASED: June 1, 2015