Licence Appeal Tribunal
FILE: 9716/MED
CASE NAME: 9716 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 Vehicles in Respect of Which the Licence was Issued
9716, Appellant -and- Minister of Transportation, 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, Agent
Heard by teleconference: August 27, 2015
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
The Appellant, a 60-year-old truck driver, was brought to a local hospital after sustaining a solitary, unprovoked seizure on January 3, 2015, witnessed by a family member.
The attending Emergency Room (ER) physician sent a Medical Condition Report (MCR) to the Registrar, dated January 3, 2015, indicating "Seizure(s) - Cerebral."
In a letter dated March 5, 2015, the Registrar suspended the Appellant's driving privileges under Section 47(1) of the Highway Traffic Act (HTA). The same letter asked for completion of the Epilepsy and Seizures form by the Appellant’s treating physician.
The Appellant's physician of 21 years completed the form, dated May 4, 2015, stating the Appellant had an idiopathic seizure and was not currently taking anti-seizure medication.
The Appellant's neurologist's report, dated March 2, 2015, stated the seizure had occurred after an argument with a family member. The neurologist stated that if all investigations were normal and the Appellant had no further seizures:
- the Appellant might resume driving a private vehicle after three months,
- the Appellant could drive a commercial vehicle after 12 months as per the Canadian Medical Association (CMA) guidelines
- if a sleep-deprived Electroencephalogram (EEG) was normal, he would not need anti-epileptic medication
In a follow up consultation March 31, 2015, the neurologist stated there was a 30 - 50% chance of seizure recurrence in 2 - 5 years considering:
- no previous seizures
- negative family history
- non-focal neurologic examination
- existing normal MRI and normal EEG (a sleep-deprived EEG performed April 7, 2015, was normal).
- no structural abnormalities
In a letter dated June 18, 2015 (Exhibit 1), the Registrar, having reviewed the Appellant's laboratory, clinical and imaging data, restored his Class G driver's licence. In addition, the Registrar stated that to achieve a commercial licence, his physician would have to confirm the Appellant had been seizure-free for 12 months. The Appellant sent a Notice of Appeal (Exhibit 2), dated June 19, 2015 and received by the Tribunal on July 30, 2015. The Appellant stated he needed his commercial licence re-instated so he could return to work.
ISSUES
Should the decision of the Respondent 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 mental, emotional, nervous or physical disability to an extent that he should no longer be entitled to exercise the privilege of 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.
Section 50 sets out the right of appeal:
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 made the case that the Appellant's commercial driver's licence should not be re-instated until he has been confirmed to be seizure-free for 12 months.
The Registrar was correct in suspending the Appellant's driving privileges in a letter dated March 5, 2015, following receipt of an MCR from an ER physician( reporting under Section 203 of the HTA) stating the Appellant had sustained a seizure.
After evaluating the medical information supplied by the Appellant, the Registrar was correct in maintaining the suspension of his Class A licence in a letter dated June 18, 2015 (Exhibit 1).
The Registrar was correct in requiring the Appellant to be seizure-free for 12 months in order to consider re-instatement of his commercial driver's licence.
Page 247 of the CCMTA guidelines, Section 17.6.5 - Single unprovoked seizure - Commercial Drivers.
STANDARD
Commercial drivers eligible for a licence if:
- it has been at least 12 months since the seizure occur-red, and
- Complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed, and
- CNS imaging and EEG results are satisfactory.
Conditions for Maintaining Licence
None
Reassessment
- Reassess in one year
- If no further seizures are reported during those five years, then routine
Information from Health Care Providers
- Date of the seizure
- Description of the type of seizure
- Whether a neurological assessment has been con-ducted and the results of the assessment
The Appellant's neurologist refers to the Canadian Medical Association (CMA) Guidelines, "Determining Fitness to Operate Motor Vehicles". In the 8th edition, Page 42, Section 11.4.1 - "Single, Unprovoked Seizure Before a Diagnosis".
Private Drivers
These patients should not drive for at least three months and not before a complete neurologic evaluation -- including electroencephalography (EEG) with waking and sleep recording and appropriate neurologic imaging, preferably magnetic resonance imaging (MRI) -- has been carried out to determine the cause.
Commercial Drivers
Commercial drivers should be told to stop driving all classes of vehicles at once. For these drivers, there is a need for even greater certainty that another seizure will not occur while they are driving. At a minimum, commercial drivers should follow the private driver guideline and not drive private vehicles for at least three months after a single unprovoked seizure. If a complete neurologic evaluation, including waking and sleep EEG and appropriate neurologic imaging, preferably MRI, does not suggest a diagnosis of epilepsy or some other condition that precludes driving, it is safe to recommend a return to commercial driving after the patient has been seizure free for 12 months.
The Tribunal has compared the guidelines of the CMA and the CCMTA and finds them practically similar for commercial drivers.
The Appellant believes his ‘A’ licence should be re-instated before January 3, 2016, for three reasons.
Firstly, he stated he is a safe, not a reckless, driver and has a good driving record. He drives a tractor-trailer in the daytime in a downtown metropolitan setting. He states he keeps the safety of the public in his mind at all times.
The Tribunal acknowledges the Appellant's safe driving record, but the suspension is not a reflection of his driving ability. The issue is -- does the Appellant currently suffer from a medical condition which may significantly affect his ability to operate a motor vehicle safely?
Secondly, he stated that the licence suspension results in financial hardship, which is real. He needs the money from his truck-driving job to live on. He stated he is "too young to retire" and "too old to start again." Of particular concern is the possible loss of medical benefits.
Unfortunately, the HTA does not include hardship as possible reason for earlier re-instatement of driving privileges.
Thirdly, the Appellant stated that all his tests are negative. "Nothing has been found" with Magnetic Resonance Imaging (MRI), Electroencephalograms (EEG) and Computerized Axial Tomography (CAT) scans. He believes he has been "cleared" by his physician because they have not prescribed anti-seizure medication.
The Appellant stated family issues have been "rectified." The family member with whom he had an argument immediately prior to the seizure has moved out. His diabetes mellitus is controlled by oral medication.
He repeatedly stated that only 90 days remain before the required 12 month seizure-free period ends (it is actually approximately four months or 120 days). Since he feels good, and he believes the chance of a recurrent seizure is negligible, he thinks his driving privileges should be re-instated now.
However, the Tribunal finds no medical evidence has been provided by the Appellant that supports re-instatement of the Appellant's Class A driver's licence four months short of both the CMA and CCMTA standards.
The actual risk of a recurrent seizure is open to debate. Just as nobody could have predicted the solitary, unprovoked seizure on January 3, 2015, no one can predict with certainty if and when the Appellant may have another seizure. The Tribunal must weigh the evidence on a balance of probabilities and consider whether the Appellant suffers from a physical condition likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
The implications of a recurrent seizure while driving a tractor-trailer, are incalculable. The Registrar reasonably seeks a longer period of stability, as recommended by both the CCMTA and CMA Guidelines and his own neurologist. This latter recommendation by his specialist is of particular note. In his March 31follow up consultation report, the neurologist again turned his mind to the effect of the Appellant’s physical condition on his driving and reiterated his recommendation that if all investigations are normal that the Appellant resume commercial driving after a 12 months seizure free period. The Tribunal is mindful of the safety of both the Appellant and the motoring public.
In conclusion, the Tribunal finds that the Appellant is currently suffering from a condition (possibly epilepsy) likely to significantly interfere with his ability to drive a motor vehicle of the appropriate class safely.
DECISION
Upon the application by the Appellant to appeal the decision dated June 18, 2015 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, 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 Respondent be confirmed.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Member
Released: September 10, 2015