Licence Tribunal Appeal d'appel en Tribunal matière de permis
2015-12-30
FILE:
9925/MED
CASE NAME:
9925 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:
Sanjay Kapur, Agent
Heard by teleconference:
December 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
In 2003, the Appellant had a seizure for which his driving licence was suspended. During that medical investigation, he had a normal Computer Tomography (CT) of the head and a normal electroencephalogram (EEG). Dilantin was ultimately used for treatment and he had been seizure free for a year, at which point it was discontinued. There was a concern that amphetamine use had contributed to the seizure at this time. The licence was reinstated in 2005. Another seizure and suspension in 2006 lead to a repeat CT of the head, magnetic resonance imaging (MRI) of the brain and EEG, all of which were normal. Dilantin was used again as treatment. His driver’s licence was again reinstated. The Appellant stopped his Dilantin in 2008 on his own. He was reassessed by neurology in 2010 to ascertain if he needed to restart his medication, and it was felt that since he had been seizure-free for four years, he could remain untreated.
On August 12, 2015, the Appellant felt unwell. At this appeal hearing, he testified that he was having his regular aura prior to seizure. However, this aura had never been documented in any of the physician notes he provided. He had a seizure that resulted in a scalp laceration. The seizure was reported to the Ministry of Transport (MTO). His licence was again suspended. He had another CT of the head and EEG in August 2015, both of which were normal. Cardiac ECG was also normal. His current neurologist completed the MTO Epilepsy and Seizures Form in November 2015. He has a diagnosis of general tonic-clonic seizures of idiopathic ethology. His diagnosis is epilepsy. He is currently on Dilantin and has been seizure-free since August 12, 2015.
The Appellant filed an addendum to a Form that had been received by the LAT, and the MTO did not object to this. In the addendum, his neurologist stated:
“He is adherent to his medication and has been therapeutic as well. He has followed up to all his appointments and would like his licence reinstated. I don't anticipate a significant event as long as he is adherent.”
His blood Dilantin level was within a therapeutic range on November 24, 2015. This result can only be achieved by actively taking his medication for some time prior to the testing.
The Registrar’s Submissions
The Registrar's representative read through the entire documented history of the Appellant’s seizure problems since 2003. Additionally, they submitted the CCMTA standards (Section 17.6.6) that suggest non-commercial drivers be observed for a seizure-free period of six months since the seizure, with or without treatment. The MTO is concerned that there is no cause to be found for the seizures. Also of concern is the past amphetamine use noted above and the fact that the Appellant stopped his medications without medical advice in 2008. The MTO accepts the Appellant's statement that he has not used amphetamine since 2004. The MTO strongly feels that the CCMTA guidelines should be adhered to in this case.
The Appellant’s Submissions
The Appellant offered a six-point argument for why, on the balance of probability, he is unlikely to have a repeat seizure.
a. His current neurologist's opinion that he is low risk while taking Dilantin.
b. His Dilantin is therapeutic at this time and proves he is taking the medication.
c. All past testing, including EEG, CT and MRI, confirm a diagnosis of idiopathic seizure with no structural causation.
d. In the past, he has been seizure free on Dilantin for both a six-month and one-year period. Documentation shows he has never had a seizure on Dilantin.
e. He has aura to his seizure and would have time to pull over or not drive.
f. When he previously stopped his Dilantin, his neurologist at the time had stated he could continue untreated. The fact that he told his neurologist shows responsible behaviour.
The MTO challenged the last two of the Appellant's arguments. No aura has ever officially been documented. And the Appellant did not get reassessed regarding his medications until two years after discontinuing the Dilantin on his own.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant have a medical condition, specifically uncontrolled seizures, that are 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.
(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 relevant question in this appeal is whether or not the Appellant suffers from a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely. The Appellant is six weeks away from the point at which the MTO admits he will meet the six-month seizure-free observation period specified in the CCMTA guidelines.
It is clear that the Appellant has epilepsy. His past amphetamine use was cleared in 2005 when his licence was reinstated, and this has no further bearing, especially considering that the MTO does not dispute that the Appellant has not taken amphetamine since 2004. All documentation submitted and agreed upon by all parties suggest that his epilepsy is well controlled on Dilantin, although no treatment is 100% effective.
If the Appellant stops his Dilantin, he may have another seizure. When asked why he stopped it in 2008, his response was that he felt he was better. During the hearing, he stated that he is now aware he must take the medication for the rest of his life. There is always a risk that a driver stops complying with the requirements to take certain medication. The Tribunal has assessed the past history of this Appellant's situation, and heard his testimony about why he stopped in 2008 and why he won't do that again. The Tribunal accepts that the Appellant is likely to remain compliant with his Dilantin, and that this will help to avoid any seizure while driving.
The MTO has not offered sufficient evidence or argument to show why the Appellant should have to wait until the expiry of the full six months of the observational period. The MTO is simply adhering to the CCMTA guidelines, but these are recommendations only. On the other hand, the Appellant has offered a compelling argument with his first four points, and he does not need his last two points, which were challenged by the MTO.
The onus of proof lies with the MTO, and they have not made the case that on the balance of probability, the Appellant suffers from a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated September 11, 2015, 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: December 30, 2015