Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-12-08
FILE:
10516/MED
CASE NAME:
10516 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant:
Appellant’s father, Agent
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
November 30, 2016
DECISION AND REASONS
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”) made under section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
For the reasons that follow, the Tribunal confirms the suspension.
FACTS
Evidence for the Registrar
Based on examination the same date, a Medical Condition Report was completed on August 31, 2016 by Dr. L., family physician, in compliance with section 203 of the Act. Section 203 requires every legally qualified physician to report to the Registrar the name, address and medical condition of any patient aged 16 or over, who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.
The condition reported was:
Seizure(s)-cerebral
Possible nocturnal seizures. Awaiting assessment by a neurologist
On September 1, 2016, the Registrar informed the Appellant that following a report of seizure, it had been decided that, based on all relevant facts available, his driving privilege was suspended under section 47(1) of the Act.
In order to be considered for reinstatement, the Appellant was requested to take the letter of suspension to his physician and have the enclosed Epilepsy and Seizures Assessment completed and returned to the Medical Review Section.
The undated assessment was completed by a neurologist, Dr. S., who saw the Appellant in September 2016.
In summary, the assessment stated:
The primary condition: Nocturnal Seizure(s) less than three months ago
Previous seizure less than 12 months ago, not different, nocturnal
EEG, not sleep deprived, showed no signs of epileptiform activity
Imaging test in the past 12 months was normal
Etiology was idiopathic/unknown
Medication prescribed is effective and has no side effects that may impair driving ability
Patient is adherent to treatment and has not demonstrated a pattern of non-adherence
The condition is stable and has resolved
Patient has not had any seizure since anti-seizure medication started.
The Registrar informed the Appellant on October 21, 2016 that following review of the information provided, he is requested to take the letter to his physician and have the following information forwarded to the Medical Review Section:
Confirmation that he has remained seizure free for a period of six months
If seizures continue, confirmation that the pattern has remained consistent for a period of one year
The Appellant provided no additional medical documents in response to the Registrar’s request.
In cross-examination, the Appellant’s agent questioned the Registrar’s determination that the Appellant had two seizures. He submitted that the neurologist did not state that there had been two seizures and that there had been a single unrelated seizure.
Mr. Grootenboer referred to the assessment by the neurologist that stated the seizure reported was not the first and that a previous seizure had occurred less than 12 months before.
Evidence by the Appellant
The Appellant, age 25, works as a plumber. He stated that between August 26 and 30, 2016, he was in Las Vegas for a stag party and had been drinking heavily with little sleep. On August 28 at about 6 a.m., he awoke with weakness and a headache, and had bitten his tongue. There was no incontinence. He went back to sleep and partied again the next day. He did not see a physician in Las Vegas. He returned home on August 31. He saw his family physician a week later.
He stated in cross-examination that he believed that he had a seizure because he felt sore all over and had bitten his tongue.
With respect to the note on Dr. S’s assessment form that the Appellant had a previous seizure less than 12 months’ previously, the Appellant stated that at the end of June 2016 he fell out of bed and was admitted to hospital Emergency Room, (ER) where he was seen by a physician, not his family physician. He had laboratory tests, X-Rays and an MRI, and was sent home the same day without medication. He was not provided with a copy of the ER record.
He stated that he had not been drinking but that he blamed lack of sleep.
He was started on the anti-seizure medication on September 28, 2016 by the neurologist who advised him that he should continue to take this for one to two years.
Submissions by the Parties
Mr. Grootenboer, agent for the Registrar, submitted that upon receipt of the Medical Condition Report of seizure, reported by a physician in compliance with section 203 of the Act, section 47(1)(g) justified the suspension of the Appellant’s driving privilege.
He also submitted that the Seizure Assessment contained evidence of a seizure less than three months previously and is consistent with the diagnosis of epilepsy as defined in the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA guideline”).
The neurologist has prescribed anti-seizure medication for up to two years.
He submitted that the six months seizure-free period recommended by the CCMTA guideline for drivers with epilepsy should apply, and that in the event that no further seizure occurs, the Appellant will be eligible for reinstatement in February 2017.
The father of the Appellant, acting as Agent, submitted that the anti-seizure medication was prescribed as a preventative and that the Appellant is compliant. He agrees that one seizure was confirmed and that there was no epileptic activity shown on the EEG, and that the diagnosis of epilepsy was not justified.
The Appellant’s Notice of Appeal stated that the August 2016 seizure occurred due to lack of sleep, that he is now sleeping 8 hours a day as recommended by the neurologist, that his MRI and EEG on September 28, 2016 were normal, he has been taking Levetiracetam 500 mg twice daily since September 8, 2016, and he is now seizure free.
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 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.
Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.
Section 14(2) of the Regulation permits the Minister to take into consideration the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.
Section 50 of the Act permits the driver to appeal the Registrar’s section 47 decision to the Tribunal, and the Tribunal “may confirm, modb
ify or set aside the decision of the Minister or the Registrar.”
APPLICATION OF THE LAW TO FACTS
The Tribunal has carefully reviewed the evidence and submissions of both parties, and the relevant CCMTA guidelines with its national Medical Standards for Drivers. While these CCMTA guidelines are not binding or mandatory, they represent a consensus of medical specialists across Canada for the guidance of licensing authorities in applying appropriate standards for medical conditions reported to them, consistent with the mission of public safety on the nation’s highways.
There are two possible standards in the CCMTA guidelines that may relevant to consider for the Appellant’s situation. Section 17.6.4 applies to the situation of a single unprovoked seizure, and this does not involve having to wait for at least six months of being seizure-free. On the other hand, section 17.6.7 applies to epilepsy with seizures only while asleep or upon awakening, and this involves a minimum six months of being seizure-free. Section 17.1 refers to epilepsy as “a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause.”
The Appellant had an unprovoked seizure in Las Vegas at the end of August 2016. The family physician did not report a diagnosis of epilepsy in the Medical Condition Report, and correctly requested a neurological assessment, with CNS imaging and EEG. That assessment revealed an earlier episode in June 2016, of the Appellant falling out of bed that led to admission and examination in the local emergency room, including a MRI examination. No medication was prescribed. The Appellant did not provide a copy of the hospital report of the admission following his falling out of bed at the end of June 2016.
The neurologist prescribed a two year course of anti-seizure medication although he also did not report a diagnosis of epilepsy.
The Tribunal considers the episode of falling out of bed at the end of June to be significant in the context of the nocturnal seizure approximately two months later, at the end of August 2016. The Registrar’s position is that the Appellant has had two seizures and this meets the definition of epilepsy as stated in the CCMTA guideline. The Tribunal finds that the medical evidence does not clearly diagnose the Appellant as having epilepsy, and the June episode was not clearly a seizure. Nonetheless, with the these two episodes being a couple of months apart, there is enough concern in this situation to understand why the Registrar has applied section 17.6.7 of the CCMTA guideline and asked for six months of the Appellant being seizure-free. Even if the Appellant may not have epilepsy or may not have had two seizures, the Tribunal is similarly concerned about the risk of another occurrence.
As noted in chapter 17 of the CCMTA guideline, regarding epilepsy and seizure, epilepsy in young adults is more likely to be from unknown causes. In the Appellant’s case, there has been no identification of the specific cause of his initial episode in June, nor his seizure in August. In these kinds of circumstances, there is an obvious safety risk when there has not yet been a long enough period of stability. The Tribunal accepts the Registrar’s submission that a 6-month seizure-free period is necessary in the circumstances. As the Appellant’s last seizure was in late August, the Appellant will be eligible to be considered for reinstatement at the end of February 2017.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon appeal of the decision effective September 11, 2016 of the Registrar to suspend the Appellant’s 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 confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D.
Released: December 8, 2016