Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10020/MED
CASE NAME: 10020 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: D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: February 25, 2016
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the âTribunalâ) by the Appellant respecting a decision of the Registrar of Motor Vehicles (the âRegistrarâ) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the âActâ).
BACKGROUND
The 23-year-old Appellant had a seizure on October 17, 2015. Following receipt of a physician's Medical Condition Report (âMCRâ), the Registrar suspended the Appellant's driving privileges, effective October 31, 2015.
Having recently completed her academic studies and about to start a new job, the Appellant wants her driving privileges re-instated. The Registrar submits that a confirmed six-month seizure-free period is needed.
FACTS
The Appellant's initial seizure occurred on December 18, 2009, at age 17. The Registrar suspended her driving privileges on the same day.
An electroencephalogram (âEEGâ) on January 12, 2010 showed epileptiform activity consistent with primary generalized epilepsy. The Appellant was placed on Epival, an anti-convulsant medication.
The Appellant's driving privileges were re-instated by the Registrar on January 28, 2011.
The Appellantâs neurologist stopped the anti-convulsant medication in February 2013.
A second MCR, dated March 28, 2013, stated the Appellant had a seizure that day, and was restarted on Epival. The Appellantâs driving privileges were suspended again on April 13, 2013.
Following review of the completed Epilepsy and Seizures form, the Registrar re-instated the Appellant's driving privileges in August 2013.
An Emergency Room physician submitted an MCR to the Registrar dated October 17, 2015, stating that the Appellant had sustained a seizure that day.
In a letter dated October 21, 2015, the Registrar suspended the Appellant's driving privileges for a third time, effective October 31, 2015.
The Registrar reviewed the Appellant's completed Epilepsy and Seizures form, dated November 11, 2015. In a letter dated January 25, 2016, the Registrar determined the Appellant's driving privileges should remain under suspension.
The Appellantâs family physician submitted a supportive letter to the Registrar, dated February 2, 2016. In a letter dated February 10, 2016, the Registrar re-stated the requirement of a confirmed six-month seizure-free period.
ISSUES
Should the decision of the Registrar to suspend the Appellantâs 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 her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, section 14 states:
(1) An applicant for or a holder of a driverâs 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 driverâs 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 driverâs 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 driverâs 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
The Registrar has not made the case that the Appellant's driving privileges should remain suspended, pending confirmation of a six-month seizure-free period, that is, until April 17, 2016.
The Registrar was correct in suspending the Appellant's driving privileges in a letter dated October 21, 2015, following receipt of an MCR dated October 17, 2015, indicating the Appellant had a seizure that day.
The Registrar cited the Canadian Council of Motor Transport Administrators (âCCMTAâ) Medical Standards for Drivers, August 2013, page 248, Standard 17.6.6, Epilepsy - Non-Commercial Drivers, which states:
This standard applies to non-commercial drivers who have been diagnosed with epilepsy, with the following exceptions:
If the epileptic seizures only occur while the driver is asleep, or immediately after awakening, standard 17.6.7 applies.
If the driver only experiences simple partial seizures, standard 17.6.8 applies.
If the driver has had surgery for epilepsy, standard 17.6.9 applies.
If the driver has changed effective medication, standard 17.6.10 applies
Standard
Non-Commercial drivers eligible for a licence if
- It has been six months since the seizure occurred with or without medication
Conditions for
Maintaining Licence
Routinely follows treatment regime and physician's advice regarding prevention of seizures
Driver must cease driving and report to the authority and physician if has a seizure
Reassessment
Reassess in one year if a seizure occurred within the past 12 months
Otherwise, routine
Information from
Health Care Providers
Date of the last seizure
Details of the driver's treatment regime, including length of time the driver has been on anti-epileptic medication
Opinion of treating physician on whether the driver is compliant with their treatment regime
None of the four "bullets" in the preamble apply to the Appellant. The issue is whether or not the Appellant's driving privileges should be re-instated before the confirmed six-month seizure-free period (April 17, 2016).
The Registrar contends that restoring the Appellantâs driving privileges now, is ânot just two days or two weeks, but two months shortâ of the CCMTA six-month standard. The Registrar points out that the seizure of October 17, 2015, occurred while on anti-convulsant medication (Epival).
The Registrar seeks a longer period of stability as outlined in the CCMTA guidelines, Standard 17.6.6, at page 248. The guidelines are but one of the considerations for the Tribunal.
The Tribunal finds the observations of the Appellantâs family physician (of six years) in the letter dated February 2, 2016 to be compelling.
In making its decision to set aside the Appellantâs driverâs licence suspension, the Tribunal gives particular weight to the following statements by her doctor:
nearing her 6 months of being seizure free
fully compliant with her treatment and follow-up
(believes the completed Epilepsy and Seizure form - November 11, 2015) supported the re-instatement of her driver's licence
and furthermore, her neurologist supports this (as) well.
The Tribunal is mindful of the safety of both the Appellant and the motoring public; however, weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant does not suffer from any mental, emotional, nervous, physical condition or disability likely to significantly interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the Registrarâs decision, effective October 31, 2015, to suspend her driverâs 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
D. Ian Turnbull, M.D., Member
Released: March 11, 2016