Licence Appeal Tribunal
Appeal en matière de permis
FILE: 10134/MED
CASE NAME: 10134 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
10134 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: April 20, 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") pursuant to Section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
OVERVIEW
The Appellant is 32 years old and holds a commercial licence. He was found one morning unresponsive by his 10 year old daughter and when Emergency Services attended he was conscious and coherent. A week later, when seen by his family physician, the Ministry was informed that he had suffered a seizure and his driving privilege was suspended under section 47.1 of the Act.
National medical standards for seizure were applied and a period of one year seizure free was required for reinstatement.
The Tribunal finds that following a thorough medical investigation including complete neurological assessment, there was no definitive diagnosis of seizure or epilepsy.
The Tribunal finds that since seizure was not diagnosed and because the single event occurred nine months ago, the evidence does not support a finding that the Appellant suffers from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
Therefore, the suspension of his commercial driving privilege issued by the Respondent under section 47(1) of the Act on August 14, 2015 is set aside.
FACTS
Evidence by the Respondent
On July 9, 2015, an unsolicited Medical Condition Report was completed by a family physician, Dr. H., in compliance with section 203 of the Act, based on examination the same date.
The condition reported was:
Seizure(s)-Cerebral
This patient was diagnosed with possible seizure. This diagnosis has not been confirmed.
The Registrar informed the Appellant on August 14, 2015, that his driving privilege was suspended under section 47(1) of the Act.
He was requested to have an Epilepsy and Seizure Assessment completed.
The Appellant was referred for consultation to a neurologist, Dr. B., at a Health Sciences Centre. Dr. B. completed the required assessment on January 21, 2016.
The Assessment is summarized as follows:
The condition was an event of unresponsiveness, likely seizure.
Possible clonic or grand mal seizure, first 6-12 months ago.
Non-sleep deprived EEG on October 9, 2015 showed no sign of epileptiform activity
CT scan on October 7, 2015 and MRI on September 24, 2015 were reported normal
Etiology was unknown
No medication was prescribed
The patient is compliant with the recommended treatment regimen
No seizures since July 2015.
The Registrar informed the Appellant on February 12, 2016, that his Class 'G' licence was reinstated. A further report was required on January 21, 2017.
In order to be considered for reinstatement of his commercial licence, the Registrar requires that the Appellant submit a report by his treating physician that he has remained seizure free for a period of one year, with compliance and confirmation that epilepsy has not been diagnosed.
When questioned by the Appellant, Ms. De Santis acknowledged that the Registrar did not receive evidence of definitive seizure.
Evidence by the Appellant
The Appellant stated that at approximately 8.a.m. on the morning of July 2, 2015, his 10 year old daughter was unable to wake him and called 911.
He stated that he has always been a heavy sleeper and that he keeps three alarm clocks in his bedroom.
When EMS and police arrived, he was awake and responding and oriented to time and place. He was assessed in the ambulance and signed a waiver for no further examination.
One week later, on advice by his wife, he went to see Dr. H., his family physician. After examination, she referred him for laboratory tests, CT scan and MRI and EEG.
He informed the Tribunal that he had not been on medication, and did not consume alcohol the previous day. He has never been referred for a sleep study. He had been driving the previous day, but not for extended hours. He is a landscaper, periodic truck driver, on local deliveries only.
Under cross examination, he stated that Dr. H. had results of the lab tests CT Scan and MRI before he saw the neurologist in October 2015. He stated that he had no other reason to see his doctor.
He submitted that the results of the tests and the neurologist's assessment did not indicate evidence of seizure even though the neurologist stated in the Assessment form "event of unresponsiveness, likely seizure", and his family physician stated "possible seizure". He submitted that the diagnosis of seizure has not been confirmed in the reports to the Ministry.
ISSUE
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.
(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 47(1) of the Act gives the Registrar the power to suspend or cancel a driver's licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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.
SUBMISSIONS
The Respondent relies on the following:
The unsolicited Medical Condition Report of seizure by a physician in compliance with section 203 of the Act in July 2015.
The reinstatement of the Appellant's driving privilege to Class "G" with the neurologist's reference to "Likely seizure".
No medical support has been submitted for reinstatement of the Appellant's Class "A" commercial licence.
The Canadian Council of Motor Transport Administrators (CCMTA) Guideline 17.6.5 for Single unprovoked seizure-Commercial drivers:
- Commercial drivers are eligible for a licence if:
- It has been at least 12 months since the seizure occurred, 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.
The Appellant relies on the following:
There is no proof of seizure in the medical reports by the family physician and the neurologist. No corroborative evidence of seizure was reported.
The use of terms "possible seizure" in the family physician's report to the Ministry; "Possible Generalised Tonic/Clonic or Grand Mal" and "Likely seizure" by the neurologist in the Epilepsy and Seizure Assessment, leave room for doubt as to the cause of the condition on July 9, 2015.
The deep sleep that alarmed his daughter on July 9, 2015 was consistent with his sleep habits, and his reliance on three alarm clocks.
During all of his years of driving, he has had no driving problems or infractions.
APPLICATION OF THE LAW TO FACTS
The Tribunal has carefully reviewed the medical evidence and the investigation reports provided, and the submissions by the Respondent and the Appellant.
The Appellant experienced a single event, nine months ago.
While the family physician left room for doubt as to the reason for the Appellant's lack of responsiveness on the morning of July 9, 2015, she complied with her responsibility to report pursuant with section 203 of the Act with the notation "possible seizure"
There has been no definitive diagnosis of a seizure. Appropriate steps were taken by the family physician to investigate the possibility of seizure, with negative results.
The Epilepsy and Seizure Assessment by the neurologist in October 2015 also left room for doubt as to the diagnosis by reference to "likely seizure". The neurologist did not find any abnormal results and prescribed no medication.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle of the appropriate class safely.
DECISION
Upon the application by the Appellant to appeal the decision effective August 24, 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
Kevin Flynn, M.D., Member
Released: April 25, 2016