Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10065/MED
CASE NAME: 10065 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
Appellant Appellant
-and-
Minister of Transportation Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: March 16, 2016
REASONS FOR DECISION AND ORDER
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”).
OVERVIEW
The Appellant appeals a decision by the Minister of Transportation to downgrade his AZ licence to drive, under section 32(5) (b)(i) of the Act, effective June 29, 2015, following medical reports of seizures pursuant to section 203 of the Act.
The national medical guidelines for commercial drivers who have been diagnosed with epilepsy require five years seizure-free with or without medication. The Appellant has failed to meet these standards.
After weighing all of the evidence, the Tribunal confirms the downgrade.
FACTS
Evidence by the Respondent
The Registrar received an unsolicited medical report of a single seizure pursuant to section 203 of the Act, completed by an Emergency Room physician, Dr. L. B., on April 18, 2014.
The Appellant was informed on April 23, 2014, that his licence to drive was suspended under section 47(1) of the Act, effective May 3, 2014.
Following receipt of an Epilepsy and Seizures Assessment completed on June 9, 2014 by a neurologist, Dr. J.B., the Registrar informed the Appellant that his licence would remain suspended until he submitted medical confirmation that he remained seizure free for a period of six months.
A second Epilepsy and Seizures Assessment by Dr. J.B. on May 5, 2015, reported that the Appellant had a seizure on October 29, 2014.
On June 29, 2015, the Registrar informed the Appellant that he had been approved for a Class ‘G’ licence but that he no longer met “the National Medical Standards for a commercial licence due to [his] seizure”.
Dr. J.B. submitted a letter dated January 27, 2016, confirming that the Appellant was seizure free since October 29, 2014 and that he was currently on Epival 750 mg in the morning and 500 mg in the evening. Dr. J.B. further stated that the Appellant has been compliant with his medication and has good insight into his condition and wished to have his commercial licence reinstated.
Dr. J.B. was supportive of re-instatement of the Appellant’s licence. The Registrar informed the Appellant on March 3, 2016 that his application for a commercial licence had been reviewed, but was not approved as he failed to “meet the National Medical Standards for a commercial licence due to his history of seizures requiring anti-convulsant medication for control”.
In order to be reconsidered for a commercial licence, the Appellant was required to submit confirmation that he has remained seizure free for a period of five years on or off medication.
Evidence by the Appellant
The Appellant stated that he drove a dump truck and was not a long haul driver.
He stated that the first seizure occurred on April 18, 2014 at the home of a friend who witnessed the seizure and called for an ambulance.
He stated that alcohol was not a factor and that he had recently returned from a vacation in Florida when the seizure occurred.
He was kept in hospital for a couple of days and referred to a neurologist, Dr. S.P., and to Dr. J.B., the neurologist, who completed the Epilepsy and Seizures Assessment.
His second seizure occurred while working at a job site and he was seen again by Dr. J.B. who started him on Epival, an anti-seizure medication.
He was aware of the implications of driving a truck with a diagnosis of seizures. There was no history of head injury. Dr. L.B. who saw him in May 2014 started him on medication which was changed to Epival by Dr. J.B. He stated that he has had two seizures only and is compliant with medication.
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 “AZ” 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:
- (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
Submissions
The Respondent, in submissions, referred to the legislation and the applicable CCMTA Medical Standards.
Mr. Biel submitted that the Registrar was justified in issuing a suspension upon receipt of a Medical Condition Report of a seizure, by a physician in compliance with section 203 of the Act. Upon report by the Appellant’s neurologist of a second seizure, the Registrar correctly applied the standard for epilepsy.
The CCMTA Medical Standards for Drivers, Standard 17.6.11 applies to commercial drivers who are diagnosed with epilepsy, which is defined in the preamble to the Standard as two or more seizures which do not have a transient provoking cause.
The Standard for eligibility for a commercial licence is:
Seizure free for a period of five years with or without medication and the conditions for maintaining a licence are met.
The Appellant, in submissions, stated that he has total control of his seizure condition, is able to operate heavy equipment and is in compliance with the conditions required by the Registrar and his physician.
Analysis
The Tribunal finds that the Respondent was justified in issuing a suspension of the Appellant’s driving privilege upon receipt of a medical report of seizure, and was justified in downgrading the licence to a Class “G” upon notification of a second seizure.
The Respondent was justified in applying the National Medical Standard for commercial drivers, under CCMTA Standard 17.6.11, that requires confirmation of a period of five years seizure free before being considered for reinstatement.
The evidence before the Tribunal is that the Appellant had two seizures in a six month period in 2014. The second seizure occurred while he was working on a job site, and while he was under the care of a neurologist. The letter from Dr. J.B. states that the Appellant is on medication and he is compliant with the treatment. At this point, it appears that he has been seizure free for approximately 17 months. Dr. J.B. has indicated his support for reinstatement of the commercial licence. However, the Tribunal must also weigh this evidence against the CCMTA Medical Standards for commercial drivers, in the context of the safety of the public and the requirement set out in O. Reg. 340/94:
An applicant for or a holder of a driver’s licence must not suffer 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.
(Emphasis added)
Considering these standards, and the relatively recent seizures, the Tribunal is not satisfied that sufficient time has passed to support deviation from the Guideline at this time.
In conclusion, the Tribunal finds that the Appellant suffers from a condition likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Appellant to appeal the Respondent’s decision, effective June 29, 2015, 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
Kevin Flynn, M.D., Member
Released: April 13, 2016