Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10333/MED
CASE NAME: 10333 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
10333 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Appellant’s Mother, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: August 17, 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” or “Respondent”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
By order dated August 18, 2016, the Tribunal set aside the Registrar’s decision. The following are the reasons for that Order.
FACTS
A Medical Condition Report was completed by a neurologist, Dr. B., on May 19, 2016 in compliance with section 203 of the Act.
The condition reported was: “Seizure(s)-Cerebral”.
On May 25, 2016, the Registrar informed the Appellant that his driving privilege was suspended under section 47(1) of the Act.
He was requested to take the letter of suspension to his treating physician and to have the enclosed Epilepsy and Seizures Assessment Form completed and returned to the Medical Review Section.
On June 28, 2016, Dr. K., the Appellant’s nephrologist for four years, completed the Epilepsy and Seizures form.
In summary it stated:
Present condition is seizure(s) less than 3 months ago
Seizure was generalized Tonic-Clonic or Grand Mal
EEG and imaging tests were normal with no epileptogenic area
The seizure was provoked with no structural abnormality
Dilantin was prescribed, with no impairment of judgment or vision
The patient is compliant and adherent to treatment
The provoking factor has been stabilized, resolved and corrected
The patient’s seizures were likely related to the advanced kidney failure and hypocalcemia. He is now on hemodialysis. Calcium level = 2.08 (Tribunal notes normal range 2.25-2.5)
On June 30, 2016, the Registrar informed the Appellant that the following information was required:
Stage of renal disease
Functional limitations, if any
Compliance with prescribed dialysis regimen
In reply, Dr. K. stated as follows:
Stage of Renal Failure: End stage renal failure requiring renal replacement therapy via hemodialysis
Functional Limitations: none
Compliance with prescribed dialysis regimen: (Appellant) was reluctant to initiate dialysis; but since commencement of hemodialysis, he has been following the prescribed treatment plan and has been stable.
On July 6, 2016, following the review of the information submitted, the Registrar requested further information from the Appellant, as follows:
Confirmation that he has remained seizure free for a period of six months
Confirmation of compliance with recommended treatment and/or insight into his condition
Reference to the reported renal disease including stage and confirmation of no residual effects
Confirmation that the functional abilities necessary for driving are not impaired
Mr. Kapur cited the Canadian Council of Motor Transport Administrators (CCMTA), December 1, 2015 edition, Guideline 17.6.2 for provoked seizures with no structural brain abnormality:
STANDARD: All drivers are eligible for a licence if:
They have undergone neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
The provoking factor has stabilized, resolved or been corrected, with or without treatment, and
The treating physician indicates that further seizures are unlikely.
Information from health care providers is required as follows:
Description of the type of seizure
Whether a neurological assessment has been conducted and the results of the assessment
Opinion of treating physician on whether the provoking factor has stabilized, resolved or been corrected
Opinion of treating physician on whether further seizures are likely. Depending on the nature of the provoking factor, the opinion of a neurologist may be required to determine the risk of further seizures.
Evidence for the Appellant
The Appellant stated that he was born with one kidney and never had a seizure before May 16, 2016.
He has been under the care of the nephrologist, Dr. K., at the University Health Science Centre for four and a half years. Dr. K. has completed the required forms and has helped to provide the information requested by the Registrar.
He is physically active; playing golf and is in tournaments, cutting grass, and lawn bowling.
He has been on renal dialysis three times a week on Mondays, Wednesdays and Fridays between 12:45 and 3:45 p.m. Following the seizure at home on May 16, 2016, he was advised that his serum calcium was low due to his renal disease. He was started on Dilantin 300 mg at night and has remained on this dose every day since.
He has been relying on his mother for transportation to the dialysis unit three days a week since his licence was suspended. His mother needs to return to her job at a grocery store.
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.
(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(2) of the Act states that the Tribunal may confirm, modify or set aside the decision of the Registrar. At a hearing, the burden of proving that the licence should remain suspended, pursuant to section 47(1), rests with the Registrar.
Submissions for the Respondent
Mr. Kapur stated that the Registrar relies on section 47(1) of the Act that authorized the suspension of the Appellant’s driving privilege upon receipt of a Medical Condition Report of a seizure completed by a physician in compliance with section 203 of the Act.
The Registrar relies on Ontario Regulation 340/94, section 14(2)(a), noted above.
The Registrar submits that while CCMTA Guideline 17.6.2 does not require a period of six months’ seizure free before consideration for reinstatement, the fact that the Appellant is taking the anticonvulsant Dilantin places him in a category similar to Guideline 17.6.1 for Provoked seizure caused by a structural brain abnormality.
Guideline 17.6.1 states:
All drivers are eligible for a licence if
they have undergone a neurological assessment to determine the cause of the seizure, and epilepsy is not diagnosed
it has been 6 months since the provoking factor stabilized, resolved, or was corrected, with or without treatment, and they have not had a seizure during that time
the treating neurologist or neurosurgeon indicates that further seizures are not likely.
The Appellant did not make closing submissions.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Registrar was justified in suspending the driving privilege of the Appellant upon receipt of a Medical Condition Report of seizure, submitted by a physician in compliance with section 203 of the Act.
The provoking factor of the Appellant’s seizure, this being the first and only seizure, was determined by his nephrologist of over four years to be a low serum calcium level due to end stage renal failure. The Appellant requires renal replacement by hemodialysis three times a week indefinitely. The low serum calcium has been corrected according to the nephrologist.
The Appellant does not have epilepsy according to the EEG and Diagnositic Imaging results.
There is no functional limitation associated with the treatment and the Appellant has been following the prescribed treatment and has been stable. He has good insight into his condition.
The Appellant is able to pursue an active physical life in spite of his kidney failure and is being maintained on an anti-convulsant medication, Dilantin, prescribed by his specialist.
The most recent edition of CCMTA Guideline 17.6.2 applies to provoked seizure with no structural abnormality and when epilepsy has not been diagnosed.
The provoking factor has been stabilized, resolved and corrected with treatment.
The Tribunal finds that CCMTA Guideline 17.6.1 does not apply, primarily because there is no evidence of structural abnormality in this Appellant and therefore the six month seizure-free period is not applicable.
Even though the Appellant’s specialist has not specifically stated that further seizures are unlikely, the Tribunal finds that the provoking cause of the seizure has been identified and corrected and as long as the renal dialysis continues to act as replacement or is replaced by renal transplant, there is no reason to expect a recurrence. The Appellant is now three and a half months post his first and only seizure with no further occurrence.
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective May 29, 2016 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: August 30, 2016