9959 v. Minister of Transportation, 2016 CanLII 9440

Licence Appeal Tribunal

DATE: 2016-01-29 FILE: 9959/MED CASE NAME: 9959 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

9959, Appellant

-and-

Minister of Transportation, Respondent

REASONS FOR DECISION AND ORDER

CHAIR: D. Ian Turnbull, M.D.

APPEARANCES: For the Appellant: Appellant For the Respondent: Sonia De Santis, Agent

Heard by teleconference: January 14, 2016

DECISION AND REASONS

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”).

BACKGROUND

The Appellant is a 46-year-old dump truck driver whose D licence was downgraded to a G licence in a letter from the Registrar, dated September 24, 2014.

This letter also asked the Appellant for confirmation of a seizure-free period of five years for consideration of re-instatement of his Class D licence.

FACTS

The Appellant had a brief episode of slurred speech when he arrived at a construction site, early June 8, 2014. He thought he was having a stroke. He called his wife who advised him to go to a hospital Emergency Department.

The Appellant was admitted to hospital and, following diagnostic work-up and consultations, had a 7-8 hour endovascular embolization of a dural arterio-venous fistula (DAVF) on June 18, 2014.

The Registrar received a Medical Condition Report (MCR) dated June 23, 2014, from a hospital neurosurgical resident who checked off the "seizures" box., stating

"a questionable seizure" on June 12, 2014 with slurred speech, right hand and face paresthesia . DAVF June 18/14 .Embolization of DAVF. Pre-op 90 sec seizure. Post-op 1 minute sizure 9complex partial). On Keppra “.

The Registrar immediately suspended both the Appellant's Class G and Class DZ driving privileges by letter dated June 24, 2014. In the letter, the registrar asked the Appellant to have the Epilepsy and Seizure Form completed by his physician.

The Appellant’s is neurologist completed the form on December 21, 2014 and stated:

• The Appellant had a generalized tonic-clonic or grand mal seizure in June 2014. It was his first seizure; the electroencephalogram (EEG) is normal.
• Imaging (Computerized Axial Tomography (CAT) Scan and Magnetic Resonance Imaging (MRI) are abnormal, in a potentially epileptogenic area. The date of that observation is not provided.

The neurologist stated the seizure was secondary to a DAVF which was treated.

In a letter dated February 20, 2015, 2014, the Registrar re-instated the Appellant's Class G driver's licence.

Post-operative follow-up letters from the same neurologist dated July 20, 2015 and October 8, 2015 state the Appellant has had no further seizures, is compliant with Keppra therapy and his prognosis is excellent.

The Registrar's Agent submits that confirmation of a five-year seizure free period for commercial drivers with epilepsy is reasonable, citing Section 17.6.11 of the Canadian Council of Motor Transport Administrators (CCMTA) guidelines, dated August 13, 2013.

The Appellant's driving record (Exhibit 3, Tab 91) shows no demerit points.

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 D licence?

LAW

The relevant statutory provisions state as follows.

Section 32(5)(b)(i):

32. 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:

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.

APPLICATION OF THE LAW TO FACTS

The Registrar has not made the case the Appellant needs confirmation of being seizure-free (with or without medication) for five years before consideration of restoration of his Class DZ licence.

The Registrar was correct in suspending the Appellant's G and DZ licences on June 24, 2014, following receipt of an MCR from a hospital neurosurgical resident.

The Registrar was correct in re-instating the Appellant's Class G licence on February 20, 2015, since he had been seizure-free for six months.

The Registrar submits that the Appellant has epilepsy and, as a commercial driver, CCMTA (Page 253), Section 17.6.11 should apply. The standard reads as follows.

STANDARD

Commercial drivers eligible for a licence if:

• they have not had a seizure with or without medication for 5 years, and
• the conditions for maintaining a licence are met

Conditions for Maintaining licence

• Routinely follows treatment regime and physician's advice regarding prevention of seizures
• Cease driving and report to the authority and physician if a seizure occurs

Reassessment

• 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 or off anti-epileptic medication
• Opinion of treating physician on whether the driver is compliant with their treatment regime

The MCR of June 23, 2014 is central to the Registrar's belief the Appellant has epilepsy. It states there were brief pre-operative and post-operative seizures on June 18, 2014.

These would strictly fit the definition of epilepsy stated on Page 240 of Section 17 (Epilepsy) of the CCMTA guidelines.

Epilepsy - Epilepsy refers to a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause. The cause of the epileptic seizures may be known or unknown (idiopathic).

However, there is no uniform definition of epilepsy. The description of the Appellant’s seizure activity by the neurological resident as set out in the MCR and that of his neurologist are not entirely consistent with each other.

The Appellant relies upon medical evidence as contained in his Notice of Appeal, his affirmed testimony, and his neurologist's follow-up consultation letters.

In summary, the Appellant stated that the hospital doctors told him:

• "You're now 110%"
• "Don't worry about it (DAVF)"
• "It's as if it never happened, you can start again"

The Appellant’s neurologist stated in a letter dated July 20, 2015, and on the Epilepsy and Seizure Form dated December 21, 2014, that the seizure activity was secondary to the DAVF

The Tribunal agrees with the neurologist that the DAVF is a provoking cause for the seizures on the operative date i.e. June 18, 2014.

The Tribunal accepts the evidence that the Appellant had a "questionable seizure" on June 14, 2014. Hospital investigations identified a dural arterio-venous fistula (DAVF), treated with a lengthy arterial embolization on June 18, 2014.the Tribunal makes particular note of the neurologist comments that the Appellant has been symptom free from a neurological perspective since June 2014. He has had no further seizures.

Based on the evidence before it, the Tribunal concludes that the provoking cause of the June 2014 seizure (DAVF) has been stabilized and CCMTA Section 17.6.1 - Provoked Seizures Caused by a Structural Brain Abnormality (Page 244) should apply.

STANDARD

All drivers 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 unlikely

Conditions for Maintaining Licence

None

Suggested Reassessment

• If a seizure occurred within the past 12 months, reassess in 1 year
• If a seizure occurred more than 1 year ago, or if no further seizures are reported after the initial reassessment, reassess in 5 years
• If no further seizures are reported during those 5 years, at the discretion of the Authority.

The Tribunal believes the Appellant meets this Standard and his Class D licence should be re-instated.

There is no opinion given in either the MCR or the neurologist's letters of July 20, 2015 and October 28, 2015 as to whether this seizure activity could recur. The Appellant has been seizure-free for the past 21 months. The neurologist did state though that the appellant’s seizure control is excellent as is his prognosis.

Based on the evidence, the Tribunal finds that epilepsy has not been diagnosed. Neither physician states the Appellant has epilepsy, Therefore, the Standard in Section 17.6.11 Epilepsy (Page 253) does not apply. The Tribunal accepts the evidence that further seizures are unlikely.

In conclusion, weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant does 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.

DECISION

Upon the application by the Appellant to appeal the decision dated October 28, 2015 of the Respondent 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 set aside.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, M.D., Member

Released: January 29, 2016