Licence Appeal Tribunal
FILE: 10411/MED
CASE NAME: 10411 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
10411 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: October 5, 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”).
FACTS
On April 15, 2016, the Respondent received a Medical Condition Report from Dr. B (a neurologist) reporting that the Appellant was diagnosed with seizures.
In his consultation report of April 15, 2016, Dr. B said:
- The Appellant had been having events for the past 2 years and they are primarily nocturnal.
- His wife reported activity consistent with seizure during the events; for example, she will wake up to him having jerking movement involving the arms bilaterally as well as legs.
- He will often wake up following one of these events, with headache, lethargy, and poor energy for several hours
- There had been one event during the day where the Appellant had felt dizzy, unwell, and felt he needed to lie down. He lost awareness and was unresponsive for several seconds; jerking movements of the right arm. Following this event, he was also quite tired and drained and had a headache.
- Overall the events were suspicious for seizures and he was started on anti-epileptic medication. EEG and MRI were being ordered.
- He was advised to be off work until his antiepileptic medication was at the target dose, for one month with no seizures. The reason provided for this was that the Appellant works at heights and in a fast paced environment.
The Appellant told the Tribunal that he does not have a family doctor. He had been experiencing the nighttime symptoms as described by Dr. B for years but had not sought a medical opinion. When he experienced his daytime episode, he became sufficiently concerned and went to a walk in clinic and was referred by the physician there to Dr. B.
The Appellant testified that his one and only daytime episode had occurred somewhere in the week of March 7-14, 2016.
On April 22, 2016, the Respondent sent the Appellant a letter advising him that his driving privilege was being suspended and requested that his specialist complete the Epilepsy and Seizures Form.
On August 5th, Dr. B wrote a letter to the Medical Review Section of the Ministry of Transportation stating that the Appellant had a history of focal epilepsy of unknown etiology and the Appellant had been started on an anti-epileptic drug to control his seizures. The Appellant had been seizure free for three months and his sleep was improved. The MRI and EEG test were normal (the reports were provided). Dr. B supported reinstating the driving privilege.
By letter dated August 12th, the Registrar told the Appellant that the Registrar was asking for confirmation of six months seizure free and compliance with treatment in order to be considered for reinstatement of his driver’s licence.
On September 30th, Dr. B wrote a letter to the Registrar stating that the Appellant had been seizure free since the end of May 2016 and he is compliant with medications and treatment. Dr. B. repeated his support for reinstatement of the driving privileges.
On October 4th, the Registrar sent the Appellant a letter informing him that his licence remained under suspension and that he must provide confirmation of a six month period seizure free and compliance with treatment in order to be considered for reinstatement of his driver’s licence.
The Registrar’s position was that the Appellant has epilepsy and thus the Canadian Council of Motor Transport Administrators (CCMTA) Guidelines, specifically, section 17.6.6 should apply and his licence should remain suspended until a six month seizure free period has been confirmed.
The Appellant’s position was that since he has been seizure free for four months, all of his investigations have been normal, his sleep has improved (implying that he no longer has nocturnal seizures), and his neurologist supports his return to driving that his driving privilege should be reinstated. His opinion is that waiting for the six month mark is arbitrary since his problem appears to have been completely solved by the medications.
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 any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely?
LAW
Section 47(1)(g) of the Act permits the Registrar to suspend a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1). The Tribunal finds that this permits the Registrar to suspend a driver’s licence if the driver fails to meet the requirements in O. Reg. 340/94, section 14(1), which 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.
Section 14(2) of the Regulation permits the Minister to take into consideration the CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.
Section 50 of the Act permits the driver to appeal the Registrar’s decision under s. 47 to the Tribunal, and the Tribunal “may confirm, modify or set aside the decision of the Minister or the Registrar.”
APPLICATION OF THE LAW TO FACTS
The Appellant’s daytime seizure happened suddenly and involved a loss of consciousness. If such an episode were to occur while driving, it could put both the Appellant and other members of the public at risk. Nocturnal seizures pose less of a risk as they do not occur while the person is driving.
When weighing the evidence before it, the Tribunal may consider the CCMTA Guidelines but is not bound by them.
Section 17.6.6 of the guidelines (Epilepsy – Non-commercial drivers) states that drivers are eligible for a licence if it has been six months since the seizure occurred with or without medication.
It has been four months since the last seizure and thus the Appellant does not meet the standard in the Guideline for reinstatement of his licence.
The Tribunal has considered, given the evidence presented, whether there is sufficient reason to deviate from this Guideline and finds that there is.
The Tribunal’s reasons are as follows:
- All of the investigations have been normal.
- The nocturnal seizures are less concerning due to the fact that they occur when the Appellant is not driving.
- Given the improvement in sleep and resolution of morning symptoms since starting the anti-epileptic medication, it appears that the Appellant’s nocturnal seizures have resolved.
- In the two years that he was having nocturnal seizures, the Appellant only ever had one daytime seizure. This seizure occurred before the Appellant started his anti-epileptic medication.
- In the approximate one month between when he had the daytime seizure and he saw the neurologist, the Appellant remained unmedicated but experienced no further daytime seizure.
- The complete disappearance of the Appellant’s nocturnal seizures since he started the medication and the infrequency of daytime seizures before he was medicated make the probability of another daytime seizure remote.
- It has been over six months since his last daytime seizure (the type which presents the possible driving risk).
- The neurologist, who has assessed the Appellant on three separate occasions, has specifically stated that he supports licence reinstatement.
DECISION
Upon the appeal of the decision effective August 21, 2016 of the Registrar to suspend the Appellant’s 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
Katherine Whitehead, M.D., Member
Released: October 14, 2016