LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-26

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

Appellant

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Katherine Whitehead, M.D., Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing:

By teleconference: April 26, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The Appellant has advanced renal failure, and has had two seizures related to that condition. The first seizure occurred in May 2016 and, as a result, the Registrar of Motor Vehicles (the “Registrar) decided to suspend his licence pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). That suspension was set aside by this Tribunal on August 30, 2016 based on a finding that the condition that caused his seizure had been resolved. The second seizure occurred on February 21, 2017. Based on a report of that seizure, the Registrar decided to suspend the Appellant’s licence again. The Appellant appeals from that decision pursuant to s. 50(1) of the HTA.

2The Respondent submits that the Appellant’s licence should remain under suspension until a six-month seizure-free period has elapsed. The Appellant submits that his seizure was caused by an ulcer, which made it impossible for him to keep down his anti-seizure medication. As that issue has been resolved, he submits he is no longer at risk for further seizures.

3For the reasons that follow, I find that the Appellant has a medical condition likely to significantly interfere with his ability to drive safely. Accordingly, I confirm the Registrar’s decision to suspend his driver’s licence.

B. Preliminary issues

4The Respondent requests that I accept the facts found in this Tribunal’s August 30, 2016 decision as facts for the purpose of this appeal. The Appellant did not oppose that request. I agree that it would be inappropriate for me to re-determine the facts found in that decision. I accept those facts as they relate to the circumstances surrounding the Appellant’s first seizure and suspension.

C. ISSUES

5The issue in this appeal is whether the Appellant suffers from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely. It is not in dispute that the Appellant had a seizure on February 21, 2017. The issue is whether his condition is likely to significantly interfere with his ability to drive safely.

D. FACTS and evidence

Background on the Appellant’s first suspension

6The Registrar received a report of the Appellant’s first seizure on May 19, 2016, which was filed in compliance with s. 203 of the HTA. That section requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. Based on that report, the Registrar suspended the Appellant’s driver’s licence.

7The Appellant had his nephrologist (i.e., a kidney specialist), Dr. K., fill out an Epilepsy and Seizures Assessment Form on June 28, 2016. Dr. K. stated that the seizure was likely related to the Appellant’s advanced kidney failure and hypocalcaemia, and that the provoking factor[s] had been corrected. The Appellant appealed to the Tribunal. In a decision released August 30, 2016 (10333 v. Registrar of Motor Vehicles, 2016 CanLII 88930), the Tribunal set aside the licence suspension, as the cause of the seizure had been identified and corrected, and there was no reason to expect a recurrence.

The licence suspension under appeal

Respondent’s evidence

8On February 22, 2017, a physician sent a Medical Condition Report to the Registrar in compliance with s. 203 of the HTA. The reported condition was Seizure(s)-Cerebral. The physician indicated on the form that the Appellant had been his patient for one day.

9By a letter dated March 1, 2017, the Registrar advised the Appellant that his licence was being suspended under s. 47(1) of the HTA due to the reported condition of “Seizure”. The letter enclosed an Epilepsy and Seizures Form to be completed by the Appellant’s medical practitioner.

10The Appellant’s nephrologist, Dr. K., completed the Epilepsy and Seizures Form and sent it to the Ministry of Transportation (the “Ministry”) on March 8, 2017. The form provided the following information:

• The Appellant had a seizure less than three months ago.

• The seizure was a generalized tonic clonic or grand mal seizure.

• The Appellant had a previous seizure within the last 12 months.

• An EEG performed did not show signs of epileptiform activity.

• The seizure was a provoked seizure with no structural brain abnormality (e.g., due to a toxic illness, trauma, or medication induced).

• Anti-seizure medication has been prescribed, and the seizures are prevented by the current medication regimen.

• The Appellant reports adherence to the recommended treatment regimen.

• The provoking factor has stabilized, resolved or been corrected.

• The Appellant’s seizure “was related to uremia which is corrected with increased dialysis clearance.”

11By a letter dated March 16, 2017, the Registrar advised the Appellant that his licence would remain under suspension, and that the Ministry required confirmation of a six-month seizure free period and compliance with recommended treatment, if prescribed and/or insight into his condition.

12On March 17, 2017, the Appellant appealed the Registrar’s decision to suspend his licence to the Tribunal.

13Dr. K. sent a letter to the Ministry of Transportation on April 7, 2017, stating the following:

[The Appellant] is a 32 year-old-male with end-stage renal disease on hemodialysis, who had an episode of tonic clonic seizure in May of 2016 at the time when he presented with severe uremia. The patient was placed on Dilantin and did well until February 21, 2017 when he presented with another seizure. At the time of the second seizure, the patient was quite uremic and had hypocalcaemia and hypomagnesaemia. The patient was seen by the Neurology Team who suggested to keep him on Dilantin to prevent any further seizures. He has done well with no recurrence of his seizures.

14On April 24, 2017, the Registrar advised the Appellant that his licence would remain under suspension. The Registrar stated that in order to be reinstated, the Ministry required confirmation that he remained seizure-free for a period of six months.

Evidence for the Appellant

15The Appellant provided his evidence both in his testimony and his Notice of Appeal. He explained that in January 2017, he started having migraines and threw up every night. He was taking anti-seizure medication, but was throwing up the pills every night. He was going to dialysis appointments three days a week. He told his doctors about what was happening to him, but he says that they did not listen to him.

16After the Appellant had a seizure on February 21, 2017, a doctor told his mother that the anti-seizure pills were not working because he was throwing them up. He testifies that his seizure was caused by a bleeding ulcer, which was what was making him throw up. He states that the ulcer was not discovered until an investigation was done following his seizure. He states that he is now taking medication for his ulcer and feels much better. The Appellant feels that his seizure would not have occurred if his ulcer had been discovered earlier. He states that his doctor said that if things were done differently, this would not have happened. He states that he should not be punished for this. He further states that prior to his seizure, his blood pressure, creatin and potassium levels were all high; however, that is all completely fixed now.

17The Appellant also explains that he needs his licence back in order to get to his dialysis appointments. He says that he is being considered for a kidney transplant. He also testified that he needs his licence to run his business and pay back his debts.

18There is also evidence from the Appellant’s mother. She states in a letter attached to the Appellant’s Notice of Appeal that he has not had any problems since he was treated for his ulcer. She also explained how difficult it has been for her to take the time off work to drive the Appellant to his dialysis. She questioned how he was going to go for his transplant in June if she cannot take the time off work to drive him.

19The Respondent’s Agent asked the Appellant if there is any medical documentation regarding the ulcer. The Appellant’s mother responded that he has not seen the ulcer specialist yet.

E. LAW:

20The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

21One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

22Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

23Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

24The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

F. Submissions:

Respondent’s submissions

25The Respondent submits that the Registrar’s decision to suspend the Appellant’s licence was made in accordance with the law. The Respondent relies on both section 17.6.2 of the CCMTA Standards, which applies to drivers with provoked seizures with no structural brain abnormality, and section 17.6.6, which applies to drivers with epilepsy. The Respondent acknowledges that the Appellant does not have epilepsy; however, the Respondent relies on section 17.6.6 to show the reasonableness of the Ministry’s policy to require a six-month period of stability, which is not required by 17.6.2. The Respondent explained that the Ministry supplements the CCMTA Standards with internal policies where it perceives there to be gaps.

26Section 17.6.2 of the CCMTA Standards applies to drivers who have experienced provoked seizures caused by a toxic illness, adverse drug reaction, trauma, or other cause that is not associated with a structural brain abnormality. The standard states that such 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

• the provoking factor has stabilized, resolved, or been corrected, with or without treatment, and

• the treating physician indicates that further seizures are unlikely.

27Section 17.6.6 of the CCMTA Standards, which applies to drivers with epilepsy, states that drivers are eligible for a non-commercial licence if it has been six months since the seizure occurred with or without medication.

28The Respondent submits that because the Appellant is taking anti-seizure medication, there should be a six-month period of stability.

Appellant’s submissions

29The Appellant’s position, as set out in his Notice of Appeal and testimony, is that he is feeling much better and that the cause of his seizure has been corrected. He also submits that he should not be punished for his seizure, as it would have been prevented if his doctors had discovered the ulcer earlier. He also urges the Tribunal to set aside the suspension because he needs his licence to get to his dialysis appointments.

30The Appellant’s mother made closing submissions on his behalf. She highlighted the unfairness of the situation. She submits that the Appellant should not be punished for something that is not his fault medically. She notes that he does not have medical documentation from his doctor regarding the ulcer yet, because that doctor does not have any available appointments.

31She also submits that she cannot take any more time off work, and it is not fair for her to have to do so when the Appellant is fine. She submits that if he was not well enough, the doctors would not consider giving him another kidney.

G. ANALYSIS:

32As set out below, I find that the Appellant has a medical condition likely to significantly interfere with his ability to drive safely.

33It is not in dispute that the Appellant had a seizure on February 21, 2017. It is also not in dispute that it was a provoked seizure with no brain abnormality and that the Appellant does not have epilepsy.

34The Appellant’s seizure was a tonic-clonic or “grand mal” seizure, which is characterized by unconsciousness, convulsions and muscle rigidity. If the Appellant has another tonic-clonic seizure while driving, there will be a sudden impairment of the functions necessary for driving. It is not possible to compensate for a seizure while driving.

35Provoked seizures resolve after the provoking factor, or the condition that caused the seizure, has resolved or stabilized. Therefore, if the cause of the seizure has been corrected, the risk to road safety will be alleviated, assuming there is no other reason to expect further seizures.

36In this case, I am not satisfied that the cause of the seizure has resolved. The Appellant has advanced kidney failure. Various factors associated with his kidney failure have resulted in two seizures. Dr. K. stated that his first seizure was likely related to advanced kidney failure and hypocalcaemia, which was being treated by hemodialysis and calcium. Dr. K. stated in the Epilepsy and Seizures Form he sent to the Ministry on March 8, 2017 that the second seizure was caused by uremia. He also mentions hypocalcaemia and hypomagnesaemia in his letter of April 7, 2017, although it is not clear whether he is citing them as a cause of the seizure.

37I have considered the evidence that Dr. K. indicated on the Epilepsy and Seizures Form sent on March 8, 2017 that the seizure was related to uremia which has been corrected with a change in his dialysis therapy. Although there is some evidence that a cause of the seizure has been identified, I am not convinced of what the exact cause of the seizure was. It may have been uremia, electrolyte abnormalities, an ulcer, or a combination of those factors.

38I am also not satisfied that the condition that caused the seizure has been sufficiently resolved so as to acceptably decrease the risk of a subsequent seizure. Dr. K. states in his letter of April 7, 2017 that the neurology team has recommended that he remain on Dilantin, which is anti-seizure medication, to prevent any further seizures. I find that, if the condition that caused the seizure were resolved, there would no longer be a need to take anti-seizure medication.

39I appreciate that the Appellant believes that his seizure on February 21, 2017 resulted from an undiscovered ulcer which caused him to vomit his seizure medication. I note that there is no medical evidence to support this theory. However, assuming that his seizure was in fact caused by his inability to keep down his anti-seizure medication, the necessity of the anti-seizure medication indicates that the cause of the seizure has not been resolved. I find that the cause of the Appellant’s seizures is his kidney failure generally, which unfortunately is still unresolved.

40Dr. K. does note in the most recent Epilepsy and Seizures Form that the seizures are prevented by the current medication regimen. However, this does not mean that the condition that caused the seizure has been resolved. In my opinion, more time is needed to determine whether the Appellant’s anti-seizure medication is effectively preventing further seizures. The Respondent’s position is that the Appellant’s licence can be reinstated after a six-month period of stability. I agree that after six months, the risk of further seizures will be greatly reduced.

41The Appellant is going through an extremely difficult period in his life due to his kidney failure. I would like to emphasize that the suspension of his driver’s licence is not his fault. The Appellant is doing everything that he can to take care of his health and his mother is doing her best to support him in doing so. Unfortunately, due to a serious health condition that is beyond the Appellant’s control, there remains a significant risk that he will have another seizure.

42Accordingly, after considering the evidence and submissions of the parties, I find that the Appellant is suffering from a medical condition likely to significantly interfere with his ability to drive safely.

ORDER:

43For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.