Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-12 File Number: 10884/MED

Appeal under subsection 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) of the Act to change the Class or Classes of a Driver’s Licence

Between:

D.S. Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Harriet Lewis, Member

Appearances: For the Appellant: D.S., appellant For the Respondent: Kyle Biel, agent

Place and date of hearing: By teleconference: September 7, 2017

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant is a 57 year old professional truck driver with a long and unblemished driving record. On January 28, 2017, while at lunch with his co-workers, he was observed to lose consciousness, waking up when an ambulance arrived. He had no previous history of seizures.

2A physician reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant apparently suffered a tonic clonic seizure. The report was submitted in compliance with s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), which requires physicians in Ontario to report to the Registrar any patient 16 years of age or older who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. The Registrar, by a letter dated February 2, 2017, then suspended the appellant's driver’s licence.

3The Registrar subsequently received confirmation that the appellant had remained seizure free for six months. The appellant's licence was reinstated on March 7, 2017 but downgraded from a Class A to a Class G licence. The decision to downgrade the licence was made by the Minister of Transportation (the “respondent” or “Minister”) under s. 32(5)(b)(i) of the HTA. The appellant appeals from that decision.

4The respondent submits that because driving a commercial vehicle involves significant risks to other road users, and because the appellant's seizure may be as a result of epilepsy, a five year seizure free period is necessary in order to consider reinstatement of his Class A licence. The appellant submits that his Class A licence should be reinstated, as there has been no diagnosis of epilepsy and the attending neurologist has provided a letter stating that from a neurological viewpoint, he is fit to drive a motor vehicle of any class.

5For the reasons that follow, we confirm the Minister's decision to change the class of the appellant's driver’s licence.

B. PRELIMINARY ISSUE:

6The hearing was adjourned on August 16, 2017, in order for the appellant to have another visit with the neurologist and to produce more complete medical documentation. This appointment occurred but no further tests or examinations were conducted and no further evidence from the neurologist was obtained.

7On the date of the hearing, the appellant informed the Tribunal that he was under substantial stress because his wife had been admitted to hospital the night before with issues of stress brought on by this matter and by the fact that their home had recently been flooded by the storms in Windsor.

8The respondent and the Tribunal offered the appellant an opportunity to adjourn the hearing until these issues were addressed. After some discussion, the appellant decided to continue with the hearing on the basis of the evidence at hand.

C. ISSUES:

9The 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 Class A motor vehicle safely. In order to address that question, we will address the following issues:

(i) Did the appellant suffer from a seizure?

(ii) Is the appellant's seizure, if any, likely to significantly interfere with his ability to drive a Class A motor vehicle safely?

10We answer both of these issues in the affirmative, and confirm the respondent’s decision to downgrade the appellant’s driver’s licence.

D. EVIDENCE:

11There is no real dispute about the evidence before us which is as follows:

12The appellant has had a long career as a professional driver, and has a clean driving record. He is very proud of his driving history and his experience of safely driving large and complicated commercial vehicles, most recently a tow plough. Driving is not only his vocation, but his avocation, and in addition to his employment, he volunteers his expertise as a mechanic and driver with recreational organizations. He is currently employed by a company which is contracted to maintain a portion of Highway 401 in southern Ontario.

13The appellant has had no previous seizures, was not on medication at the time of the incident leading to the suspension of his licence, and is generally in good health. He is an infrequent social drinker and an infrequent social user of marijuana. Traces of THC were found in his urine.

14On January 28, 2017, shortly after consuming his lunch, the appellant lost consciousness in his employer's lunch room in the presence of some of his fellow workers.

15The loss of consciousness was witnessed by fellow employees who called for an ambulance. The appellant was taken to emergency at a local Windsor area hospital where he was seen, admitted and a referred to a neurologist.

16On February 2, 2017, the appellant saw Dr. D., a neurologist, who noted information given by the appellant's co-workers to the EMS personnel which described symptoms consistent with a generalized tonic-clonic seizure, losing consciousness with observable tightened muscle rigidity alternating with jerky non-purposeful muscle movements. We did not have the benefit of the EMS report. However, on the basis of that evidence and the appellant's report that he experienced deja vu prior to the loss of consciousness, a diagnosis of a seizure was made and he was placed on anti-seizure medication. (Keppra 500 milligrams twice a day) Cardiac investigations and a CT scan of the brain with contrast and EEG were prescribed on an outpatient basis.

17A letter from Dr. D. dated April 13, 2017, filed by both of the parties, states that the appellant had a single seizure on January 25, 2017, that his neurological examination remains normal, that the EEG, CT and MRI scans of the brain are normal, and that he remains on Vimpat 100 mg twice a day without any side effects. Dr. D. opines that from a neurological point of view, the appellant is “fit to drive a motor vehicle of any class.”

18The appellant recalls having the MRI scan, but while documentary reports of the EEG and CT scan were before us, there was no documentary evidence of the MRI.

19The appellant testified that he takes his medication regularly as prescribed. He does not currently have a family doctor but is in the course of finding one. Following the August 16 adjournment, the appellant made a further appointment with Dr. D. and attended at that appointment but was unable to obtain any further report for submission in this appeal.

20The appellant also testified to the nature of his employment which has a seasonal component. His spring/summer job duties do not require a Class A licence but come November 1, if he is not licensed to drive a snow plough, he is likely to be laid off. The appellant described some of the complicated requirements of the job of operating a tow plough on the 401 highway, as well as the nature of the shift work inherent in the job.

E. THE LAW:

21As this is an appeal of a decision to downgrade a licence from a Class A to a Class G based on a medical condition, the applicable law is as follows:

The Minister of Transportation has the authority to change the class of a driver's licence pursuant to s. 32(5)(b)(i) of the HTA. As stated in that section:

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 ....

22One of the prescribed requirements is set out in s.14(1) of O. Reg. 304/94 (“the Regulation") and 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;

23In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.

24Paragraph 14(2) (a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements.

25The jurisdiction of the Tribunal is set out in s. 50(2) of the HTA and allows the Tribunal to confirm, modify or set aside the decision or order of the Minister.

F. ANALYSIS:

26The Tribunal is of the view that the appellant suffered a seizure on January 25, 2017. While the initial report from the emergency care physician suggested a syncopal attack, the neurologist, having spoken further with the appellant and having considered the notes on the EMS report, made a more precise clinical diagnosis of a seizure. Specifically, the clinical diagnosis was supported by the appellant's advising of the presence of aura prior to the loss of consciousness, and the apparent notations on the EMS report of the observation of co-workers of generalized tonic-clonic seizure activity and the presence of a post ictal state.

27The cardiac investigations including the Holter monitor, ECG and BP monitoring revealed no alternate cause for this syncopal spell, nor did any blood testing. Urine toxicology was unremarkable except for the presence of trace amounts of THC. As noted, the appellant admitted to using marijuana about once a week when offered it by others in a social situation.

28The appellant’s EEG and CT scan were unremarkable and although no report was included in the documentary evidence, the appellant gave evidence that he had an MRI and he was told that was also normal. This was confirmed by Dr. D.'s letter of April 13, 2017.

29The Tribunal heard evidence that the medical team started the appellant on anti-seizure medication: initially Keppra 500 mg twice a day and then changing to Vimpat 100 mg twice a day. The appellant testified that the change was made due to intolerance of Keppra. The appellant gave evidence that it was his understanding that this medication was given to prevent further seizures.

30Seizures from whatever cause may result in a sudden impairment of cognitive, motor, or sensory function and as in this case, may also cause a loss of consciousness. The effect of a seizure while driving would have a high probability of causing a loss of ability to drive safely.

31The Tribunal heard from the respondent's agent, a detailed description of the form and function of the CCMTA. It was described as a body of experts from across Canada that has formed a consensus opinion on standards for drivers with medical conditions that have the potential to impact on their ability to drive safely. These standards act as a very considered guideline for the Tribunal but the Tribunal is not bound in any particular way by the CCMTA. There are two relevant sections of the CCMTA which address seizures in drivers holding commercial licences. While the respondent's agent clearly stated the Minister's position that the standard applicable to seizures caused by epilepsy should govern, we considered two sections of the guideline in reaching our decision:

Section 17.6.5 of the CCMTA guideline addresses the circumstance of a driver holding a commercial licence who has a single unprovoked seizure without a diagnosis of epilepsy. It recommends a suspension until the licence holder has remained seizure free for at least 12 months, and has had a complete neurological assessment.

Section 17.6.12 of the CCMTA pertains to the circumstance of a driver holding a commercial licence where there has been a diagnosis of epilepsy and recommends a suspension until there has been a seizure free period of five years, with or without medication, but with regular medical follow up.

32The Tribunal heard evidence that the appellant does not have a further medical follow up appointment with either a neurologist or a family doctor. The appellant has been given an open prescription for Vimpat which without a contrary prescription means he can take the medication indefinitely. The Tribunal heard evidence from the appellant that he takes the medication on a regular basis and that he assumes he will have to stay on the medication. We find no issues of credibility in his testimony however, notwithstanding that there has not been a recurrence of a seizure since the initiating incident, the fact of no ongoing follow up is of concern for the Tribunal. It has only been seven and a half months since the seizure, and in the absence of a medical opinion to that effect, the Tribunal does not have enough evidence at this time to completely rule out a diagnosis of epilepsy.

G. CONCLUSION:

33While the neurologist’s notes dated February 2 and April 13, 2017 support reinstatement of the appellant's Class A driving privileges, the Tribunal is mindful of the safety of both the appellant and the public. Because not even a year has passed and there has been no evidence given linking symptoms, witness reports or test results to a probable cause of D.S.'s seizure (or to the contrary, eliminating epilepsy as a cause), we cannot decide in favour of the reinstatement of the appellant’s Class A licence at this time.

H. ORDER:

34For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister's decision to change the class of the appellant's driver’s licence is confirmed.