Date: 2018-07-25

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:

R.V.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Dimitri Louvish, Member Joanne E. Foot, Member

Appearances:

For the Appellant: R.V., Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference June 13, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 33-year-old man whose driver’s licence was suspended by the Registrar of Motor Vehicles (the “Registrar”) under s. 47(1) of the Highway Traffic Act (the “HTA”) after an emergency room physician filed a report dated April 25, 2018 with the Ministry of Transportation (the “Ministry”) indicating that the appellant had suffered a seizure. The appellant now appeals the suspension of his driver’s licence under Section 50(1) of the HTA.

2The question for our determination is whether the appellant suffers from a physical condition that is likely to significantly interfere with his ability to drive safely.

B. RESULT

3For the reasons set out below, we find that:

a. the appellant suffers from epilepsy; and

b. the Registrar has established that the appellant is affected by epilepsy to an extent likely to significantly interfere with his ability to drive safely.

4For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

C. ISSUES

5The issues to be determined in this appeal are:

a. whether R.V. suffers from a physical condition, in particular, epilepsy; and

b. if R.V. does suffer from epilepsy, is that condition likely to significantly interfere with his ability to drive a motor vehicle safely?

Determination of the issue stated in paragraph 5(b) above requires consideration of the incident that took place on April 25, 2018, at which time the appellant lost consciousness. Specifically, we are required to determine whether this incident occurred as a result of a seizure or resulted from a blow to the head that caused a loss of consciousness.

D. LAW

6The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

7One 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 disability 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 in part:

(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

8According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers, which are published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

9The Registrar has the burden to establish the grounds 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.

E. PRELIMINARY ISSUE

10The appellant indicated that he wished to call Mr. M.S. as a witness, though this had not been previously disclosed to the Tribunal or the respondent. The appellant explained that Mr. M.S. was the person who found him unconscious after the incident on April 25, 2018. The Registrar’s Agent (the “Agent”) consented to Mr. M.S. giving evidence in the hearing.

F. ANALYSIS

a. Does the appellant suffer from a physical condition, namely, epilepsy?

11It is not in dispute that the appellant suffers from epilepsy. He writes in his Notice of Appeal that “In June 2017 they confirmed I had epilepsy of mostly petit mal and the rare grand mal”. In his oral testimony, the appellant confirmed that he had been diagnosed with epilepsy. Seizures and/or epilepsy are confirmed in a number of documents presented to the Tribunal. These include medical reports dated May 2013, July 2013, July 2013 and December 2017, a collision report dated July 2013, and completed Epilepsy and Seizure forms dated June 2014, October 2015, June 2017, and January 2018.

12We find that the appellant suffers from epilepsy.

b. Is the appellant’s physical condition of epilepsy likely to significantly interfere with his ability to drive safely?

13The CCMTA Medical Standards for Drivers indicates that “in general, individuals with epilepsy have an increased risk for adverse driving outcomes.” It goes on to note that “those not receiving antiepileptic drug treatment are at greater risk than those receiving treatment” and that “[the] primary consideration for drivers with epilepsy is the potential for a seizure causing a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness while driving.” Indeed, this is a serious medical condition when considering the safety of the driving public as well as the safety of individual drivers who suffer from this condition.

14The appellant had his first seizure in April 2013 at the age of 28. He has had three subsequent seizures in July 2013, January 2017 and December 2017.

15The most recent event, wherein the appellant lost consciousness occurred on April 25, 2018. The appellant asserts that this incident resulted from an accident involving a blow to the head, not a seizure. The Agent submits that this incident was, in fact, an epileptic seizure.

16We have considered evidence relating to (i) the event on April 25, 2018, (ii) the acceptance by the appellant of his medical condition, (iii) the appellant’s management of his medical condition, and (iv) the ongoing medical management of the appellant’s medical condition. Items (ii), (iii) and (iv) are relevant to our consideration of whether the appellant’s medical condition is likely to significantly interfere with his ability to drive safely. Each of these is discussed in turn below.

Incident on April 25, 2018

17In his notice of appeal, the appellant states that he was working alone at his auto customization shop and noticed some shelves that needed to be taken down because they were unsafe. He further states that as he started work on this project, the shelves fell on his head and “knocked me unconscious”. He was alone at the time, but Mr. M.S, who works in the building, found him a short time later, moved the shelves and called an ambulance.

18In oral testimony, the appellant was unable to give a clear description of the shelves, stating that it was “one big shelf in a few pieces”. He also testified that after the shelf hit his head, he felt dizzy and attempted to sit down but was unable to do so before he lost consciousness. When asked, the appellant indicated that he was on a ladder when he was attempting to dismantle the shelves.

19The appellant’s witness, Mr. M.S., testified as to the events that happened that day. He acknowledged that he was not present at the time the shelves fell, but found the appellant a short time later. He knows it was a short time later as he had been speaking with the appellant at the front of the shop a short time earlier and had come to the back to ask about a further matter. At this time, he found the appellant unconscious on the floor with a lump on his forehead. Mr. M.S. confirmed that there were shelves on the ground that he had to move to attend to the appellant, but was unable to recall clearly what other things were in the room or where the ladder was. Mr. M.S. also had difficulty saying with certainty how the appellant was positioned on the floor when he found him. Mr. M.S. recalled that the appellant regained consciousness before the ambulance arrived.

20The appellant testified that when he came to, he remembers talking in the ambulance and being on a stretcher. This appears to be at odds with the testimony of Mr. M.S. that the appellant regained consciousness before the ambulance arrived. The appellant also testified that he was sleepy when coming to in the ambulance. Sleepiness is a typical post-seizure presentation. The appellant further acknowledged that the ambulance attendant suggested that the appellant had suffered a seizure.

21In the report dated April 25, 2018 that the emergency room physician submitted to the Ministry, he wrote:

Ø compliant with seizure

meds sub therapeutic levels, seizure in ER

22The appellant denies that he was non-compliant with his anti-seizure medication at that time or that he had a seizure in the emergency room. His view is that the blood test taken in the emergency room was somehow inaccurate. In his notice of appeal, the appellant states that he had bitten his tongue. Again, this is a typical indication that a seizure has occurred.

Acceptance of Medical Condition

23The appellant had his first seizure in April 2013. Dr. M.S., the neurologist who conducted examinations of the appellant following this first event states in the May 2013 consultation report “I do think that [the appellant] has had a first seizure. He is a little bit in denial about it.”

24The appellant suffered his second seizure three months later in July 2013. The seizure occurred while the appellant was driving, as evidenced by the collision report dated July 22, 2013 and confirmed in a letter dated February 14, 2014 from the prosecutor to the Ministry that the careless driving charges resulting from this incident were withdrawn on the basis that the accident was caused by a seizure. This incident occurred while the appellant’s driver’s licence was under suspension. At best, this is an indication that the appellant had not yet come to grips with the reality of his serious medical condition.

25A completed Epilepsy and Seizure form was requested by the Registrar at the time of the June 2013 driver’s licence suspension. Dr. L.M., another neurologist, completed this form on June 23, 2014. The form indicates nocturnal seizures of unknown origin and that no anti-seizure medication had been prescribed.

26We questioned the appellant about his change of neurologists. At first he indicated that he “didn’t like the way [Dr. M.S.] was dealing with stuff” and later that they were “not on the same page”. When pressed, the appellant acknowledged that he didn’t want to take anti-seizure medication and that Dr. L.M. was agreeable with this approach after the car accident.

27The appellant had a third seizure on January 21, 2017 as evidenced by a notice that day from an emergency room physician to the Ministry reporting a seizure. The appellant’s driver’s licence was again suspended and the Ministry requested an updated Epilepsy and Seizure form.

28Dr. L.M. provided an updated Epilepsy and Seizure form dated June 12, 2017. This again notes “seizures” as the appellant’s primary medical condition, on this occasion of the “generalized tonic clonic or grand mal” type. He also indicates that an EEG had shown “epileptiform activity” and indicated that medication had now been prescribed.

29The appellant suffered his fourth seizure on December 13, 2017. An emergency room physician submitted a Medical Condition Report dated December 13, 2017 indicating “Seizure(s) – Cerebral”. He also writes:

Witnessed seizure

Compliance ͞c carbamazepine levels?

30Dr. L.M., together with C.R., a social worker, submitted a letter to the Ministry dated April 18, 2018 expressing the opinion that the December 13, 2017 seizure was triggered by a test conducted by a physician at a rheumatology clinic and because six seizure-free months had passed (discounting the triggered event), the appellant was then safe to drive. The appellant’s driver’s licence was reinstated by letter dated April 18, 2018.

31The shelf incident occurred seven days later.

Self-Management of Medical Condition

32As noted in paragraph [29] above, the emergency room physician in December, 2017 questioned the appellant’s compliance with his anti-seizure medication. In relation to the shelf incident this year and as set out in paragraph [21], the emergency room physician expressed doubt about the appellant’s compliance with his medication and noted non‑therapeutic levels of medication in his bloodstream.

33The appellant testified that he had skipped a dose of carbamazepine the evening before the December, 2017 seizure as he was drinking alcohol that evening. He further testified that he skips doses from time to time for this reason as alcohol and the anti-seizure medication do not mix well. He acknowledged that his neurologist does not approve of this practice.

Medical Management of Medical Condition

34The appellant testified that his anti-seizure medication has not been adjusted or changed since it was first prescribed in June, 2017. He further testified that he sees his neurologist once per year and that no blood work has been done since he began taking the medication.

Burden and Conclusions

35The Registrar has the burden to establish that the appellant’s physical condition of epilepsy is likely to significantly interfere with his ability to drive safely.

36We have objective evidence relating to the April 2018 incident. These are the low therapeutic levels of carbamazepine in the appellant’s bloodstream, the observation of the ambulance driver that he had suffered a seizure, the emergency physician’s indication that he had suffered a seizure and the indication in the notice of appeal that the appellant had bitten his tongue. We prefer this objective evidence to the evidence of the appellant and his witness about the events of that day. In his testimony, the appellant did not clearly recollect the events and his witness’ testimony did not add clarity. We find that the appellant had a seizure on April 25, 2018.

37We also find that the appellant’s epilepsy is not well-controlled. He admits to resisting taking medication for four years after his first seizure. Reports of two emergency room physicians question his compliance with medication and one reports non-therapeutic levels of medication in his blood. He testified that he skips doses of his medication when he wishes to consume alcohol. Finally, it appears that the medical management of his condition is sporadic at best, as evidenced by the fact that he has not been monitored since beginning the anti‑seizure medication. Unfortunately, the appellant has not shown good insight or judgement in relation to the reality of his serious medical condition and his pattern of non-compliance with medication indicates that he has not embraced the steps required of him to manage his epilepsy appropriately.

38After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from a physical condition, namely epilepsy, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

G. ORDER

39For 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.