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: 2018-01-05

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

Between:

M.N. Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Peter Savage M.D., Member Katherine Livingstone, Member

Appearances: For the Appellant: Self-represented For the Respondent: Steve Grootenboer, Agent

Place and date(s) of hearing: By Teleconference, October 31, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant, a 27-year-old male, appeals from the decision of the Minister of Transportation (the “Minister”) to change the class of his licence pursuant to section 32(5) (b) (i) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “Act”). The decision to change his class of licence was made after the appellant “blacked out” in his kitchen and subsequent testing and neurological assessment confirmed a diagnosis of epilepsy.

2For the reasons that follow, we find that the appellant does suffer from a mental or physical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely. Accordingly, we confirm the Minister’s decision to change the appellant’s driver’s Class ‘A’ licence to a Class “G” licence.

B. PRELIMINARY ISSUE

3At the beginning of the hearing, Dr. Savage advised the parties he lived in the same city as the appellant and had practiced medicine there before his retirement from his practice in June of 2017. Consequently Dr. Savage knew, on a professional basis, the doctors involved in reporting and assessing the appellant. Dr. Savage was prepared to recuse himself from the hearing however both parties indicated they were consenting to him remaining as part of the panel.

C. ISSUE

4Does the appellant suffer from a mental, emotional, nervous or physical condition likely to significantly interfere with his ability to drive a motor vehicle of Class “A” safely?

Appellant’s Evidence

5The appellant, gave oral evidence and also relied on his written statement in the Notice of Appeal. He told the Tribunal that on the night of January 21, 2017 he was at a party and consumed well over 10 drinks which was unusual for him. He did not take any drugs although he had taken 24mg of ephedrine earlier in the week as part of a regular routine to enhance his workouts.

6He woke the next morning feeling hung over and dehydrated and proceeded to take a hot shower before going to the kitchen to eat. He remembered choking on a piece of chicken and the next thing he recalled was his friends speaking to him while he was lying on the floor, 911 was called and he attended the hospital where the emergency room physician told him he felt the appellant had a seizure.

7Initially the internist and family doctor believed the incident was syncope rather than a seizure. However, in the months following, the appellant’s neurological testing and assessment confirmed a diagnosis of epilepsy based on the EEG showing generalized Epileptiform activity.

8The appellant said since the incident he has been taking Dilantin, an anticonvulsant medicine, the levels of which are now therapeutic. He has had no further seizures.

9After the diagnosis of epilepsy was made, a follow up EEG was booked. Unfortunately, the appellant missed the appointment and at the time of the hearing a new one had not been scheduled.

10Although the appellant wished to have his Class “A” licence for work purposes, he appeared to acknowledge and accept the fact of his diagnosis of epilepsy and the impact that may have on his ability to obtain a Class “A” at this time. He remarked on more than one occasion that he would never want to hurt anyone on the road.

The Respondent’s Evidence

11When the appellant was seen at the hospital the attending physician completed a Medical Condition Report and forwarded it to the Registrar of Motor Vehicles (the “Registrar”). This was done pursuant to section 203 of the Act which requires physicians in Ontario to advise the Registrar of the name, address and clinical condition of a person sixteen years or over who suffers from a condition that may make it dangerous for the person to operate a motor vehicle. The condition reported was seizure. Upon receipt of the Medical Condition Report the Registrar issued a suspension of the appellant’s driving privilege pursuant to section 47(1) of the Act effective January 25, 2017.

12On September 12, 2017 the Registrar reinstated the appellant’s licence but changed it from a Class “A” to a Class “G” after reviewing further information confirming a diagnosis of epilepsy, the fact the appellant was compliant with the treating medication and the fact he had remained seizure free.

13The Registrar advised the appellant on October 10, 2017 that he no longer met the National Medical Standards for a commercial licence due to his seizure and that reinstatement could only occur with a physician’s report once he had been seizure free for five years.

D. LAW

14The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5) (b) (i) of the Act. That section states:

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…

15The Minister’s decision under s. 32(5) (b) (i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.

16One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (the “Regulation”), 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.

17In 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.

18Paragraph 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. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

19Subsection 50(1) of the Act and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Minister.

20The Minister has the burden of establishing the ground for changing the class of licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Minister.

E. ANALYSIS

21Section 17.6.2 of the CCMTA states the standard for commercial drivers who have been diagnosed with epilepsy is they are eligible for a licence if they have not had a seizure for five years with or without medication and they have routinely followed treatment regimens and physician’s advice regarding prevention of seizures. The respondent relies on 17.6.12 of the CCMTA to assert its position that the appellant should be seizure free for 5 years before consideration is given to reinstating his class “A” licence.

22The appellant did not deny the diagnosis of epilepsy and told the hearing he “definitely understood where the Ministry was coming from.” He did not present the Tribunal with evidence on why his commercial licence should be reinstated other than to state he needed his commercial licence for his present employment.

23Although the Tribunal is not bound by the recommendations of the CCMTA the Tribunal is accepting of the position that greater scrutiny is necessary for the licensing of commercial drivers. This is due to the increased inherent risks in driving commercial vehicles including, but not limited to, longer hours on the road, greater potential for exhaustion and a significant likelihood of greater injury in the event of an accident, together with the obvious danger of having a seizure while driving.

24On the facts presented by the appellant and accepted by the Tribunal it is possible the alcohol consumed by the appellant the night before the seizure, combined with the ephedrine and the choking, may have lowered his threshold for seizures. However there is still the confirmed underlying diagnosis of epilepsy.

25While a 5 year wait before reinstatement might, in these circumstances, be excessive, it has been less than a year since the incident resulting in the seizure. Additionally the follow up indicated to be necessary by the appellant’s attending physician, has not been carried out and this information would be helpful in determining when or if reinstatement should be considered. Based on the evidence at the hearing the Tribunal is satisfied the Minister has established its burden that the appellant’s drivers licence classification should be changed to a class ‘G” licence.

F. CONCLUSION

26For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s commercial driver’s licence is confirmed.

Peter Savage M.D. Member

Katherine Livingstone, Member