Date: 2018-10-01

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 to change the class of a driver’s licence under subparagraph 32(5)(b)(i) of the Act.

Between:

E.B.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Adjudicators: Dr. Dimitri Louvish, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Stephen Grootenboer, Agent

Place and Date of Hearing: Teleconference July 13, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the downgrade of his commercial driver’s licence, which was downgraded due to epilepsy, pursuant to s.32(5)(b)(i) of the Highway Traffic Act (the Act).

2On April 30, 2015, the Ministry of Transportation received an initial medical report of seizure. The appellant’s driving licence was suspended as a result on May 5, 2015. On January 19, 2016, the appellant’s Class ‘G’ licence was reinstated, however, his Class ‘D’ commercial licence remained suspended. The respondent requested a seizure-free period of five years before reinstating the commercial class licence.

3The appellant has been seizure-free for a period of two years, since June 25, 2016, and appeals the downgrade of his commercial licence.

4For the reasons that follow, we find that the respondent’s position that a seizure-free period of five years for a commercial licence is reasonable and without that lengthy seizure-free period, the appellant’s medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

5Accordingly, we confirm the Registrar’s decision to downgrade the appellant’s driver’s licence.

B. ISSUE:

6The issue in this appeal is whether the appellant’s medical condition is likely to interfere with his ability to drive a commercial vehicle safely.

C. LAW:

7The Registrar has the burden of establishing the grounds for downgrading the appellant’s licence on a balance of probabilities.

8The Registrar has the power under subparagraph 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to downgrade a driver’s commercial licence for a sufficient reason. Subsection 14(1)(a) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not 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.

9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Standards) when determining whether the requirements of s. 14(1) are met. The CCMTA Standards at s. 17.6.12 state that a commercial driver who suffers from epilepsy can have their licence reinstated after a five-year seizure period.

10We may take the CCMTA Standards into consideration, although they are not binding on us.

D. EVIDEnCE AND Analysis:

11The respondent submitted the following medical evidence before the Tribunal:

a. The initial medical condition report submitted by Dr. M. dated April 30, 2015 reporting the first seizure of the appellant

b. A fax from Dr. S. dated October 30, 2015 supporting initial reinstatement of the appellant’s driving licence

c. A second fax from Dr. S. dated December 16, 2015 enclosing a completed epilepsy and seizure form

d. A note from Dr. S. dated May 25, 2016 advising of the appellant’s history of seizure

e. A second medical condition report submitted by Dr. B. dated June 25, 2016 reporting a second seizure

f. A second completed epilepsy and seizure form submitted by Dr. S. on July 11, 2016 noting cause of second seizure was non-compliance with medication

g. A third completed epilepsy and seizure form submitted by Dr. D. on March 25, 2018 stating stable on medication for 18 months, great adherence to medication and healthy lifestyle.

12The respondent also submitted the portion of the CCMTA Standards applicable to commercial drivers with epilepsy. The standard calls for a seizure-free period of five years prior to reinstatement of a commercial licence.

13The respondent stated that the reasons for the lengthier period of time required for a commercial driver are the increased safety concerns and risks associated with commercial drivers in relation to the safety of other road users.

14The respondent also submitted that even if the appellant currently only planned to drive short distances, commercial licences are unencumbered and would permit long-haul driving.

15The appellant testified as to his history with epilepsy. He first developed epilepsy in 2015 after an evening of staying up late, and being dehydrated. At that time his Class G and Class D driver’s licence were suspended. He had his Class G licence reinstated after his doctor submitted a completed epilepsy and seizure form which attested to his medication regime and a six-month period of being seizure-free.

16The appellant testified that in June 2016, through a combination of a prescribed reduced dosage of daily medication, a missed dose, staying up late and being dehydrated, he had another seizure. His Class G licence was suspended again. As a result, the appellant’s doctor subsequently increased the dose of his daily medication to a level he has maintained since. His Class G licence was reinstated in December 2016.

17The appellant testified that in both cases his seizures were preceded with about 30 seconds warning, and came after he was sleep-deprived and dehydrated.

18The appellant testified that he has been seizure-free for two years and is compliant with his medication (taken twice daily), as well as living a healthy lifestyle. This is supported by the most recent seizure and epilepsy form submitted by Dr. D.

19The appellant is an employee of a tree care business, working year-round on trimming and removing trees. Prior to his commercial licence being suspended, he would drive a commercial truck with a boom on local trips within one hour of his employer’s headquarters to work on trees. He continues to do the same work but is unable to drive the truck. He must be a passenger in the truck or drive a passenger vehicle to the job site. He stated that the downgrade of his licence has not affected his pay or his shift availability.

Analysis

20The test the Tribunal must consider is whether the appellant has a medical condition that affects his ability to drive a commercial vehicle safely.

21There was no dispute that the appellant has epilepsy and takes medication to control his seizures. He has successfully been seizure-free for two years.

22The only issue debated before this Tribunal was whether the five-year seizure-free period, sought by the respondent and supported by the CCMTA Standards, is required or whether the two-year seizure-free period the appellant has experienced is enough to show that his condition would not likely affect his ability to drive a commercial vehicle safely.

23We find that epilepsy is a serious medical condition and the effect of a seizure while driving could be devastating both to the appellant and any other road users. These risks are exacerbated when driving a commercial vehicle which is larger, more difficult to stop, and could cause much more significant damage than a passenger vehicle.

24Furthermore, we find that the second seizure in 2016 was caused by a combination of stress factors (lack of sleep and dehydration) together with a missed dose and therefore one incident of non-compliance with his medication regime. Therefore, risk factors for reoccurrence still remain. We find that the previous non-compliance incident does not support a shorter seizure-free period than that recommended by the CCMTA Standards.

25We accept the respondent’s position that the appellant’s commercial licence requires a lengthier seizure-free period than that for his non-commercial licence. Furthermore, while the CCMTA Standards are not binding on us, in this case we find that they are persuasive.

26Long-haul driving is a concern due to fatigue and the prospect this could result in a seizure. Although we appreciate that the appellant only plans to drive short distances for his work, if the suspension of the commercial class licence he holds were to be lifted, it would be an unencumbered licence and there would be nothing preventing him from completing long-haul assignments in the future.

27The appellant has had a two-year seizure-free period. While his appeal was premature with regard to the length of the seizure-free period he has experienced, he has made excellent progress towards a lengthier seizure-free period which could support reinstatement of his commercial licence in the future.

28Given the appellant’s recent history with epilepsy and the fact that the previous seizure was partially caused by non-compliance, together with the increased risks and safety concerns that are relevant to commercial drivers, we find that the respondent has met the burden to show that the appellant’s medical conditions is likely to affect his ability to drive a commercial vehicle safely.

29As a result, we confirm the Registrar’s decision to downgrade the appellant’s licence on the basis of a medical condition.

E. CONCLUSION:

30After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant’s medical condition is likely to interfere with his ability to drive a commercial motor vehicle safely.

F. ORDER:

31For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to downgrade the Appellant’s driver’s licence is confirmed.