H.H. v. Registrar of Motor Vehicles, 2018 CanLII 117018

Date: 2018-10-24

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:

H.H.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: H.H., Self-represented For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: September 7, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant appeals the May 26, 2018 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence on November 15, 2015, under s. 47(1) of the HTA due to the appellant’s seizures.

B. PRELIMINARY MATTER:

2On August 30, 2018 appellant sent to the Tribunal a medical report dated August 16, 2018 from his neurologist, Dr. F., in support of his appeal. At the start of the hearing the Registrar’s agent said he had not received this report. The Tribunal asked the Registrar’s agent whether he wished to proceed with the hearing even though he did not have this medical report. The Registrar’s agent consented to proceeding with the hearing. The medical report from Dr. F. dated August 16, 2018 was marked as an exhibit and the hearing proceeded.

C. ISSUE:

3The issue in this appeal is whether the appellant has a medical condition, specifically seizures, likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant suffer from seizures?

(b) Is the appellant’s medical condition of seizures, if any, likely to significantly interfere with his ability to drive safely?

D. CONCLUSION:

4For the reasons that follow, we find that the appellant suffers from a medical condition, specifically seizures, but that it is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

E. LAW:

5The 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 (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

6One 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;

7Section 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. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

8Under 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.

9The Registrar has the burden of establishing 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. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from seizures?

10As set out below, we find that the appellant has suffered from seizures but that this medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

11The Registrar filed five medical reports. In a Medical Condition Report dated May, 2017, Dr. C., an emergency room physician, diagnosed “seizure(s)-cerebral” and noted a previous history of seizures. In a report dated June 30, 2017, the appellant’s family physician, Dr. McM., diagnosed “other” condition and noted “nocturnal seizure equivalent”, and in a report dated July 28, 2017 notes that there have not been further “spells”, appellant is on medication and is compliant and “spells occur only at night. An EEG report dated June 19, 2017 indicated “abnormal findings” and noted that Lomatrigine had been started. Another EEG report dated 2017-04-11 records “abnormalities recorded during sleep and noted family history for epilepsy”. In a report dated November 30, 2017 Dr. L., appellant’s neurologist recommends driving in day because seizures are nocturnal. A report from Dr. W. records that the appellant was treated at hospital resulting from a “seizure-cerebral” at work. Dr. McM. reported on June 26, 2018 that appellant had a seizure less than three months ago, noted no side effects from meds, noted a “breakthrough seizure”, described the etiology of seizure as “unknown” and recorded a pending neurology consult. Dr. E., the appellant’s new family physician, in a report dated August 8, 2018 completed by his nurse practitioner, records “breakthrough seizure- none since” and etiology of seizure as “unknown”.

12The appellant testified that he has never been diagnosed with epilepsy. He said that on May 10, 2018 he did not have a seizure but had a day time episode brought on by the stress of a new job and lack of sleep the night before. Since then he has been treated by Dr. F., a neurologist, who increased the dosage of his Lamotrigine and wrote the report dated August 16, 2018. The appellant said he is under less stress at work now, takes melatonin before going to bed to ensure a good night’s sleep, does not smoke and drinks very little. The appellant said he did not know where Dr. L. got the information that he has a five-year history of seizures.

13We find that Dr. F., a neurologist, is better qualified to assess and objectively report on the appellant’s medical condition than the appellant himself or the appellant’s emergency room physicians, family physicians and the nurse practitioner. The appellant relied on Dr. F.’s report dated August 16, 2018 to support his view that he is able to drive safely. However, we find, based the fact that Dr. F. has treated the appellant and increased the dosage of his medication that the appellant does suffer from seizures.

(b) Is the appellant’s medical condition likely to significantly interfere with his ability to drive safely?

14We find that although the appellant does suffer from seizures this medical condition is not likely to significantly interfere with his ability to drive because the medical condition is controlled by the medication prescribed by his neurologist. Therefore, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

15The appellant testified that Dr. F. has increased the dosage of his medication.

16The Registrar submits that the appellant’s medical condition is severe enough that he should not be permitted to drive at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to epilepsy – non-commercial drivers (chapter 17). Guideline 17.6.6 states that non-commercial drivers who have been diagnosed with epilepsy are eligible for a licence only under certain conditions.

17Based on this standard, the appellant would be eligible for a licence. The starting point for application of Guideline 17.6.6. is a diagnosis of epilepsy in a non-commercial driver, like the appellant. Although some epileptic-like activity has been noted in some of the medical reports, none of the appellant’s doctors have given a clear diagnosis of epilepsy. Because the appellant has not been diagnosed with epilepsy, we find that Guideline 17.6.6. does not apply.

18Dr. F., in his report dated August 16, 2018, not only declines to diagnose epilepsy but also answers “yes” to the question “…are the seizures prevented by the current medication regime?” This report outweighs the medical reports the Registrar relies on as it is the most recent medical report, is made by the appellant’s treating specialist and records a significant change from the previous medical reports made by Dr. E.’s nurse practitioner and by family physicians who did not who report that the appellant’s seizures are prevented by the current medication. Dr. F. has recently adjusted the appellant’s medication. We prefer the evidence of the neurologist, Dr. F., over the older reports by Dr. E.’s nurse practitioner and the family physicians.

19We find based on this evidence, that the appellant’s medical condition, namely seizures, is not likely to significantly interfere with his ability to drive safely.

G. ORDER:

For 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 set aside.