B.L. v. Minister of Transportation, 2018 CanLII 126542

Date: 2018-11-07

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 47(1) to downgrade a Licence

Between:

B.L.

Appellant

-and-

Minister of Transportation

Respondent

DECISION AND REASONS

ADJUDICATOR: Dr. Erica Weinberg, M.D., Member D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant: Nasser Asmi, Counsel A.W., Friend of Appellant

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: September 18, 2018

OVERVIEW

1The appellant, B.L. is a commercial driver. In August 2016 he was involved in a single vehicle accident after he lost consciousness due to a seizure. The investigating police officer notified the Registrar of Motor Vehicles that the appellant may have a medical condition likely to make him unsafe while driving on the highway and the Minister of Transportation (the “Minister”) suspended his licence on medical grounds under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990 c. H 8 (the “Act”) and s. 14 of O. Reg 340/94 (the “Regulation”). The Registrar issued a class “G” licence to the appellant after the appellant was seizure free for a period of six months, but takes the position that he is not eligible for a commercial class “A” licence until he has been seizure free for five years.

2The appellant takes the position that the period of ineligibility should be one year. Currently, he has been seizure free for two years. He has applied to the Licence Appeal Tribunal to set aside the decision of the Minister downgrading his class “A” licence to a class “G.”.

3The Minister uses the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“Guideline”) as a guide in determining the appropriate period of suspension for various medical issues. In the Minister’s view, the applicable chapter in the Guideline is chapter 17, relating to seizures and epilepsy. The appellant submits that the epilepsy standard does not apply to him. He submits that he has never been diagnosed with epilepsy by any treating neurologist. He has had a single seizure due to a structural brain abnormality that is now stable. He argues that the epilepsy standard does not apply and he should be subject to a one year suspension.

4In resolving this issue, we have examined the Guideline relating to epilepsy and single provoked seizure. On the evidence before us, we find on a balance of probabilities that the appellant suffered a single provoked seizure in August 2016 because of scar tissue in his brain resulting from a 2004 stroke. The evidence further indicates that his condition has now stabilized. In our view, the one year suspension standard applies to the appellant and we set aside decision of the Minister to deny the appellant a commercial driver’s licence.

ISSUES

5The overriding issue in this matter is:

a. Is the Minister justified under, s. 32(5)(b)(i) of the Act, in downgrading the appellant’s licence from class “A” to class “G?”

This issue is further defined in s. 14(1)(a) of the Regulation as:

b. Does the appellant 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?

RESULT

6Having heard the evidence and submissions of the parties, for the reasons outlined below, we find that the Minister is not justified in downgrading the appellant’s licence from a class “A” licence to a class “G” licence.

APPELLANT’S MEDICAL HISTORY

7The question we must decide is whether the appellant suffers from epilepsy. To do so we must examine his medical history both before and after the August 2016 seizure. If that history supports a diagnosis of epilepsy, the Guideline applies a five year seizure free period before eligibility for a commercial driver’s licence.

8The appellant submits that the Guideline is not binding on us and, if we find the appellant suffers from epilepsy, we should shorten the recommended 5 year period in this case. We agree that the Guideline is not binding legislation but the Regulation refers to it specifically and gives the Minister the right to take it into account in making medical suspension decisions. In our view the Guideline should be accorded significant weight in medical suspension cases. A tribunal should only depart from its recommendations in the clearest of cases.

9The appellant’s medical history is set out in the Minister’s disclosure, exhibits 3 and 4. It shows that in 2004, the appellant had a transient ischemic attack, or mini stroke. He was successfully treated by a neurologist, Dr. D.N., who prescribed medication. The appellant takes blood thinners, medication to lower his cholesterol and blood pressure, and a water tablet. He now also takes an anticonvulsant, Keppra. The appellant testified that he is conscientious in taking his prescription medications, and with respect to his anticonvulsant, takes it with breakfast and before he goes to bed each day. He has continued to see the same neurologist since his mini stroke.

10In August 2016 the applicant was involved in a single vehicle accident when the tractor-trailer he was driving ran a stop sign and came to rest in a ditch on the other side of the road. The applicant has no recollection of the accident. He was taken to the nearest hospital emergency room. It was ultimately determined that the appellant had had a seizure with loss of consciousness. An electroencephalograph (“EEG”) indicated epileptiform brain patterns. He was diagnosed with a seizure disorder and treated with an anti-convulsant medication (Keppra).

11In March 2017, after being on Keppra for a several months, the appellant had a follow-up EEG, which was normal.

12Dr. D.N.’s report dated approximately a year after the accident on March 19, 2018, states:

He was started on Keppra 500 mg b.i.d. [twice daily] and has remained clinically stable with no further events. He had a repeat EEG after initiation of Keppra last March, which was a normal study. He remains compliant with medication and does not report any adverse reaction…

The time lapse from his possible seizure is almost 20 months and from my perspective, providing the fact that he is compliant with medication and his symptoms have been well controlled on the current antiepileptic dose, there are no limitations to apply for his commercial driver’s licence.

13In a report dated August 17, 2018, Dr. D.N. restated his position that there should be no restriction on the applicant being issued a class “A” licence. He determined that the cause of the appellant’s seizure: “corresponds with the previous scarring tissue of the left temporal and insular region of his prior strokes.” Somewhat at odds with this finding of a brain abnormality, Dr. D.N. goes on the state that the accident in August 2016 was: “most likely due to an unprovoked seizure.”

14Summing up the medical evidence, the appellant had a single seizure in August 2016, emanating from the area of the brain corresponding to scar tissue from his previous stroke, which was well controlled with the anti-convulsant medication Keppra.

THE CCMTA AND SEIZURES

15The Guideline addresses seizures and epilepsy in chapter 17. Nowhere does the chapter use the term ‘seizure disorder’, that is, the term used to diagnose the appellant.

16The guideline defines epilepsy as a condition characterized by recurrent (at least two) seizures which do not have a transient provoking cause. The appellant suffered only one seizure, thus his condition does not fall within the definition of epilepsy as per the Guideline.

17Chapter 17 indicates that seizures may occur in people who do not have epilepsy. These non-epileptic seizures are often referred to as provoked seizures or unprovoked seizures.

18According to the Guideline, provoked seizures can be caused by transient factors or by conditions where there is a structural brain abnormality. Furthermore, the Guideline specifically states that provoked seizures are not epilepsy, and they resolve after the provoking factor has resolved or stabilized. A single unprovoked seizure is a seizure where a provoking factor is not identified.

19Epilepsy, provoked seizures, and unprovoked seizures are treated differently in the Guideline with respect to the length of the medical licence suspension.

20There may be some debate about the use of the terms “provoked” and “unprovoked” seizure. Above we note that Dr. D.N. attributes the probable cause of the appellant’s seizure to scarring from his 2004 stroke. This would lead to the conclusion that the appellant suffered a provoked seizure, as that term is used in the Guideline, on the basis of the existence of a structural abnormality in the brain. Furthermore, in the March 19, 2018 Seizure and Epilepsy form filled in by Dr. D.N., he checked off affirmatively that the ‘provoking factor had stabilized, resolved or been corrected’. Later in the August 17, 2018, Dr. D.N. stated his belief is that the appellant had an unprovoked seizure, a potentially inconsistent finding. Dr. D.N. did not testify at the hearing so we do not have the benefit of his clarification on this point. Reading the report as a whole, especially its factual findings of the locus of the August 2016 seizure leads us to the conclusion that the appellant’s seizure was a provoked seizure.

21We find support for our finding that the appellant suffered a provoked seizure in the fact that, other than the one line in Dr. D.N.’s August 2018 report, no other report or medical record makes a determination that the appellant suffered an unprovoked seizure.

22The Minister argues that, notwithstanding that the appellant has not had more than one seizure, we should consider him within an epilepsy spectrum because, he had epileptiform patterns on his first EEG and he is currently taking antiepileptic medication. We find that to do so ignores the manner in which the Guideline treats single seizures.

23Single seizures are addressed in the Guideline depending on whether they are “provoked” or “unprovoked.” In dealing with provoked seizures, the guideline does not distinguish between commercial and other drivers. A driver may have their licence of any class reinstated if they have been seizure free for six months and the provoking factor has stabilized. SEE Guideline s. 17.6.4. We detail above the findings of Dr. D.N. that suggest that the appellant had a provoked seizure that has been stabilized for approximately two years now.

24In his report Dr. D.N. did state his belief that the appellant suffered an unprovoked seizure. The Guideline applies a more stringent test for commercial drivers suffering unprovoked seizures. Section 17.6.5 of the Guideline recommends reinstatement after a period of 12 months free from seizure if there is no diagnosis of epilepsy following a compete neurological exam to determine the cause of the seizure and CNS imaging and EEG results are satisfactory. The appellant meets even this more stringent standard.

25To accept the Minister’s position is to deny any appellant to ability to use anticonvulsant drugs to control seizure disorder that falls short of epilepsy, when those drugs correct the epileptiform EEG results.

26A review of all of the evidence, particularly Dr. D.N.’s two recent reports, indicates that the appellant’s current condition has stabilized. In our view the Guideline’s focus is on ensuring two things: that the appellant does not have epilepsy and that his condition is stable. The appellant’s medical history does not satisfy the definition of epilepsy and his condition is now stable and has been since at least March 2017 when he had a normal EEG.

ORDER

27Pursuant to the powers vested in us by s. 50(2) of the Act, we set aside the decision of the Minister to deny the appellant a commercial driver’s licence, in this case, a class “A” licence.