E.O. v. Registrar of Motor Vehicles, 2018 CanLII 126550

Date: 2018-11-28

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 subparagraph 47(1) of the Act.

Between:

E.O.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Dimitri Louvish, Member Barbara Hicks, Member

Appearances:

For the Appellant: Self-represented, supported by Personal Support Workers, Tracy Biskup and Mindy Brotton

For the Respondent: Sonia De Santis, Agent

Place and date of hearing: Teleconference September 28, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant appeals the suspension of his Class G driver’s licence by the Registrar of Motor Vehicles (the “Registrar”).

2In June 2016, the Ministry of Transportation (the “Ministry”) received a medical condition report indicating a seizure disorder. The Registrar requested a seizure-free period of six months and confirmation of compliance with the recommended treatment and insight into the medical condition before reinstating the driver’s licence. The requirement to be seizure-free for six months could be reduced to three months if the neurologist was supportive of reinstatement.

3For the reasons that follow, we find that the respondent’s suspension of the driver’s licence and the requirement that the appellant provide evidence of a seizure-free period of six months for a Class G licence is reasonable. Without a seizure-free period, the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

4Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUE:

5The issue in this appeal is whether the appellant’s medical condition, in particular, epilepsy, is likely to significantly interfere with his ability to drive a motor vehicle safely.

C. LAW:

6The Registrar has the burden of establishing the grounds for suspending the appellant’s licence on a balance of probabilities.

7The Registrar has the power under s. 47(1) of the Act to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) provides the 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).” Subsection 14(1)(a) of O. Reg. 340/94 (the Regulation) of the Highway Traffic Act (“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.

8Section 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.

9Although we may take the CCMTA Standards into consideration, they are not binding on us.

10The Registrar bears the burden of establishing the grounds for the licence suspension on a balance of probabilities. Following a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS:

11The respondent submitted the following evidence before the Tribunal:

a. The appellant’s driving record, which indicates a lengthy history of nine previous medical suspensions resulting from a number of unsolicited medical condition reports received by the Ministry from 1993 to present. In every case, the medical condition report indicated that the condition was epilepsy/seizure. After each suspension, the appellant’s condition improved and he was able to satisfy the respondent or the Tribunal that his licence should be reinstated.

b. The most recent medical condition report submitted by Dr. S., a neurologist, dated June 21, 2016 reported frequent seizure episodes and was the cause of the most recent licence suspension.

c. An Epilepsy and Seizure Form was submitted by Dr. J. dated August 16, 2017. Dr. J. has been the appellant’s family physician since March 2013. On the Form, Dr. J. indicates that the appellant suffers from ongoing seizures and refuses to be assessed by a neurologist. The seizures are reported as “simple partial” and “complex partial.” The appellant had a non-sleep-deprived EEG within the last 12 months and it showed signs of epileptiform activity. The cause of the seizures is unknown. Although the appellant appears to follow the recommended treatment regimen, he refuses to follow up with a specialist. In the “Additional Comments” area, Dr. J. wrote: “he seems to have generally low insight about his illness. He is in denial that he is having seizures.”

d. A further letter from Dr. S. dated July 28, 2017 indicates that the appellant should not be driving. Dr. S. has not seen the appellant since 2016.

e. The appellant underwent 4 days of prolonged video EEG monitoring from December 5, 2016 to December 8, 2016. The report that followed indicated “multiple different clinical events characterized by rightward gaze lasting a few seconds, awakenings from sleep, as well as difficulty following commands and displaying slowed cognitive processing. The EEG during these events revealed generalized paroxysmal fast activity, generalized slow spike-wave activity as well as generalized electro-decremental activity. Frequently, there were runs of bifrontally predominant generalized semirhythmic delta activity with intermixed sharp contours, superimposed with generalized bifrontally predominant paroxysmal fast activity, satisfying criteria for subclinical seizures.”

f. Dr. S. was prompted to write a letter to Dr. J. dated March 9, 2017 after reviewing the epilepsy monitoring unit report mentioned above. In the letter, Dr. S. wrote: “Essentially, (the appellant) is having very frequent seizures with postictal confusion. He should not be driving until such time that these have been controlled. I did notify the Ministry of Transportation in 2016. I don’t know if his licence is still rescinded or has been reinstated by someone else since I haven’t seen him since 2016.”

g. Dr. S. previously sent a letter dated June 21, 2016 to the respondent indicating that the appellant “had a generalized tonic-clonic seizure in September 2015. He has frequent episodes, which could be compatible with complex partial seizures.”

12The respondent also submitted the portion of the CCMTA Standards applicable to drivers with epilepsy, being Chapter 17. The standard for non-commercial drivers calls for a seizure-free period of six months prior to reinstatement of a licence and evidence of compliance with physician’s treatment regime. Paragraph 17.3 states that research indicates that, in general, people with epilepsy have an increased risk for adverse driving outcomes. Paragraph 17.4 states 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.

13The appellant testified as to his history with epilepsy. The appellant’s first seizure occurred when he was a child. He thinks he started taking anti-seizure medication when he was approximately 25 years old. He is now 63. He currently takes the following anti-seizure medication: Keppra and Dilantin. The appellant stated that he picks up his medication from the pharmacy each week. Although he takes the medication himself, the support workers where he lives observe him taking his medications twice each day. The appellant testified that when he is about to have a seizure he starts shaking and then he blacks out.

14The appellant claims he has not had a seizure in four years although he has no evidence to support that. He does not currently see a neurologist and refuses to see one. The last time he saw a neurologist was when he saw Dr. S. in 2016. The appellant reports that his physician, Dr. J., will not write a letter of support for him to get his driver’s licence back.

Analysis

15The test the Tribunal must consider is whether the appellant has a medical condition that is likely to significantly affect his ability to drive a motor vehicle safely.

16There was no dispute that the appellant has epilepsy and takes anti-seizure medication. Based on the correspondence from Dr. S. and Dr. J. and medical reports admitted into evidence, the appellant continues to have seizures anyway.

17We find that epilepsy is a serious medical condition and the consequences of a seizure while driving could be devastating both to the appellant and any other road users.

18We are concerned that the appellant denies having seizures despite objective medical evidence to the contrary. We are also concerned that the appellant refuses to see a neurologist. We find that he lacks insight into his medical condition and that the lack of insight increases the risk that his medical condition will negatively affect his driving ability. We note that the appellant does not have the support of his physicians Dr. J or Dr. S for reinstatement of the driving privilege at this time.

19We prefer the objective medical evidence of recent ongoing seizures over the appellant’s uncorroborated assertion that he has not had a seizure in a number of years. As a result, we confirm the Registrar’s decision to suspend the appellant’s licence on the basis of a medical condition.

CONCLUSION:

20After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to safely drive a motor vehicle.

E. ORDER:

21For 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.