R.B. v. Registrar of Motor Vehicles, 2018 CanLII 127580

Licence Appeal Tribunal

Date: 2018-12-20

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:

R.B. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Dr. Dimitri Louvish, MD, Member Cezary Paluch, Member

Appearances: For the Appellant: R. B., Self-Represented For the Respondent: Stephen Grootenboer, Agent

Place and Date of Hearing: By Teleconference October 24, 2018

REASONS FOR DECISION

A. Overview:

1On August 8, 2018, the appellant sought treatment at a hospital after losing consciousness at a bank. He was kept overnight and released on August 10, 2018. The Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence, effective August 20, 2018, due to the appellant’s medical condition after receiving a medical condition report from an emergency room physician at the hospital dated August 8, 2018, diagnosing the appellant with a seizure.

2Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), physicians and certain other medical practitioners are required to report any person 16 years of age or older who is suffering from certain medical conditions, functional impairments or visual impairments set out in O. Reg. 340/94. Physicians and medical practitioners may also report other medical conditions, functional impairments or visual impairments not set out in the Regulation if the condition may make it dangerous for the person to operate a motor vehicle.

3The appellant appealed the suspension on the grounds that he had been seeing a chiropractor who may have hit a nerve which caused him to lose consciousness, and he did not suffer a seizure.

4On October 23, 2018, one day before the hearing, the Registrar wrote to the appellant informing him that his driving privilege should remain under suspension and requested a report that provided a clear diagnosis or cause of the reported episode, and pending results of the reported EEG.

5For the reasons that follow, we find that the Registrar has proven on a balance of probabilities that the appellant suffers from a medical condition, either a seizure or cardiogenic syncope, and has proven that that this medical condition is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

6The issue for the appeal is whether the appellant suffers from a medical condition which is 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:

1. Does the appellant suffer from a seizure or a cardiogenic syncope?
2. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive safely?

C. THE LAW:

7The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities.

8The Registrar has the power under s. 47(1)(g) of the HTA) to suspend a driver’s licence for a sufficient reason.

9Subsection 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the HTA requires that a holder of a driver’s licence must not suffer from any physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class.

10Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.

11Pursuant to section 50(2) of the HTA, the Tribunal may confirm, modify or set aside the decision or order of the Registrar after a hearing.

D. ANALYSIS:

12The test the Tribunal must consider in this appeal is whether the appellant suffers from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive. In order to address that question, we will address the following issues:

1. Does the appellant suffer from a seizure or a cardiogenic syncope?

13We accept the evidence in the report of Dr. E. H. that the appellant likely suffered a seizure. The physician checked the box "Seizures - Cerebral" and in the "Optional" portion wrote "Seen in ER…combative with EMS…calmed but confused in ED, gradually cleared…referring to neuro…advised no driving ".

14In addition, we also accept the evidence of Dr. T.G., a specialist in neurology, who completed an Epilepsy and Seizures Report form, dated October 12, 2018, indicating that the appellant either suffered a seizure related to possible alcohol withdrawal or a cardiogenic syncope. Dr. T.G. further indicated in the report that further testing would be done, including an EEG which was ordered but not completed at the time of the hearing.

15CCMTA Chapter 18 states in summary that:

syncope (fainting) is a partial or complete loss of consciousness resulting from a temporary reduction in blood flow to the brain. Onset is relatively rapid and recovery is generally prompt, spontaneous and complete. Causes include cardiovascular disease and neurological disorders. In some cases no underlying cause can be found. The most common types include vasovagal syncope which is triggered by an exaggerated and inappropriate nervous system response to a particular stimulus with alteration in heart rate and blood flow and subsequent reduction in blood pressure. The stimulus can be any of a wide range of events such as dehydration, intense emotional stress, anxiety, fear, pain, hunger or the use of alcohol or drugs, also forceful coughing, turning of the neck or wearing a tight collar.

16The appellant’s testified that he has been going to a chiropractor for back and shoulder treatment and the practitioner “might have hit a nerve” that caused him to lose consciousness. The appellant did not present any medical evidence from his chiropractor, or any other medical practitioner, regarding this explanation. The Tribunal also notes that the appellant did attend at the chiropractor twice after the incident and no similar event occurred.

17The appellant’s Notice of Appeal dated August 21, 2018, handwritten and signed by the appellant, under the heading ‘Reasons You are Making the Appeal’ states that “I was advised not to drive for a week” and “there was no mention of any follow up with cardiology or neurology appointments.” This is in direct contrast to Dr. E. H.’s Medical Report confirming that the appellant was referred to “neuro as outpatient” and advised not to drive, with no qualification that he should not drive only for a week. Dr. E.H. also noted that the appellant is aware of this report.

18Therefore, based on the medical evidence before us, we find that the appellant either suffered from a seizure or a cardiogenic syncope. We do not accept the appellant’s explanation that this was a result of a chiropractor “hitting a nerve” and causing seizure/syncope. This is not plausible in the context of his clinical presentation at the time of seizure/syncope episode when the appellant ended up in ER. Although a clear diagnosis was not available at the time of the hearing, it was evident to the Tribunal is that the appellant does have a medical condition that is either a seizure or a syncope.

2. Is the Appellant’s medical condition likely to significantly interfere with his ability to drive safely?

19Having found that the appellant suffers from a medical condition, we now must consider whether this condition is likely to significantly affect his ability to drive safely.

20There is no doubt that the appellant had a sudden loss of consciousness on August 8, 2018, perhaps due to a seizure. We have objective evidence relating to the August 8, 2018 incident. At this time, it appears that his medical condition is not being managed, as evidenced by the fact that there are still no results of his EEG available and no clear diagnosis has been made to date from which possible treatment could flow.

21Seizures from whatever cause may result in a sudden impairment of cognitive, motor, or sensory function and as here, may also cause a loss of consciousness. The effect of a seizure while driving would have a high probability of causing a loss of ability to drive safely and pose a risk to the appellant and the public. We also find that the syncope/seizure will likely reoccur in the absence of proper follow-up and treatment given the appellant’s apparent lack of insight regarding his syncope/seizure episode which led to his licence being suspended in the first place.

22In his testimony, the applicant stated that he drinks 5 or 6 beers a day or less and smokes under a pack a day. The appellant did not know why Dr. E.H. indicated alcohol withdrawal on the medical from. This may be a factor connected to the incident though no other information was available.

23In considering the evidence and applying the law, the Tribunal is mindful of the safety of both the appellant and the motoring public.

24With more complete up-to-date medical information, including the results of the EEG, the Registrar may consider the appellant for restoration of his driving privileges.

25However at this time, after 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 significantly with his ability to drive a motor vehicle safely because of the risk of another seizure occurring, given that no treatment has been put in place.

E. CONCLUSION:

26We find that the appellant lost consciousness due to a medical condition of either seizure or syncope, and that he suffers from a medical condition that is likely to significantly interfere with his ability to drive safely because he had an unexplained seizure or syncope and there is no medical information to establish that the risk of his having another has been mitigated.

F. ORDER:

27For 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.