R.R. v. Minister of Transportation, 2018 CanLII 127594

Date: 2018-12-27

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:

R.R.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

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

Appearances:

For the Appellant: R.R., Self-represented For the Respondent: Stella Velocci, Agent

Heard by Teleconference: December 12, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is a 24 year old paramedic. On March 29, 2018 she had a seizure during a work placement which was part of her paramedic course. A physician reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant suffered from “seizure(s)-cerebral”. 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.

2The Registrar suspended the appellant’s Class F driver’s licence on April 13, 2018. On October 11, 2018 the appellant was notified that her licence was reinstated but downgraded from a Class F to a Class G licence. The decision to downgrade the appellant’s licence was made by the Minister of Transportation (“Minister” or “respondent”) under s. 32(5)(b)(i) of the HTA. The appellant appeals from the Minister’s decision.

B. ISSUE:

3The issue in this appeal is whether the appellant has a medical condition, specifically seizures, likely to significantly interfere with her ability to drive a Class F 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 seizure, if any, likely to significantly interfere with her ability to drive a Class F motor vehicle safely?

C. CONCLUSION:

4We find that the appellant suffers from a medical condition, specifically seizures, but that it is not likely to significantly interfere with her ability to drive a Class F motor vehicle safely. Accordingly, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

D. LAW:

5The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA which states:

“The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may…

(b) in the case of a person who holds a driver’s licence,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements…

6The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.

7One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (“Regulation”) which 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; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

8In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.

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

10Subsection 50(1) of the HTA and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal.

11The Minister has the burden of establishing the ground for changing the class of a driver’s 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 Minister.

E. EVIDENCE AND ANALYSIS:

12As set out below, we find that the appellant suffered a seizure on March 29, 2018. However, we find that this medical condition is not likely to significantly interfere with her ability to drive a Class F motor vehicle safely. Accordingly, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

(a) Does the appellant suffer from seizures?

13The Registrar filed three medical reports. In a Medical Condition Report dated March 29, 2018, Dr. V., an emergency room physician, diagnosed “seizure(s)-cerebral”. In a report dated July 6, 2018, Dr. S, appellant’s neurologist, diagnosed the patient’s primary medical condition as “seizure(s), type “generalized tonic or clonic or grand mal”. Dr. S. reported that the appellant had seizures more than five years ago and that the change has been from “absence to general tonic clonic”. Dr. S. wrote that appellant’s EEG within the last 12 months did not show signs of epileptiform activity and the results of appellant’s imaging within the last 12 months were not abnormal. Although Dr. S. checked off on the form that the cause of the seizure was “primary epilepsy/seizure disorder” he commented: “Patient had a single generalized tonic-clonic seizure on March 29, 2018. Because of a history of absence seizures as a child (age 5 to 11) she was started on Levetiracetam and has had no further events. EEG & MRI normal. Except for the history of childhood absence seizures this is essentially a single unprovoked seizure.” In a report dated October 1, 2018 Dr. S. reported that the appellant has had no seizures since March 29, 2018, has been fully compliant with her care, has been taking Levetiracetam regularly with no adverse effects and has been completely successful in preventing further seizures.

14The appellant testified that the March 29, 2018 seizure was an isolated event. She admitted that she had absence seizures as a child but these were treated at the time and she has been seizure free since about the age of 11 or for about 14 years without any medication. Prior to the 2018 seizure, she had been under extraordinary stress. Her brother, grandfather and grandmother all died in the months of January and February, 2018. At the time she was in the last semester of her two year paramedic course. She had missed about two weeks of school due to family deaths and in March was attending classes during the day, working at her required paramedic work placement at night, getting about three hours of sleep a night, was sick with a cold, taking cold medication and was exhausted. The seizure occurred at her workplace at the end of her night shift. She testified that the seizure was brought on by stress and exhaustion. Since then she has been treated by Dr. S., her neurologist, who prescribed medication which she takes, makes sure she gets more sleep, exercises at a gym, does not smoke, drinks very little and has graduated from her paramedic course. She has had no problems caused by the prescribed medication, has had no further seizures and is continuing to see her neurologist. Appellant submitted that the circumstances leading up to the seizure should be taken into account.

15The respondent submits that Dr. S. diagnosed epilepsy, that the appellant’s work is unpredictable and can be stressful, that allowing her to drive a commercial vehicle involves significant risk to other road users and to herself and that a five-year seizure-free period is not unreasonable in order to reinstate her Class F licence. Respondent also submits that the five year seizure-free period is in keeping with the CCMTA Medical Standards for Drivers (the “Standards”) with respect to epilepsy – commercial drivers (chapter 17) and specifically Guideline 17.6.12. The appellant submits that her Class F licence should be reinstated because her seizure was an isolated incident caused by a convergence of unusually stressful circumstances in her life.

16We find that Dr. S., appellant’s neurologist, is better qualified to assess and objectively report on the appellant’s medical condition and has had more time to investigate and treat the appellant than the appellant’s emergency room physician. We find based on the reports of Dr. S. that on the balance of probabilities the appellant had a seizure on March 29, 2018 but that this seizure was an isolated event, essentially a single unprovoked seizure, and not epilepsy. Although Dr. S. indicated the etiology of the seizure was “primary epilepsy/seizure disorder”, Dr. S.’s subsequent diagnosis indicates single isolated seizure and not epilepsy. The appellant’s EEG and MRI were normal according to Dr. S., anti-seizure medication was prescribed strictly as a precaution given the appellant’s history of childhood absence seizures as outlined above, and the medication has been completely successful in preventing further seizures. Dr. S.’s most recent report dated October 1, 2018 refers only to single isolated seizure as a diagnosis of the appellant’s medical condition.

(b) Is the appellant’s seizure likely to significantly interfere with her ability to drive a Class F motor vehicle safely?

17We find that although the appellant did suffer a single, unprovoked seizure, this medical condition is not likely to significantly interfere with her ability to drive a Class F motor vehicle safely because the medical condition is controlled by the medication prescribed by her neurologist. Therefore, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

18Respondent submits that the appellant’s medical condition is severe enough that she should not be permitted to drive until she submits a report from her treating physician that she has remained seizure free for five years with or without anti-seizure medication, and relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to epilepsy – commercial drivers (chapter 17). Guideline 17.6.12 states that commercial drivers who have been diagnosed with epilepsy are eligible for a licence only under certain conditions.

19The starting point for the application of Standards Guideline 17.6.12 is a diagnosis of epilepsy in a commercial driver. We have already found that on the balance of probabilities the appellant had a seizure on March 29, 2018 but that this seizure was an isolated event, essentially a single unprovoked seizure, and not epilepsy. Because the appellant has not been subsequently diagnosed with epilepsy and the evidence shows that she does not currently present with symptomology suggestive of an epilepsy diagnosis we find that Guideline 17.6.12 does not apply.

20With respect to the respondent’s submission that a five-year seizure-free period is necessary before the appellant’s Class F licence is reinstated, we find that this waiting period is not necessary on the facts of this case. The medical evidence from Dr. S. is that the prescribed medication has been completely successful in preventing further seizures. Further, the appellant has increased insight into her medical condition. Since the isolated seizure she has been treated and continues to be treated by her neurologist, takes her prescribed medication, makes sure she gets more sleep, exercises at a gym, does not smoke, drinks very little and has graduated from her paramedic course. Although there would be some stress expected in the appellant’s work, the convergence of extraordinary stresses on the appellant that occurred at the beginning of 2018 is unlikely to recur given that appellant has now graduated from her paramedic course. We are not satisfied that a further waiting period is necessary before the appellant’s Class F licence is reinstated.

F. ORDER:

21For the reasons set out above, pursuant to subsection 50(1) of the HTA, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence from Class F to Class G.