Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Minister of Transportation to downgrade a Commercial Class driver’s licence under Section 32(5)(b)(i) of the Act
Between:
J.B.
Appellant
-and-
Minister of Transportation
Respondent
DECISION
Panel: Peter Savage, M.D., Member Cezary Paluch, Member
Appearances:
For the Appellant: J.B., Self-Represented1
For the Respondent: Stella Velocci, Agent
Place and Date of Hearing: By Teleconference November 13, 2018
REASONS FOR DECISION
A. Overview:
1The appellant, J.B., appeals from the decision of the Minister of Transportation (the “Minister”) to downgrade his commercial driver’s licence from a class commercial licence to a non-commercial licence.
2On January 4, 2018, J.B., a 41-year-old truck driver collapsed and lost consciousness and appears to have suffered a seizure while going to a rest room at a truck park in Ottawa. He was taken by ambulance to Ottawa General Hospital where he was released after spending about 7 hours in the emergency department.
3The emergency room physician reported to the Registrar that the appellant apparently suffered a seizure. The report was submitted in compliance with s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), which requires physicians in Ontario to report to the Registrar any patient 16 years of age or older who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.
4The Registrar, by a letter dated January 23, 2018, then suspended the appellant's driver’s licence pursuant to s. 47(1) of the HTA. In October 2018, his suspension was lifted, but the Minister of Transportation downgraded J.B.’s licence to a Class G non-commercial licence on the basis that he was at risk of experiencing another seizure.
5The respondent submits that because driving a commercial vehicle involves significant risks to other road users, and because the appellant's seizure may be as a result of epilepsy, a five-year seizure-free period is necessary in order to consider reinstatement of his commercial licence. In contrast, the appellant submits that his commercial licence should be reinstated, as he did not suffer a seizure on January 4, 2018, and merely lost consciousness due to work exhaustion and not because of a physical or medical condition.
6For the reasons that follow, we confirm the Minister's decision to change the class of the appellant's driver’s licence.
B. ISSUES:
7The issue in this appeal is whether J.B. has a medical condition that is likely to significantly interfere with his ability to drive a commercial class motor vehicle safely. In order to answer that question, we will address the following issues:
a. Does J.B. have a medical condition, namely seizure; and
b. Is J.B.’s medical condition likely to significantly interfere with his ability to drive a commercial motor vehicle safely?
C. LAW:
8The Minister has the power under s. 32(5)(b)(i) of the HTA to change the class of a driver's licence in accordance with the results of a medical examination or other prescribed requirements.
9One prescribed requirement under s. 14(1) of O. Reg. 340/94 (the Regulation”) is that the driver must not suffer from a medical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.
10In determining whether a person meets that requirement, the Minister may, under section 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. Such evidence may include any reports of examinations that the Minister has required a person to submit to pursuant to s. 15 of the Regulation.
11Section 14(2)(a) of the Regulation also permits the Minister to consider the CCMTA Medical Standards for Drivers when determining if the requirements of s.14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.
12The Minister of Transportation has the burden of establishing the grounds for changing the class of a licence on a balance of probabilities. Following a hearing, the Tribunal may, under section 50(2) of the Act, confirm, modify, or set aside the decision or order of the Minister.
D. EVIDENCE AND ANALYSIS:
Does J.B. have a medical condition, namely, seizure?
13In this case, there was disagreement between the parties regarding whether J.B. currently suffers from seizures. Based on the documentary medical evidence before us, the Tribunal is of the view that the appellant does suffer from seizures for the following reasons.
14On January 4, 2018, at the Ottawa General Hospital, a physician completed a medical report and indicated that J.B. suffered a seizure. This was corroborated by the appellant’s own testimony when he acknowledged during the hearing that the ambulance attendant who assisted him also told him that he had a seizure. Upon discharge, he was instructed to see a specialist and told not to drive.
15About 6 months after the incident, the appellant saw Dr. D.C., a specialist in neurology, who completed an Epilepsy and Seizure form on June 19, 2018 indicating that a “seizure” was J.B.’s primary medical condition and that his last seizure was 3-6 months ago. Dr. D.C. also specified that an EEG was done in the last 12 months which was found to be abnormal and potentially in an epileptogenic area. The appellant was prescribed anti-seizure medication being ‘Carbamazepine’ which he continues to take to the present. J.B. also saw his family doctor who reduced this medication to a lower daily dose. This evidence was undisputed and for the most part unchallenged by the appellant.
16Prior to the January 2018 incident, the appellant’s driver’s licence was suspended by the Ministry of Transportation in 2004 for medical reasons due to a seizure, and reinstated in 2006. A letter from the Ministry dated October 12, 2016, informed J.B. that his medical report indicated that his epilepsy was controlled with anti-convulsant medication and a condition code was placed on his driver’s licence indicating he could not operate a commercial vehicle in the U.S.
17In his testimony, the appellant acknowledged that as a child he was diagnosed with epilepsy and that his last seizure was sometime in 2001. He also stated that stopped taking anti-seizure medication in 2014.
18Although J.B. testified that he has done some research in this area and in his view an EEG is not conclusive, and that he presently does not have epilepsy and only had it as a child, we did not place a lot of weight on his opinion as the appellant is not a medical expert in this field. Unfortunately, J.B. did not have any documented medical evidence to support his position. Moreover, his opinion was in clear contradiction to the medical evidence that was before us, coupled with the appellant’s own admission that his last seizure was in 2001 when he was an adult.
19In this case, all of the health professionals who examined J.B. arrived at the same diagnosis – that J.B. suffered a seizure on January 4, 2018. Moreover, the evidence showed that J.B. had a prior history of seizures dating back to when he was child, including one in 2001 as an adult. In addition, none of the documentary medical evidence before the Tribunal pointed to any reasonable alternative finding.
20Therefore, based on the evidence, the Tribunal finds that J.B. does suffer from a physical condition, namely a seizure, and that a seizure may recur.
Is J.B.’s medical condition likely to significantly interfere with his ability to drive a motor vehicle safely?
21The appellant argues that when this incident occurred his truck was parked safely, and there was no damage or accident that occurred. He further explains that he is taking the prescribed anti-seizure medication and if he is able to return to his old job, he will return to his normal schedule of driving between Toronto and Halifax.
22The respondent submits that the medical information indicates a past history of seizures into adulthood and that J.B. had no warning signs when the January 4, 2018 incident occurred.
23Seizures from whatever cause may result in a sudden impairment of cognitive, motor, or sensory function and as in this case, may also cause a loss of consciousness. The effect of a seizure while driving has a great probability of causing a loss of ability to drive safely. It is only by good fortune that J.B. was parked and not driving when he experienced his seizure in January 2018. It has only been 11 months since the seizure, and the appellant had an abnormal ECG in the last 12 months. The Tribunal is mindful of the safety of both the appellant and the public.
24It is clear that J.B.’s seizure on January 4, 2018, was not an isolated event. This was not the only seizure that he has experienced in the past. He lost consciousness and does not remember exactly what happened. J.B. continues to take anti-seizure medication and said he will attend for regular appointments with Dr. D.C., which indicates to us that he acknowledges that he has a medical condition. We are concerned about the risk of re-occurrence. Just as nobody could have predicted the unprovoked seizure on January 4, 2018, no one can predict with certainty if and when the appellant may have another seizure. We conclude that there is persuasive evidence that the seizure suffered by J.B. in January 2018 would significantly interfere with his ability to drive a commercial vehicle safely.
E. CONCLUSION:
25We find that the Registrar has established that J.B.'s medical condition is likely to significantly interfere with his ability to drive a commercial class vehicle safely.
F. ORDER:
26For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister's decision to change the class of the appellant's driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
____________________________
Peter Savage, M.D. Member
____________________________
Cezary Paluch, Member
Released: December 21, 2018