J.S.G. v. Minister of Transportation, 2018 CanLII 50226

Licence Appeal Tribunal

Date: 2018-05-31

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 pursuant to section 32(5)(b)(i) of the Act to change the Class or Classes of a Driver’s Licence

Between:

J.S.G. Appellant

-and-

Minister of Transportation Respondent

DECISION AND ORDER

Adjudicator: Katie Awad, M.D., Member Asad Moten, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: April 18, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1J.S.G. appeals the downgrade of his driver’s licence from a commercial licence to non-commercial Class G licence. He has been a commercial truck driver for 12 years, and has no prior history of seizures. On August 10, 2017, he suffered a seizure while at his sister-in-law’s home. This event led to his driver’s license being suspended. In October 2017 his suspension was lifted, but the Minister of Transportation downgraded J.S.G to a Class G licence.

2An oral hearing by teleconference was held on April 18, 2018 with respect to the appeal. At the hearing, J.S.G. submitted that he has had a follow up with a neurologist, and that his health appears normal, with no indication as to what caused the seizure or any indication it could happen again. The respondent submitted that because the seizure was of unknown origin it could recur at any moment, and the downgrade should continue for the 12 months specified in the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”).

3For the reasons that follow, the Tribunal confirms the Minister’s decision to change the class of the appellant’s driver’s licence.

B. ISSUES

4The issues to be determined in this appeal are:

a. Whether J.S.G. suffers from a physical condition, namely seizures; and,

b. If J.S.G. does suffer from a physical condition, is it likely to significantly interfere with his ability to drive a motor vehicle safely?

The requirement by the Minister of Transportation that J.S.G. remain seizure-free for 12 months is a sub-issue to the main issues set out here, and is a means of determining (b), above.

C. THE LAW

5Pursuant to section 32(5) of the Highway Traffic Act (the Act), the Minister of Transportation has the authority to change the class of a driver’s licence where prescribed requirements are not met. One of these requirements, as set out in section 14(1) of Ontario Regulation 340/94 (the Regulation), is that the person holding the 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”.

6In 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.

7Section 14(2)(a) of the Regulation also permits the Minister to consider the CCMTA Standards when determining if the requirements of s.14(1) are met.

8In both subsections of s.14(2), the authors of the Regulation have used the word ‘may’, indicating that the Minister can, but is not obligated to, require evidence from a person or consider the CCMTA Standards. Similarly, the Tribunal is not bound to these provisions, though it may take them in to consideration.

9The 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.S.G. suffer from a physical condition, namely seizures?

10J.S.G. testified that he has never had a history of seizures, which is supported by a 2014 medical report. As far as J.S.G., the respondent, his neurologist, and the Tribunal can tell, this was the first and only instance of a seizure in J.S.G.’s life. He is an otherwise healthy individual, with no family history of seizures, and no personal history of trauma or injury.

11On August 10, 2017 J.S.G. was at his sister-in-law’s home in Niagara Falls when he lost awareness. His family called 911, and by the time the ambulance arrived five to seven minutes later, he had regained awareness. He was told that he had a seizure, though it is unclear who told him that his episode was a seizure, and how they were able to diagnose it. He was transported by ambulance to the local hospital.

12At the hospital, medical professionals conducted various tests on J.S.G., including blood work and a CT scan. J.S.G. was released from the hospital within five hours. The physician responsible for examining J.S.G. found that he had a seizure of unknown cause. On August 15, 2017 he submitted a Medical Condition Report to the Ministry of Transportation (the Ministry) indicating similarly that J.S.G. had a seizure of unknown cause.

13The Ministry sent J.S.G. a letter on August 21, 2017 stating that as a result of the seizure, J.S.G.’s licence was suspended under s.47(1) of the Act. The letter also required J.S.G. to have a physician or nurse practitioner complete the enclosed Epilepsy and Seizures form.

14J.S.G. went to a neurologist in Niagara Falls on or around August 21, 2017. The neurologist, Dr. Chew, assessed J.S.G., and wrote a letter dated September 12, 2017, and completed the Ministry’s Epilepsy and Seizures form on September 17, 2017. Dr. Chew assessed J.S.G.’s current situation as stable, noting in his letter that all investigations and tests were normal, and that “this has been a single event and I have no idea if it will ever recur.”

15The Epilepsy and Seizure form completed by Dr. Chew indicates that J.S.G. had a complex partial seizure. Despite all the tests, including a sleep-deprived EEG, all results were negative, and Dr. Chew concluded that the etiology of the seizure was unknown. In the additional comments section, Dr. Chew notes that the single seizure is a "lay person description”, and there is “no way to know if this is a single event or will recur”. Both the letter and the Epilepsy and Seizure form indicated that no treatment or medication had been prescribed.

16Based on this form, the Ministry sent a letter to J.S.G. on October 6, 2017 advising him that his Class G licence had been reinstated. However, the letter also stated that he no longer met the National Medical Standards for a commercial licence. The letter went on to state that if he wished to regain his commercial licence, he would have to provide:

• confirmation that he remained seizure free for a period of 12 months; and,
• results of an EEG.

17While neither party raised an argument that what J.S.G. suffered was anything other than a seizure, the Tribunal should still independently consider whether the facts and evidence before it point to the same medical conclusion. In this case, all of the health professionals who examined J.S.G. arrived at the same diagnosis – that J.S.G. had a single event seizure on August 10, 2017. None of the tests appear to conclusively support that finding, in that none of the results indicated a ‘smoking gun’ for a seizure. This, however, is not uncommon in single event, unprovoked seizures. In addition, none of the evidence before the Tribunal pointed to any reasonable alternative finding. Therefore, based on the evidence, the Tribunal finds that J.S.G. does suffer from a physical condition, namely a seizure, and that a seizure may recur.

Is J.S.G.’s physical condition likely to significantly interfere with his ability to drive a motor vehicle safely?

18J.S.G. argues that because all of the tests he underwent in August and September of 2017 were negative, and because the neurologist saw fit to not place him on any treatment or medication, and because he has had no further incidents or episodes related to a seizure, his physical condition is not likely to interfere with his ability to drive a commercial vehicle safely. He should not, in his opinion, be required to wait 12 months before having his commercial licence re-instated. J.S.G. testified that the impact of this suspension has meant that he cannot work in his field, and has been at home, unable to help support the household during this time.

19The respondent argues that this is a textbook example of a single, unprovoked seizure under the CCMTA Standards. As such, in the respondent’s opinion, J.S.G. should be subject to the requirements under the CCMTA Standards, which are developed by medical experts with the best available evidence.

20Where a commercial driver has had a single unprovoked seizure, chapter 17.6.5 of the CCMTA Standards state a driver is eligible for a commercial licence if:

• It has been at least 12 months since the seizure occurred, and
• Complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed, and
• CNS imaging and EEG results are satisfactory.

21These requirements reflect the contents of the October 6, 2017 letter to J.S.G.

22Until his licence was suspended, J.S.G. was a commercial truck driver, driving five to six days a week for the past 12 years. J.S.G. testified that most of his driving was within a 150 km radius of his headquarters, and that at the most he was travelling between 300 and 400 km in a day. While not extreme by the standards of most commercial truck drivers, this still amounts to at least four hours of active driving time per day, in the Tribunal’s estimation.

23All reports from the neurologist indicate that there is no way to know if and when another seizure might occur. Given the amount of time that J.S.G. spent driving commercially prior to his suspension, if a seizure were to recur there is a reasonable likelihood that it would occur while J.S.G. was on the job. The possibility of one occurring while J.S.G. is behind the wheel of a large truck could mean devastating consequences for J.S.G. and other users of the road.

24The gravity of commercial driving with a past seizure is reflected in the CCMTA Standards. For non-commercial drivers who suffered the same episode as J.S.G., the CCMTA Standards do not indicate a 12-month seizure-free period, only a neurological assessment to rule out epilepsy, and satisfactory CNS and EEG results. The 12-month seizure-free period for commercial drivers is a reflection of the seriousness of being a commercial driver, and the consequences that could result from having a seizure while driving.

25Further, J.S.G. has had no follow-up, treatment, or medication since he last saw his neurologist in August and September of 2017. He has seen his family doctor since then, but J.S.G. testified that neither his family doctor nor his neurologist could find a reason to conduct further tests or put J.S.G. on a treatment regimen. The Board does not have any additional evidence with respect to why the physicians seeing J.S.G. made this choice. Had there been evidence before the Tribunal of more recent follow-up testing, or a preventative treatment program that took into account J.S.G.’s reality as a commercial truck driver, the outcome of this appeal might have been different. Where more recent investigative tests indicated that J.S.G. remained stable, the Tribunal would have more reason to modify the 12 month seizure-free period indicated in the October 6, 2017 letter.

26Lastly, J.S.G. argued that this suspension has had an impact on his ability to earn his livelihood. The Tribunal sympathizes with J.S.G.’s position. However, the Tribunal is required to make its decision based on the risk to road safety.

27In the Tribunal’s opinion, it is reasonable in this circumstance to require J.S.G. to be free of seizure for 12 months before being eligible for his commercial licence. The Tribunal recognizes that J.S.G. has experienced no further episodes and has passed all tests, and is hopeful that J.S.G. can get his licence back soon.

E. CONCLUSION

28The Tribunal is mindful of the safety of both J.S.G. and the public. Based on the evidence before the Tribunal, J.S.G. suffers from a physical condition in the form of an unprovoked seizure that may recur. The evidence before the Tribunal is that J.S.G. was healthy and stable as of September 2017. The Tribunal has no evidence, however, of his condition since then, and J.S.G. testified that he is not on any preventive medication. In addition, the Tribunal finds that this physical condition is likely to significantly impact J.S.G.’s ability to safely drive a motor vehicle. While the Tribunal is not bound by CCMTA Standards, the Tribunal finds that the Minister has met the burden required for changing J.S.G.’s class of licence and the 12 month seizure-free indication in the October 6, 2017 letter from the Ministry is reasonable.

ORDER:

29For the reasons set out above, pursuant to s.50(2) of the Highway Traffic Act, the Minister’s decision to downgrade the class of the appellant’s driver’s licence is confirmed.