Date: 2018-04-04

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 pursuant to subparagraph 32(5)(b)(i) to change the class or classes of motor vehicles being licensed

Between:

J. J.

Appellant

-and-

Minister of Transportation

Respondent

Panel: Peter Savage, M.D., Member

Laurie Sanford, Vice-Chair

Appearances:

For the Appellant: J.J., Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and dates of hearing: By teleconference

March 16, 2018

A. OVERVIEW

1This is an appeal by J.J. to the Tribunal from a decision of the Minister of Transportation (the “Minister”) to change the class of his driver’s licence from a Class A commercial licence to a Class G, or general licence. This change in class was effective October 23, 2017 and the decision was made on the grounds that J.J. “no longer meet[s] the National Medical Standards for a commercial licence due to [his] seizure condition”.

2J.J. was diagnosed as suffering a cerebral seizure in April, 2017. The Minister has decided that J.J.’s commercial licence should be downgraded until he can demonstrate that he has lived seizure free for a period of five years. The Minister asserts that epilepsy cannot be ruled out as a cause of the seizure and therefore the statutorily authorised guidelines for epileptic seizures should be followed. These guidelines recommend that a five year seizure-free period before a commercial licence is reinstated.

3J.J. believes that any seizure he may have suffered in April, 2017 was not epileptic but was an isolated event precipitated by an untreated case of pneumonia. Therefore, he submits that he should not be bound by the medical guidelines on which the Minister relies and that his commercial driving licence should be reinstated immediately.

4The issue for us to decide is whether J.J.’s seizure is likely to significantly affect his ability to operate a commercial motor vehicle safely. For the reasons set out below, we conclude that the Minister has not demonstrated that J.J.’s ability to safely operate a commercial vehicle is significantly affected by his seizure and therefore we are directing that the change in class of his driver’s licence be set aside.

B. EVIDENCE AND SUBMISSIONS

5Mr. Kapur, the Minister’s agent, reviewed J.J.’s medical records and J.J. testified. J.J.’s testimony was that he had been feeling unwell during the second week of April 2017 and, uncharacteristically, took some days off work at his job with the local municipality and worked around his farm. He did not see a doctor, which he concedes was a mistake. On the evening of April 14, 2017, his wife thought he was “a tad disoriented” and not looking good. She called an ambulance. J.J. walked to the ambulance and was taken to the hospital.

6J.J. was admitted to hospital on April 14, 2017 and examined in the early morning of April 15th. Mr. Kapur introduced the Medical Report of the attending physician. J.J. was diagnosed with a cranial seizure the cause of which was not yet diagnosed. The attending physician noted that J.J. had suffered a brain trauma at age 15 and recommended a neurological follow up. According to J.J., he was released about 5 hours after being admitted with no medications being prescribed. The doctor recommended that he not drive.

7J.J. testified that about a day and a half after his hospitalisation, someone from the hospital called to advise him that he had pneumonia. He was given a telephone prescription for antibiotics, which he took. There was no mention of anti-seizure medications. J.J. says he began to feel much better after about a day or day and a half on the antibiotics and continued to improve after that. His evidence is that he is in good health now and has had no recurrence of any seizure.

8Mr. Kapur introduced a letter dated April 27, 2017 from the Minister suspending J.J.’s licence due to the seizure. This was done following a report to the Ministry of Transportation (“MTO”) from the doctor who examined J.J. during his hospitalisation. Mr. Kapur submitted that doctors who are of the opinion that a person has a medical condition which may make it dangerous for them to operate a motor vehicle are obliged to report this to the MTO under section 203 of the Highway Traffic Act (the “HTA”). Included with this letter was an “Epilepsy and Seizures Form” which the Minister required J.J. to have completed and returned.

9Mr. Kapur reviewed the completed Epilepsy and Seizures Form which had been prepared by J.J.’s neurologist on May 25, 2017 and which addresses the seizure suffered by J.J. In the space on the form to indicate the type of seizure, the doctor has marked the space between an absence seizure type and a tonic clonic or grand mal seizure type so it is not possible to say which type of seizure the doctor believes J.J. experienced. The report notes abnormal CT scan results. The neurologist reports that the electroencephalogram or EEG results show both epileptiform activity and EEG abnormality in an epileptogenic area. Both of these results are markers for possible epilepsy. The neurologist concludes his report by noting that J.J. suffered cranial trauma 32 years earlier and that the April seizure was his first since then and that it was precipitated by pneumonia. In a subsequent note, the neurologist supports the full restoration of J.J.’s driving privileges because J.J. has remained seizure-free and continues to take Keppra.

10In his testimony, J.J. explained that he had suffered an accident on the farm when he was 15 and was hospitalised for over a week. During surgery done at that time, the doctors concluded that there were too many bone fragments to remove them individually and they removed a piece of his brain and skull. Since then, although the abnormality in his brain shows up in cranial scans, J.J. testified that it has never been a problem, that he is physically fit and active and drives a commercial vehicle without incident. He uses his truck and trailer to haul hay and cattle within the region where he farms.

11The neurologist’s report notes that anti-seizure medication had been prescribed following his April, 2017 seizure. J.J. testified that his neurologist gave him the option of taking Keppra, an anti-seizure medication or not. He has been taking it on the understanding that taking medication would shorten the time that his driver’s licence was suspended. On October 23, 2017, the Minister amended the suspension of J.J.’s licence by changing the class of his licence from commercial to general. While J.J. may drive with a general licence, the Minister requires J.J. to live for 5 years seizure free before he may regain his commercial licence.

12J.J.’s family physician noted an incident in 2016 in which J.J. complained of light headedness. J.J. suspected that this was due to caffeine consumption and he cut back. The doctor notes that J.J. recovered spontaneously with no limitations. J.J. submits that this incident is unrelated to any seizure.

13Mr. Kapur reviewed a letter from J.J’s family physician dated February 7, 2018. J.J. has been his patient since April 2005. The doctor notes that the attending physician’s original diagnosis of a seizure is complicated by the fact that the doctor did not yet have the diagnosis of pneumonia “as the possible trigger for the seizure”. J.J.’s family physician notes that on admittance, there was no fever documented, although intermittent fevers were recorded in the emergency room notes. The doctor observes that no cause for the seizure was obvious and expresses his opinion that “pneumonia was the toxic illness related to this seizure”. The family physician notes the cranial abnormalities in the EEG. No EEG was done at the time of the cranial injury so a comparison of cranial abnormalities is not possible. The doctor states that a CT scan done on the night of April 15th was unchanged from earlier CT scans. He concludes that while epilepsy must be considered, given the seizure and the abnormal EEG, the diagnosis is not as clear in this case due to the pre-existing abnormality of the brain. Mr. Kapur interprets this report as saying that the family physician cannot rule out the possibility of epilepsy. The doctor concludes by supporting the opinion of J.J.’s neurologist that J.J. “is safe to return to his driving privileges fully”.

14In support of the Minister’s decision, Mr. Kapur referred to the March 2017 Medical Standards for Drivers of the Canadian Council of Motor Transport Administrators, or “CCMTA Standards”. The CCMTA Standards describe seizures as being caused by a sudden electrical discharge in the brain. According to the CCMTA Standards, seizures manifest themselves in a variety of ways and are not always caused by epilepsy. Fever, low blood sugar, electrolyte imbalance or head trauma may cause non-epileptic or provoked seizures. Mr. Kapur notes that J.J.’s neurologist, while reporting that his seizure was precipitated by pneumonia, did find markers for possible epilepsy in J.J.’s EEG results. The CCMTA Standards state that epilepsy is “a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause”. In cases of epileptic seizures, the CCMTA recommends a five year period without seizure before resuming commercial driving, whether anti-seizure medication is taken or not.

C. LAW

15The Minister has the jurisdiction under subparagraph 32(5)(b)(i) of the HTA to change the class or classes of a driver’s licence for a variety of reasons. One such reason is set out in subsection 14(1) of Ontario Regulation 340/90 under the HTA (the “Regulation”). It provides 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”.

16Subsection 14(2)(a) of the Regulation provides that if the Minister is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the CCMTA Medical Standards for Drivers. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

17Under subsection 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

18The Minister has the burden to establish the ground for suspending the licence on a balance of probabilities.

19Pursuant to section 50(2) of the HTA, following a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Minister.

D. ANALYSIS

20There are three issues we must decide in this case. These are:

(a) Did J.J. suffer a seizure;

(b) Is there sufficient evidence to determine if the seizure was epileptic; and

(c) Is the seizure, regardless of its type, likely to significantly interfere with his ability to drive a commercial vehicle safely?

21Considering first the question of whether J.J. suffered a seizure on the night of April 14, 2017, the attending physician diagnosed J.J. as having suffered a cerebral seizure. J.J.’s neurologist, who did a subsequent more through assessment, accepted this diagnosis. The fact that the attending physician examined J.J. at the time, and that the diagnosis was subsequently accepted by J.J.’s neurologist, gives his diagnosis sufficient weight for us to accept. We note however that the support for this diagnosis is not as strong as we would have liked. J.J. does not appear to have lost consciousness and did not display typical symptoms of a seizure, such as incontinence. He walked to the ambulance. He has no recollection of having suffered a seizure and he reports his wife saying only that he was “a tad disoriented”. In the case of a seizure, we would expect the attending physician to prescribe an anti-seizure medication, which was not done in this case. Finally, we note the family physician’s report that there was no obvious cause of the seizure and that the diagnosis was made without the benefit of knowing that J.J. was suffering from pneumonia, which the family physician identified as a possible trigger for the incident.

22Concerning the second issue of whether there is sufficient evidence that the seizure was epileptic, we conclude that there is not. The attending physician at the hospital did not diagnose the cause of the seizure. The neurologist who prepared the Epilepsy and Seizures Form notes that there are markers consistent with epilepsy in the CT scan and EEG but expresses the opinion that the seizure was precipitated by pneumonia. The family physician acknowledges the possibility of epilepsy but concludes that the case is not clear due to the pre-existing cranial abnormality. He is of the opinion that the pneumonia suffered by J.J. was the toxic illness related to the seizure. The CCMTA medical standards provide that to support a diagnosis of epilepsy, there must be recurring seizures – at least two. The 2016 incident of light-headedness did not result in a seizure and is explained by J.J. as due to caffeine consumption. There appears to be no other seizure than the one diagnosed on the night of April 15, 2017. We conclude that the Minister has not demonstrated, on a balance of probabilities, that J.J. suffered an epileptic seizure.

23Regardless of the nature of the seizure, the fundamental issue we must determine is whether the seizure significantly interferes with J.J.’s ability to drive a commercial vehicle safely. We conclude that it does not. The seizure was isolated and not repeated in the 11 months since April, 2017. It may plausibly be explained as being provoked by an untreated case of pneumonia. Both J.J.’s neurologist and his family physician have seen J.J. since then and they both support the full restoration of his driving privileges.

24J.J. struck us as a credible witness who gave his testimony in a straightforward fashion and answered questions on cross-examination with apparent candour and openness. We accept his testimony that he has suffered no ill-effects from his traumatic brain injury 32 years ago. We accept his statement that he has been driving safely since the age of 16 and that his general health is excellent and his activity level is high. We accept his account of the seizure he suffered in April 2017. We accept his testimony that it was the only seizure which he has experienced and that he will continue taking Keppra as an anti-seizure medication.

E. CONCLUSION

25We conclude that there is no persuasive evidence that the seizure suffered by J.J. in April 2017 significantly interferes with his ability to drive a commercial vehicle safely. Therefore we will direct the Minister to set aside the decision to the change the class of J.J.’s licence. J.J.’s commercial licence will be reinstated.

ORDER

26Pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of J.J.’s licence is set aside.

LICENCE APPEAL TRIBUNAL

____________________________

Peter Savage, M.D., Member