File Number: 11204/MED
Appeal under subsection 50(1) of the Highway Traffic Act (the “HTA”), 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:
B.C.
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Peter Savage, M.D., Member Harriet Lewis, Member
Appearances:
For the Appellant: B.C., Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and date of Hearing: By Teleconference March 22, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1The appellant B.C. is a 43-year-old professional truck driver with a long and unblemished driving record. In January 2014, he contracted influenza A and became gravely ill, requiring high frequency mechanical ventilation and dialysis for respiratory and kidney failure brought on by his infection. Likely as a result of his condition, and during his dialysis and subsequent recovery, he had three episodes of behavioral arrest manifested by staring out, sometimes associated with loss of muscle tone. One of these occurred during dialysis, one just after dialysis and a third after discharge from hospital on an occasion when he had some alcohol. He was placed on valproic acid 250 mg. Subsequently he has had a complete disappearance of the episodes and on repeated occasions, an unremarkable EEG.
2As a result of these seizure like episodes, a report was made to the Minister of Transportation (“MTO”, “Minister” or “respondent”). B. C’s licence was downgraded to a G licence in March 2016 with the requirement that in order to have his AZ licence reinstated, he provide confirmation that he had remained “seizure free” for five years. He was also required to file up-to-date assessments from a specialist or treating physician in September, 2016 in order to maintain his G licence.
3Having filed the requested medical information, B.C. is appealing the licence downgrade. He submits that his Class A licence should be reinstated, as medical tests have shown him to be seizure free, and his doctors have attested that they have no concerns with his driving and do not believe him to be at risk of seizure.
4The respondent argues that because driving a commercial vehicle involves significant risks to other road users, the appellant must remain free of seizure-like episodes for a period of five years.
5For the reasons that follow, we overturn the Minister's decision and order that the appellant’s Class A licence be reinstated.
B. Preliminary Issues:
6At the outset of B.C.’s testimony, B.C and his wife G.C. indicated that G.C. would like to give testimony in support of the appellant. With the permission of Mr. Kapur on behalf of the respondent, it was agreed that G.C. could testify and she was affirmed as a witness for the appellant.
C. ISSUES:
7The issue 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 a Class A motor vehicle safely. More specifically, is the appellant’s health such that he is at risk of losing consciousness or having a seizure while driving?
8We believe there is sufficient evidence in this matter to answer this question in the negative and therefore we determine that the Minister’s decision to downgrade B.C.’s Class A licence should be set aside.
C. EVIDENCE:
9The parties agree on all of the facts.
The Appellant’s Evidence:
10B.C. entered into evidence, letters from three physicians, each of which attested to B.C.’s fitness to drive and his low risk of seizure. The evidence given by them was, in brief, as follows:
On May 26, 2017, his family Doctor R.H.F. who had been seeing B.C. for 28 years, wrote to the MTO noting that B.C. “has been completely seizure free since September 15”, when he “had a peculiar spell which was likely vasovagal and brought on by overindulgence in alcohol”, although B.C. had “no history of alcoholism or heavy drinking”. His EEG in July 2016 was normal. Referring to B.C.’s desire to have his commercial licence reinstated, Dr. R.H.F. noted his hope “that the above short synopsis will help him”.
On August 22, 2017, Dr. O.F., a neurologist at B.C.’s local hospital, wrote and confirmed that B.C. remains seizure free and had a normal EEG in February 2014 and June 2016. Dr. O.F. further wrote: “As a medical professional, I believe that there is no medical reason to downgrade (B.C.’s) AZ type driver’s licence. I would request to reinstate the AZ licence for him”.
On February 8, 2018, Dr. P.T. a neurologist at the University Health Network in Toronto, wrote a detailed four-page history and assessment of B.C.’s illness and condition. Near the conclusion of the report Dr. P.T. wrote: “I believe this gentleman’s seizures were “acute symptomatic” seizures related to his illness, hemodialysis, and the small subarachnoid hemorrhages which have since resolved. So with regards to the question of whether or not he can drive with an AZ licence, I think he is being miscategorized as epilepsy and probably is being unduly restricted in his ability to drive with an AZ licence.”
11B.C. testified that his case was reliant on the medical reports provided by his doctors. He expressed his strong desire to return to work as a professional truck driver. He stated that although he and his wife had been partners in driving a long-haul tractor-trailer for many years, he has no wish to live that life in the future. Should his commercial licence be reinstated, he has no intention of driving long haul routes. He has been diagnosed with leukemia and is under treatment and has regular follow-up visits with his family doctor. He is doing well and that condition will not affect his ability to drive safely. While he has had indications from Dr. P.T. that he could stop the anti -seizure medication, he has chosen to remain on it to ensure that he is able to satisfy the conditions to have his licence reinstated, and likely will remain on the medication indefinitely.
12B.C.’s wife G.C. testified that she was present during the “spells” B.C. had when on dialysis. She said that they were not seizures, but rather incidents of “staring into space” and brief losses of awareness. She noted that B.C. has always become faint easily, for example, at the sight of blood. She confirmed that although they were long distance driving partners, since B.C.’s illness she has been employed with Canada Post and does not intend to return to professional driving.
The Respondent’s evidence:
13The respondent’s agent stated that the Ministry is guided by the standards set forth in the CCMTA which are drawn up by a panel of medical experts and which, in the case of “provoked seizures”, provide for a seizure-free period of five years before reinstatement of a commercial licence.
E. THE LAW:
14As this is an appeal of a decision which downgraded a licence from a Class A to a Class G based on a medical condition, the applicable law is as follows:
- The Minister has the authority to change the class of a driver's licence pursuant to 32(5)(b)(i) of the HTA. As stated in that section:
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,
ii. where the person fails to submit or to successfully complete the examinations or fails to meet the other prescribed requirement, impose the conditions authorized by the regulations, remove any endorsements, suspend or cancel the driver’s licence held by the person or change the class of classes of driver’s licence held by the person.
- Ontario Regulation 340/94 s.14(1) (the “Regulation”) 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;
15In determining whether a person meets the standard set by s.14(1) 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.
16Paragraph 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s.14 (1) are met.
17The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements. In this case, the respondent referred the Tribunal to s.17.6.3 of the CCMTA standards pertaining to a “single or recurrent unexplained, single or recurrent atypical vasovagal, or recurrent typical vasovagal syncope – Commercial drivers” which calls for a period of 5 years suspension if a physician has confirmed that the cause of seizure was alcohol use.
18CCMTA s.17.6.2 addresses provoked seizures with no structural brain abnormality, and refers to situations in which, among other things, seizures are caused by toxic illness or adverse drug or alcohol reactions. In those instances, there are no conditions placed on licensing, if epilepsy is not diagnosed, if the provoking factor has stabilized or been resolved, or if the treating physician indicates that further seizures are unlikely.
19The jurisdiction of the Tribunal is set out in s. 50(2) of the HTA and allows the Tribunal to confirm, modify or set aside the decision or order of the Minister.
F. ANALYSIS:
20The medical evidence in this case has confirmed that the appellant’s seizure- like activity was caused either by the toxic illness and its treatment, or by one episode where the appellant had too much alcohol. He was not diagnosed as having either epilepsy or alcohol dependence. His EEG’s are clear. He was noted as being compliant with his anti-seizure medication. Dr. P.T. expressed the opinion that even without that medication, the risk of further seizure was “very small”. Each of the physician’s supported the reinstatement of B.C.’s commercial licence.
21Given the nature of the episodes leading to the downgrading of the appellant’s licence from an AZ to a G, we are of the view that s. 17.6.3 is not the relevant section of the CCMTA. While we are not bound to follow the CCMTA, and we base our decision on the strong support for reinstatement reflected by the medical reports, we are of the opinion that s. 17.6.2 more accurately reflects the circumstances of this case.
F. CONCLUSION
22For 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 from an AZ to a G is set aside.
LICENCE APPEAL TRIBUNAL
________________________
Peter Savage, M.D., Member
_________________________
Harriet Lewis, Member
Released: April 27, 2018