J.S. v. Registrar of Motor Vehicles, 2018 CanLII 54785

Date: 2018-03-13

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to downgrade a Commercial Class driver’s licence under Section 32(5)(b)(i) of the Act

Between:

J.S.

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Peter Savage, M.D., Member Zahra Dhanani, Member

Appearances:

For the Appellant: J.S., Self-Represented

For the Respondent: Stephen Grootenboer, Agent

Place and date(s) of Hearing: By Teleconference

January 11, 2018

REASONS FOR DECISION:

A. Overview

1J.S. is a 53-year-old man who lives in [ ]. On December 1, 2015 J.S. had a seizure while driving a tractor trailer. He was in a single vehicle accident, no other vehicles were involved.

2That day he was admitted into hospital where they found that he had a non-enhancing lesion in the left paramedian frontal region of his brain. He was given a regimen of seizure medication.

3On January 18, 2016 he had brain surgery to remove a tumor and subsequently went through a cycle of radiation and chemotherapy. He also underwent a maintenance program of chemotherapy in December, 2016. Since then his condition has been stable and he has had no seizure related complications.

4On June 1, 2016 his physician sent a letter to the MTO recommending his license be re-instated. As a result his G license was re-instated. On December 14, 2016 his doctor sent a letter to the MTO recommending that J.S.'s commercial license also be re-instated. This request was denied stating medical reasons. On July 21, 2017 the doctor sent another letter to request that J.S.'s commercial license be re-instated and this was again denied for the same reasons.

5J.S. has kept up with his seizure medication, goes through regular and routine testing and medical reviews. Since the December 1, 2015 seizure he has not had another seizure or any side-affects from his treatment.

6J.S.'s neurological doctor is of the opinion that there would be no risk for J.S. to drive a commercial vehicle and to be issued a commercial licence as he is safely and legally driving with a G license.

7We find that the appellant’s medical condition will not significantly interfere with his ability to drive a commercial class vehicle safely. We set aside the MTO's decision not to re-instate J.S.'s commercial class driver’s licence and order that his licence should be upgraded back to a commercial class licence.

B. ISSUES:

8The issue in this appeal is whether J.S. 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.S. have a medical condition?

b. If a medical condition is proven, is it likely to significantly interfere with his ability to drive safely?

C. LAW:

9The Registrar has the power under s. 32(5)(b)(i) of the Act to change the class of a driver's licence in accordance with the results of a medical examination or other prescribed requirements.

10One 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.

11Under s. 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.

12Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

D. ANALYSIS:

13In many cases, the first question to be determined is whether the appellant suffers from a particular medical condition or addiction. In this case there was agreement by both parties that J.S. has had a seizure.

14The issue to be determined now is whether this condition still presents a risk to J.S.’s safe operation of a Commercial Class vehicle.

15J.S. is being assisted medically by Dr. J.R.P., Division of Neurology at Sunnybrook Health Sciences Hospital. J.S. has had monthly visits to Dr. J.R.P. for the first year after the 2015 seizure, with visits every three months since August 2017. All of the reports from those visits were submitted as evidence. There were also three letters sent from Dr. J.R.P. to the MTO, all stating that J.S. was not at risk for future seizures. In a letter dated June 1, 2016, Dr. J.R.P. confirmed that J.S. is in good condition.

His neurological examination today is normal. I see no neurological contraindication to his ability to safely conduct a motor vehicle.

16It is clear that the tumor surgery, chemotherapy treatment and seizure medication regimen has been successful.

17J.S. has made significant life changes and is very serious about his health, he stated that safety is his “first and foremost” priority as he has a family that he wants to live for.

18He pointed out that he has had no further seizures for over two years and that he has been driving a regular vehicle with a G licence for a year and a half and has had no problems.

19The MTO denied the commercial license stating that he must provide another report which specifically states that he has remained seizure free for a period of five years.

20The MTO based this on the Canadian Council of Motor Transport Administrators Manual (CCMTA) standard for commercial drivers. Based on this the MTO found that the neurologist reports did not guarantee that there would absolutely be no seizures in the future.

21We cannot agree with this reasoning. While the CCMTA provides guidance it is not binding. It is a general standard but each case must be assessed on an individual, case by case basis.

22J.S.'s neurologist has a more detailed knowledge of this individual case and we put more weight on his submissions and recommendations.

23We also believe J.S. was in a good position to speak on his own behalf. He seemed to have a good grasp of his condition and more importantly was very concerned about taking care of himself and not putting himself at risk. We believe that should the driving of a commercial class vehicle put his health at risk he would not choose to do this. The appellant gave clear and straight forward evidence and he was quite compelling in how he spoke about his and his family’s concern for safety.

24J.S. has a plan for his commercial driving, which we think is reasonable. He will only drive commercial vehicles in town, not out of province or out of the country. He will be home every night and not do any overnight driving.

25J.S. provided evidence of good health including excellent lab and imaging reports and he is continuing to get the best of the best in treatment and follow up.

26J.S. has received excellent medical and surgical service from a university hospital and is getting ongoing follow up there. J.S. has been faithful in his follow up and diligent in his compliance with the seizure medication regimen. Dr. J.R.P. also acknowledged that if there are any changes in J.S.'s brain imaging, condition, etc. he will report this to the MTO as per his legal obligations.

27The neurologist endorsed J.S.'s ability to safely operate a motor vehicle. While the neurologist does not and cannot guarantee that there will be no further seizures, he does believe that J.S. is a very low risk for future seizures. No one can actually provide a 100% guarantee that J.S. will never again have a seizure that is not a realistic expectation. We find that J.S. has been compliant and should have his commercial licence reinstated.

E. CONCLUSION:

28There was no evidence provided that J.S. was at risk if he were to drive a commercial class vehicle. We find that the Registrar has not established that J.S.'s medical condition is likely to significantly interfere with his ability to drive a commercial class vehicle safely.

29J.S. had a very well supported case with various medical reports and letters of support from his doctor. We found this evidence to be the most compelling.

F. ORDER:

30For the reasons set out above, pursuant to Section 50(2) of the HTA, the Registrar’s decision to downgrade the appellant’s driver’s licence is set aside.