Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act
Between:
Kristeena Turner-Wright
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Isla McPherson, M.D., Member Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Kristeena Turner-Wright, Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: August 29, 2019
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant appeals the July 14, 2019 suspension of her driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA, after receiving a report from a neurologist dated May 15, 2019, due to the appellant’s seizures.
B. PRELIMINARY ISSUE:
2The Registrar’s agent asked at the beginning of the hearing that a medical report dated August 28, 2019 sent to the registrar’s agent from appellant’s family physician, Dr. Snaidero, be marked as an exhibit. This report was received by Registrar’s agent after the deadline for disclosure of document in the Case Conference Order. Appellant said she had received a copy of the report, reviewed it and did not object to it being made an exhibit at the hearing. The report was made an exhibit.
C. ISSUE:
3The issues in this appeal are:
(a) Does the appellant have a medical condition of seizures?
(b) Is the appellant’s medical condition of seizures, if any, likely to significantly interfere with her ability to drive safely?
D. CONCLUSION:
4For the reasons that follow, we find that the appellant suffers from a medical condition, specifically seizures, that is likely to significantly interfere with her ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
E. LAW:
5The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
6One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;
7Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
8Under 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.
9The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
F. EVIDENCE AND ANALYSIS:
(a) Does the appellant suffer from seizures?
10As set out below, we find that the appellant suffers from seizures because the medical reports and the appellant’s admissions prove this on a balance of probabilities.
11The Registrar filed a medical report dated May 15, 2019 from Dr. Giammarco, a neurologist, who reports that the appellant has had what sounds like grand mal seizure including five episodes in a row and needs to be seen at the epilepsy clinic. Dr. Giammarco reports that appellant has not been investigated at all this point and booked an MRI and EEG and referred her to Dr. Perumpillichiara at the epilepsy clinic. Dr. Giammarco noted “I’ve told her she should not be driving….She tells me it’s been six months but honestly I think that she would be better not driving….because of the severity of these episodes particularly because she had five of them in a row in December that she would be best to not drive at this time until further notification or treatments are started.”
12The Registrar also filed three reports from appellant’s family doctor, Dr. Snaidero. In the report dated August 12, 2019, Dr. Snaidero diagnoses appellant with seizure(s), confirms anti-seizure medication has not been prescribed and describes the seizures as nocturnal, exact type not yet diagnosed, and notes that appellant “…seen by Dr. R. Giammarco who has referred patient to seizure specialist Dr. Perumpillichiara…MRI done-normal, EEG pending. Last seizure reported by patient December 2018.” In the report dated August 23, 2019 Dr. Snaidero confirmed appellant has not yet had an EEG but Dr. Giammarco ordered one along with an MRI (which was normal) and appellant is not on anti-seizure medication at present. In the report dated August 28, 2019, Dr. Snaidero reports that she just received a report from Welland Hospital dated August 24, 2019 where the ER department there consulted internal medicine doctor, Dr. Porwal. The appellant’s brother saw her having a tonic clonic seizure episode that lasted one minute. Dr. Giammarco reported that the hospital note says the appellant told Dr. Porwal that she has not seen a neurologist yet – but she has seen one, Dr. Giammarco. Dr. Porwal offered her inpatient admission to work this up but appellant declined. She stated she knows when she is going to have a seizure and can take appropriate precautions. Dr. Porwal said appellant finally agreed to being referred to a neurologist to see on an outpatient basis and he is arranging for this. However appellant already has a November 2019 appointment with another neurologist, Dr. Perumpillichira, set up by Dr. Giammarco.
13The appellant testified that her seizures started about a year ago. She saw Dr. Giammarco, a neurologist, in May, 2019. Appellant said Dr. Giammarco made her condition sound worse than it is in the report she sent to the Ministry, that she does not lose consciousness, that she can tell when a seizure will occur a few hours later because she has symptoms that she described as “deja vu” and that seizures very rarely happen. She believes it is overkill not to have her driving licence. She said she was seizure-free for eight months and her seizures are nocturnal or occur within an hour or so after waking. Appellant testified that Dr. Giammarco told her she does not know about seizures and believes the doctor should not have written a report to the Ministry. .......In support of her appeal the appellant filed her MRI test result which was normal as reported by Dr. Snaidero. In the Diagnostic Imaging Report dated July 27, 2019 Dr. Haider concludes “Essentially normal brain MR examination. A focus for patient’s seizure could not be identified.”
14In cross-examination appellant admitted that on two occasions she fell on the floor when she had seizures as outlined in the medical reports. She said she assumes she would have time to pull over if she had a seizure while driving. She admitted that about five days before the hearing she wound up in the hospital because she had a seizure that frightened her brother, he called 911 and she was taken to the hospital. She is not sure what she told Dr. Porwal at the hospital about seeing a neurologist and does not remember being at the hospital. She saw a neurologist after leaving the hospital, was told she has epilepsy, was given a prescription for anti-seizure medication but has not taken it to the pharmacy yet to be filled. She does not know the name of the doctor who prescribed the medication. She has an EEG appointment at the end of September, 2019 and will see a neurologist in an epilepsy clinic in November.
15We find the medical evidence of the Registrar to be clear and compelling that the appellant suffers from seizures. The neurologist, Dr. Giammarco, and the family doctor, Dr. Snaidero, both diagnosed seizures. Dr. Giammarco arranged for further investigation and consultation by a seizure specialist which has not yet taken place. The appellant admits she has had seizures in the past and a recent episode less than a week before the hearing which resulted in her being taken to the hospital, consulting a neurologist and being prescribed anti-seizure medication.
16Accordingly, we find, based on the totality of the evidence, that the Registrar has proven on a balance of probabilities that the appellant has a medical condition, namely seizures.
(b) Is the appellant’s medical condition likely to significantly interfere with her ability to drive safely?
17Appellant said she needs to have her licence because she has other medical conditions which make it difficult for her to walk or take public transit. She believes her licence should be reinstated because she can predict when she is going to have a seizure and would not drive at that time, seizures occur rarely and are nocturnal seizures. Appellant also said she would agree to conditions being placed on her driving licence such as being required to have someone with her when she is driving.
18The Registrar submits that the appellant’s medical condition is severe enough that she should not be permitted to drive at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (“CCMTA Standards”) with respect to seizures and epilepsy (chapter 17).
19Guideline 17.6 states the rationale for all epilepsy and seizure standards as follows: “The general approach of the guideline for drivers with epilepsy or who experience seizures is that seizures must be controlled as a prerequisite to driving. Most of the guidelines include a requirement for a seizure-free period. The purpose of this requirement for a provoked seizure is to establish the likelihood that the provoking factor has been successfully treated or stabilized. For an unprovoked seizure, the purpose is to allow time to assess the cause, and where epilepsy is diagnosed, to establish the likelihood that
a therapeutic drug level has been achieved and maintained
the drug being used will prevent further seizures, and
there are no side effects that may affect the driver’s ability to drive safely”
20The Tribunal is not bound by CCMTA Guidelines but in this case chooses to follow them given the appellant’s medical condition of seizures.
21Based on this rationale, the appellant would not be eligible for a licence at this time. The medical report of Dr. Snaidero dated August 28, 2019 show the appellant had another seizure in the week before the hearing. Appellant admitted in her testimony that she had a seizure, her brother called 911 and she was taken to hospital in an ambulance. She was offered admission to the hospital and treatment but declined. The treating physician, Dr. Porwal, set up an EEG appointment and an appointment with a neurologist for her upon discharge. Appellant testified that she does not remember being at the hospital but says she did see a neurologist on August 26 or 27, 2019 and was given a prescription for anti-seizure medication. As at the date of the hearing, appellant could not remember the name of the neurologist, the name of the medication and had not yet taken the prescription for the anti-seizure medication to a pharmacy to be filled. Appellant said the neurologist she saw August 26 or 27, 2019 told her she has epilepsy but she is not sure if that is right or not. She is scheduled for an EEG at the end of September, 2019 and to attend an epilepsy clinic in November, 2019. Appellant’s medical condition is still in the early stages of investigation and there has been no therapeutic drug level achieved and maintained. There is no evidence that the medical condition is being controlled, has been successfully treated or has stabilized. Appellant in her testimony gave the impression she has not accepted the diagnosis given and believes she can predict when she will have a seizure and take steps to avoid driving at that time.
22There is also no evidence before us of a favourable recommendation from a seizure specialist or any physician that the appellant have her licence reinstated. To the contrary, Dr. Giammarco, a neurologist, confirms in her report dated May 15, 2019 that she told the appellant not to drive. In the time since Dr. Giammarco’s report appellant has had another seizure which resulted in her being taken to the hospital where she refused admission.
23We have considered appellant’s submission that she would agree to conditions being placed on her driving licence such as being required to have someone with her when she is driving. Based on the clear medical evidence that the appellant has seizures, that her condition has not yet been fully investigated, stabilized or controlled we are of the view that there are no conditions that could be imposed on appellant’s driving licence that would ensure that she could safely drive at this time. We understand the appellant’s desire to have her licence reinstated. However, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.
24After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant’s medical condition, specifically seizures, is likely to interfere with her ability to drive a motor vehicle safely at this time.
G. ORDER:
For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
Isla McPherson, M.D., Member
Avril A. Farlam, Vice-Chair
Released: September 13, 2019