M.A.K. v. Minister of Transportation, 2019 CanLII 29109

Licence Appeal Tribunal

Date: 2019-02-20

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 section 32(5)(b)(i) of the Act to change the Class of a Driver's Licence.

Between:

M.A.K.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Adjudicators: Dr. Peter Savage, Member Marisa Victor, Member

Appearances:

For the Appellant: Richard Bowers, Paralegal For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference on: January 22, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, M.A.K., appeals to this Tribunal from the downgrade of his driver's licence from a commercial licence to a Class-G licence due to a seizure he experienced in April 2017. The licence was downgraded pursuant to s.32(5)(b)(i) of the Highway Traffic Act (the Act).

2The appellant appeals on the basis that the seizure he experienced was the result of a fall and not epilepsy and that he has been seizure-free since the incident in April 2017.

3The respondent is seeking a five-year seizure-free period before reinstatement of the commercial licence on the basis that the appellant suffers from epilepsy and is on seizure medication.

4For the reasons that follow, we allow the appeal on the basis that the respondent has failed to establish that the appellant has a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

ISSUE

5Is the appellant's medical condition likely to interfere with his ability to drive a commercial vehicle safely?

6To answer that question, we must determine whether the medical evidence and the testimony shows that the appellant has epilepsy or is likely to continue to suffer from seizures.

LAW

7The Registrar has the burden of establishing, on a balance of probabilities, that the appellant has a medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely.

8The Registrar has the power, under subparagraph 32(5)(b)(i) of the Act, to downgrade a driver's commercial licence for a sufficient reason. Subsection 14(1)(a) of O. Reg. 340/94 (the Regulation) of the Act states 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.

9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Guidelines) when determining whether the requirements of s. 14(1) are met. The CCMTA Guidelines at s.17.6.12 state that a commercial driver who suffers from epilepsy can have their licence reinstated after a five-year seizure-free period.

10We may take the CCMTA Standards into consideration, although they are not binding on us.

EVIDEnCE & ANalysis

The Cause of the Appellant's Seizure

11The appellant testified that in April 2017 he was in charge of a commercial vehicle when he suffered an incident that caused a seizure. Around mid-day he stopped to load his truck and decided to clean the windows. He was balanced precariously on the outside of the truck holding onto the side mirror when he lost his balance and fell straight back. He says he struck his head and suffered a single seizure.

12The appellant was taken to hospital. There he underwent imaging that diagnosed a subdural hematoma. He was also placed on the anti-seizure medication Dilantin.

13The subdural hematoma resolved over time as did the clinical symptoms. His doctor subsequently stopped the Dilantin and placed him on Keppra, a different anti-seizure medication with fewer side-effects. He also had a favourable sleep-deprived EEG that showed no epileptogenic focus. He has suffered no further seizures.

14The appellant reported his condition to his family doctor and began seeing a neurologist. He stated that his doctor told him not to drive and so he stopped driving for a year. After a year, his doctor advised him he could resume driving his car, which he did. In April 2018, the appellant asked his doctor if he could resume driving commercial vehicles and was told he could.

15In July 2018, the appellant self-identified to the Ministry of Transportation as having suffered a seizure when he submitted his driver's licence renewal application.

16In August 2018, the Registrar of Motor Vehicles (Registrar) requested that he have a medical practitioner complete an epilepsy and seizure form.

17In September 2018, the appellant's neurologist completed and submitted the form. In it, the neurologist wrote that the appellant had suffered a seizure but was stable.

18In the interim, the appellant had begun driving a commercial vehicle again at reduced hours during the day.

19On October 23, 2018, the Registrar wrote to the appellant to advise him that he was approved for his Class-G licence but that he no longer met the National Medical Standards for a commercial licence due to a seizure disorder. The appellant therefore stopped commercial driving.

20The appellant's neurologist subsequently submitted a further letter of support to the Registrar. The letter dated November 29, 2018 states that the appellant is being followed by the neurologist due to a neurological issue. Furthermore, the neurologist states that he supported the appellant's return to work in full capacity including the operation of a commercial vehicle.

21We find that the testimony of the appellant and the medical evidence provided supports the appellant's position that his seizure was caused when he fell and struck his head. Indeed, there was no evidence to the contrary. The question remains as to whether the appellant's condition has resolved, and if so, when it is appropriate for the appellant to resume commercial driving.

The CCMTA Guidelines and the Type of Seizure

22The CCMTA Guidelines prescribe standards for when a driver can resume driving following a seizure. The standards vary according to the cause of the seizure, the type of seizure, the diagnosis and whether the driver is a commercial or non-commercial driver.

23The CCMTA Guidelines also state that a seizure may occur in people who do not have epilepsy. This can be caused by numerous factors including head trauma. Epilepsy is described as a condition characterized by two or more seizures that do not have a provoking cause.

24The respondent relies on the CCMTA Guideline described in 17.6.12 which states that a commercial driver suffering from epilepsy must be seizure free for five years before resuming driving. The respondent states that the appellant meets the criterion for epilepsy and that the fact that the appellant was prescribed medication means that further seizures are possible. Therefore, a five-year seizure-free period is required in order to alleviate the risks and safeguard the appellant and those sharing the road with the appellant.

25The appellant states that he did not meet the definition of epilepsy as he had only suffered one seizure and it was due to a head injury. This he says meets the definition of a provoked seizure and not epilepsy. Furthermore, he states that he has not had been diagnosed with epilepsy. The appellant states he was diligent in following up with his doctor. He has followed medical advice and consistently taken his medication without questioning why. He also voluntarily reduced his commercial driving hours and chose only to work during the day.

26The Tribunal finds that based on the medical evidence submitted and the description of the incident as described by the appellant, that the appellant suffered a provoked seizure. The appellant states he hit his head – the provoking cause, and there is evidence of that from the hospital records. He has only had one seizure and therefore does not meet the definition of epilepsy. His neurologist states that the provoking cause has been eliminated and that he is now stable. Considering that evidence we find that the appropriate diagnosis is that of a provoked seizure.

27As a result of the finding above, we do not find s. 17.6.12 of the CCMTA Guidelines to be applicable to this situation. Instead, we find that the more applicable section of the CCMTA Guidelines is s. 17.6.1 which describes the standard for a commercial driver who suffers a provoked seizure caused by a structural brain abnormality, such as a subdural hematoma. This section states that a driver is eligible for a licence if they have undergone a neurological assessment, epilepsy is not diagnosed, and it has been six months since the provoking factor has stabilized. It also states that the treating physician should indicate that further seizures are unlikely.

28Although the CCMTA Guidelines are not binding on us, in this case we find that they are persuasive. We find that the appellant has met all the requirements under s. 17.6.1, in that he has undergone neurological assessment, it has been more than six months since the provoking factor resolved and the neurologist who has been following the appellant has given his explicit recommendation that the appellant can return to commercial driving.

CONCLUSION

29For the reasons set out above, we do not find that the appellant suffers from a medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

30For 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 set aside.