Date: 2019-05-31

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 to change the class of a driver’s licence under subparagraph 32(5)(b)(i) of the Act

Between:

K.W.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Michael McCreary, Counsel

For the Respondent: Stella Velocci, Agent

Heard by teleconference: May 15, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant is 60 years old. On September 16, 2017 he had a seizure in his sleep. A physician reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant suffered from “seizure(s)-cerebral”. 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.

2The Registrar suspended the appellant’s commercial licence. On June 1, 2018 the appellant was notified that his licence was reinstated but downgraded from a DZ to a Class G licence. The decision to downgrade the appellant’s licence was made by the Minister of Transportation (“Minister” or “respondent”) under s. 32(5)(b)(i) of the HTA. The appellant appeals from the Minister’s decision.

3The respondent submits that because driving a commercial vehicle involves significant risk to other road users, a five-year seizure-free period is necessary in order to reinstate his Class D licence. The appellant submits that his Class D licence should be reinstated, because he does not have epilepsy and there have been no further seizures.

iSSUE

4The issue in this appeal is whether the appellant has a medical condition, specifically seizures, likely to significantly interfere with his ability to drive a Class D motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant suffer from seizure(s)?

(b) Is the appellant’s seizure, if any, likely to significantly interfere with his ability to drive a Class D motor vehicle safely?

CONCLUSION

5We find that the appellant suffers from a medical condition, specifically seizure, but that it is not likely to significantly interfere with his ability to drive a Class D motor vehicle safely. Accordingly, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

LAW

6The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA which states:

“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,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements…

7The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.

8One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (“Regulation”) which 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; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

9In determining whether a person meets that requirement, 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.

10Section 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 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.

11Subsection 50(1) of the HTA and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal.

12The Minister has the burden of establishing the ground for changing the class of a driver’s 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 Minister.

EVIDENCE AND ANALYSIS

13As set out below, we find that the appellant suffered an epileptic seizure on September 16, 2017. However, we find that this medical condition is not likely to significantly interfere with his ability to drive a Class D motor vehicle safely. Accordingly, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

(a) Did the appellant suffer from a seizure?

14The Registrar filed two medical reports. In a Medical Condition Report dated September 16, 2017, Dr. K., an emergency room physician, diagnosed “seizure(s)-cerebral” and noted that the patient is a truck driver and that this was a witnessed seizure. In a report dated May 22, 2018, Dr. G., appellant’s neurologist/epileptologist, diagnosed the appellant’s medical condition as seizure(s), “generalized tonic or clonic or grand mal”. Dr.G. reported that this was appellant’s first seizure and noted that appellant’s September 28, 2017 EEG was abnormal, showed signs of epileptiform activity and this is potentially an epileptogenic area. Dr. G. reported that the episode was an epileptic seizure which had occurred while the appellant was sleeping and was idiopathic (cause unknown). Dr. G. concluded that the appellant had “epileptic seizure (one) controlled with Keppra”.

15The appellant testified that he is 60 years old, was in good health before the seizure and is in good health now. He said the one seizure was an isolated event. The seizure occurred in his sleep and his wife saw it and arranged for an ambulance to take him to the hospital. Since the seizure he has been treated by Dr. G., his neurologist/epileptologist who prescribed medication, which he takes, and he continues to see Dr. G. The appellant said that he has been a cement truck driver all of his adult life, working with the same employer. His most recent employment duties included road testing potential new truck drivers and making recommendations for hiring. He said he has high standards for truck driving for potential new drivers and for himself. Because of his seniority at the company he does not do long haul driving but stays mostly in the downtown of the municipality where he works. His father and his son both have residences in the municipality where he works and he stays with them sometimes instead of driving home after work. He said his employer will take him back if his Class D licence is reinstated.

16Appellant testified that Dr. P., his family physician has told him he is in good health. He only needs to see Dr. G. once a year now. Both physicians have told him they do not believe he will ever have another seizure. He said he takes his medication twice a day and never misses. He will keep medication at his father’s residence and his son’s residence in case he stays there instead of driving home. Appellant said he has no other symptoms. He said he needs his Class D licence to work and take care of his wife who has health problems and help his children. He hopes to continue with his employer until age 65 when he hopes to retire. Appellant said he does not drink much.

17Appellant filed the hospital records from September 19, 2017, which show a diagnosis from Dr. M. of generalized tonic-clonic seizure, and reports from Dr. G. who treated the appellant in February, May and November, 2018. Dr. G.’s May 22, 2018 report diagnoses “epileptic seizure”, records that: the appellant’s EEG was abnormal and showed signs of epileptiform activity; notes the appellant has had one episode in the last 12 months and that anti-seizure medication has been prescribed which prevents the seizures; states that the provoking factor has stabilized, resolved or been corrected; and concludes “epileptic seizure (one) controlled with Keppra”. Dr. G’s November, 2018 report, written five months after the reinstatement of his G-class licence, states “I am pleased that he is doing very well…I believe that he is at low risk to have a recurrence and is probably safe to drive.” Appellant also filed a report, dated February 21, 2019, from his family physician, Dr. P., who notes that based on the specialist’s consultation notes, the appellant is at low risk for another seizure and he is not suffering from any ongoing issues after his seizure.

18The respondent submits that Dr. G. diagnosed epilepsy, that allowing the appellant to drive a commercial vehicle involves significant risk to other road users and to himself and that a five-year seizure-free period is not unreasonable in order to reinstate his Class D licence. Respondent also submits that the five year seizure-free period is in keeping with the CCMTA Medical Standards for Drivers (the “Standards”) with respect to epilepsy – commercial drivers (chapter 17) and specifically Guidelines 17.6.12 and 17.6.13.

19The appellant submits that he did not suffer from an epileptic seizure and does not have epilepsy because the definition of epilepsy in the Standards requires more than one seizure and he has only had one seizure. Appellant also submits that based on Guideline 17.6.5 he should be eligible for reinstatement of his licence after a 12 month seizure-free period.

20We accept the opinion of the appellant’s treating neurologist/epileptologist that the appellant did in fact suffer from an epileptic seizure notwithstanding the general definition of epilepsy in the Standards. Dr. G. is a specialist, had the benefit of examining the appellant and his EEG and other test results and is better qualified to diagnose the appellant’s condition than the appellant. Also, Dr. G. reported that appellant’s EEG was abnormal and showed signs of epileptiform activity. We find on the balance of probabilities that the respondent has proven the appellant had an epileptic seizure.

(b) Is the appellant’s seizure likely to significantly interfere with his ability to drive a Class D motor vehicle safely?

21We find that although the appellant did suffer an epileptic seizure, this medical condition is not likely to significantly interfere with his ability to drive a Class D motor vehicle safely because he is being treated with an anti-seizure medication and his medical condition is controlled by the medication prescribed by Dr. G., his neurologist/epileptologist

22Dr. G.’s 2018 reports state that Dr. G. believes the appellant is at low risk to have a recurrent seizure, is probably safe to drive and appellant is doing well on Keppra. Appellant’s family physician, Dr. P., states in the report, dated February 21, 2019, that he is at low risk for another seizure and is not suffering from any ongoing issues after his seizure.

23Respondent submits that the appellant’s medical condition is severe enough that he should not be permitted to drive until he submits a report from his treating physician that he has remained seizure free for five years with or without anti-seizure medication, and relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to epilepsy – commercial drivers (chapter 17). Specifically, respondent submits that Guideline 17.6.12 states that commercial drivers who have been diagnosed with epilepsy (except when seizures are only while asleep) are eligible for a licence under certain conditions including remaining seizure free for five years. Guideline 17.6.13 states that commercial drivers who have been diagnosed with epilepsy with seizures while asleep are eligible for a licence under certain conditions, including remaining seizure free for five years.

24Appellant submits that based on Guideline 17.6.5 the appellant should be eligible for reinstatement of his licence after a 12 month seizure-free period. Guideline 17.6.5 is not applicable to the appellant as it only applies to commercial drivers for whom epilepsy is not diagnosed. We have already found that the respondent has proven the appellant had an epileptic seizure.

25Although the CCMTA Standards are not binding on the Tribunal, we have considered the respondent’s submissions with respect to chapter 17. With respect to the respondent’s submission that a five-year seizure-free period is necessary before the appellant’s Class D licence is reinstated, we find that this waiting period is not necessary on the facts of this particular case. The medical evidence from Dr. G. and Dr. P. is that the prescribed medication has been completely successful in preventing further seizures. Dr. G. indicates that the appellant is at low risk to have a recurrent seizure, is doing well on the prescribed medication and Dr. G. believes he is probably safe to drive. The reports of Dr. G. record that he is aware that the appellant is a commercial driver. Based on this medical evidence we find that further seizures are unlikely given the appellant is on anti-seizure mediation and now only needs to see Dr. G. once a year. We are not satisfied that a further waiting period is necessary before the appellant’s Class D licence is reinstated.

26Accordingly, we find that the respondent has not established that the appellant’s past seizure is likely to significantly interfere with his ability to drive a Class D motor vehicle safely.

ORDER

For the reasons set out above, pursuant to subsection 50(1) of the HTA, the Minister’s decision to change the class of the appellant’s driver’s licence from Class D to Class G is set aside.

LICENCE APPEAL TRIBUNAL

_________________________

Erica Weinberg, M.D., Member

________________________

Avril A. Farlam, Vice-Chair