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:
B.S.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: B.S., self-represented
For the Respondent: Stella Velocci, agent
Heard by Teleconference: May 27, 2019
OVERVIEW
1The appellant appeals the suspension of her driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).
2The appellant was undergoing neurological investigations for two incidents of loss of awareness that occurred in March-April, 2018. On February 7, 2019 the appellant attended an out-patient electroencephalograph (“EEG”) clinic for a sleep-deprived EEG. During the photo stimulation part of the test, the appellant suffered a generalized seizure.
3The appellant was transported by emergency services to the emergency room (“ER”) of the local hospital. ER physician Dr. M. submitted an unsolicited Medical Condition Report to the Registrar dated February 7, 2019 citing “sudden incapacitation” due to “seizure” due to “epilepsy”.
4On February 21, 2019, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA.
5For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
ISSUES
6The issue in this appeal is whether the appellant suffers from a medical condition, namely epilepsy/seizure disorder, which is likely to significantly interfere with her ability to drive a vehicle safely.
7To answer that question, I will address the following issues:
a. Does the appellant suffer from epilepsy/seizure disorder?
b. Is the appellant’s epilepsy/seizure disorder, if any, likely to significantly interfere with her ability to drive a vehicle safely?
LAW
8The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.
9The 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 clauses (d), (e), (f) or (g) of that section. Clause (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
10One 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. Clause 14(1)(a) 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;
11Section 14(2)(a) of the Regulation allows the Minister of Transportation 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. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
12Under 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.
13A person whose licence is suspended under s. 47 of the HTA may appeal the decision to the Tribunal. The Registrar has the burden of establishing the grounds 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.
evIDENCE AND ANALYSIS
a. Does the appellant suffer from epilepsy/seizure disorder?
14I find that the evidence presented establishes that the appellant suffers from epilepsy/seizure disorder.
15The appellant testified that in 1997 she suffered a witnessed seizure while watching a Zamboni cleaning the ice during her son’s hockey game. Her only recollection of the actual event was waking up in hospital. According to the appellant, after this episode her driver’s licence was suspended for one month, she had medical investigations, and she was never put on medication for the seizure.
16In March 2018, the appellant described an episode of getting out of bed to go to the bathroom and then not remembering anything until she found herself on the floor near her bed, incontinent of urine.
17While at work in April 2018, the appellant stated that she bumped into someone, got startled and slumped to the floor. The appellant denied a “trance-like” feeling during this episode, but stated that her vision was dark and she was not able to talk to her colleague.
18The appellant also described other incidents of flickering/bright/flashing lights bothering her (nausea, dizziness). During one such occasion she was driving and had to pull off the road until the dizziness passed.
19The appellant saw her family doctor, Dr. T., in April 2018 following the second event. Dr. T.’s opinion was that the two events were likely “syncopal” (simple faint), but he arranged further neurological testing/consult to rule out seizures.
20On July 3, 2018 the appellant had an EEG at an out-patient clinic, interpreted by neurologist Dr. C. The EEG results were abnormal, particularly in the left temporal region of the brain and, “possibly suggesting an area of epileptogenesis”, but “no definite epileptic discharges were seen”.
21Under the Statuatory Powers Procedure Act, (“SPPA”) R.S.O. 1990, c. S.22, s. 16, a tribunal may, in making its decision in any proceeding,
a. take notice of facts that may be judicially noticed; and
b. take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
22As a licensed and duly qualified physician in the province of Ontario with a general practice licence, I have, as per SPPA s. 16(b), the qualifications and knowledge to know that epileptogenesis is the process by which the brain network is functionally altered towards increased seizure susceptibility, thus having an enhanced probability to generate spontaneous recurrent seizures.
23The appellant consulted with Dr. C. on December 11, 2018. According to his consultation note, at that time Dr. C. felt that the appellant’s event in March 2018 could possibly be epileptic. To further delineate whether or not the appellant’s events were seizures or not, Dr. C. ordered a MRI of the head, and a sleep-deprived EEG. The MRI of the head, performed on March 14, 2019 did not show significant abnormalities within the brain.
24On February 7, 2019 the appellant underwent a sleep-deprived EEG. As per my qualifications and knowledge, I am aware that seizures can be triggered in susceptible persons by a number of factors including tiredness/lack of sleep and flashing/flickering lights. The appellant testified that, during the photic (light) stimulation part of the sleep-deprived EEG testing, she recalls the feeling of “being in a trance, wanting to push the light away, having no control over her body”, and that she had a “true seizure”, with a generalized convulsion.
25On February 15, 2019, Dr. C., in the presence of the appellant at his office, filled in the Ministry’s Epilepsy and Seizure (“ES”) form. On the ES form Dr. C. indicated that the appellant: suffers from seizures; the latest seizure was less than 3 months ago; this seizure was generalized tonic clonic; it was not her first seizure; her previous seizure was less than 12 months ago; the seizure pattern has been consistent for more than 5 years; EEG within the last 12 months shows signs of epileptiform activity; recent brain imaging was normal; cause of the seizure is primary epilepsy/seizure disorder; the patient has been prescribed anti-seizure medication; anti-seizure medication regime does not result in side effects to an extent that may impair the patient’s ability to safely operate a motor vehicle (sedation/psychomotor slowing, impairment of concentration/attention, impairment of judgement, blurred/double vision); seizures are prevented by the current medication regimen; patient is adherent to the recommended treatment regimen; and the provoking factor has stabilized, resolved or been corrected.
26In the additional comment/information section of the ES form, Dr. C. wrote, “In 1997 there was an isolated seizure. No meds. March and April 2018 two seizures occurred. No further seizures until a seizure was triggered by photo stimulation on EEG February 7, 2019. Was begun on Epival”.
27Although the appellant stated that on February 15, 2019 Dr. C. told her she has epilepsy and she was given a pamphlet on epilepsy, she still does not feel or think that she has epilepsy. In addition, she stated that she does not understand the discrepancies in Dr. C.’s reports (i.e. why Dr. C. on February 15, 2019 wrote that she had two seizures in March and April 2018, while on December 11, 2018 Dr. C. wrote that he thought only the March 2018 event could possibly be a seizure). During her explanation of the above, the appellant stated that she has had only one “true seizure”, that this seizure was provoked (by the photic stimulation) and did not occur naturally, and that after the other loss of awareness events in 2018 she did not have painful muscles (which were described to her by a person she knows who has epilepsy).
28As per Chapter 17 of the CCMTA Standards:
A seizure is caused by a sudden electrical discharge in the brain. A seizure does not always mean that a person falls to the ground in convulsions. It can be manifested in various ways, including: feelings of being absent, visual distortion, nausea, vertigo, tingling, twitching, shaking, rigidity of parts of the body or the entire body, or alteration or loss of consciousness. [Emphasis added]
29I accept the opinion of Dr. C. expressed in his ES form that the appellant suffers from epilepsy/seizure disorder. I am also of the opinion that based on the evidence before me, that the appellant has, on the balance of probabilities, suffered from other seizure episodes in the past including those which may have been precipitated by bright/flickering/flashing lights and/or other “startling/unexpected” events or stimuli (Dr. C.’s December 2018 consult note states that the appellant “has developed a severe startle response in the last few years”).
b. Is the appellant’s epilepsy/seizure disorder, if any, likely to significantly interfere with her ability to drive a vehicle safely?
30The Registrar has the burden of establishing that the appellant’s epilepsy/seizure disorder is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met its burden.
31Although I am not bound by the CCMTA Standards, they provide guidance as to when a person who suffers from epilepsy can safely return to driving. The respondent relies on CCMTA Standard 17.6.6 “Epilepsy - Non-commercial drivers”. This Standard states that non-commercial drivers with epilepsy are eligible for a licence if “it has been six months since the seizure occurred with or without medication”. The waiting period may be reduced to no less than three months on a neurologist’s recommendation if a rationale is provided. Conditions for maintaining the licence include routinely following treatment regime and physician’s advice regarding prevention of seizures, and the driver must stop driving and report to the authority and physician if they have a seizure.
32By letter dated March 1, 2019, the appellant was informed by the Registrar that her driving privilege would be reconsidered provided that they received “confirmation you remain seizure free for a period of six months. This period may be reduced to three months upon a receipt of a favourable recommendation from your neurologist, treating physician or nurse practitioner.”
33The appellant is currently more than three months seizure-free. She testified that she attempted to get a favourable recommendation from Dr. T. on April 16, 2019 (less than 2 ½ months post-seizure) but he stated that it was Dr. C.’s job to make the recommendation. Apparently Dr. T.’s office emailed Dr. C.’s office, with the request. According to the appellant the message she got back from Dr. C.’s office was that Dr. C. had already sent in a favourable report, and there would be no further report. The appellant’s next appointment with Dr. C. is October 2019.
34The latest information available from Dr. C. regarding the appellant’s epilepsy/seizure disorder is the ES form, dated February 15, 2019. This form was filled out eight days after the appellant suffered the generalized tonic clonic seizure during the sleep-deprived EEG, eight days after she received her first anti-seizure medication prescription (Dr. M., ER), and prior to the MRI of her brain.
35According to the ES form, the appellant had been prescribed an anti-seizure medication; seizures are prevented by the current medication regimen; the appellant reports adherence to the recommended treatment regimen; the provoking factor has stabilized, resolved or been corrected; and the medication regime does not result in any side effects to an extent that may impair her ability to safely operate a motor vehicle (sedation or psychomotor slowing, impairment of concentration/attention, impairment of judgement, and/or blurred or double vision).
36Nowhere in this report does Dr. C. state that he feels it is safe for the appellant to resume driving. In addition, based on my knowledge and qualifications, eight days of anti-seizure medication intake is an inadequate period of time to appropriately assess patient adherence or significant long-term side effects of medications that may affect the ability to drive safely, or to determine that the seizures will be prevented by the current medication regimen.
37At the hearing, the appellant claimed that she has not missed a dose of her anti-seizure medication (Epival 500 mg twice daily) since she began taking it. However, contrary to the ES report, the appellant admits to sleepiness and feeling generally unwell since starting the Epival. In addition, no blood levels of her anti-seizure medication (to verify that a therapeutic drug level has been achieved and maintained) were submitted as evidence.
38As per the appellant’s testimony, she still does not believe that she suffers from epilepsy. Rather, she believes that she has suffered only a single provoked “true seizure”. Acceptance, understanding, and insight are extremely important in any medical condition, but especially if self-safety and safety of others are a concern.
39As per Chapter 17 of the CCMTA Standards, the primary consideration for drivers with epilepsy is the potential for a seizure causing a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness while driving. In addition, the CCMTA Standards state that the seizure-free time period recommended prior to reinstatement of driving privileges is to ensure that therapeutic anti-seizure drug levels have 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.
40To date the appellant has not had an assessment of her anti-seizure drug level performed and is having side effects (i.e. sleepiness) from her anti-seizure medication that may affect her ability to drive safely.
41In addition, I have found that the appellant has suffered a number of non-convulsive seizures in the past, including at least one while driving. In my opinion, without acceptance, understanding and insight into her seizure disorder, the appellant may not cease driving and report to the authority and a physician if she has a further non-convulsive seizure, which is an important, albeit non-binding, requirement under the CCMTA Standards.
42Driving is a privilege, not a right. In order to keep the roads safe for everyone, it is my opinion that the appellant requires more time to appropriately understand and accept her condition before she returns to driving, have no side effects from her anti-seizure medication that may compromise her ability to drive safely and have a documented therapeutic drug level which would indicate that her anti-seizure medication should prevent any further seizures.
43I acknowledge the burden that the loss of the appellant’s driver’s licence is having on her. While I understand the practical and financial challenges that can result from a driver’s licence suspension, I must apply the provisions of the HTA, keeping in mind the objective of ensuring road safety.
oRDER
44For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
_________________________
Dr. Erica Weinberg, Member
Released: June 5, 2019