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 continue the suspension of a licence
Between:
Patrick L. Kuntz
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Katie Awad, Member
Patricia Conway, Member
Appearances:
For the Appellant: Patrick L. Kuntz
For the Respondent: Kyle Biel, Agent
Place and date of hearing: By Teleconference
July 24, 2019
OVERVIEW
1The appellant appeals the Registrar’s decision of March 14, 2019 to continue his driver’s licence suspension. The licence was suspended on February 5, 2018 under s. 47(1) of the Highway Traffic Act, RSO 1990 c. H 8 (the “Act”) because the appellant was reported as having had a seizure caused by alcohol withdrawal and sleep deprivation.
2The Registrar’s decision states that the appellant must be abstinent from alcohol and seizure-free for 12 months for his licence to be reinstated. This period might be reduced to 6 months if he successfully completed an alcohol addiction program, provided evidence of biochemical markers within normal limits, and submitted a letter from a physician recommending reinstatement. At the hearing, the Registrar reiterated that these are the prerequisites demanded by the Registrar in order to reinstate the appellant’s licence.
3The appellant states he does not have any form of alcohol disorder now and never has. His seizures result from sleep deprivation which sometimes occurs in connection with alcohol consumption over a period of days such that it interferes with his sleep. He states that he has learned this through experience and has control over his sleeping and his drinking. He has remained seizure-free for a year, his medical condition is well controlled, and his licence should be reinstated immediately.
4After considering all the evidence we find that the Registrar has not proved on the balance of probabilities that the appellant suffers from a medical condition being seizures that are caused by alcohol withdrawal. Rather, the seizures result from sleep deprivation which is sometimes the result of drinking over a period of days. We are satisfied that the appellant has learned what his limits are and what he needs to do to remain seizure-free. We are also satisfied that he will stay within those limits in future. He has demonstrated this by staying seizure-free for almost a year, living within his self-prescribed limits. We find that he does not suffer from a medical condition that is likely to interfere with his ability to drive safely. We therefore grant the appeal and order the reinstatement of his licence.
ISSUES
5The appellant has conceded that he has suffered from seizures. Therefore, the question before us is whether the appellant’s seizures are likely to significantly interfere with his ability to drive safely. In order to answer that question, we must determine:
a. What is the cause of the appellant’s seizures: alcohol withdrawal or sleep deprivation? What is the condition: specifically, is it seizures provoked by alcohol withdrawal? Or seizures provoked by sleep deprivation?
b. Is the cause of the seizures under control, such that it does not interfere with the ability of the appellant to drive safely?
LAW
6Section 47 of the Act gives the Registrar the power to suspend a licence for “any sufficient reason”.
7Section 14 (1) of Ontario Regulation 340/94 of the Act states:
a. the holder of a driver’s licence must not suffer from any mental emotional nervous or physical condition likely to significantly interfere with his ability to drive a motor vehicle 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.
8Section 14(2) allows the Registrar to:
a. consider the relevant CCMTA Medical Standards for Drivers in determining whether a person meets the qualifications set out in (a) or (b) above, and
b. require a person to provide evidence satisfactory to the Registrar that he can drive safely, including reports of examinations and additional medical information.
EVIDENCE AND ANALYSIS
9The Registrar submitted the documentary history of its interactions with the appellant. We will follow that history in detail to understand the appellant’s condition and its triggers.
10The appellant had his first seizure on April 10, 2010. He was 18 years old. The Registrar received a Medical Condition Report stating that he had experienced a cerebral seizure. The Registrar suspended his licence and asked for a medical report.
11The appellant went to a neurologist who ordered a CT scan and an EEG. The EEG was normal under normal conditions, but when the appellant was sleep deprived the EEG showed frequent and sharp waves of electrical activity in the left temporal region. The neurologist prescribed Keppra 100mg twice a day. On February 16, 2011 the neurologist reported to the Registrar that the appellant was on Keppra and 9 months seizure-free. He recommended licence reinstatement. The Registrar approved this medical report and reinstated the appellant’s licence on March 11, 2011.
12The appellant experienced a “breakthrough event” on November 1, 2011. This term simply means that a seizure has been experienced after a considerable length of time seizure-free. He went to the emergency unit at a local hospital. The emergency physician sent a Medical Condition Report to the Registrar. The appellant’s licence was suspended.
13On January 30, 2012, the appellant’s neurologist reported to the Registrar that the appellant had been without his medication before the November 1, 2011 event. He was now back on his medication and taking it regularly as prescribed. The neurologist asked if the appellant’s licence could be reinstated as he was quite stable on his medications.
14The Registrar wrote to the appellant on April 5, 2012 stating that it required confirmation that he had been seizure-free for 6 months and was compliant with his medication.
15The neurologist sent a May 11, 2012 letter to the Registrar, reporting that the appellant had an “event” on February 27, 2012. He had been away for several days in Disneyland with his parents. He had little sleep and he drank “amounts of alcohol.” After his return home, he woke up one morning with the aftereffects of a “breakthrough” event (explained above). The neurologist reported he increased the appellant’s daily dose of Keppra. He reported that the appellant “has had previous triggers of sleep deprivation and possible alcohol use”. The neurologist stated that: “We had counseled him with respect to sleep deprivation and alcohol use in the past”. The neurologist asks when and under what conditions the appellant can resume driving for summer work.
16We pause here to note that despite the neurologist’s statement, this is the first mention in his communication to the Registrar that the appellant’s alcohol use was a possible factor in the sleep deprivation that led to his seizures.
17On July 6, 2012 the Registrar wrote to the appellant advising that to reinstate his licence it would require confirmation that he was seizure-free for 6 months and for 3 months since his daily dose of Keppra was increased. It also wanted a medical report on his condition, and confirmation that he was compliant with his medication.
18On August 28, 2012 the neurologist reported to the Registrar that the appellant had been seizure-free for more than 6 months. He also sent the results of blood tests and a completed medical form required by the Registrar. Under “cause of patient’s seizure” he checked “alcohol withdrawal”, followed by a question mark and an illegible comment. He checked off that there was no diagnosis of substance dependence or substance abuse. His accompanying letter advocated for licence reinstatement. On October 15, 2012, the Registrar reinstated the appellant’s licence.
19On August 21, 2013 the neurologist reported to the Registrar that the appellant had had no seizures for 18 months, was “abstinent of alcohol, has moderated his sleep and is well rested”.
20On July 15, 2015, the neurologist reported to the Registrar that the appellant had a “breakthrough event” on May 11, 2015 in the context of “significant sleep deprivation”. He was “stable on his medications and there was no alcohol involved”. He asked when the appellant’s licence might be reinstated as he has normalized his sleeping. On September 4, 2015, the neurologist wrote again to the Registrar, reporting that the appellant has been seizure-free and compliant with his medications for four months. He asked the Registrar to consider reinstating the appellant’s licence. By letter dated October 21, 2015, the Registrar reinstated the appellant’s licence and requested a follow-up medical report in a year.
21On November 22, 2015, the appellant apparently had a seizure while driving to school at 11:30 in the morning. His car crossed the median, went across the lane for oncoming traffic and stopped on the shoulder. The appellant was found unconscious. When he regained consciousness, he asked not to be taken to hospital and contacted his parents. There was no damage or injury, but police were involved and filed a report with the Registrar. The Registrar informed the appellant on January 20, 2016 that his licence was suspended for the reported condition “loss of consciousness”. The Registrar listed further information it required to consider reinstatement.
22On March 21, 2016, the appellant while his licence was suspended was involved in a motor vehicle accident. The Motor Vehicle Collision Report states that the appellant’s vehicle “loses control, due to possible medical episode, runs off road before going airborne and landing in creek”. The appellant was taken to hospital. The same day, a physician sent a Medical Condition Report to the Registrar stating that the appellant had a medical condition, “seizure,” that might make it dangerous for him to operate a motor vehicle.
23On April 13, 2016, the Registrar informed the appellant that his licence would remain suspended.
24On September 21, 2016, the appellant’s neurologist wrote to the Registrar advising that at the time of the March 2016 accident “he was tired and had consumed alcohol 2 nights prior but not the night prior or that day”. The neurologist continues: “He tells me he has normalized his alcohol consumption”.
25We note that this report does not indicate how much alcohol was consumed nor whether the appellant’s alcohol consumption is considered to have contributed to the sleep deprivation. We are given no indication what “normalized” means, or whether consumption was “normalized” before or after the event.
26On October 12, 2016, in response to the Registrar’s request for a medical report on the appellant’s condition, the neurologist sent an updated medical report stating that the March seizure was “the same as previous seizures”. The neurologist referred to his September 21, 2016 letter, quoted above. On October 31, 2016, the Registrar reinstated the appellant’s licence.
27In October 2017, a physician sent an updated report to the Registrar stating that the appellant had not had a seizure since the March 2016 incident.
28On February 8, 2018, the appellant had a seizure and was taken to hospital. An emergency room physician sent a Medical Condition Report to the Registrar stating that the appellant had had a seizure. The Registrar suspended the appellant’s licence the same day and requested a medical report.
29The appellant’s neurologist reported to the Registrar on May 8, 2018 stating: “All of his seizures have been associated with sleep deprivation and alcohol withdrawal and avoidance of these triggers greatly reduces the chances of future seizures”.
30We note that this is not a correct statement. The neurologist reported at least three previous seizures that were not related to alcohol withdrawal: the first seizure; one resulting from not having his medication with him, and one where alcohol was not involved but he was sleep deprived. In addition, the incident described in paragraph 22 is presumed to be a seizure, but there is no evidence of the surrounding circumstances.
31The Registrar acknowledged receipt of the May 8, 2018 letter from the neurologist on May 30 but asked for further medical information, specifically, completion of a substance use assessment form. The May 30 Registrar’s letter advised the appellant that if his physician confirmed a diagnosis of alcohol dependence or alcohol withdrawal-related seizure, the Registrar would require confirmation of one year’s abstinence from alcohol to reinstate his licence. This period might be reduced to six months if a physician confirmed that he successfully completed an alcohol treatment program and was supportive of his licence being reinstated.
32The appellant then filed a notice of appeal of the suspension, stating, among other things, that the February 2018 seizure resulted from being too busy, not getting enough sleep, and not keeping track of himself over the weekend. He stated that he has never been diagnosed with any sort of alcohol dependence. He stated that his seizures have always been linked to “a lack of sleep sometimes with alcohol withdrawal”, except for one time when he missed taking his medication.
33The appellant withdrew his appeal the day before the scheduled hearing date, June 26, 2018, presumably because he had two seizures on June 16, 2018. At that time, a physician attended him in emergency and sent a Medical Condition Report to the Registrar advising of the seizures.
34The appellant told the Tribunal at the hearing that in early 2019 he asked his neurologist what alcohol treatment program he should attend to satisfy one of the Registrar’s stated conditions for consideration of licence reinstatement. The neurologist recommended, and the appellant duly attended, an alcohol awareness seminar.
35On March 1, 2019, the neurologist wrote to the Registrar stating that the appellant’s last seizure was “6 months ago” He stated that all his seizures have resulted from sleep deprivation and alcohol withdrawal, and “avoidance of these triggers greatly reduces and likely eliminates the chances of future seizures”. He reported that the appellant still consumes alcohol but has not been binge drinking for 2 months.
Evidence of the Appellant
36The appellant impressed the panel as credible throughout the hearing. He was forthright and candid discussing the challenges he has experienced in coming to terms with and understanding his medical condition. He freely admitted the mistakes he has made. He said that he has grown up and has figured out how he can safely drive. He agrees that alcohol withdrawal has been a factor in some of his seizures, but states that it is the sleep deprivation that provokes a seizure. Having consumed alcohol over several days interferes with his sleep. That is its connection to his seizures. He understands that he cannot drink and “party” over a day or several days, because this interferes with his sleep. Since he stopped doing this, he has had no seizures.
37The appellant was completely candid in informing the hearing of seizure activity that was not in the respondent’s documentary file. He reported that he had a seizure in August 2018 after a long weekend at the cottage partying with friends and family. He also told the hearing that the June 2018 seizures followed a similar long weekend where he was socializing and drinking at his cottage and did not get enough sleep.
38The appellant told the hearing that since August 2018 he has completely eliminated this kind of activity from his lifestyle. His present regime is that he does not drink at all during the week. He may drink on the weekend, for example, a glass of wine with dinner, or a couple of beers at the beach if he is at the cottage. He never drinks more. He feels no need or craving to drink more. He enjoys alcohol as part of a social activity but has imposed strict limits on himself. We find that this use of alcohol is not consistent with alcohol dependence or alcohol abuse.
39The Registrar engaged with the appellant aggressively during his questioning. He frequently interrupted the appellant. The appellant was calm and measured during these questions, correcting the Registrar several times when, for example, the Registrar suggested that the appellant was being inconsistent. The appellant was not defensive at any point. In our view, his open approach and demeanour are consistent with his assertion that he is in control of himself and confident that he understands his medical condition and has it under control.
40We have looked carefully at the reports and letters of the neurologist. During our description of his letters, we have pointed to some inconsistencies. We find that his statements regarding the relationship between alcohol use and seizures in the appellant’s case are not precise and are sometimes inaccurate. What is clear to the panel, and we so find, is that sleep deprivation causes the appellant’s seizures, as the neurologist reported in 2011 after viewing the results of the appellant’s EEG under normal conditions and when sleep deprived. We also find that on many occasions, the appellant has become sleep deprived after extended social drinking with friends and family. Deprived of sleep, he has had a seizure.
41The Registrar received several letters and reports from the neurologist stating that the appellant had had a seizure in the context of being tired or sleep deprived and having consumed alcohol within previous days. These did not result in the Registrar advising the appellant that he would have to abstain from alcohol and remain seizure-free for a year, reducible to 6 months on certain conditions (see, for example, paragraphs 20 and 28 of this decision). Only when the neurologist stated inaccurately in May 2018 that all the appellant’s seizures were related to alcohol consumption and sleep deprivation (paragraph 31) did the Registrar ask for information regarding substance abuse. It informed the appellant that if his doctor confirmed alcohol dependence or alcohol withdrawal-related seizure, the Registrar would insist upon the prerequisites set out in paragraph 2, above, most notably confirmation of being for one year abstinent from alcohol and seizure free, before it would consider reinstatement of the appellant’s licence.
42The panel acknowledges that the Registrar has not received a completed substance abuse assessment form regarding the appellant. The appellant told the hearing that his neurologist has left practice, so he could not complete the form.
43We note that the appellant asked the neurologist to recommend a program that would satisfy the Registrar’s requirement that he successfully complete an alcohol treatment program (paragraph 32). The appellant stated that the neurologist recommended an alcohol awareness seminar as a program that would satisfy the Registrar’s requirement. This is a two-hour seminar described as helping participants to reflect on their use of alcohol, learn to identify alcohol dependence and abuse and learn its dangers and its triggers. We believe that if the neurologist had any thought that the appellant had a problem with alcohol dependence or abuse, he would not have considered such a program to be suitable for the appellant and satisfactory to the Registrar. We find therefore that the neurologist did not intend to suggest in his May 9, 2019 letter that the appellant had alcohol abuse disorder or was dependent on alcohol. In these circumstances, we find that the prerequisites to considering reinstatement set out by the Registrar in its May 19 letter (paragraph 2) are unreasonable.
44The appellant also told the hearing that since his neurologist no longer practices, he cannot get the letter supporting licence reinstatement the Registrar demands. He has been referred to a new neurologist but cannot see him until October.
45We find, having considered all the evidence before us, that the appellant has resolved the issues that have in the past provoked his seizures. He has established a reasonable and safe regimen that allows him to enjoy minor alcohol use in company and has followed this regimen, remaining seizure-free for almost a year. He also told the hearing that he recognizes the feelings which precede a possible seizure and knows that when he feels this way he needs more sleep. He makes sure to get a few more hours’ sleep when this happens. We are satisfied that having taken these measures, the appellant’s medical condition is well controlled. It does not interfere with the appellant’s ability to drive safely.
ORDER
46For the reasons set out above, pursuant to subsection 50(2) of the Act, we grant the appeal and direct the Registrar to reinstate the appellant’s driving licence.
LICENCE APPEAL TRIBUNAL
Dr. Katie Awad, Member
Patricia Conway, Member
Released: August 14, 2019