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

Date: 2020-01-15

Tribunal File Number: 12450/MED

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:

Joseph Scott Barnes

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Joseph Scott Barnes, Self-represented

For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: December 17, 2019

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is a 28 year old employed at a public works plant and is a captain with a volunteer fire department. On March 22, 2019 he had a seizure at work. A physician reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant suffered from seizure. Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), every prescribed person shall report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.

2The Registrar suspended the appellant’s Class D driver’s licence on March 25, 2019. On October 6, 2019 the appellant was notified that his licence was reinstated but downgraded from a Class D 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.

B. ISSUE:

3The issue in this appeal is whether the appellant has a medical condition, specifically seizure, 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?

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

C. CONCLUSION:

4We 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.

D. LAW:

5The 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…

6The 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.

7One 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.

8In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require the person 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.

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 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.

10Subsection 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.

11The 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.

E. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from seizure?

12As set out below, we find that the appellant suffered a seizure on March 22, 2019 based on the appellant’s admission of seizure and the reports of Dr. Cannon dated March 22, 2019 and Dr. Morrow dated March 28, 2019, both of which diagnosed seizure.

13The appellant was treated by Dr. Morrow at an Urgent Neurology clinic and underwent tests and was started on anti-seizure medication. EEG & MRI test results showed no abnormality.

14The appellant testified that the March 22, 2019 seizure was an isolated event brought on by drinking heavily to cope with depression as a result of the end of a personal relationship and admitted to some cannabis use about once a month. He admitted that prior to the seizure, he had been drinking two bottles of whiskey a week and at the time of the seizure had a sinus infection and was taking antibiotics. After the seizure he was on disability until Dr. Morrow cleared him to go back to work.

15Since the seizure, he has continued to be treated by his neurologist, takes the anti-seizure mediation prescribed, exercises at a gym, stopped drinking completely for two months and now drinks some four beers a week. The appellant said he was told by his family physician to stop drinking immediately after the seizure and he has discussed drinking with Dr. Morrow who he said told him he can drink socially but not to excess. The appellant testified that his depression at the time of the seizure has resolved without medication. He now believes the seizure was alcohol induced and the seizure made him realize he had an issue. He has not been diagnosed with epilepsy. He has gotten in shape at the gym and said he has “moved on”. The appellant testified that he lives by himself but his parents live close by, he has people he can talk to and has become aware of peer support groups available to him as a firefighter and knows how he can get help right away if needed. He has had no problems caused by the prescribed medication, has had no further seizures and is continuing to see his neurologist. He said his neurologist has one more test planned and if the test results are normal, he can be weaned off the prescribed medication. The appellant said he is now back to work at his full-time job but his duties have been limited because his downgraded driving licence does not allow him to drive the commercial vehicles required of his employment. The appellant said that his doctors have cleared him to return to work and to return to the volunteer fire fighting force where he is in a supervisory position and he believes they would not have done so if they thought he could not drive a commercial vehicle.

16We find based on the reports of Dr. Cannon dated March 22, 2019 and Dr. Morrow dated March 28, 2019 together with the diagnostic test results filed that the appellant had a single, unprovoked seizure on March 22, 2019.

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

17We find that although the appellant did suffer a single, unprovoked seizure, this medical condition is not likely to significantly interfere with his ability to drive a Class D motor vehicle safely because the medical condition is controlled by the medication prescribed by his neurologist and his medical condition is being monitored by his neurologist. Therefore, we set aside we set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

18The respondent submits that seizure has been diagnosed and that allowing him to drive a commercial vehicle involves significant risk to other road users and to himself. Respondent’s agent also submits that due to the appellant’s seizure 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 anti-seizure medication or one year 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) and specifically Guidelines 17.6.12 and 17.6.5. Respondent’s agent also submits that there is still uncertainty about the appellant’s medical condition as evidenced by the fact that the neurologist wants to do one more test.

19The starting point for application of Standards Guideline 17.6.12 is a diagnosis of epilepsy in a commercial driver. We have already found that on the balance of probabilities the appellant had a seizure on March 29, 2018 but that this seizure was an isolated event, essentially a single unprovoked seizure, and not epilepsy. Because the appellant has not been diagnosed with epilepsy and the evidence shows that he does not currently present with symptomology suggestive of an epilepsy diagnosis we find that Guideline 17.6.12 does not apply. Respondent’s agent conceded at the hearing that the respondent is not suggesting that the appellant has epilepsy and relies on Guideline 17.6.12 by analogy only. We find that Guideline 17.6.12 is not applicable to this case either directly or by analogy as it is intended to apply to seizures which occur more than once.

20Respondent’s agent also relies on Guideline 17.6.5 which applies to commercial drivers who have had a single, unprovoked seizure. The standard provides that commercial drivers are eligible for a licence if:

• It has been at least 12 months since the seizure occurred, and

• A complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed, and

• CNS imaging and EEG results are satisfactory.

21With respect to the respondent’s submission that a five-year seizure-free period or one year without medication 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 case. The appellant had a single seizure in March 2019, almost nine months before the hearing, with no reoccurrence. He has undergone a neurological assessment. MRI and EEG test results show no abnormality. The fact that the appellant’s neurologist wants to do one more test on him before weaning off his anti-seizure medication does not indicate to us medical uncertainty, only prudence by appellant’s neurologist before changing his medication. Although no cause of the seizure has been stated by his neurologist, epilepsy has not been diagnosed. Based on the appellant’s testimony and the medical records put forward at the hearing, it is clear that the seizure occurred at a time when the appellant was depressed, drinking heavily and taking medication for a sinus infection. Since the seizure, he has been treated by a neurologist and continues to do so, takes the anti-seizure medication prescribed, exercises at a gym, reduced his drinking significantly, his depression has resolved without medication, has “moved on” and has become aware of peer support groups available to him if needed. The appellant is now back to work at his full-time job. Dr. Morrow wrote in her letter dated September 15, 2019 that he is medically clear for duty as a volunteer firefighter and in her letter dated October 15, 2019 that he is able to return to work “…no restrictions in place.” Based on the appellant’s testimony of life changes, which we found to be credible, and the medical records before us, we are of the view that it is unlikely that a seizure will recur. We are not satisfied that a further waiting period is necessary before the appellant’s Class D licence is reinstated.

F. ORDER:

22For the reasons set out above, pursuant to subsection 50(1) of the HTA, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence from Class D to Class G.