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: 2020-02-06

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 pursuant to section 47(1) of that Act – to suspend a licence

Between:

James Johnston Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dr. Peter Savage, Member

Appearances:

For the Appellant: James Johnston, Self-represented For the Respondent: Sonia De Santis, Agent for Registrar

Place and Date of Hearing: Teleconference January 21, 2020

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, to suspend the appellant’s class G and ACZ commercial driver’s licence by reason of epilepsy and seizure-disorder. The appellant was notified of the suspension by letter from the respondent dated October 6, 2019.

2For the reasons that follow the Tribunal confirms the decision by the Registrar to suspend and maintain the suspension of the appellant’s class G and ACZ driver’s licence.

B. LAW

3The respondent has the power under s. 32(5)(b) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a licence in accordance with requirements prescribed in the regulations.

4Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any . . . physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”

5Section 14(2)(a) of the O. Reg. 340/94 allows the respondent to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister of Transportation or on this tribunal.

6The Registrar has the burden of establishing on a balance of probabilities that one or more ground for suspending a driver’s licence has been made out.

7Pursuant to section 50(2) of the HTA, after a hearing the tribunal may confirm, modify or set aside the decision or order of the respondent.

C. ISSUE

8The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.

D. THE EVIDENCE

9On May 7, 2017, the appellant had his licences suspended on the basis of a single seizure.

10Both parties agreed that the matter being considered by the Tribunal related to the appellant’s G licence and his ACZ licence. The decision was to speak to both licences.

11On October 23, 2017, the suspension of his licence was set aside by the Licence Appeal Tribunal. The decision and the evidence leading to it was submitted by the registrar.

12On October 6, 2019, the appellant’s G and ACZ licences were again suspended based on an unsolicited medical report of a seizure.

13The respondent reviewed further medical information related to the appellant’s medical condition. It appears that the epilepsy and seizure form received by the respondent on November 19, 2019 resulted in the respondent’s letter of December 10, 2019 advising the appellant that his driving privileges remained suspended. The registrar advised the appellant that to have his licence reinstated he must remain seizure free for 6 months for his G licence.

14The appellant consulted his neurologist and he faxed to the respondent a copy of his consultation note to the family doctor. This note which was dated September 26, 2019 was received by the respondent in January 2020.

15Upon review of the appellant’s further medical evidence, particularly a letter from the appellant’s neurologist, the respondent, by letter dated January 17 2020, indicated what was required for reinstatement of the two classes of licences. In particular, the letter indicates:

G licence: requires confirmation you have remained seizure free for a period of 6 months

ACZ licence: requires confirmation you remain 5 years seizure free on or off anticonvulsant medication

16On December 11, 2019, the appellant submitted an appeal of the suspension of his driving privileges to the Tribunal.

E. THE PARTIES’ SUBMISSIONS

17The respondent’s position is that the appellant’s family doctor and neurologist diagnosed the appellant with a seizure and this was the second confirmed seizure which then confirmed a diagnosis of epilepsy. The respondent argued that the appellant should be required to comply with the standards set out in the CCMTA guidelines, that being six months seizure free for a G licence and 5 years seizure free for a commercial ACZ licence.

18The appellant argued that the second seizure was a result of two factors that were both his fault. The first was that he chewed the anti-seizure medication rather than swallowing it and second that he stopped the medication August 10, 2019 as he was feeling unwell and thought the medication may have been causing this feeling. He felt he now had complete control of his seizures.

19The appellant took responsibility for the loss of his licence and was willing to wait a few months for his G licence. He felt strongly that the 5 year waiting time for the return of his commercial ACZ licence was excessive. He indicated an awareness and understanding as to what he had done wrong, had corrected the problem by swallowing the pills and not chewing them, and understood he had to take the medication for the rest of his life.

20The appellant pointed out that he does not use his commercial ACZ licence for anything other than hauling his cattle trailer at the farm. He does not drive a transport truck, bus or any other commercial vehicle. The respondent confirmed that there are no fine gradations in commercial licences and the ACZ licence is a licence that allows the holder to drive any or all of those vehicles.

F. ANALYSIS

21The appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely.

22The respondent pointed out that the family doctor and the neurologist both made a diagnosis of seizure. The family M.D. in his medical condition report of August 30, 2019. The neurologist saying in his September 26, 2019 letter “Of course he had a seizure”.

23The respondent reviewed the previous suspension on the basis of seizure and drew the conclusion that two seizures support a diagnosis of epilepsy.

24The respondent pointed out the dangers of seizure while driving and explained the Ministry felt that not enough time had passed to demonstrate the appellants seizures were controlled.

25The respondent explained CCMTA was a group of experts in the field of driving safety. They set medical standards for drivers across Canada and parts of the United States.

26The respondent pointed out the primary concern of the CCMTA was that drivers with epilepsy had the potential for a seizure causing a sudden impairment of cognitive, motor, or sensory functions, or a loss of consciousness while driving.

27The respondent drew our attention to the CCMTA publication determining driver fitness in Canada.

28Section 17.6.6 of the CCMTA March 2017 Medical Standards for drivers describes recommendations for return of G licence for a person diagnosed with epilepsy.

29Section 17.6.17 of the CCMTA March 2017 Medical Standards for drivers describes recommendations for return of commercial licence in persons diagnosed with epilepsy.

30The appellant has difficulty describing the event. In his testimony he describes a period of altered sensation and stated he was briefly “out of it”.

31The appellant accepts the fact that his family doctor and the neurologist have made a diagnosis of seizure and epilepsy. He accepts the fact that he needs anti-seizure medication and will need it for the rest of his life.

32The appellant argues he now has the knowledge and understanding to control his seizures and that the six month period for the G licence is reasonable but the 5 year period for the commercial licence is unreasonable and that because he only uses the commercial ACZ licence to drive the cattle trailer the commercial ACZ licence should be returned at the same time as the G licence.

33The appellant argues he now has his seizures under control and he does not need any more time to prove he is safe to drive and his G and ADZ licence should be reinstated now.

34The appellant gave testimony that his doctors were supportive of the return of his licence. There was no documentation of this support in their written submissions.

35I believe the standards of the CCMTA should be adhered to in this case because the appellant’s diagnosis is quite recent and more time is required to ensure that the appellant is seizure free. I appreciate the appellant’s intuitive actions in understanding what may have caused his latest seizure but without more time to show stability, the risk to the public remains unacceptably high. In this regard, taking into account public safety, the CCMTA standards reasonably reflect the recommended period of being seizure free.

36Based on the evidence presented, and on a balance of probability, I find that the appellant has the condition of epilepsy with seizure activity, and that this condition is likely to significantly interfere with his ability to drive both passenger vehicles and commercial vehicles safely.

G. CONCLUSION

37Pursuant to subsection 50(2) of the Highway Traffic Act I confirm the Registrar’s decision to suspend and maintain the suspension of the appellant’s class G driver’s licence as well as his commercial ACZ licence.