Date: 2020-02-25

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:

Blair McDonald

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Blair McDonald, self-represented Michael Sargeant (family member) January 27, 2020

For the Respondent: Stella Velocci, agent

Heard by Teleconference: January 27, 2020 and February 13, 2020

A. Overview:

1The appellant appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The process that led to the Registrar’s decision began when the appellant attended a hospital emergency room (“ER”) on May 29, 2019. Following an assessment, ER physician Dr. M. filed a Medical Condition Report (“MCR”) with the Registrar of Motor Vehicles (“the Registrar”). Pursuant to s. 203 of 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. In the report, Dr. M. reported that bystanders said the appellant had a seizure.

3On July 1, 2019 following a review of Dr. M.’s report, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA and asked for the appellant’s attending physician to complete an Epilepsy and Seizure form (“ES form”). The ES form was completed on December 5, 2019 by Dr. C., the appellant’s addiction physician and currently his only treating physician.

4Following receipt of the ES form and by letter dated January 21, 2020, the Registrar requested further information, specifically a completed Mental Health Assessment form (“MHA form”) and confirmation whether the appellant’s current medication regimen results in side effects (sedation or psychomotor slowing) which would impair the appellant’s ability to safely operate a motor vehicle.

5Dr. C. has not submitted the requested information to the Registrar, despite efforts by the appellant to have him do so. In the absence of the MHA form, the Registrar continued the suspension.

6For the reasons that follow, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. PRELIMINARY ISSUES:

7The hearing started on January 27, 2020. On that date the appellant requested an adjournment to submit the further information requested by the Registrar. The respondent consented to the adjournment and offered to send the MHA form directly to Dr. C.

8At the start of the second hearing date, the appellant informed the Tribunal that he saw Dr. C. via teleconference on February 10, 2020. According to the appellant, Dr. C. had received the MHA form, but was no longer willing to fill in the Registrar’s forms on behalf of the appellant.

9I am satisfied that the appellant is not attempting to mislead the Tribunal but has made reasonable attempts to have Dr. C. fill out the MHA form and that Dr. C. will not do so.

10I am also satisfied that the appellant has made bona fide attempts over the past few years to find a primary care provider in the small community closest to where he currently resides.

11In addition, although the appellant stated that he had received the respondent’s package via courier, he could not locate the medical file submitted by the respondent. The appellant stated that regardless he wished to proceed with the hearing.

C. ISSUES:

12The issue in this appeal is whether the appellant suffers from a medical condition which is likely to significantly interfere with his ability to drive a vehicle safely.

13To answer that question, I will address the following issues:

a. Does the appellant suffer from a medical condition or conditions?

b. Are the appellant’s medical conditions, if any, likely to significantly interfere with his ability to drive a vehicle safely?

D. LAW:

14The Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. The Registrar’s powers are set out in s. 47(1) of the HTA, specifically in this case, 47(1)(g) and in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”). Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely. A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

15On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

16Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from a medical condition or conditions?

17The evidence before the Tribunal reveals that the appellant suffers from or recently suffered from a number of medical conditions. These will be outlined fully below.

i) Did the appellant suffer a seizure?

18I find on a balance of probabilities, that the appellant suffered a single seizure on May 29, 2019.

19The appellant testified that he remembers feeling unwell while driving on May 29, 2019 and pulling over to the side of the road.

20According to the MCR filed by Dr. M., bystanders said that the appellant had a seizure.

21The appellant stated that he was told by Dr. M. that he needed an appointment or tests with a neurologist (“brain doctor”). The appointments were never made as the appellant has not had a primary care provider for the past three years.

22According to the December 5, 2019 ES form completed by the appellant’s treating addiction provider, the seizure in question was the appellant’s only seizure to date; was a provoked seizure with no structural brain abnormality; was suspected to be medication-induced (Wellbutrin^®); the medication had been stopped; and that he is not on anti-seizure medication.

23The appellant verified that he stopped taking the medication Wellbutrin^® sometime in early June 2019 and that he has not suffered another seizure since.

24Based on the evidence presented, I find on a balance of probabilities, that the appellant suffered a single, medication-provoked seizure over eight months ago, and that the provoking factor (the medication) has been stopped.

ii) Does the appellant suffer from any other medical conditions?

25I find that the evidence presented establishes that the appellant suffers from or recently suffered from the medical conditions of insomnia, depression which is stable with symptoms resolved, and controlled substance use disorder.

26The appellant testified that he has suffered from insomnia for 20 years. This medical condition is not documented in any of the written evidence before me. He stated that his previous family physician, who retired several years ago, prescribed zopiclone 15 mg at night for his insomnia and that Dr. C., his addiction specialist since 2017, is currently prescribing the zopiclone. The appellant described that he takes the zopiclone at approximately 10 p.m., wakes up at around 8 a.m. the following day, does not feel a hangover effect from the zopiclone in the morning and when driving would not drive until at least 10-11 a.m.

27According to the December 5, 2019 ES form, Dr. C. indicated that the appellant has a psychiatric diagnosis of major depressive disorder, with the current status being stable with symptoms resolved.

28When questioned about when and why Dr. C. prescribed Wellbutrin^® (an antidepressant) the appellant was not able to give a specific answer. He commented that he had separated from his wife in August 2018 and did have some personal difficulties following this. He thought he had been on Wellbutrin^® for 3-4 months prior to it being stopped in June 2019, post-seizure.

29As per the appellant’s testimony he was previously addicted to opioids (substance use disorder, “SUD”). According to Dr. C.’s completed ES form the appellant was diagnosed with moderate SUD; is stable from the SUD perspective; has been on Suboxone^® for years; is in an out-patient Suboxone^® program; has weekly urine drug screens as part of the program; and has abstained from substances for more than 12 months. Furthermore, Dr. C. indicated that alcohol is not an issue and that the appellant only consumes it recreationally on weekends.

30Based on the totality of the evidence before me, I find that the appellant has a long history of insomnia primarily treated with prescription medications, previously suffered from at least one episode of depression which is now stable with symptoms resolved, and has SUD which is being treated, monitored and is stable.

b. Are the appellant’s medical conditions, if any, likely to significantly interfere with his ability to drive a vehicle safely?

31The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met its burden.

32Section 14(2)(a) of the Regulation allows the Registrar 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.

33Although I am not bound by the CCMTA Standards, Chapters 14 (Psychiatric Disorders), 15 (Drugs, Alcohol and Driving) and 17 (Seizures and Epilepsy) provide guidance in this case.

i) Is the appellant’s single provoked seizure likely to significantly interfere with his ability to drive a vehicle safely?

34I find on a balance of probabilities, that the appellant’s medical condition of a single provoked seizure on May 29, 2019 is not likely to significantly interfere with his ability to drive a vehicle safely.

35From the evidence provided, the appellant suffered a single seizure on May 29, 2019. The appellant has not experienced another seizure since this date, which is now over eight months ago.

36Although not evaluated by a neurologist post-seizure, the appellant’s only current treating physician is of the opinion that the seizure was provoked by a medication (Wellbutrin^®) and this medication was stopped early June 2019.

37Although I am not bound by the CCMTA Standards, Chapter 17.6 (Guideline for assessment) provides guidance into the purpose for a seizure-free period following a provoked seizure. This section specifically states that the seizure-free period is to establish the likelihood that the provoking factor has been successfully treated or stabilized.

38I find that an eight-month seizure-free waiting period following a provoked seizure is sufficient, as the provoking factor (the medication) has been stopped.

39Furthermore, when questioned at the hearing the respondent stated that the appellant’s single seizure on May 29, 2019 was no longer a consideration for why the appellant’s licence had not yet been reinstated.

ii) Are the appellant’s other medical conditions likely to significantly interfere with his ability to drive a vehicle safely?

40I find on a balance of probabilities that none of the appellant’s medical conditions of insomnia, stable depression with symptoms resolved, and treated and stable SUD either individually or cumulatively are likely to significantly interfere with his ability to drive a vehicle safely.

41Furthermore, I find on a balance of probabilities that none of the appellant’s prescribed medications for his medical conditions either individually or cumulatively are likely to significantly interfere with his ability to drive a vehicle safely.

42Since 2017 Dr. C. has been the appellant’s out-patient primary treating and prescribing physician. The appellant attends the addiction clinic weekly and ‘sees’ Dr. C. monthly for care via teleconferencing. Dr. C. prescribes all three of the appellant’s current prescription medications (Suboxone^®, zopiclone and olanzapine), which the appellant receives weekly from the pharmacy. Dr. C. indicated on the ES form that the appellant is adherent to recommended treatment regimens.

43With respect to the appellant’s SUD, Dr. C. expressed no concerns in the December 5, 2019 ES form about the appellant’s treated and stable SUD. In addition, the Registrar in its communications to the appellant has not expressed concerns about the status of appellant’s treated and stable SUD, nor the medication used to treat the appellant’s SUD and any potential risk with respect to the appellant’s ability to drive a vehicle safely.

44I accept, the opinion of Dr. C. that the appellant’s SUD and its treatment are not likely to significantly interfere with his ability to drive a vehicle safely.

45Having determined that neither the appellant’s single provoked seizure on May 29, 2019 nor his treated and stable SUD are, on a balance of probabilities likely to significantly interfere with his ability to drive a vehicle safely, I will now explore the appellant’s other medical conditions of major depressive disorder and insomnia, their respective treatments and whether any or both put the appellant at risk for driving safely.

46The respondent is of the opinion that the appellant’s mental health condition of major depressive disorder plus his prescribed medications zopiclone and olanzapine put the appellant at risk for driving safely. The respondent arrives at this opinion from Dr. C.’s recently completed ES form, in particular Section C and Part 3.

47In Section C (Has a mental health examination been conducted) of the ES form, Dr. C. answered affirmatively to major depressive disorder with a current status of stable with symptoms resolved.

48In Part 3, question 1 (Has the patient been prescribed any medication treatment for any condition) Dr. C. answered affirmatively. In question 1 (a) Dr. C. indicated that it is his opinion that the current medication regimen results in sedation or psychomotor slowing to an extent that may impair the appellant’s ability to safely operate a motor vehicle. Dr. C.’s additional comments for 1 (a) are that the appellant is stable on the medications zopiclone and olanzapine.

49As per the appellant’s testimony he has not been prescribed or taken antidepressant medication since early June 2019 and he described no current issues with his mood. Furthermore, neither zopiclone or olanzapine are classified as antidepressants and neither medication is approved in Canada as a first-line treatment for major depressive disorder. These factors are consistent with Dr. C.’s comments that the current status of the appellant’s major depressive disorder is stable with symptoms resolved. Thus, I find that the appellant is not currently being prescribed any medication for his mental health condition of stable depression with symptoms resolved.

50Furthermore, based on the above, I find on a balance of probabilities that the appellant’s mental health condition of stable depression with symptoms resolved is not likely to significantly interfere with his ability to drive a vehicle safely.

51The appellant described a long history of insomnia treated primarily with prescription medications. None of this is documented in the completed ES form.

52Zopiclone is a medication approved in Canada for the short-term treatment and symptomatic relief of insomnia. Both the length of time the appellant has been prescribed zopiclone and its dose are above those recommended (http://products.sanofi.ca/en/imovane.pdf). However, as per the appellant’s testimony his dose of zopiclone has been stable for years as is confirmed by Dr. C. on the ES form.

53In 2014, Health Canada issued physician and public communications regarding important safety information and new dosing instructions for zopiclone to minimize the risk of next-day impairment. These communications stated to not drive a car or engage in hazardous activities requiring complete alertness unless it has been at least 12 hours since taking the medication, even if you feel fully awake (https://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2014/42255a-eng.php). As per the appellant’s testimony, he would not drive a vehicle until at least 10-11 a.m. the following morning, thus 12 hours would have passed since taking his nightly zopiclone.

54The appellant has been taking the medication olanzapine for the last 6-12 months. He does not know why Dr. C. prescribed it. Furthermore, he stated that he had initially been prescribed 5 mg nightly, but this was subsequently decreased to 2.5 mg nightly. He acknowledged that he does not suffer any hangover effect from this medication the following morning. The appellant stated that his current dose of 2.5 mg nightly has been stable for some time, which is confirmed by Dr. C. on the recent ES form. It is not uncommon for olanzapine at the above low dose to be prescribed off-label as a pharmacological treatment for insomnia (https://mhc.cpnp.org/doi/full/10.9740/mhc.n190091).

55Dr. C. on the recent ES form indicated that: i) the appellant’s current medication regimen results in sedation or psychomotor slowing to an extent that may impair the appellant’s ability to safely operate a motor vehicle and ii) the appellant is stable on the medications zopiclone and olanzapine.

56Upon first reading, I find the above comments of Dr. C. to be contradictory.

57In medical terms “is stable on the medications” implies that not only are the doses of the medications in question stable, but that any side effects (including sedation or psychomotor slowing) from the medications are also stable and manageable. This appears contradictory to the statement that the appellant’s current medication regimen results in sedation or psychomotor slowing to an extent that may impair the appellant’s ability to safely operate a motor vehicle if one is considering may as meaning on a balance of probabilities.

58However, may in medical terms does not usually mean on the balance of probabilities, but usually means that something is a possibility and cannot be ruled out.

59As a physician and an addiction specialist Dr. C. would be aware that all three of the medications he prescribes to the appellant (Suboxone^®, zopiclone and olanzapine) can on their own or in combination cause sedation or psychomotor slowing. In addition, Dr. C. would be aware that any potential sedation or psychomotor slowing would likely be worse on initiation of any of these medications or if the dose were increased. As per the evidence, none of the appellant’s prescribed medications were recently initiated or the dose increased.

60The appellant testified that he does not suffer from any hangover effect the following morning from any of his prescribed medications and when driving, would not drive until at least 12 hours had passed since taking his nightly medications. He testified that he has been on the same dose of zopiclone for numerous years and on his current low dose of olanzapine for a number of months. He also stated that prior to his driver’s licence suspension for his seizure, he would drive to his weekly appointments at the addiction treatment centre which was 20 minutes away by car.

61Furthermore, there is no evidence before me that Dr. C. at any time sent an unsolicited MCR to the Registrar expressing concerns about the side effects of the appellant’s prescribed medications and their potential safety risk to the appellant’s driving. In particular, Dr. C. did not send a MCR to the Registrar when he initiated the appellant on olanzapine some 6-12 months ago.

62Taking all the above evidence into consideration, I find on a balance of probabilities that the appellant’s medical condition of insomnia is not likely to significantly interfere with his ability to drive a vehicle safely.

63Furthermore, taking all the evidence into consideration, I find on a balance of probabilities that the medications prescribed to treat the appellant’s insomnia, specifically zopiclone and olanzapine individually or together, are not likely to significantly interfere with his ability to drive a vehicle safely. The appellant testified that he has been on a stable dose of zopiclone for years, has been on a low but stable dose of olanzapine for a number of months, does not suffer a hangover effect from any of his medications in the morning, when driving does not drive until at least 12 hours would have passed since taking his nightly medications, and Dr. C. indicated that he is stable on these medications.

64In addition, taking all the evidence into consideration, I find on a balance of probabilities that the appellant’s three prescribed medications (Suboxone^®, zopiclone and olanzapine) when considered cumulatively are not likely to significantly interfere with his ability to drive a vehicle safely. None of the appellant’s prescribed medications was recently initiated or the dose increased.

65In summary, I find on a balance of probabilities that none of the appellant’s medical conditions of single provoked seizure, insomnia, stable depression with symptoms resolved, or treated and stable SUD individually or cumulatively are likely to significantly interfere with his ability to drive a vehicle safely.

66In addition, taking all the evidence into consideration, I find on a balance of probabilities that none of the appellant’s prescribed medications individually or cumulatively are likely to significantly interfere with his ability to drive a vehicle safely.

F. ORDER:

67For 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 set aside.