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: 2020-02-28

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:

Ms. Jenny Brant Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Dr. Peter Savage, Member

Appearances:

For the Appellant: Jenny Brant, Self-represented For the Respondent: Stella Velocci, Agent for Registrar

Date of Teleconference: February 20, 2020

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, to downgrade the appellant’s class B commercial driver’s licence by reason of epilepsy and seizure-disorder. The appellant was notified of the suspension by letter from the respondent dated December 6, 2018.

2For the reasons that follow the Tribunal sets aside the decision by the Registrar to downgrade the appellant’s class B driver’s licence.

B. LAW

3The respondent has the power under s. 32(5)(b)(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend or downgrade 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 her ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.

D. THE EVIDENCE

9The respondent outlined the legislation that allowed the ministry to suspend the Commercial licence.

10The respondent received an unsolicited medical condition report of December 27, 2017. The report was not signed and the respondent could not provide the name of the doctor submitting the report. In response to this unsolicited report the respondent issued a letter on January 3, 2018 suspending all Ms. Brant’s driving privileges. This letter included an epilepsy and seizure questionnaire.

11The respondent received a completed epilepsy and seizure form f Ms. Brant’s neurologist on November 16, 2018. The neurologist ticked the box indicating a idiopathic seizure of unknown etiology. Epilepsy was not diagnosed.

12Ms. Brant received a letter from the respondent on December 6, 2018. It approved her for a G licence a downgrade from her commercial B licence. The letter also notified Ms. Brant she had to file another seizure report before November 16, 2019 in order to retain her G licence. It went on to say reinstatement of commercial B licence was dependent on “confirmation that you have remained seizure free for 5 years with or without anti-seizure medication. This period may be reduced to 3 years upon receipt of a satisfactory Epilepsy and Seizure form”.

13September 17, 2019 completed Epilepsy and Seizure form received from Dr. Bates, Ms. Brant’s family M.D.

14October 31, 2019 letter received from ministry approving Ms. Brant to continuing driving with a G licence.

15January 27, 2020 Notice of Appeal received at LAT. This was an appeal of her downgrade on commercial B licence on December 6, 2018. The notice of appeal contained four letters of support for her appeal. (exhibit # 1)

E. THE PARTIES’ SUBMISSIONS

16With agreement of both parties Dr. Bates gave oral evidence at the start of the hearing. He is a qualified medical doctor and has practiced in Bellville since 1966. He noted he had known Ms. Brant since she was child and is her family doctor. He was aware of her episodes of seizure like episodes that occurred on December 30, 2017 as well as on May 11, 2018.

17Dr. Bates noted that EEG, and imaging and all testing had been negative. He noted that Ms. Brant had no history of use of drugs or alcohol. He testified he did not feel that Ms. Brant had epilepsy. His opinion was that these seizures were precipitated either by sleep apnea or positional asphyxia related to her sleeping position.

18Dr. Bates testified that Ms. Brant was on an anti-seizure medication, epival 250 mg twice a day as a precaution and out of an abundance of caution she should stay on this medication indefinitely. He testified that Ms. Brant was compliant with the medication and that the compliance was followed with drug level blood testing.

19Dr. Bates testified that in his opinion at this time Ms. Brant is safe to drive a school bus and have her commercial B licence.

20The respondent pointed out an unsigned unsolicited medical report of seizure from the Bellville hospital. She reassured the tribunal that the ministry would have verified the authenticity of the report.

21The respondent pointed out the ministry rightly suspended her G as well as her commercial B licence based on the unsolicited medical report.

22The respondent pointed out that on December 6 2018 the ministry correctly returned her G licence but continued the suspension of her commercial B licence on the basis of the neurologist’s report of November 2018.

23The respondent argued that due to the complexity of epilepsy as well as both the size and complexity of school bus that a 5 year suspension from driving was warranted.

24Ms. Brant gave testimony that she was a woman who followed the rules.

25When she had these two seizures she accepted the loss of her licence and did not drive. Initially she did not understand what had happened to her. She underwent all medical tests her doctors required and was reassured when all testing (imaging, blood testing, EEG’s) were found to be normal.

26Ms. Brant testified she takes her medication on a regular basis and will continue taking it indefinitely.

27Ms. Brant testified that she had taken steps to change her sleeping position and pillows in order to avoid positional asphyxia which she has been told may be the cause of her seizures.

28Ms. Brant testified she had undergone a sleep study but had not been given any results. Dr. Bates confirmed a sleep study had been done but no results were known.

29Ms. McIntyre a friend of Ms. Brant testified to the good driving skills and good health of Ms. Brant. Ms. McIntyre testified she felt Ms. Brant was safe to drive a school bus.

30Mr. Brant the husband of the appellant testified to the good driving skills and good health of Ms. Brant. Mr. Brant said he believed she was safe to drive a school bus.

F. ANALYSIS

31The respondent pointed out that the emergency physician and the neurologist both made a diagnosis of seizure. The emergency physician in his medical condition report of December 27,2017. The neurologist in his November 2018 epilepsy and seizure form.

32The respondent drew the conclusion that two seizures support a diagnosis of epilepsy.

33The respondent pointed out the dangers of seizure while driving and explained the Ministry felt that not enough time had passed to demonstrate the appellant’s seizures were controlled.

34The 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.

35The 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.

36The respondent drew our attention to the CCMTA publication determining driver fitness in Canada.

37Section 17.6.13 of the CCMTA March 2017 Medical Standards for drivers, describes recommendations for return of licence in drivers with Epilepsy with seizures only while asleep or upon awakening -Commercial Drivers.

38Section 17.6.14 of the CCMTA March 2017 Medical Standards for drivers describes recommendations for return of commercial licences in persons diagnosed with Epilepsy with simple partial seizures - Commercial Drivers.

39The respondent noted both sections recommended a five-year seizure free period.

40The appellant believes the Ministry of Transportation was initially correct to suspend her licence while the investigations were being done to make a firm diagnosis.

41The appellant agreed she had two seizures but she believes that these seizures were caused by position asphyxia or sleep apnea an opinion that Dr. Bates testifies to. She does not believe she has epilepsy.

42The appellant points out that all investigations into her seizures were negative.

43The appellant accepts the fact that both the emergency physician and the neurologist have made a diagnosis of seizure. She accepts the fact that anti-seizure medications are a safety measure.

44The appellant argues she now has the knowledge and understanding to control her seizures and that the six-month period for the G licence was reasonable but the 5-year period for the commercial licence is unreasonable. She argues that she does not have epilepsy.

45The appellant argues she now has her seizures under control and she does not need any more time to prove she is safe to drive and her commercial B licence should be reinstated now.

46The appellant gave testimony that her doctor was supportive of the return of her licence. Dr. Bates testimony was compelling and he gave a clear explanation of a possible cause of the seizures and gave his opinion that they were not caused by epilepsy. He testified that in his opinion she was safe to have a commercial B licence.

47The CCMTA standards are guidelines or recommendations but they are not the law.

48Based on the evidence presented, and on a balance of probabilities, I find that the appellant has the condition of seizure but not epilepsy, and that this condition is not likely to significantly interfere with her ability to safely drive a commercial vehicle. I accept Dr. Bates evidence that the likely cause of the appellant’s non-epileptic seizures is related to sleep apnea or positional asphyxia and that steps have been taken to address the condition.

G. CONCLUSION

49Pursuant to subsection 50(2) of the Highway Traffic Act, I set aside the Registrar’s decision to downgrade the appellant’s commercial class B licence.