John Livingstone v. Minister of Transportation, 2020 CanLII 30382

Court File and Parties

Date: 2020-04-15

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 s. 32(5)(b)(i) of the Act

Between:

John Livingstone

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: John Livingstone, Self-represented Matthew Livingstone (brother), on April 6, 2020 only

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: March 2, 2020 and April 6, 2020

A. Overview:

1The appellant appeals the downgrade of his commercial Class DZ driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The process that led to the Minister of Transportation’s (“the Minister”) decision began when a periodic Medical Report form required for maintaining the appellant’s commercial driver’s licence, was submitted to the Minister. In this form, Dr. P., the appellant’s family physician since 2015, indicated that the appellant suffered from possible partial seizures.

3Following a review of the Medical Report form and other medical information, the Minister downgraded the appellant’s commercial licence to Class G effective October 26, 2019.

4Having considered all the evidence before me and for the reasons set out below, I find on a balance of probabilities, that the appellant suffers from partial seizures. I also find on a balance of probabilities, that this condition of partial seizures is likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely.

5Accordingly, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

B. ISSUES:

6The 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 commercial vehicle safely.

7To answer that question, I will address the following issues:

a. Does the appellant suffer from a medical condition?

b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely?

C. LAW:

8The Minister is responsible for ensuring commercial drivers are medically fit to drive commercial vehicles on the highway. The Minister’s powers are set out in s. 32(5)(b)(i) of the HTA and in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”). Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely. A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.

9On appeal, the Minister has the burden on a balance of probabilities of establishing that the licence should remain downgraded.

10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from partial seizures?

11I find on a balance of probabilities, that the appellant suffers from partial seizures.

12The appellant testified that in March 2016 he had a three and a half week stay in an ICU for bilateral pneumonia accompanied with septic shock, prolonged intubation and coma. He spent the following six months recuperating at his father’s home.

13The appellant’s brother testified that the appellant suffered from ‘cognitive fog’ for approximately 18 months following the appellant’s hospitalization. He described the appellant as being stressed, hallucinating and having trouble ‘retrieving information’ during this time period.

14The appellant was referred to Dr. G., an internal medicine and geriatric medicine specialist by Dr. P. for his cognitive dysfunction.

15In her consultation note of May 30, 2018, Dr. G. commented on the appellant’s cognitive dysfunction, including possible causes. In addition, she stated that the appellant reports anxiety attacks lasting approximately 20 seconds in which he has an overwhelming feeling of doom impending. She goes on to recommend a referral to mental health services for counselling and, if this is ineffective at controlling his anxiety attacks, Dr. P. should consider initiating anti-anxiety prescription medication. The appellant did follow-up with Dr. G. one year after this consultation, however this medical report was not submitted as evidence and the appellant could not recall what was said at the appointment.

16According to the appellant’s brother, the appellant was seen by a mental health clinician on one occasion in late September 2018, however the report from this consultation was not submitted as evidence. Following this appointment, the appellant denied being prescribed any anti-anxiety medications or self-management skills to manage anxiety (e.g. cognitive behavioural therapy) or receiving any on-going counselling services for anxiety.

17The appellant was referred by Dr. P. to neurologist Dr. F. regarding his short-term memory problems.

18In his initial consultation note dated September 27, 2018, Dr. F. stated that he suspected the appellant may have suffered anoxic brain injury during his ICU stay resulting in his short-term memory problems and that he also may be experiencing partial seizures. Dr. F. specifically referred to the appellant’s history of having daily “episodes” of frequent déjà vu followed by a wash of feelings and numbness lasting about 15 seconds. He further stated that there was no loss of awareness or consciousness, no tonic or clonic movements, and no automatisms with these episodes. Dr. F. arranged for the appellant to have two different types of EEGs performed. An EEG is a recording of the electrical activity of the brain.

19The appellant’s standard EEG performed October 26, 2018 submitted as evidence was reported as normal.

20However, as per Dr. F.’s November 16, 2018 office note, the appellant’s 48-hour ambulatory EEG was abnormal, demonstrating potential epileptiform discharges arising from the left anterior temporal region. In addition, the note indicated that this EEG did show some of the appellant’s episodes of head rushes but there were no changes in the background EEG rhythms. The appellant testified he experienced 28 of his episodes during the 48-hour ambulatory EEG.

21The appellant was first prescribed an anti-seizure medication by Dr. F. at his November 16, 2018 visit. He tried several different anti-seizure medications over the following year which he either did not tolerate or had reactions to, or which were ineffective. However, one anti-seizure medication, Lacosamide, did eliminate his episodes but was stopped due to a skin rash.

22In his January 8, 2020 office note, Dr. F. stated that the appellant was being reassessed for his probable partial seizures and that he continued to have stereotypic episodes lasting 15 seconds which: can wake him from sleep; can occur several times in a day or not at all for a couple of weeks; are more frequent if he is sleep deprived; and are not associated with loss of awareness, loss of consciousness or secondary generalized activity.

23The appellant testified that he does not suffer from seizures, a definitive diagnosis of seizures has not been made, Dr. P. used the word seizure incorrectly when filling out the Minister’s forms, and his episodes are anxiety attacks only.

24Section 14(2)(a) of the Regulation allows the Minister 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.

25Although I am not bound by the CCMTA Standards, Chapters 3 (Key concepts), 4 (Identifying drivers who may not be fit to drive), 6 (Making a driver fitness determination) and 17 (Seizures and epilepsy) provide guidance in this case.

26As described in 17.1 of the CCMTA Standards, there are three types of partial seizures: simple partial seizures, complex partial seizures and partial seizures that evolve into secondary generalized seizures. The difference between simple and complex seizures is that individuals experiencing simple partial seizures retain awareness during the seizure, whereas those experiencing complex partial seizures lose awareness during the seizure. The symptoms of simple partial seizures (also called focal aware seizures) can be variable depending on the part of the brain that is affected. As per the results of his ambulatory EEG, the temporal lobe of the appellant’s brain is a potential epileptiform region. Partial seizures arising from the temporal lobe of the brain typically last from a few seconds to two minutes and their signs or symptoms can include: déjà vu, a rising sick feeling in the stomach, and a sudden sense or flood of emotions including fear, anxiety, anger, sadness or joy. Known causes of temporal lobe seizures include a family history and conditions that lead to lack of oxygen (anoxia) in the brain.

27Considering the evidence as a whole, I prefer the opinion of Drs. F. and P. that the appellant probably suffers from partial seizures, over that of Dr. G. and the appellant. The appellant’s ambulatory EEG demonstrated potential epileptiform discharges arising from the left anterior temporal region of his brain, known signs or symptoms of temporal lobe seizures are consistent with the appellant’s description of his episodes, Dr. F. referred to the appellant’s episodes as being stereotypic of partial seizures and one anti-seizure medication prescribed (Lacosamide) eliminated the appellant’s episodes. Dr. P.’s opinion is based on medical information he has received from neurologist Dr. F. Dr. G.’s consultation note of May 30, 2018 stated that the appellant reports anxiety attacks. Such terminology used by Dr. G. implies that she herself did not make a diagnosis of anxiety attacks. The appellant testified he has never been formally diagnosed with anxiety attacks by a medical professional, has never been prescribed anti-anxiety medications for his episodes nor participated in on-going counselling or non-pharmacological treatments for anxiety.

28Based on the totality of the evidence presented I find on a balance of probabilities, that the appellant suffers from partial seizures.

b. Is the appellant’s medical condition of partial seizures, if any, likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely?

29The Minister has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. I find that the Minister has met its burden.

30I find on a balance of probabilities, that the appellant’s medical condition of partial seizures is likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely.

31The Minister is of the opinion that in order to reinstate the appellant’s commercial driver’s licence they require confirmation that the appellant has remained seizure free for five years or if seizures are continuing, that the seizure pattern has been consistent for three years.

32When questioned when his episodes began, the appellant was unable to give a definitive answer. He stated that he did not have these episodes while living with his father following his ICU stay. He thought that his episodes may have been one of the reasons he was referred to Dr. G. in mid-2018.

33The appellant testified that his episodes, which he denies are seizures, have never resulted in a loss of consciousness or loss of awareness. He stated that his episodes do not interfere with what he is doing at that time and that in no way do the episodes significantly interfere with his ability to drive safely. He gave an example of being able to finish sentences during an episode.

34The evidence before me indicates on a balance of probabilities, that the appellant has continued to have simple partial seizures (i.e. with no impairment in level of consciousness or awareness) for the past two or so years, not withstanding the very short period of time while on the anti-seizure medication Lacosamide. The evidence also suggests that although the frequency of his seizures has varied greatly over this time period, the nature of his seizures has remained unchanged (i.e. no change in symptoms or signs, no loss of consciousness or loss of awareness and no secondary generalization of his seizures).

35However, as per 17.1 of the CCMTA Standards, partial seizures can evolve into secondary generalized seizures where one can lose awareness or consciousness during the seizure and have symptoms or signs such as tonic or clonic movements. As per the CCMTA Standards, the primary consideration for drivers with seizures is the potential for a seizure causing a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness while driving. A driver cannot compensate for such an episodic impairment.

36Furthermore, as per Chapters 3, 4, 6 and 17 of the CCMTA Standards one has to consider other factors and sources of information for making a driver fitness determination. Some of these considerations include: whether the driver is a commercial driver or not, whether the driver has good insight and judgment into the condition, the driver’s willingness to comply with their treatment regimen, and a favourable recommendation or assessment from their treating physician.

37From the evidence before me, I find on a balance of probabilities that the appellant has poor insight into his ongoing medical condition of partial seizures and has demonstrated poor judgment and willingness to continue to comply with the recommended treatment regimen. Not only does the appellant deny or not accept that he has seizures, he has recently chosen not to retry the anti-seizure medication Epival at a higher dose with blood levels confirming a therapeutic level, as recommended by Dr. F. The appellant testified that he previously tried Epival at a lower dose, did not have therapeutic blood levels done, and chose on his own accord to stop the medication because at that dosage Epival did not reduce the frequency of his episodes.

38In addition, I find on a balance of probabilities that the appellant is not likely to report to the authorities and a physician should the nature or pattern of his seizures change. The appellant has both verbalized and demonstrated lack of acceptance of his medical diagnosis of seizures, and has poor insight, understanding and judgment into his medical condition.

39As per the CCMTA Standards commercial drivers often drive under more adverse conditions and should a crash occur, the consequences are much more likely to be serious. This concern is echoed by Dr. F. who does not yet support the reinstatement of the appellant’s commercial licence. In his January 8, 2020 note, Dr. F. stated, “He has a G license and I think that is fine given that there has never been impairment of awareness or consciousness. He is hopeful to regain his DZ licence but I think we need to keep trying to get these episodes stopped …”

40Taking all the evidence into consideration, I find on a balance of probabilities that the appellant’s partial seizures are likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely.

41I acknowledge the burden that the lack of a commercial driver’s licence is having on the appellant, however driving a commercial vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence downgrade, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

42In summary, I find on a balance of probabilities that the appellant’s medical condition of partial seizures is likely to significantly interfere with his ability to drive a commercial Class DZ vehicle safely. In arriving at this conclusion, I have relied on the following:

1. The appellant demonstrates poor insight and understanding into his medical condition. He currently denies that his episodes are seizures.

2. The appellant currently demonstrates a lack of good judgment and willingness to comply with the treatment regimen recommended by his neurologist. These are very important factors or considerations when determining fitness to drive.

3. The appellant continues to have frequent partial seizures with no associated loss of consciousness or loss of awareness and no secondary generalized activity.

4. Partial seizures can evolve into secondary generalized seizures causing a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness while driving.

5. A driver cannot compensate for such an episodic impairment in the functions necessary for driving

6. As the appellant has yet to accept that he suffers from seizures, it is less likely that the appellant will report to the authorities and a physician should the pattern or nature of his seizures change.

7. Commercial drivers often drive under more adverse conditions and should a crash occur, the consequences are much more likely to be serious.

8. The appellant’s treating neurologist does not support the reinstatement of his commercial licence.

9. As the appellant’s seizures are continuing, and taking 4-8 above into consideration, I find that Minister’s request for confirmation that the appellant’s seizure pattern has been consistent for three years is justified.

E. ORDER:

43For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the appellant’s driver’s licence is confirmed.