Licence Appeal Tribunal
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 s. 47(1) of the Act to Suspend a Licence
Between:
Andrew O’Bryan Stanley Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Dr. Constantine Petrou, M.D., Member Jennifer Friedland, Member
Appearances: For the Appellant: Self-Represented For the Respondent: Kyle Biel, Agent
Place and Date of Hearing: By Teleconference, May 8, 2020
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, made on March 17, 2020, declining to reinstate the appellant’s Class ‘A’ commercial driver’s licence.
2The appellant’s driving privileges were initially suspended in November 2016 under s. 47 (1) of the Highway Traffic Act1 after he experienced two seizures. His class ‘G’ licence has since been reinstated. However, with respect to his Class ‘A’ commercial licence, the Registrar is of the opinion that the appellant is not safe to drive a commercial motor vehicle until he has remained seizure-free for five years. The Registrar has downgraded the appellant’s commercial licence to a ‘G’ licence in the meantime.
3The appellant is of the view that the cause of his seizures has been corrected through surgery and that he no longer suffers from seizures that would likely significantly interfere with his ability to drive a commercial motor vehicle safely.
4This is the appellant’s second appeal of the Registrar’s decision not to reinstate his commercial licence. His first was decided in July 2017 and was not successful. The Tribunal’s previous decision will be addressed below.
B. ISSUE
5The issue on this appeal is whether the appellant suffers from a medical condition, namely seizures, that is likely to significantly interfere with his ability to drive a commercial motor vehicle safely.
C. Result
6For the reasons given below, we find that the appellant no longer suffers from a medical condition that is likely to significantly interfere with his ability to drive a commercial motor vehicle safely. We therefore set aside the Registrar’s decision and direct the Registrar to reinstate the appellant’s class ‘A’ commercial licence.
D. Law & STATUTORY CONTEXT
7The purpose of the licence provisions of the HTA is to “protect the public.” Section 31 (a) describes that one of the ways this is done is by ensuring that:
31(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely.
8Ontario Regulation 340/94 is a regulation made under the HTA that deals specifically with drivers’ licences. At section 14(1)(a) it specifies that:
14.(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 ...
9The provision goes on to state that:
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information. O. Reg. 453/10, s. 1.
10A person who is aggrieved by a decision of the Registrar or the Minister may bring an appeal to this Tribunal under s. 50 (1) of the HTA. Following a hearing, under s. 50 (2) the Tribunal may confirm, modify or set aside the decision.
E. THE FACTS
Background
11The appellant is a 42-year-old man who previously made his living as a truck driver. In the fall of 2016, it was determined by his neurologist that he had suffered two “possible partial complex seizures” resulting in a motor vehicle accident. On November 4, 2016, his attending neurologist reported his seizure to the Registrar as required under s. 203 of the HTA. This section requires a medical practitioner to report if a patient is suffering from a medical condition that may make it dangerous for the person to drive.
12As a result of this report, the appellant’s driving privileges were suspended. He had both a ‘G’ licence and a commercial ‘A’ licence at that time.
13The cause of the appellant’s seizures was found to be a right temporal lobe lesion consistent with a cavernoma. On February 1, 2017, he underwent successful surgery to have the lesion resected.
14The appellant was prescribed anti-seizure medication prior to the surgery and remains on such medication. He has been seizure-free since the seizure that led to the loss of his licence in November 2016.
15On May 24, 2017, after the appellant had been seizure-free for six months, his ‘G’ licence was reinstated. However, his commercial licence was not. The Registrar’s position was that the appellant’s medical reports indicated that he no longer met the national medical standards for a commercial licence due to his seizure. The Registrar’s position was that the appellant had to remain seizure free for at least five years before regaining his commercial licence.
The appellant’s first appeal
16The appellant appealed the above decision of the Registrar to the Licence Appeal Tribunal. By order dated July 28, 20172, the Tribunal upheld the Registrar’s decision. The panel found that the appellant still had a significant risk of future seizures.
17In coming to its decision, the panel relied on the opinion of the appellant’s neurologist, Dr. A, who, by letter dated May 9, 2017, had stated that the appellant can no longer “operate hazardous machines” and is “still not safe to do the same job” as a truck driver. Dr. A stated that the appellant was “allowed to do other safe jobs that don’t involve operating any hazardous machines and in [an] environment that is considered safe should he have a seizure recurrence until his next follow up MRI at least.”
18At paragraph 28 of the July 28, 2017 order, the previous panel considered the Medical Standards for Drivers created by the Canadian Council of Motor Transport Administrators (the CCMTA Standards), and in particular, Standard 17.6.12 which is the epilepsy standard for commercial drivers. The panel stated:
[28] We have considered standard 17.6.12 of the CCMTA Standards, which applies to commercial drivers who have been diagnosed with epilepsy. The appellant has not been diagnosed with epilepsy; however standard 17.6.1 states that if a person has had more than one seizure caused by a structural brain abnormality the epilepsy standard is applied. As the appellant has experienced two seizures caused by a brain lesion, standard 17.6.12 is the most relevant standard. It states that commercial drivers are eligible for a licence after five years without a seizure, with or without medication.
[29]The CCMTA Standards are not binding on the Tribunal, and the appellant may well be capable of driving a commercial vehicle safely in less than five years, depending on results of ongoing treatment, test results, and the opinion of his neurologist. However, at the present time, we find that there is still a significant risk of future seizures, considering the opinion of the appellant’s neurologist that he is not safe to return to truck driving and the fact that both prior seizures occurred on the road at the end of a long day of truck driving. Although the temporal lesion that appears to have caused the seizures has been surgically removed, the appellant still has a future MRI booked and a follow-up neurological appointment in August. More time is needed before the risk to road safety will be sufficiently alleviated.
[30] Although the appellant is not yet ready for reinstatement, we find that he is taking appropriate steps to manage and treat his condition, including taking his medication as prescribed and attending recommended imaging tests and follow-up appointments with his neurologist and family physician. We would encourage the appellant to submit any new medical information to the Ministry of Transportation when it becomes available.
The appellant’s medical reports – April 2018
19In April 2018, the appellant submitted to the Registrar two further Epilepsy and Seizure reports from his neurologists. These reports confirmed that he had remained seizure-free since November 2016, that the etiology of his seizures was neurological, that the lesion causing the seizure had been resected in February 2017 and that the appellant was compliant with his anti-seizure medication. The appellant was able to retain his ‘G’ licence as a result of the reports. However, with respect to his commercial licence, the Registrar’s position was:
… should you wish to regain your commercial licence your treating physician or specialist must confirm the following:
- Confirmation that you have remained seizure free for 5 years after surgery with or without anti-seizure medication. This period may be reduced to 3 years upon receipt of a satisfactory Epilepsy and Seizures Form. (emphasis in original).
The appellant’s medical reports – February 2020.
20In February 2020, at the three-year mark post-surgery, the appellant provided the Registrar with two further Epilepsy & Seizure Report Forms from his neurologists. Each report again confirmed that he had not had a seizure since November 2016, that the etiology of the seizure was neurological, that the lesion had been resected on February 1, 2017 and that the appellant was compliant with his anti-seizure medication. Dr. A, in his report, identified the Appellant’s risk of recurrence as “very low.” An EEG report was also submitted by Dr. B. The appellant’s EEG showed spikes in the region where he had the surgery, which were non-specific and expected. There were no definite seizures or interictal discharges.
21In response to these reports, the Registrar initially wrote the appellant on March 10, 2020 repeating its position that a five-year seizure-free waiting period was required but that this period could be reduced to three years upon the receipt of a satisfactory medical report. It then sent an amended letter on March 17, 2020 that did not include the three-year prospect for reinstatement. Instead the Registrar advised it would require confirmation that the appellant had remained seizure free for the full five years, with or without anti-seizure medication, before he could regain his commercial licence.
22The appellant submitted one further letter from his neurologist Dr. A, dated March 23, 2020, and then, on April 4, 2020, he commenced this appeal of the Registrar’s decision to refuse to reinstate his commercial licence.
Dr. A’s Letter, March 23, 2020 – “extremely low risk”
23Dr. A’s letter of March 23, 2020, was addressed directly to the Ministry of Transportation. The letter in full, states as follows:
Mr. Stanley is a 42-year-old man whom [sic] I have been involved in his care since his admission to Credit Valley hospital in November 2016 with cerebral seizure.
He was found to have a right temporal lobe lesion that was resected surgically by Dr. Kis on February 1st 2017; it was consistent with cavernoma.
He has been seizure free since 2016 and has been stable on Keppra 750 BID, tolerating the medication well with no side effects.
I strongly believe that the risk of seizure recurrence is extremely low given the resection of the cause of the seizure and being on antiepileptic medication for more than 3 years with no seizure recurrence.
He has been monitored and followed regularly and he has shown good compliance with the medication and follow ups as well as testing.
Please don’t hesitate to contact me for any further questions or clarifications.
24The Registrar wrote to the appellant on April 20, 2020 in response to Dr. A’s letter, maintaining its position that the appellant would have to remain seizure free for a five-year period before his commercial licence could be reinstated.
The appellant’s position
25The appellant submits that he no longer poses a risk to road safety. He has been seizure-free for over three years post-surgery. He had not experienced any seizures prior to discovering that he had a lesion in the fall of 2016, and he has had none since. The appellant asserts that he is compliant with his medication and has been driving with his ‘G’ licence for three years now without incident. He owns his own trucking business. His route is mainly local, within the Greater Toronto Area, and occasionally down to Buffalo. He does not transport hazardous goods. He is eager to return to his employment and asks the Tribunal to set aside the Registrar’s decision and order that his commercial licence be reinstated.
26With respect to whether he would remain on anti-seizure medication, the appellant understood that his neurologists would be taking him off the medication eventually but did not have any specific information as to the timelines, nor is there any note in the appellant’s medical files that he is expected to come off his medication.
The Respondent’s Position
27The Registrar’s position is that the CCMTA Standards should apply, and specifically the epilepsy standard for commercial drivers which requires a five-year period of remaining seizure-free.
28Mr. Biel did not have specific information as to why the Registrar twice took the position that the appellant’s waiting period could be reduced to three years upon the receipt of certain medical confirmations. Mr. Biel surmised that the medical department may have initially applied the CCMTA standard 17.6.10 which relates to commercial drivers who have had surgery for epilepsy. Under this Standard, a commercial driver is eligible for a licence if:
They have not had a seizure for 5 years after surgery with or without anti-epileptic medication;
Waiting period may be reduced to 3 years upon neurologist/specialist recommendation;
Conditions for maintaining a licence are met.
29The Registrar’s position is that the above standard is not applicable because the appellant did not have surgery for epilepsy, but rather for a brain lesion.
30The Registrar is further concerned that the appellant could be at risk of future seizures if he is weaned off his anti-seizure medication.
31The Registrar submits that until the full 5-year waiting period has passed, it is uncertain whether the appellant will suffer a further seizure which would significantly impact his ability to drive a commercial vehicle safety. The Registrar asks that we confirm its decision to continue the downgrade of the appellant’s commercial licence until the appellant has remained seizure-free for five years.
F. ANALYSIS
32We are guided by a number of factors in determining that the appellant no longer suffers from a medical condition likely to significantly interfere with his ability to operate a commercial motor vehicle safely.
33Topmost among these factors is the medical evidence showing that the appellant’s seizures were caused by a lesion on the right temporal lobe consistent with a cavernoma which was successfully resected on February 1, 2017. He has now been seizure-free for over 3 ½ years and his neurologist has stated that he “strongly” believes that “the risk of seizure recurrence is extremely low.”
34Based on this medical evidence we find that the appellant is no longer at significant risk of future seizures.
35The panel hearing the appellant’s first appeal could not reach the same conclusion. At the time of the first appeal, it had been less than a year since the appellant had suffered the seizures and less than six months since his surgery. He had MRIs and other follow up appointments still pending, and Dr. A’s opinion was that the appellant was still at risk of having a seizure and should not return to work as a truck driver “until his next follow-up MRI at least.” He has now had more than three years of follow-up appointments, including a number of MRIs and remains seizure-free.
36Regarding the CCMTA standards, we find that the appellant does not squarely fit within standard 17.6.12 requiring a five-year seizure-free period without exception for commercial drivers. This standard clearly states that it applies to a commercial driver who has been diagnosed with epilepsy, which is not the appellant’s case.
37We find that standard 17.6.10, the standard relating to commercial drivers who have had surgery for epilepsy is also relevant here, despite the Registrar’s position that the appellant’s surgery was for a brain lesion and not for epilepsy. Under this standard the seizure-free period may be reduced from five-years to three-years in some circumstances. We find it somewhat disingenuous for the Registrar to assert, on the one hand, that the appellant fits under the epilepsy standard for commercial drivers without a diagnosis for epilepsy, but then to deny that the surgery he had was for epilepsy.
38Ultimately, while the appellant does not fit neatly into either of the above CCMTA standards we find the standard applicable to commercial drivers who have had surgery for epilepsy to be most applicable. The appellant had surgery following two seizures which has resulted in him remaining seizure-free for over three years since the surgery. Under this standard, the appellant is considered safe to regain his commercial licence.
G. Conclusion
39The panel hearing the appellant’s prior appeal nearly three years ago concluded that “the appellant may well be capable of driving a commercial vehicle safely in less than five years, depending on results of ongoing treatment, test results, and the opinion of his neurologist.” We find that those results and the opinion of his neurologist now establish, on balance of probabilities, that his medical condition no longer significantly interferes with his ability to drive a commercial motor vehicle safely.
40With regard to when or whether he should come off the anti-seizure medication, we find that this decision should be made by his neurologist.
H. ORDER
41Pursuant to the powers of this Tribunal under s. 50(2) of the HTA, the Registrar’s decision to continue the downgrade of the appellant’s class ‘A’ licence is set aside. The Registrar is ordered to reinstate the appellant’s class ‘A’ licence.
LICENCE APPEAL TRIBUNAL
___________________________________ Dr. Constantine Petrou, Member
___________________________________ Jennifer Friedland, Member
Released: June 01, 2020
Footnotes
- R.S.O. 1990, c. H.8 (hereinafter the “HTA” or the “Act”)
- A.S. v. Minister of Transportation, 10831/MED, July 28, 2017 (unreported)