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:
Suzanne Forest
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Suzanne Forest, self-represented
For the Respondent: Sanjay Kapur, agent
Heard by Teleconference: November 18, 2020
A. Overview:
1The appellant appeals the suspension of her Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).
2The issue in this appeal is whether the appellant’s ability to drive safely is likely significantly affected by seizures.
3Having considered all of the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from a medical condition, specifically seizures, which is likely to significantly interfere with her ability to drive a vehicle safely.
5To answer that question, I will address the following issues:
a. Does the appellant suffer from seizures?
b. If the appellant suffers from seizures, are they likely to significantly interfere with her ability to drive a vehicle safely?
C. LAW:
6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).
7Under 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.
8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
9On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.
10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from seizures?
11I find on a balance of probabilities that the appellant suffers from seizures.
12The appellant testified that she has had three seizures.
13The appellant stated her first seizure occurred in 2018. She has no recollection of the episode, but was told that she went to the floor, stopped breathing, and she was taken to the local hospital by ambulance. She was not admitted to hospital, but outpatient appointments were made to confirm the diagnosis of seizures and start treatment.
14Her second seizure occurred on October 26, 2019, while at a friend’s house. During this episode she “lost awareness” for about two minutes, was taken home and went to sleep.
15The appellant’s third seizure occurred on August 1, 2020 while at her father’s home. On this occasion she was taken to hospital by ambulance and admitted for tests. The appellant is not aware of the results of the test(s).
16A Seizures and Loss of Consciousness form (“SLOC” form) completed by the appellant’s family doctor, Dr. D., on September 20, 2020, indicated that the appellant’s primary medical condition is epilepsy and she has had two or more episodes of loss of consciousness due to epilepsy/seizure disorder in the last 12 months. These facts are consistent with the appellant’s testimony.
17Based on the above, I find on a balance of probabilities that the appellant suffers from seizures.
b. If the appellant suffers from seizures, are they likely to significantly interfere with her ability to drive a vehicle safely?
18The Registrar has the burden of establishing that the appellant’s seizures are likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.
19The appellant’s driver’s licence was suspended after her second seizure on October 26, 2019.
20Dr. T., the appellant’s treating neurologist following her first seizure and up to August 7, 2020, completed an Epilepsy and Seizure form (“ES” form) on January 7, 2020. In this form Dr. T. indicated that on October 26, 2019, the appellant experienced a “focal seizure with loss of awareness” and that, since this event, her dose of anti-seizure medication, levetiracetam, was increased slightly from 1250 mg twice daily to 1500 mg twice daily with no further spells.
21In the ES form and in an additional letter submitted to the Registrar dated February 19, 2020, Dr. T. supported a reduced seizure-free waiting period of three months for reinstatement of the appellant’s driver’s licence following her second seizure.
22By letter dated March 10, 2020, the Registrar reinstated the appellant’s driver’s licence.
23Following her third seizure on August 1, 2020, the appellant notified Dr. T.’s office of the episode. Dr. T.’s note regarding their subsequent virtual visit stated that the appellant was upset as this (i.e. the episode) “will likely lead to another suspension of her driver’s licence”. In addition, the appellant requested her care be transferred to another neurologist, which Dr. T. facilitated.
24On August 5, 2020, under s. 203(1) of the HTA, Dr. T. completed a Medical Condition Report, reporting to the Registrar the appellant’s medical condition of seizures due to epilepsy.
25On September 19, 2020, the Registrar once again suspended the appellant’s driver’s licence for the reported medical condition of seizures.
26The appellant had a virtual visit with her new neurologist, Dr. M., on August 26, 2020. According to the appellant, Dr. M. concurred with Dr. T.’s diagnosis, suggested maintaining her levetiracetam at the current dose (1500 mg twice daily) and added in the medication lorazepam (1 mg under the tongue), to be used only if the appellant felt as if she were going to have a seizure.
27The appellant described that prior to her first and third seizures, she felt a “wooshy” feeling in her head, as if something were not right. She also stated that her partner noticed before at least one of her seizures that her forehead was sweating.
28Section 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.
29Chapter 17 of the CCMTA Standards states that individuals, particularly those with complex partial seizures (now called focal [onset] impaired awareness seizures), may experience an aura (unusual sensations that warn of an impending seizure). An aura is actually a simple partial seizure (now called focal [onset] aware seizure). The aura symptoms an individual experiences and the progression of those symptoms tend to be similar every time.
30The Registrar, as per its October 30, 2020 letter, is of the opinion that it requires either confirmation that the appellant has remained seizure-free for a period of six months or a favourable recommendation from her neurologist or treating physician to reduce the waiting period to three months.
31No reports or records from Dr. M. were submitted as evidence.
32Dr. D., in her completed SLOC form (September 20, 2020), specifically indicated that she did not support a reduced seizure-free waiting period.
33The appellant asserts that she:
a. has not had any new seizures or episodes since her third seizure (currently less than four months ago);
b. takes her anti-seizure medication religiously and routinely;
c. is monitored regularly by a physician; and
d. holds true to her responsibility to notify any medical persons involved with her care of any changes or seizures.
34In addition, the appellant expressed the financial and emotional hardship she and her family are suffering as both her partner and daughter only have Class G1 licences.
35Although I am not bound by the CCMTA Standards, I find they describe important considerations when making a driver fitness evaluation. They emphasize making a risk analysis of all relevant sources of information that considers factors including, but not limited to: whether the impairment is persistent or episodic and the individual characteristics and abilities of each driver (e.g. ability to compensate for any impairment, compliance with treatment and insight into the impact that their medical condition may have on driving).
36The appellant does not contest the fact that in the past 2-3 years she suffered three focal seizures with loss of awareness or loss of consciousness. With respect to driving, a seizure with such a loss of awareness or loss of consciousness is a sudden episodic impairment. A driver cannot compensate for such an impairment.
37Furthermore, the appellant’s dose of anti-seizure medication was increased to the maximum recommended dose of 1500 mg twice daily following her second seizure on October 26, 2019. Yet, while on the maximum recommended dose of levetiracetam, she suffered a third focal seizure with loss of awareness or loss of consciousness.
38Moreover, the appellant’s new neurologist, Dr. M., did not change the appellant’s regularly taken or baseline anti-seizure medication (either in dose or type), but rather added in an “as needed” dose of lorazepam under the tongue should the appellant feel she was “going to have a seizure”.
39Under s.16 of the Statutory Powers Procedure Act, (the “SPPA”) R.S.O. 1990, c. S.22, a Tribunal may, in making its decision in any proceeding,
a. take notice of facts that may be judicially noticed; and
b. take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.
40As a licenced and duly qualified physician in the province of Ontario with a general practice licence, I have, as per s.16(b) of the SPPA, the qualifications and knowledge to know that lorazepam under the tongue when prescribed or used on an “as needed” basis for seizures is being prescribed or used as a quick-acting rescue-type medication should the appellant be able to recognize her early warning signs (i.e. aura) of a seizure.
41Based on the above, I find, on a balance of probabilities, that Dr. M. prescribed under the tongue lorazepam to the appellant as a rescue-type medication in an attempt to diminish or stop any future seizure quickly to prevent an emergency situation and thus potentially avoiding a call for an ambulance, an emergency room visit, or a hospitalization.
42Furthermore, based on the above, I find on a balance of probabilities that the under the tongue lorazepam taken in the manner in which Dr. M. prescribed will not in the long term alter the appellant’s baseline propensity for or susceptibility to future focal seizures with loss of awareness.
43Moreover, should the appellant experience early warning symptoms of a seizure while driving and take a dose of under the tongue lorazepam, I do not have confidence that the lorazepam will reduce the unsafe condition brought about by a seizure or the medication itself.
44I acknowledge the burden that the lack of a driver’s licence is having on the appellant, her partner, and her daughter. However, driving is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.
45In summary, I find, on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with her ability to drive a vehicle safely. In arriving at this conclusion, I have relied on the following:
The appellant acknowledged that she has suffered three seizures, all of which have resulted in loss of awareness or loss of consciousness. Two of the seizures have resulted in an ambulance being called and the appellant being transported to hospital.
A driver cannot compensate for the episodic impairment in the functions necessary for driving resulting from the loss of awareness or loss of consciousness caused by a focal loss of awareness seizure.
The appellant’s third focal loss of awareness seizure occurred while the appellant had been on the maximum recommended dose of her baseline anti-seizure medication which she takes routinely as prescribed.
It has been less than four months since the appellant’s last seizure.
The appellant’s new neurologist, Dr. M., did not change or adjust the appellant’s baseline anti-seizure medication following her third seizure.
Dr. M. added in a rescue-type medication (lorazepam) to be used on an “as need basis” should the appellant be able to recognize her early signs (i.e. aura) of a seizure.
I find, on a balance of probabilities, that this rescue-type medication was prescribed in an attempt to diminish or stop any future seizure quickly to prevent an emergency situation and thus potentially avoiding a call for an ambulance, an emergency room visit, or a hospitalization.
Furthermore, I find, on a balance of probabilities, that the under the tongue lorazepam, taken in the manner in which Dr. M. prescribed, will not in the long term alter the appellant’s baseline propensity for or susceptibility to future focal seizures with loss of awareness.
No reports were submitted by the appellant’s new neurologist, Dr. M.
The appellant’s family physician, Dr. D., does not support a reduced seizure-free waiting period.
E. ORDER:
46For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Released: December 1, 2020