Ranbir Singh v. Minister of Transportation, 2021 CanLII 11883

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-02-18

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 pursuant to section 32 (5)(b)(i) of the Act - to downgrade a licence.

Between:

Ranbir Singh Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D. and Evelyn Spence, LL.B.

Appearances:

For the Appellant: Ranbir Singh, Self-represented

For the Respondent: Kyle Biel, Agent

Place and date of hearing:

By Teleconference January 28, 2021

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant appeals the downgrade of his commercial driver’s licence, imposed pursuant to section 32(5)(b)(i) of the Highway Traffic Act (the “Act”).

2On or about July 16, 2019, the Ministry of Transportation received an initial medical condition report from an ER physician with the Brampton Civic Hospital indicating that the appellant had suffered a seizure. The appellant’s driver’s licence was thereafter suspended, pursuant to s. 47(1) of the Act. On January 13, 2020, the appellant’s Class G licence was reinstated, however his commercial class AZ driver’s licence remained suspended due to subsequent medical reports which indicated that the July 2019 seizure was not the appellant’s first seizure. Accordingly, the respondent requested a seizure-free period of five years before the appellant’s commercial class licence could be reinstated.

3The appellant appeals pursuant to s. 50(1) of the Act. He maintains that he has only ever suffered one seizure, when he was admitted to hospital on July 16, 2019, and that the downgrade of his commercial licence is unnecessary.

4The respondent, on the other hand, points to the multiple forms and statements submitted by the appellant’s treating neurologist, each stating the appellant has suffered two unprovoked seizures, suggestive of a medical condition of epilepsy. The respondent maintains, therefore, that in the interests of public safety, the appellant’s commercial licence should not be reinstated until a five-year seizure-free period has elapsed.

B. ISSUES AND RESULT:

5The issues to be determined in this appeal are:

a) Whether the appellant suffers from a medical condition, namely epilepsy, which is characterized by recurrent (at least two) seizures without a provoking cause; and,

b) If he does suffer from epilepsy, is it likely to significantly interfere with his ability to drive a commercial motor vehicle safely?

6Based on our review and consideration of the evidence and the parties’ submissions, we conclude that the appellant has suffered more than one seizure and meets the criterion for applying the standard for epilepsy, as set by the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”). We further find that this medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely. Accordingly, we confirm the Ministry’s decision to downgrade the appellant’s driver’s licence.

C. LAW:

7Section 203 of the Act requires all physicians in the Province of Ontario to report to the registrar the name, address and clinical condition of any person sixteen years of age or over who is suffering from a condition that may make it dangerous for the person to operate a motor vehicle safely.

8The respondent has the power under subsection 32(5)(b)(i) of the Act to downgrade a driver’s commercial licence for a “sufficient reason”. Subsection 14(1)(a) of Ontario Regulation 340/94 (the “Regulation”) under the Act states that a holder of a driver’s licence must not 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.

9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the CCMTA Standards when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

10The respondent has the burden to establish the grounds for downgrading the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the registrar.

D. EVIDENCE:

11On July 16, 2019, the appellant suffered a seizure while he was at home with his wife. They went together, by Uber, to the Brampton Civic Hospital where emergency room (ER) admitting staff took preliminary triage notes, including notes about the appellant’s medical history.

12While the ER triage notes were not provided in evidence before the Tribunal, their contents were referred to regularly in the documentary evidence, including in the various epilepsy and seizure and other reports, all of which were prepared and submitted by the appellant’s treating neurologist, Dr. M. Dolatshahi. Specifically, in a recent letter prepared by Dr. Dolatshahi dated January 27, 2021, she states:

“Based on ER triage note, seizure was witnessed by wife who told that patient has been on seizure medications from 2 years ago; diagnosis was made in India. He stopped his seizure medication (valproic acid) then 2 days later had seizure (July 16/2019).

Since being on anti-epileptic Keppra 1000 mg BID (prescribed by myself), no seizure recurrence is reported. His investigations are complete and EEG and MRI brain were unremarkable.”

13Those triage notes apparently also inform Dr. Dolatshahi’s hand-written notes in the first epilepsy and seizure report she prepared for the appellant, dated December 16, 2019, where she states: “33 male with 2 unprovoked seizures in life. Last being early July/2019. No seizure after being on Keppra 1000BID: Normal EEG and MRI.” Further, the notes provided in Dr. Dolatshahi’s second epilepsy and seizure report, dated November 17, 2020, referred again to “2 unprovoked sz in life. Last seizure (sz) was July 2019. Well controlled on Keppra. Normal EEG and MRI brain when diagnosis was made.”

14Despite the statements made by Dr. Dolatshahi in her various reports and the January 27, 2021 letter, the appellant, in his oral testimony, vigorously denied that he experienced any seizures or that he was taking medications to control seizures before July 2019. Instead, he maintains that the references to the previous seizures were made in error or otherwise were due to a miscommunication between his wife, who he claims speaks very limited English, and the Brampton Civil Hospital staff when he was admitted in July 2019. He asserts, therefore, that the information contained in the triage notes - and which form the basis for the appellant’s treatment for epilepsy - is inaccurate.

15In support of his position, the appellant submitted a letter dated January 22, 2021 from Dr. R. K. Nayyar; who was identified as the appellant’s family doctor in India. The letter states Dr. Nayyar was the appellant’s physician from January 1, 2014 to April 30, 2018 and that Mr. Singh “had no seizure during this time. He was physically fit during this period.”

16It is worth noting at this point that the letter from Dr. Nayyar does little to assist the Tribunal and was afforded minimal weight in our analysis. In particular, we question the credibility and reliability of the information since Dr. Nayyar claims to have been the appellant’s physician over a four-year period ending April 30, 2018, yet in his testimony, the appellant stated he spent two or three years driving a transport truck and trailer in Dubai before coming to Canada in June 2018. This raises obvious – specifically whether and how Dr. Nayyar was the appellant’s family physician while the appellant was living and working in another country, and even if he were, how he would be able to opine that the appellant was physically fit during a period of time that he was living and working in another country.

17The appellant also submitted an unsworn statement in a letter from his wife, dated January 20, 2021. The statement was written in both Punjabi and in English. According to the appellant, the letter was written by his wife in Punjabi and translated into English, also by his wife, with the assistance of a friend in India. The letter states, inter alia, that the appellant and his wife have been living together since April 2017 and that the appellant had never had a seizure prior to the one he experienced in July 2019.

18The appellant did not call his wife to testify, despite that she had important evidence to give. As an example, it would have been useful to hear about what she could have said that would have been misconstrued as her asserting that her husband had previously experienced a seizure in India, had been taking Valproic acid, and had recently discontinued its use prior to the July 2019 seizure. The appellant’s explanation for not calling his wife as a witness was that she is pregnant, and he did not want to put her through the stress of testifying at the hearing. We can understand wanting to spare his wife the unnecessary stress and so we are not prepared to make an adverse inference as to why she did not testify. However, in the circumstances, we are also not prepared to make a finding that the ER triage notes are incorrect based on her letter.

E. Analysis:

19The initial question we must decide is whether the appellant suffers from epilepsy, which is characterized by recurrent (at least two) seizures without a transient provoking cause. To do so, we must examine the appellant’s medical history, both before and after the July 16, 2019 seizure.

20If that history supports a diagnosis of epilepsy, the CCMTA Standards suggest a five-year seizure-free period before being eligible for a commercial driver’s licence. The second question we must determine, then, is whether the appellant’s condition is likely to significantly interfere with his ability to drive a commercial motor vehicle safely, taking into consideration the amount of time that has elapsed from the last seizure, among other factors.

Does the appellant suffer from epilepsy?

21The documentary medical evidence, submitted by the appellant’s neurologist unequivocally supports a finding that the appellant suffered an unprovoked seizure on July 16, 2019, and that this was not his first such seizure. In addition to her hand-written notes confirming “2 unprovoked seizures in life”, Dr. Dolatshahi completed the December 16, 2019 epilepsy and seizure report form specifically indicating that the appellant suffered an earlier seizure 1-3 years prior, the etiology of the July 2019 seizure was idiopathic/unknown, and that the previous seizure was no different.

22Dr. Dolatshahi’s second epilepsy and seizure report, from November 17, 2020, included the same findings, again making reference to the appellant having suffered two unprovoked seizures in life. The letter she prepared on January 27, 2021 also referred to a previous seizure.

23The appellant accepts that he experienced one seizure, in July 2019, but denies having suffered a prior seizure at any point. He asserts that the triage notes informing the neurologist’s findings are incorrect. His position is based upon the fact that his wife, who he testified has extremely limited facility in the English language, could not reliably have provided the stated information to hospital staff on admittance. While testifying that he was only about “50-60% conscious” on arrival at the hospital and that he was not with his wife at all times, he refused to accept that his wife may have communicated with staff regarding his medical history, whether in English or in her preferred language of Punjabi. As a result, he asserts that the medical information detailing a prior seizure, in the triage notes and informing all subsequent reports, is inaccurate.

24We have trouble accepting the appellant’s explanation in this regard. First, when the appellant was asked whether he raised his concerns about a previous seizure being reported in his medical file (incorrectly, in his estimation) with Dr. Dolatshahi, he said that he did. Despite this fact, on all three occasions when she saw the appellant and made and filed her reports, Dr. Dolatshahi refused to deviate from her position or change her notes referring to a previous seizure. Had the appellant pointed this out, we expect that Dr. Dolatshahi would have made a note of it in the reports, even if she disagreed that it was true.

25Second, the information provided in the triage notes appears to be very specific and we don’t find it is suggestive of information that was difficult to obtain through the admitting process. The notes indicate the source of the information, the appellant’s wife, and that she advised he had “been on seizure medications from 2 years ago; diagnosis was made in India.” They further reference the specific type of seizure medication the appellant had been on (Valproic acid) and explain that he experienced his July 16, 2019 seizure two days after stopping this medication.

26Considering the above, we are satisfied that the appellant suffered at least two unprovoked seizures; one on July 16, 2019 and another one at some point prior. According to section 17.6.1 of the CCMTA Standards, if more than one seizure occurs, the epilepsy standard applies. The CCMTA Standards define epilepsy as a condition characterized by recurrent (at least two) seizures which do not have a transient provoking cause.

Is the appellant’s condition likely to significantly interfere with his ability to drive a commercial motor vehicle safely?

27Having determined that the appellant has a condition which falls within the standard of epilepsy as per the CCMTA Standards, we must now consider whether the respondent has discharged its burden of proving that that condition is likely to significantly interfere with the appellant’s ability to drive a commercial motor vehicle safely.

28Chapter 17 of the CCMTA Standards sets out guidelines related to seizures and epilepsy. Section 17.6 provides the rationale for those standards, with the relevant sections as follows:

The general approach of the guideline for drivers with epilepsy or who experience seizures is that seizures must be controlled as a prerequisite to driving.

Most of the guidelines include a requirement for a seizure-free period. […] For an unprovoked seizure, the purpose is to allow time to assess the cause, and where epilepsy is diagnosed, to establish the likelihood that:

• a therapeutic drug level has been achieved and maintained

• the drug being used will prevent further seizures, and

• there are no side effects that may affect the driver’s ability to drive safely (emphasis added).

29At the time of the hearing, the appellant had been seizure-free for more than a year-and-a-half. During that period, the appellant has been on anti-epileptic seizure medication, specifically Keppra (1000 mg BID), which Dr. Dolatshahi suggests has stabilized, resolved or corrected the provoking factor of the seizure(s). Dr. Dolatshahi further reported the appellant has demonstrated adherence to the prescribed treatment regime.

30We find, however, that this is a not a sufficient period of time to determine that the appellant’s seizures have been controlled, or that therapeutic drug levels have been achieved and maintained and that the appellant will not suffer further seizures. We also note that Dr. Dolatshahi did not offer an opinion or make any remarks about the appellant’s fitness to drive in her January 27, 2021 letter, despite knowing the appellant was appealing the downgrade of his licence and also specifically understanding that her letter would be used in his appeal.

31Epilepsy is a serious medical condition and the effect of a seizure while driving could be devastating both to the appellant and any other road users. These risks are exacerbated when driving a commercial vehicle which is larger, more difficult to stop, and could cause much more significant damage than a passenger vehicle. The respondent argues that these are the reasons for requiring a lengthier seizure-free period of time before the appellant’s AZ licence be reinstated and that the appellant’s condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

32We agree. It is evident from the medical reports that the appellant’s seizure on July 16, 2019 was not his first, even if the appellant does not accept this himself. We are concerned about the risk of re-occurrence, particularly when not enough time has elapsed to assess the underlying cause of his seizures or whether the prescribed medication will prevent further seizures, or that side effects affecting his ability to drive safely are minimal. Also, given that his July 2019 seizure is reported to have occurred only 2 days after he stopped taking his previous anti-seizure medication, we find that a longer period of adherence and regular medical monitoring is necessary before it can be determined he is able to safely operate a commercial vehicle.

33The CCMTA Standards are not binding on the Tribunal, yet the Regulation refers to it specifically and gives the Minister the right to take it into account in making medical downgrade decisions. In our view, the CCMTA Standards should be accorded significant weight in medical downgrade cases, including in the present case.

34In light of the above, we find that the appellant’s medical condition is likely to significantly interfere with his ability to safely drive a commercial vehicle.

F. ORDER:

35For the reasons set out above, and pursuant to subsection 50(2) of the Act, the Minister’s decision to downgrade the appellant’s driver’s licence is confirmed.