Date: 2021-02-17

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:

Thomas Lengyel

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Thomas Lengyel, self-represented

For the Respondent: Sonia De Santis, agent

Heard by Teleconference: February 1, 2021

A. Overview:

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

2On June 9, 2019 the appellant was involved in a motor vehicle accident (“MVA”). This MVA led both a police officer attending the scene and an emergency room (“ER”) physician to file information with the Registrar of Motor Vehicles (the “Registrar”) expressing their respective concerns that the appellant may be or is suffering from a medical condition that may make it unsafe or dangerous for him to operate a motor vehicle.

3The appellant’s driver’s licence was suspended for medical reasons on July 16, 2019.

4On October 8, 2020 the appellant’s Class GM driver’s licence was reinstated.

5The issue in this appeal is whether the appellant suffers from a medical condition, specifically seizures, which is likely to significantly interfere with his ability to drive a commercial vehicle safely.

6Having considered all of the evidence before me and for the reasons set out below, I find that on a balance of probabilities, the appellant suffers from the medical condition of seizures. Furthermore, I find on a balance of probabilities, that this medical condition of seizures is likely to significantly interfere with his ability to drive a commercial Class D vehicle safely.

7Accordingly, I confirm the Minister of Transportation’s (the “Minister”) decision to change the class of the appellant’s driver’s licence.

B. ISSUES:

8The issue in this appeal is whether the appellant suffers from a medical condition, specifically seizures, which is likely to significantly interfere with his ability to drive a commercial vehicle safely.

9To answer this question, I will address the following issues:

a. Does the appellant suffer from the medical condition of seizures?

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

C. LAW:

10Under the HTA the Minister is responsible for ensuring that commercial drivers are medically fit to drive commercial vehicles on the highway. In this case the Minister acted pursuant to s. 32(5)(b)(i) of the HTA and s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”).

11Under 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.

12A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.

13On appeal, the Minister has the burden of establishing that the licence should remain downgraded on a balance of probabilities.

14Following 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 seizures?

15I find on a balance of probabilities that the appellant suffers from the medical condition of seizures.

16The appellant testified that he was told that on June 9, 2019 he suffered two seizures, one while driving his personal vehicle home from the grocery store and one while in the ER of the hospital following the MVA. The appellant also testified that he had a witnessed seizure while sleeping in 2017, when he was on holidays outside of Canada.

17However, the appellant also testified that there is “nothing wrong with [him]” as the doctors involved in his care have not found anything wrong despite all of his tests. These tests included electroencephalograms (“EEG”s), which measure the electrical activity of the brain and magnetic resonance imaging (“MRI”) of his brain.

18The appellant further stated that he currently has no follow-up visit or call booked with his treating neurologist, Dr. I., has refills on his anti-seizure medication, has no family doctor and does “not have a condition to monitor”.

19The appellant is of the opinion that his seizures were likely caused by stress. He stated that it is known that stress, anxiety or even lack of sleep can “bring out” seizures. Furthermore, he stated that at the time of his seizures noted above, he was stressed, anxious and not sleeping well because of the breakdown of his marital relationship over the preceding few years.

20The appellant submitted as evidence a copy of his e-discharge summary (“e-summary”) from his hospital stay in June 2019, following the MVA.

21The e-summary stated that the appellant:

• was admitted for presumed temporal lobe seizures;
• was assessed by someone from the neurology department, who agreed that the diagnosis was likely temporal lobe epilepsy;
• had an EEG and MRI (brain) on June 12, 2019, which were both normal;
• was started on anti-seizure medication (Lacosamide 100 mg twice daily); and
• had a low calcium blood level on admission, but “it does not seem like the cause of his seizures, though it’s possible it played a slight contributing role, just as being sleep-deprived did”.

22Dr. I. submitted two completed forms to the Registrar in June and August 2020, a Medical Report form (“MR form”) and an Epilepsy and Seizures form (“ES form”), respectively.

23The MR and ES forms indicated that the appellant:

• had two generalized seizures in June 2019;
• described a previous generalized tonic-clonic seizure;
• described other episodes suggestive of simple partial seizures in the past;
• had a MRI of the brain (June 2019) and sleep-deprived EEG (January 2020) that were normal;
• has seizures whose etiology (cause), is idiopathic (unknown);
• has been on Lacosamide 150 mg twice daily since June 2019;
• reports adherence to the recommended treatment regimen;
• has been seizure-free since June 9, 2019; and
• seizures are prevented by the current medication regimen.

24When questioned at the hearing about any symptoms which might represent simple partial seizures as described by Dr. I., the appellant testified that sporadically, perhaps 1-2 times per year for the past 3-4 years, he experienced a “funny smell” and felt nauseated. He stated there was no seizure associated with these symptoms.

25Furthermore, when specifically asked if Dr. I. ever told him that there was nothing wrong with him, the appellant stated that Dr. I. told him that by testing they could not find anything wrong but, on a cellular level, there may be something wrong with his brain.

26I prefer the opinions of Dr. I and the hospital physician who wrote the e-summary over that of the appellant with regards to his medical condition of seizures.

27Although the appellant does not deny that he has been told that he has had three generalized seizures since 2017, he is of the opinion that: there is nothing wrong with him as he has done all the tests required of him and they have all been normal; he has no condition to monitor; and the events in 2017 and 2019 were caused by stress, anxiety or lack of sleep. However, the e-summary specifically states that neither the appellant’s low calcium nor sleep deprivation at that time were likely the cause of his seizures, though it was possible they played a slight contributing role. In medical terms, if something is described as likely, it will meet the balance of probabilities test, whereas if it is described as slight, it will not. Furthermore, in the ES form Dr. I. checked off that the etiology or cause of the appellant’s seizures is idiopathic or unknown. In the ES form Dr. I. had the opportunity to check off “provoked seizure with no structural brain abnormality”, as the cause of the appellant’s seizures, but he did not. Nowhere in either the MR or ES forms does Dr. I. mention stress, anxiety or sleep-deprivation. Furthermore, the Tribunal is aware that a normal EEG and normal MRI do not rule out the medical condition of seizures. This is consistent with the fact that Dr. I. told the appellant that by testing he could not find anything wrong, but that on a cellular level there may be something wrong with the appellant’s brain. In medical terms, not being able to find anything wrong does not mean that there is not something wrong.

28In addition, the “aura” of smelling things that are not there and the feeling of nausea described by the appellant, which he has experienced sporadically for the past 3-4 years are actually seizures, called simple partial or focal onset aware seizures. These seizures can evolve into secondary generalized seizures with loss of consciousness or loss of awareness. Seizures originating in the temporal lobe are a type of partial or focal seizure.

29Furthermore, the appellant was started on anti-seizure medication while in hospital in June 2019 and has continued on this medication since then. He stated that Dr. I. increased his dose of Lacosamide to 200 mg twice daily sometime in 2020, but prior to the case conference (“CC”). As the CC was held on November 23, 2020 and Dr. I.’s MR form dated June 8, 2020 stated the appellant’s dose of Lacosamide was 150 mg twice daily, on a balance of probabilities I find that the appellant's Lacosamide dose was last increased between June and November 2020. In addition, the appellant stated that he and Dr. I. have not discussed his coming off the prescribed anti-seizure medication. In Canada, Lacosamide is indicated for partial onset seizures in adults. The above facts are consistent with a diagnosis of the medical condition of seizures.

30Moreover, Lacosamide, like many of the newer anti-seizure medications, does not require blood monitoring. However, this does not mean that the appellant does not have a medical condition that needs monitoring.

31Based on the above and the totality of the evidence before me, I find on a balance of probabilities that the appellant has suffered a number of seizures over the past four years or so and suffers from the medical condition of seizures.

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

32The Minister has the burden of establishing, on a balance of probabilities, 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.

33I find on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive a commercial Class D vehicle safely.

34Section 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.

35As per the October 8, 2020 letter to the appellant, the Minister is of the opinion that in order to reinstate the appellant’s commercial driver’s licence it requires confirmation that the appellant has remained seizure free for a period of five years, with or without medication.

36The appellant is of the opinion that his seizures were brought on by stress, anxiety or sleep-deprivation caused by the breakdown of his marriage. He stated that his “life situation” has now greatly improved. Furthermore, he is of the opinion that with his Class GM licence he is currently allowed to drive a full “cargo van” for extended driving times or distances, and thus should be able to drive a vehicle requiring a commercial Class D driver’s licence.

37The appellant works full time for the TTC currently in a management role in the Elevating Devices section. He does not require a Class D driver’s licence for this work. However, the appellant has a “side job” or business which involves driving “roll-off trucks” and dropping off dumpsters. In the past he would do this 3-4 days per week, travelling on both city roads and highways and driving approximately 40-50 km/day when working. This side job requires a commercial Class D driver’s licence.

38The appellant’s Notice of Appeal states that “my neurologist sees no reason why I’m not able to continue to operate a commercial vehicle”.

39As per the CC Report and Order, at the CC the appellant indicated that he would have his treating physician provide a written narrative documenting the appellant’s medical stability and his support for reinstatement of the appellant’s commercial Class D driver’s licence. At the hearing when questioned why such a written narrative was not submitted as evidence, the appellant stated that he did speak with Dr. I. by phone following the CC but that Dr. I. stated he had already sent in all the information and that it was up to the Ministry.

40The Tribunal notes that Dr. I. does not specifically state that he is supportive of the appellant regaining his commercial licence anywhere in either the MR or ES forms. Furthermore, in Part 1 of the ES form, Dr. I. did not check off answers to either “Class of Licence Held” or “Class of Licence Desired”.

41At the hearing the appellant was asked to describe what he recalled of the events on June 9, 2019. He stated that he was driving home from grocery shopping in his personal vehicle and stopped at a stop sign. He only regained consciousness in the ambulance en route to the hospital.

42The police officer who attended the scene of the MVA in June 2019 provided a detailed description of the incident in the “Driver Information Request for Driver’s Licence Review” he submitted to the Registrar. He stated that at approximately 1:45 p.m. on the day of the MVA, the appellant suffered a medical episode, lost consciousness, ran off the roadway and collided into traffic. Following the collision, the appellant was found unconscious by witnesses at the scene, with his vehicle’s engine running and still in gear. Furthermore, the police officer stated that “the back wheels of the vehicle were spinning and digging into the grass, if it was not for the thick diameter of the tree, the vehicle would have continued on and cause more damage.”

43I acknowledge that this is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence of the police officer. He was acting under his duty as an officer and took notes of his observations and interactions with witnesses. I also note that the appellant did not challenge the police officer’s account of the circumstances surrounding the MVA in any serious way. Though I have admitted and relied upon the officer’s evidence regarding the MVA’s circumstances, I have not relied on any of the police officer’s opinions about the nature of the appellant’s “medical condition” or “medical episode”.

44Although 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 whether the impairment is persistent or episodic and the individual characteristics and abilities of each driver (e.g. whether the driver is a commercial or non-commercial driver, the driver’s ability to compensate for any impairment, the driver’s compliance with treatment, and whether the driver has insight into their medical condition and the impact that their medical condition may have on driving).

45As previously stated, on a balance of probabilities the appellant has suffered a number of seizures over the past four years or so, some which have been partial seizures with no loss of awareness, but at least three were generalized seizures with loss of consciousness. As was demonstrated by the MVA which ensued on June 9, 2019 when the appellant experienced a generalized seizure with loss of consciousness while driving, a seizure with a sudden loss of consciousness is considered to be a sudden episodic impairment. A driver cannot compensate for such an impairment.

46As per the CCMTA Standards, commercial drivers spend more time driving in inclement weather and under far more adverse driving conditions than drivers of non-commercial vehicles, cannot readily abandon their vehicle should they become unwell and should a crash occur, the consequences of a crash are much more likely to be serious.

47The appellant testified that he is compliant with his anti-seizure medication and has done all the tests requested by his treating neurologist. This is confirmed in the forms submitted by Dr. I.

48However, as per the evidence before me, I find that the appellant lacks adequate insight into his medical condition of seizures. The appellant has yet to accept that he has a medical condition that requires monitoring and that, on a balance of probabilities, he suffers from idiopathic seizures (unknown cause) and his previous stress, anxiety or sleep-deprivation likely played only a slight contributing role in his generalized seizures.

49I 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.

50In summary, I find on a balance of probabilities that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive a commercial Class D vehicle safely. In arriving at this conclusion, I have relied on the following:

1. A normal EEG and brain MRI do not rule out the medical condition of seizures.

2. The appellant has, on a balance of probabilities, suffered a number of seizures in the past, with three of them being generalized seizures with loss of consciousness. According to his treating neurologist, the appellant suffers from idiopathic, or cause unknown, seizures. On a balance of probabilities, the appellant’s stress, anxiety or sleep-deprivation at the time of his generalized seizures played only a slight contributing role.

3. The appellant has yet to fully acknowledge or accept that he has the medical condition of seizures and that this medical condition needs ongoing monitoring. I find that this implies that the appellant has a reduced level of insight into his medical condition of seizures and the impact that this medical condition may have on his ability to drive. An individual’s level of insight is an important consideration when assessing the risk of an episodic impairment of functional ability to drive.

4. A driver cannot compensate for an episodic impairment in the functions necessary for driving resulting from a generalized seizure with loss of consciousness.

5. One of the appellant’s generalized seizures on June 9, 2019 occurred while driving his personal vehicle. The police officer on the scene described that the appellant was found unconscious by witnesses, with his vehicle’s engine running and still in gear, and the back wheels spinning and digging into the grass. The officer opined that if it were not for the thick diameter of a tree which stopped the vehicle, the vehicle would have continued on and caused more damage.

6. I accept as self-evident that commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles. Furthermore, should a crash occur, the consequences are much more likely to be serious given the gross weight of the vehicle involved.

7. I find based on the above, that had the MVA in 2019 occurred while the appellant was driving his commercial vehicle, there is a significantly greater probability that the accident would have resulted in catastrophic consequences.

8. The appellant has been taking the anti-seizure medication Lacosamide for the past 17 months and has not experienced a generalized seizure since that time. Lacosamide is dosed based on its clinical response, which in medical terms means the absence of seizures. Although Dr. I. in the ES form faxed August 27, 2020 checked off that the appellant’s seizures are prevented by the current medication regimen, sometime between June and November 2020, Dr. I. increased the dose of the appellant’s anti-seizure medication. The appellant has only been on his current dose of Lacosamide for at most eight months.

9. There is no written evidence from Dr. I. substantiating the appellant’s claim that Dr. I., his treating neurologist since June 2019, sees no reason why he is not able to continue operating a commercial vehicle.

E. ORDER:

51For 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.