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:
Chris Patsimas
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Chris Patsimas, Self Peter Esfandiari, Legal Representative
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: December 9, 2021
A. Overview:
1Chris Patsimas (the appellant) appeals the downgrade of his commercial Class D and Class F driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”), effective August 9, 2021.
2The issue in this appeal is whether the appellant’s reported medical condition of seizures is likely to significantly interfere with his ability to drive a commercial vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Minister of Transportation (the “Minister”) has met the burden of establishing on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive commercial Class D and Class F vehicles safely.
4Accordingly, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.
B. ISSUES:
5The issue in this appeal is whether the appellant suffers from seizures, a medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely.
6To answer this question, I will address the following issues:
a. Does the appellant suffer from seizures?
b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive commercial Class D and Class F vehicles safely?
C. LAW:
7Under 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”).
8Under 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.
9A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.
10On appeal, the Minister has the burden of establishing that the licence should remain downgraded on a balance of probabilities.
11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.
12Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (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.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from seizures?
13I find, on a balance of probabilities, that the appellant suffers from seizures.
14On March 19, 2021, the Ministry of Transportation (“the Ministry”) received a “Driver Information Request for Driver’s Licence Review” from Police Constable A. (“PC A.”). On this form PC A. indicated that the appellant had been involved in a motor vehicle collision (“MVC”) on the evening of March 18, 2021 and that the investigation of the MVC indicated that the appellant may not be able to safely operate a motor vehicle due to loss of consciousness/black-out. In the “description of the incident and information in support” section, PC A. stated that when emergency services arrived the appellant was very disoriented and confused over what had happened and that the appellant was transported to hospital for further medical treatment.
15By letter dated March 25, 2021, the appellant’s driver’s licence (Class D, F and G) was suspended for medical reasons, effective April 4, 2021. In this letter, the Ministry indicated that when the appellant’s condition improved, he should have his treating physician, specialist or nurse practitioner complete and submit a “Syncope and Loss of Consciousness” (“SLOC”) form.
16On the July 29, 2021 completed SLOC form, a neurologist, Dr. D., indicated that:
the appellant had a primary medical condition of single unprovoked seizure;
this was the appellant’s first seizure;
the appellant had been seizure-free with or without medication for 3 to 6 months;
it had not been six months since the provoking factor had stabilized, resolved, or been corrected; and
if the appellant “is diagnosed with epilepsy and is a non-commercial driver” he supported a reduced seizure-free period of three months for the appellant.
17I note that under “primary medical condition” Dr. D. had the option to check off “psychogenic non-epileptic seizure/pseudo seizure”, but he did not.
18In the “Comments” section, Dr. D. wrote, “Single seizure after 18 hr [hour] work days, normal exam, normal MRI, normal EEG. Low recurrence risk.”
19Furthermore, I note that Dr. D. left “Section A – Syncope/Loss of Consciousness” and “Section B – Substance Use” of the SLOC form blank. I find, that by leaving these sections blank, Dr. D. was of the opinion that these diagnoses were not applicable in the appellant’s case.
20On August 9, 2021, the appellant’s Class G driver’s licence was reinstated.
21In a narrative letter to the Ministry dated September 20, 2021, Dr. D. referred to the March 18, 2021 episode as “a single seizure-like event…in the setting of severe/prolonged sleep deprivation” and also wrote, “In the setting of a single event, and normal examination plus investigations, he does not meet criteria for diagnosis of epilepsy”. In an email to the appellant on November 16, 2021, submitted as evidence, Dr. D. referred to the March 18, 2021 episode as “one single event (which happened under unique circumstances)”.
22The appellant testified that he works for the transportation department of a Union in the film industry. He stated his work involves working at different studios, for different productions, and that he previously performed many different transportation jobs in a day. Some tasks required only a Class G licence, but other tasks such as transporting camera equipment on a “straight truck” from studio to studio require a Class D licence and transporting larger numbers of passengers from one location to another requires a Class F licence.
23In addition, the appellant testified that the film industry had been nearly “shut down” early in the COVID-19 pandemic. However, the appellant stated that for several months prior to the March 18, 2021 MVC, he was working long hours per day (more than 15 hours per day) in the “fast-paced industry”. He admitted that the week of the MVC he was “pushing hard” and took extra overtime.
24In his narrative addendum to his Notice of Appeal (“NOA”), the appellant does not deny he was involved in a MVC while driving his “work truck”. I note from the evidence, that the vehicle the appellant was driving at that time only required a Class G licence. The appellant stated that following the MVC he was kept overnight at a hospital (likely in the emergency room). No discharge summary, including any investigations, was submitted as evidence.
25In the appellant’s narrative addendum to his NOA, he wrote that following the MVC he “met with several doctors, including a cardiologist, neurologist and somnologist, and underwent a wide range of medical tests, including an electroencephalogram [(“EEG”)] scan, magnetic resonance imaging [(“MRI”)], a stress test, and also wore a Holter monitor for two weeks…After all my tests and examinations, the doctors did not find anything wrong with me and determined that I am in fact completely healthy. They confirmed that I do not have epilepsy, nor am I prescribed medication for epilepsy or any other condition. The doctors believe that I was simply sleep deprived…”.
26I note that in the addendum to his NOA the appellant wrote, “I likely experienced a seizure while driving on March 18, 2021…”. However, at the hearing, when asked if he thought he suffered a seizure on March 18, 2021, the appellant stated, “I don’t know” and “I don’t think so”. He stated that his current opinion was based on stories he heard from other people, which included descriptions such as foaming from the mouth or having mouth injuries during or following the event. The appellant stated that he is of the opinion that he was “just sleep-deprived” and it was “nothing more than sleep deprivation”.
27As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them.
28I note that Chapter 17 of the CCMTA Standards states that “epilepsy refers to a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause.” Based on the evidence before me, I find, on a balance or probabilities, that appellant does not suffer from epilepsy (seizure disorder). The evidence indicates that the appellant suffered only one medical episode or event, that being the event on March 18, 2021.
29I acknowledge that Dr. D. has used differing terminology regarding the appellant’s medical condition or episode of concern. For instance: on the July 2021 SLOC form Dr. D. indicated that the appellant’s primary medical condition was a single unprovoked seizure after 18 hour work days; in the September 2021 narrative letter he called the episode a single seizure-like event in the setting of severe/prolonged sleep deprivation; and in the November 2021 email correspondence with the appellant he referred to the episode as one single event which happened under unique circumstances.
30For the reasons that follow, I prefer Dr. D.’s original opinion of the appellant’s primary medical condition (i.e., single unprovoked seizure) documented in his July 2021 SLOC form over that of the appellant and Dr. D.’s narrative comment in September 2021 (i.e., single seizure-like event). On the SLOC form, Dr. D. had the opportunity to check off “psychogenic non-epileptic seizure/pseudo seizure”, but he did not. Dr. D. also had the opportunity to write “seizure-like” in the comment section of the SLOC form, however, he wrote “single seizure”. Furthermore, in Dr. D.’s September 2021 narrative he states, “In the setting of a single event, and normal examination plus investigations, he does not meet criteria for diagnosis of epilepsy”. As Dr. D. would be aware that epilepsy generally refers to a condition characterized by recurrent (at least two) seizures which do not have a transient provoking cause, I find that Dr. D.’s statement means that he believes that the appellant suffered one (i.e., a single) seizure only. In addition, based on my knowledge as a licenced and duly qualified physician in the province of Ontario1, I am aware that medicine is not an exact science, medical testing has limitations and the absence of findings on medical testing does not necessarily mean that someone is “completely healthy”. I am also aware that a normal neurological exam, EEG or MRI brain scan does not rule out the medical condition of seizures and does not necessarily mean that there is no neurological issue. In addition, I am aware that unprovoked seizures can be precipitated or triggered by a number of factors, one being sleep deprivation. I find that Dr. D.’s wording “after 18 hour work days”, “in the setting of severe/prolonged sleep deprivation” and “happened under unique circumstances” means that he is of the opinion that sleep deprivation may have precipitated or triggered the appellant’s event on March 18, 2021. Based on the above, I find that Dr. D. does not mean that the appellant was just/simply sleep-deprived and that the event was nothing more than sleep deprivation. Furthermore, in all of Dr. D.’s correspondence he comments on the appellant’s “risk of another episode”, “recurrence risk” or “risk of recurrent symptoms”. I find that these phrases are referring to the appellant’s risk for future seizures and not on the appellant’s risk for future sleep deprivation.
31I am aware that the current standard of care for someone who has suffered a single, unprovoked seizure in the setting of a normal neurological exam, MRI and EEG is not to be prescribed anti-seizure medication, but to avoid typical precipitants or triggers. The appellant stated that he has educated himself and has adopted new lifestyle routines and habits including establishing a sleep routine and practicing good sleep hygiene.
32Based on the above and the totality of the evidence before me, I find, on a balance of probabilities, that the appellant suffered a single unprovoked seizure with loss of awareness or loss of consciousness on March 18, 2021. Thus, I find on a balance of probabilities, that the appellant 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 commercial Class D and Class F vehicles safely?
33The 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.
34I find on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive commercial Class D and Class F vehicles safely.
35By letter dated October 5, 2021, the Ministry indicated to the appellant that in order to re-obtain his commercial driver’s licence it required confirmation that the appellant has remained seizure-free for a period of one year. The respondent stated that this was consistent with 17.6.5 of the CCMTA Standards (Single unprovoked seizure – Commercial Drivers). The respondent argued that the CCMTA Standards were developed with the input of leading medical experts and specialists across Canada.
36The overriding consideration in this appeal is whether the Minister has proven, on a balance of probabilities, that the appellant’s single unprovoked seizure is likely to significantly interfere with his ability to drive a commercial vehicle safely.
37The appellant does not deny that on the evening of March 18, 2021 he was involved in an MVC while driving a Class G vehicle. The appellant admits that he does not remember the events immediately before or during the MVC.
38According to PC A.’s report, the appellant was driving on a major highway and his vehicle was seen to veer towards the left striking a metal guardrail before veering right across all of the lanes striking another metal guardrail. I acknowledge that this is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence of the PC A. He was acting under his duty as an officer and would have taken contemporaneous notes of his observations of the MVC scene and interactions with any witnesses. In any event, the appellant did not seriously contest the information in PC A.’s report.
39The appellant argues that all of his neurological tests were reported as normal therefore he has no underlying neurological issues, and that it was simply sleep deprivation that led to the MVC on March 18, 2021. I find that the appellant’s lack of acceptance or acknowledgement that he suffered a seizure on March 18, 2021 implies that he still 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.
40In addition, the appellant argues that he has taken steps to address the reason for the event on March 18, 2021 by educating himself and adopting certain lifestyle routines and habits to avoid anything like this happening in the future. These include: establishing a sleep routine; practicing good sleep hygiene; meditating; eating a healthy well-balanced diet; and regular exercise. He stated that the number of hours he was working are no longer available, he plans to work more regular hours (i.e., 8-9 hours per day) once his commercial licence is reinstated and does not want to take that risk again.
41The appellant acknowledged that the prime importance in this case is the safety of him (the driver) and safety of others on the road.
42Furthermore, the appellant stated that it is not arbitrary that there are different Classes of driver’s licences because different Classes of vehicles require different skills.
43However, the appellant argued that:
by reinstating his Class G driver’s licence, the Ministry has agreed that it is safe for him to drive and there is no medical evidence to suggest that he is in any way a danger to drive;
he is not at any different risk of having a seizure if he is driving a commercial or Class G vehicle. His neurologist in the November 2021 email wrote that he is neurologically safe to drive and that one vehicle versus all vehicles is not a neurological question;
with regards to his risk of a recurrent episode, his neurologist stated in: July 2021 that his recurrence risk was low; September 2021 his recurrence risk was very low; and November 2021 was extremely low;
if someone had a seizure while driving any vehicle and this resulted in a MVC, it does not matter if it were a large or a small vehicle. There is nothing in the evidence suggesting that if he had a seizure while driving a commercial vehicle that there would be more serious consequences. Either you are a risk to yourself and others or you are not; and
the CCMTA Standards are written for the masses and are not individualized. The Ministry/the CCMTA Standards are arbitrarily making a distinction between Classes of driver’s licences. There is no direct reason for this distinction, this does not make sense and no substantive reasons have been put forward for the longer seizure-free interval (i.e. one year) required for commercial Class licences.
44Although I am not bound by the CCMTA Standards, I find, when I consider them in their entirety, 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, the appellant suffered a seizure with loss of awareness or loss of consciousness while driving on a highway on the evening of March 18, 2021. As was demonstrated by the MVC which ensued during or following the event, a seizure with sudden loss of awareness or loss of consciousness while driving is considered to be a sudden episodic impairment. A driver cannot compensate for such an impairment.
46As per the CCMTA Standards, commercial drivers generally 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 given the size of commercial vehicles.
47Based on the above, I find there is a basis for the Ministry’s and the CCMTA’s distinction between commercial and Class G driving, and that this distinction is not arbitrary. Furthermore, the CCMTA Standards do not distinguish between commercial driving and Class G driving for all medical conditions.
48In addition, I would like to remind the appellant that all commercial drivers are required to submit periodic medical reports to the Ministry, even those drivers who are ‘healthy’. A ‘healthy’ Class G driver of the appellant’s age would not be required to submit such a medical report.
49I agree with Dr. D. that “one vehicle versus all vehicles is not a neurological question” and that the appellant’s temporal risk for a recurrent seizure is now lower than it was in August 2021 when his Class G licence was reinstated.
50However, as stated above, one must make a comprehensive, individualized risk analysis in all cases. I find a higher level of fitness to drive is crucial for commercial drivers who have the medical condition of seizures. For instance, with a Class F licence the appellant could drive a regular, non-school-purpose bus with seating for up to 24 passengers, including a 15-passenger van and an ambulance. Should the appellant have been driving a Class F passenger vehicle with passengers on the evening of March 18, 2021 when he suffered a seizure with loss of awareness or consciousness, the crash would have been more likely to have resulted in serious consequences. I find that the same holds true should the appellant have been driving a Class D vehicle on the evening of March 18, 2021. Moreover, reinstating the appellant’s commercial driver’s licence does not restrict the appellant to only driving commercial vehicles for his current job.
51I commend the appellant for the lifestyle changes he has already made, including those related to his sleep, and I encourage him to continue with these new habits.
52I acknowledge the burden, financial and otherwise, that the lack of a commercial driver’s licence is having on the appellant and his family. 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.
53In 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 Class D and Class F vehicles safely. In arriving at this conclusion, I have relied on the following:
A normal neurological exam, EEG and MRI brain scan do not rule out the medical condition of seizures.
The current standard of care for persons who have suffered a single, unprovoked seizure in the setting of a normal neurological exam, MRI and EEG is not to be prescribed anti-seizure medication, but to avoid typical precipitants or triggers.
The appellant has yet to fully acknowledge or accept that he had an unprovoked seizure on March 18, 2021, and that the event was not just simply sleep deprivation. I find that this lack of acceptance 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.
The CCMTA Standards, when viewed as a whole, provide reasons/evidence for the temporal seizure-free distinction between commercial and Class G driving, as in this case. The CCMTA Standards also recommends an individualized full risk analysis. The appellant’s personal risk of a recurrent seizure is only one aspect of a full risk analysis.
As was demonstrated by the MVC which ensued following the appellant’s seizure on March 18, 2021, a driver cannot compensate for an episodic impairment in the functions necessary for driving resulting from a seizure with loss of consciousness or loss of awareness.
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.
Currently, the appellant has been seizure-free for less than nine months.
E. ORDER:
54For 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.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: December 16, 2021
Footnotes
- Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.