Date: 2021-12-17

Appeal under section 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 pursuant to Section 32(5)(b)(i) of the Act

Between:

Eliott Curley

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Adjudicators: Dr. Constantine Petrou, Member Colin Osterberg, Member

Appearances

For the Appellant: Eliott Curley

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: December 10, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1Eliott Curley (the “appellant”) appeals from the decision of the Minister of Transportation (the “Minister”) to downgrade his Class D driver’s licence to a Class G driver’s licence. The downgrade was based on the diagnosis of seizure or syncope. The appellant denies that he suffered from, or that he was diagnosed with, seizure or syncope and asks that his Class D licence be reinstated.

2Having considered all the evidence and for the reasons that follow, we find the appellant does not suffer from a medical condition and order that the Minister’s decision to downgrade the appellant’s licence is set aside.

B. ISSUES

3The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

4To resolve that issue, we will address the following questions:

1. Does the appellant suffer from a medical condition?

2. If the appellant does suffer from a medical condition, is this likely to significantly interfere with his ability to drive a commercial Class D vehicle safely?

C. lAW

5Under the Highway Traffic Act (the “Act”) the Minister is responsible for ensuring that drivers are medically fit to drive vehicles on highways. In this case, the Minister acted pursuant to s. 32(5)(b) of the Act and s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the Act.

6Subsection 14(1)(a) of the Regulation, states that a holder of a driver’s licence must not suffer from any physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class.

7Section 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. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on us.

8A person whose licence is downgraded under these provisions may appeal to the Tribunal under s. 50(1) of the Act.

9On appeal, the Minister has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition.

10Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Minister.

D. EVIDENCE AND ANALYSIS

a. Does the appellant suffer from a medical condition?

11In support of its allegation that the appellant suffers from a medical condition, namely seizure or syncope, the Minister relies on an unsolicited Medical Condition Report (“MCR”) dated July 8, 2021, a Seizures and Loss of Consciousness Report (“SLCR”) dated October 22, 2021 completed by the appellant’s neurologist, and a report from the appellant’s family doctor dated November 26, 2021. The appellant argues that these reports do not prove that he suffers from seizure or syncope and that the Minister has failed to establish that he suffers from a medical condition on a balance of probabilities.

12According to the appellant, he has never suffered seizure or syncope at any time before or after July 8, 2021. On that day, he was working in extremely hot conditions and was doing very heavy work. He says that he became dehydrated and lost consciousness as he strained to climb onto a pile of drywall. The appellant remembers that before passing out, he was sweating profusely. His loss of consciousness lasted a short time. The appellant says that his co-worker has told him that he may have been shaking a little when he was unconscious. When he awakened, the appellant was nauseous. He drank a large amount of water and began to feel better. Paramedics were called and offered to take him to hospital, but he declined. He was driven home by his co-worker and later attended hospital as a precaution.

13The identity of the person who completed the MCR submitted to the Ministry is unknown and the second page of that report was not in evidence. Part 2 of the MCR contains several boxes where the person who completes it may identify the medical condition which is of concern. There is a box for seizure which has not been checked. Instead, the box marked “Other” is checked and beside it the words are written “syncope vs seizure – undifferentiated LOC”.

14The handwritten words could be interpreted as meaning that the appellant experienced syncope rather than seizure. It is also possible that the writer meant to indicate that the appellant could have experienced syncope or a seizure and that no diagnosis had yet been established as a probability.

15The SLCR was completed by Dr. Khalid Gazala, neurologist. Dr. Gazala checked the box indicating “single unprovoked seizure”. He crossed out the section relating to syncope/loss of consciousness. In the Comments section, Dr. Gazala wrote “Questionable seizure on July 8, 2021. No recurrence so far. Investigations Brain MRI & EEG are normal. Cardiac investigations Holter monitor & Echo are normal.” The appellant says he has also had a CT scan of his brain and a second sleep-deprived EEG which were normal.

16Although Dr. Gazala has checked the box marked single unprovoked seizure, we find that this must be read in conjunction with the words “Questionable seizure” and the normal test findings noted. We interpret this to mean that the issue of concern with respect to the appellant in Dr. Gazala’s mind was that of seizure, but the opinion being expressed was that the seizure was questionable – meaning possible rather than probable.

17The fact that Dr. Gazala crossed out the section of the form relating to syncope could be interpreted to mean that he had ruled out syncope or that the appellant was not being investigated with respect to that possible diagnosis.

18The appellant’s family doctor is Dr. Hayder Mehdi. Dr. Mehdi’s report dated November 26, 2021 states that the appellant experienced one episode of seizure in July 2021, was seen and investigated by a neurologist and was cleared for driving. According to the appellant, he was not seen by Dr. Mehdi before this report was completed. Dr. Mehdi’s diagnosis appears to have been based on Dr. Gazala’s SLCR. Dr. Mehdi does not provide the appellant’s history, physical findings, differential diagnoses, or test results which lead him to conclude that the appellant has been diagnosed by Dr. Mehdi as having suffered a seizure. We find that Dr. Mehdi is relaying Dr. Gazala’s diagnosis rather than proving a diagnosis of his own. Given that Dr. Gazala did not diagnose seizure, but only the possibility of seizure, we do not find that Dr. Mehdi’s statement that the appellant suffered a seizure on July 8, 2021 to be determinative.

19We find that the Registrar has not proven on a balance of probabilities that the appellant suffers from a relevant medical condition. The MCR does not clearly offer a diagnosis but at best offers possible causes for the event the appellant experienced. Dr. Gazala appears to rule out syncope and suggests that it is only possible that the appellant had a seizure. Dr. Mehdi appears to rely on Dr. Gazala’s diagnosis. To satisfy its onus, it is insufficient that the Registrar show that it is possible that the appellant suffers a medical condition. The Registrar must demonstrate that it is probable that the appellant suffers a medical condition and the evidence does not support such a finding.

20We find that the Registrar has not established on a balance of probabilities that the appellant suffers from seizure, syncope, or other relevant medical condition.

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

21Given that we have found that the Registrar has failed to establish on a balance of probabilities that the appellant suffers from a medical condition, we need not provide an answer to this question.

E. ORDER

22For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Minister’s decision to downgrade his Class D driver’s licence to a Class G driver’s licence.