Lindsey Brown v. Minister of Transportation, 2021 CanLII 33615

Date: 2021-04-20

An 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 downgrade a licence pursuant to Section 32(5)(b)(1) of the Act.

Between:

Lindsey Brown

Appellant

-and-

Minister of Transportation

Respondent

DECISION & ORDER

ADJUDICATOR:

Dr. Dimitri Louvish, M.D., Member

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Lindsey Brown

For the Respondent:

Kyle Biel

Heard by teleconference:

March 30, 2021

Overview

1By letter dated June 16, 2020, the Registrar of Motor Vehicles (the “respondent”) downgraded Lindsey Brown’s (the appellant) driver’s licence from a class B to a class G because she suffered two nocturnal seizures approximately one year apart.

2The Registrar’s decision to downgrade the appellant’s driver’s licence was made pursuant to s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

Issue

3The issue to be determined is whether the appellant’s condition, if any, is likely to significantly interfere with her ability to drive a motor vehicle requiring a commercial licence safely.

Result

4For the reasons set out below, we confirm the Registrar’s decision.

Law

5The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

6One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:

(1) An applicant for or a holder of a driver’s licence must not…

(a) 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;

7Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“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.

8Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

9The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

Evidence and Analysis

10The respondent contacted the appellant on March 1, 2019 after they received a Medical Condition Report from a healthcare practitioner advising of an alcohol related seizure she suffered. Based on the report, the respondent decided to downgrade the applicant’s driving privilege under Section 47(1) of the HTA. At that time, the respondent outlined the necessary information needed from the appellant in order to consider reinstating her driver’s licence including completion of a Substance Use Assessment to be completed by her healthcare practitioner.

11The appellant’s doctor completed the form indicating no concerns related to substance use. He described the seizure as one nocturnal event which occurred on February 16, 2019 after a consuming a combination of alcohol and a medically prescribed anxiety tablet. Both an MRI and EEG which were ordered by the appellant’s doctor returned normal results.

12On October 15, 2019, the respondent approved the appellant for a class B licence based on her medical report.

13Approximately 4 months later, the respondent received another Medical Condition Report dated February 19, 2020 advising of a second nocturnal seizure suffered by the appellant. On February 25, 2020, the respondent informed the appellant that her driving privileges were suspended. The respondent provided information on the requisite documents to consider reinstating her licence including an Epilepsy and Seizures report.

14The respondent received the completed form from the appellant’s doctor. On June 16, 2020, the respondent approved the appellant for a class G licence based on her medical report. However, the appellant no longer met the National Medical Standards for a commercial licence due to the seizures she suffered which requires anticonvulsant medication. The respondent advised the appellant that for her driver’s licence to be reinstated, she would have to remain seizure free for 5 years or present with a consistent seizure pattern for 3 years.

15The appellant had her last seizure in February 2020. She is on anti-seizure medication and has not experienced any side effects or further seizures since that time.

16The appellant testified that if she was on anti-seizure medication back in 2019, she would not have suffered a second seizure. She insists that the Tribunal take into consideration the fact that both seizures were nocturnal in nature.

17The respondent testified that the appellant’s condition meets the MTO’s criteria for downgrading a commercial licence. In addition to this, section 52 of the Act grants the ability to pursue this downgrade. The respondent testified that the appellant does not meet the CCMTA standard for a commercial licence. There were no transient or provoking cause for the seizures thereby making them difficult to predict. The respondent testified that commercial drivers may need to operate their commercial vehicles in more stressful and demanding circumstances than a typical driver. The respondent warns that an accident would be catastrophic.

18Medical reports revealed no abnormal imaging results for the appellant. The respondent testified that none of the medical reports disclosed by the appellant addresses the higher class of licence. There is no reference or support to the higher class of licence.

19We acknowledge that both seizures the appellant experienced were nocturnal in nature. We also believe she has been compliant with her anti-seizure medication. After her first seizure, she presented with normal EEG and normal MRI, yet still suffered a second seizure. Although she has not experienced another seizure in over a year, we believe not enough time has elapsed to establish stability for recommendation for her commercial licence to be reinstated.

20Based on a careful consideration of all the evidence before us, it is our opinion on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with her ability to drive a commercial vehicle safely. Therefore, the Registrar’s decision is confirmed.

WE ORDER AS FOLLOWS:

21For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s commercial driver licence is confirmed.