Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a Class B licence pursuant to Section 47(1) of the Act
Between:
Carmen Canseco
Appellant
and
Ministry of Transportation
Respondent
DECISION AND ORDER
Adjudicators: Dr. Dimitri Louvish, Member Colin Osterberg, Member
Appearances
For the Appellant: Carmen Canseco, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: June 1, 2021
REASONS FOR DECISION AND ORDER
A. Overview
1On February 17, 2021, the Registrar suspended the appellant’s Class B driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), after receiving a report from a treating physician that the appellant suffers from cognitive impairment and seizure-like spells that are likely to significantly interfere with her ability to drive safely. The appellant appeals the Registrar’s decision and asks the Tribunal to reinstate her Class B licence.
2After the appellant filed her Notice of Appeal, the Registrar added further grounds in support of the suspension, and, in particular, alleges that the appellant suffers from diabetes and hypertension which are likely to significantly interfere with her ability to drive safely.
3At the hearing, the Registrar advised that it was no longer relying on the appellant’s alleged cognitive impairment as a ground to suspend the appellant’s licence.
4Having considered all the evidence and, for the reasons that follow, we order that the Registrar’s decision to suspend the appellant’s Class B licence be set aside.
B. ISSUES
5The issue in this appeal is whether the appellant suffers from a medical condition, or conditions, namely diabetes, high blood pressure, or seizures, that is likely to significantly interfere with her ability to drive a vehicle safely.
6To resolve that issue, we will address the following questions:
Does the appellant suffer from one or more of the listed medical conditions?
If the appellant does suffer from one or more of the medical conditions, is this likely to significantly interfere with her ability to drive a motor vehicle safely?
C. lAW
7Under the Act, the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on highways. In this case, the Registrar acted pursuant to s. 47(1) of the Act and s. 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”).
8Subsection 14(1)(a) of the Regulation, states that a holder of a driver’s licence must not suffer any physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class.
9Section 14(2)(a) of the Regulation allows the Registrar 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.
10A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the Act.
11On appeal, the Registrar 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.
12Following 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 AND ANALYSIS
a. Does the appellant suffer from a medical condition?
Diabetes and hypertension
13The evidence shows that the appellant suffers from diabetes and hypertension. The appellant admits this to be true.
14The appellant’s diabetes and hypertension are noted by her treating physicians. In his May 22, 2018 report with respect to the appellant’s admission to hospital for treatment of her aneurysm and subarachnoid hemorrhage, Dr. Mehdi Shahideh, neurologist, mentioned “as a side note” that the appellant has a past history of hypertension, high cholesterol, and type 2 diabetes and that it appeared that she was noncompliant with her medications as her current sugar was 25 and her systolic blood pressure was 190.
15On January 3, 2019, the appellant’s family physician, Dr. Amanpaul Bhamber, completed a Medical Report as part of the Ministry of Transportation’s requirements for the appellant to maintain a Class B licence. Dr. Bhamber confirmed the diagnoses of hypertension and diabetes, both of which he described as being well controlled by medications.
16The Registrar approved the appellant’s medical report on January 14, 2019. The Registrar did not ask for a completed Diabetes Assessment form or Hypertension Assessment form at that time, and the appellant was issued a Class B licence.
17The next mention of diabetes and hypertension in the records filed by the parties is found in a Driver Assessment Results report dated April 13, 2021, from Skill Builders Physiotherapy & Rehabilitation. Skill Builders was conducting a driver assessment to determine if the appellant suffered from a cognitive disorder that might make it unsafe for the appellant to drive. Diabetes and well-managed hypertension were noted in the medical history portion of that report. The report concludes that “there are no medical concerns that are affecting this client’s ability to drive at this time.”
18We find that the Registrar has proven on a balance of probabilities that the appellant suffers from diabetes and hypertension. As discussed below, we find that the Registrar has failed to prove that these conditions affect the appellant’s ability to drive safely.
Seizures
19On May 22, 2018, the appellant suffered a ruptured aneurysm and subarachnoid hemorrhage. She attended hospital where she was attended by Dr. Mehdi Shahideh, neurosurgeon. Dr. Shahideh’s report of that date states that the appellant presented to the hospital with a decreased LOC (level of consciousness) and seizure which her family noticed earlier in the evening.
20The hospital records show that on May 22, 2018, the appellant underwent right-sided craniotomy and clipping of the aneurysm, evacuation of the hematoma and insertion of an ICP monitor. The appellant was discharged from hospital on June 7, 2018.
21On June 13, 2018, Dr. Shahideh completed a Medical Condition Report and provided the report to the Ministry of Transportation. In that report, Dr. Shahideh notes that the appellant was suffering from a medical condition that may make it dangerous for her to operate a motor vehicle, specifically cerebral seizure and stroke/TIA or head injury with significant deficits. On June 25, 2018, the appellant’s licence was suspended on these bases.
22On December 18, 2018, Dr. Shahideh reported that he had seen the appellant in follow-up, and that the appellant had made a remarkable recovery and was almost essentially back to baseline. Dr. Shahideh stated that the appellant was safe to return to driving at that time.
23Dr. Bhamber’s January 2, 2019 Medical Report in support of the appellant’s Class B licence, notes the aneurysm of May 22, 2018 and states that the appellant was having no seizures. The report states that the appellant had been cleared by the neurologist to drive.
24The appellant’s medical report in support of her Class B licence was approved by the Registrar on January 14, 2019.
25The appellant testified at the hearing that she has had no seizures since the May 22, 2018 hospitalization.
26On February 10, 2021, Dr. Bhamber sent a Medical Condition Report to the Ministry of Transportation stating that the appellant appeared to be having “seizure-like spells (not confirmed seizures) – being followed by neurologist”.
27Dr. Bhamber’s report states that, in his opinion the appellant has, or appears to have, a medical condition, functional impairment, or visual impairment that may make it dangerous for her to operate a motor vehicle and is being reported pursuant to Section 203(2) of the Act. The condition specified was “?seizure-like episodes-being investigated by Neurologist, no confirmed diagnosis of seizures”.
28The appellant says that, since her aneurysm, she lost interest in food and has lost a significant amount of weight, going from 260-280 pounds before the aneurysm to 160 pounds currently. She testified that her husband told Dr. Bhamber that, when he and the appellant were eating supper, the appellant sometimes stops eating and stares out the window and appears to be day dreaming. The appellant explained that she sometimes loses interest in eating, as noted above, and absently stares out of the window. She never loses consciousness when this happens and is always aware of her surroundings. The appellant says that these are the seizure-like episodes Dr. Bhamber reported to the Ministry of Transportation.
29On February17, 2021, the Registrar wrote to the appellant to advise that her licence was suspended on the bases of cognitive impairment and seizure. The Registrar stated that it required the completion of a Cognitive Disorder form and a Seizure and Loss of Consciousness form.
30On March 5, 2021, Dr. Bhamber submitted the Seizure and Loss of Consciousness form to the Registrar. In it, Dr. Bhamber states that there was no confirmed diagnosis of epilepsy, the appellant has a history of ruptured cerebral aneurysm, the appellant developed “spacing out” episodes, EEG showed non-specific changes, and the appellant’s episodes resolved on anti-epileptic medication. Dr. Bhamber states that the appellant’s primary medical condition is provoked seizure caused by a structural brain abnormality and that she had been seizure free for six to twelve months.
31We find it significant that in his March 5, 2021 report Dr. Bhamber did not check any of the available boxes to indicate that the appellant might have epilepsy.
32On March 5, 2021, Dr. Bhamber also completed the Cognitive Disorder form stating that the appellant suffers from a mild cognitive impairment and that there should occur a functional driving assessment to evaluate the impact of this on her driving ability. As noted above, the functional driving assessment was completed on April 13, 2021, and concludes that “there are no medical concerns that are affecting this client’s ability to drive at this time.”
33On April 21, 2021, the Registrar approved the reinstatement of the appellant’s Class G licence but maintained the suspension of her Class B licence. On May 3, 2021, the Registrar wrote to the appellant advising that the basis of the refusal to grant a Class B licence was seizure, and that it required a report from her treating physician or specialist confirming whether or not she had a seizure on May 22, 2018, if so the type of seizure she had on May 22, 2018, and confirmation as to whether she had an epilepsy diagnosis.
34On May 13, 2021, the Registrar wrote to the appellant requesting further information with respect to her reported condition of seizure. In particular, the Registrar requested a report from the appellant’s neurologist regarding her “spacing out” events and confirming a formal diagnosis with respect to those events. The letter requests confirmation as to whether the appellant has had any further events and whether the condition is controlled and is not impairing her ability to safely operate a motor vehicle. The letter states that, if the spacing out events are determined to be partial seizures, then the appellant would be required to submit confirmation that she has been seizure free for 5 years or that the seizure pattern has been consistent for at least 3 years, and confirmation that the appellant is in compliance with all treatment and medication.
35On May 20, 2021, Dr. Bhamber reported that the appellant experienced a brief seizure on May 22, 2018, that the seizure was of unspecified type, that the most recent EEG suggested potentially epileptiform activity, and that the neurologist had provided no concrete diagnosis.
36On May 25, 2021, the Registrar wrote to the appellant stating that her reported conditions were seizure, hypertension, and diabetes. The Registrar requested confirmation that the hypertension is successfully treated and controlled and that she has been seizure free for 5 years with or without medication or that the seizure pattern has been consistent for at least 3 years. The letter also asks the appellant to have a Diabetes Assessment form completed.
37We will discuss the conditions of hypertension and diabetes below but note that these were not “reported conditions” as the Registrar suggests in its May 25, 2021 letter. No doctor suggested either of those conditions as a reason that the appellant’s licence should be suspended or that they were a concern with respect to the appellant’s ability to drive safely.
38With respect to seizure, that was not a “reported condition” either. The condition noted by Dr. Bhamber was “?seizure-like episodes”. These are not seizures. Dr. Bhamber states that these episodes were not diagnosed as seizures and he specifically does not diagnose epilepsy as he would be expected to do if the appellant was experiencing more than one unprovoked seizure.
39According to the CCMTA Standards, provoked seizures, such as those precipitated by aneurysm or hematoma, are not epilepsy, and they resolve after the provoking factor has resolved or stabilized. Epilepsy refers to a condition characterized by recurrent (at least two) seizures which do not have a transient provoking cause.
40According to the CCMTA Standards, seizures can be partial or generalized. A partial seizure arises from an electrical discharge in one part of the brain. During a simple partial seizure, the individual retains awareness during the seizure. During a complex partial seizure, the individual loses awareness. A generalized seizure is caused by discharges throughout the brain and may result in loss of consciousness, jerking movements, muscle rigidity, convulsions, and loss of muscle tone.
41The CCMTA Standards make licensing recommendations depending on the cause of the seizure and the nature of the seizure that is experienced. Standard 17.6.1 deals with provoked seizures where only one seizure occurs. The appellant experienced a provoked seizure on May 22, 2018, as the result of suffering an aneurysm and subarachnoid hematoma. Her neurologist and family doctor confirmed that the appellant’s condition resolved, and the neurologist cleared her for driving by January 2019. The appellant’s Class B licence was reinstated in accordance with Standard 17.6.1.
42For drivers with epilepsy involving simple partial seizures, Standard 17.6.14 provides for eligibility if it has been 5 years since the last seizure or the seizure pattern has been consistent for 3 years, favourable assessment from a neurologist to drive, no impairment in level of consciousness or cognition, no head or eye deviation with seizures, and the conditions for maintaining a licence are met. The Registrar argues that the appellant should be treated according to the guideline specified in Standard 17.6.14, on the basis that she has epilepsy involving simple partial seizures.
43We do not accept the Registrar’s position. The appellant has not been diagnosed as suffering from seizures since the provoked seizure on May 22, 2018. In his February 10, 2021, Medical Condition Report, Dr. Bhamber does not diagnose seizures but states that the appellant had “?seizure-like episodes”. In his March 5, 2021 Seizure and Loss of Consciousness form, Dr. Bhamber states that there is no confirmed diagnosis of epilepsy and does not check any of the primary diagnosis boxes indicating that the appellant might have epilepsy. In response to the Registrar’s request on May 13, 2021, for details regarding the appellant’s seizures, Dr. Bhamber reported that the appellant experienced a brief seizure on May 22, 2018, that the seizure was of unspecified type, that the most recent EEG suggested potentially epileptiform activity, and that the neurologist had provided no concrete diagnosis.
44We find that there has been no medical condition of seizure reported other than the provoked seizure of May 22, 2018, after which the appellant’s Neurologist cleared her as safe to drive.
45We find that the Registrar has not established on a balance of probabilities that the appellant suffers from a medical condition of seizure or epilepsy. Further, we cannot conclude on the evidence before us that the seizure-like episodes noted by Dr. Bhamber constitute a medical condition for the purposes of the Act. The description of these events given by the appellant, which we find to be credible, suggests a benign explanation and there is no evidence before the Tribunal that there is a medical cause of these episodes.
b. Is the appellant’s medical condition likely to significantly interfere with her ability to drive a vehicle safely?
Diabetes and hypertension
46The Registrar has the burden of establishing that the appellant’s diabetes or hypertension is likely to significantly interfere with her ability to drive a motor vehicle safely.
47The only evidence that the Registrar has presented that the appellant’s diabetes or hypertension is not well controlled, is the report of Dr. Shahideh dated May 22, 2018. All subsequent medical reports in evidence demonstrate that the appellant’s diabetes and hypertension are controlled and are not a significant issue for her. There has been no medical opinion presented that the appellant’s diabetes or hypertension are such that they might, in any way, affect the appellant’s ability to drive safely.
48It was not until May 25, 2021, after the appellant’s appeal was commenced, that the Registrar raised diabetes and hypertension as grounds to suspend the appellant’s Class B licence. We can find no basis for the Registrar to have raised these conditions as being of concern and find no justification for their inclusion as issues in this appeal.
49A Class B licence allows its holder to drive a 24-passenger school bus. The appellant testified that she intends to work as a school bus driver, as she has in the past, if her Class B licence is reinstated. Should a medical event cause an accident, the implications on public safety could therefore be greater than if she were limited to a Class G licence. We have considered this, but nonetheless have concluded that the Registrar has failed to prove on a balance of probabilities that the appellant’s diabetes or hypertension are likely to significantly interfere with her ability to drive a motor vehicle safely.
Seizures
50Given that we have found that the Registrar has failed to establish on a balance of probabilities that the appellant suffers from a medical condition relating to seizures, we need not determine whether that is a medical condition which is likely to significantly interfere with her ability to drive a motor vehicle safely.
E. ORDER
51For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s Class B licence.
LICENCE APPEAL TRIBUNAL
____________________________ Dimitri Louvish, M.D., Member
____________________________ Colin Osterberg, Member
Released: June 11, 2021