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:
Lovejot Gill
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Adjudicators: Dr. Erica Weinberg, Member Colin Osterberg, Member
Appearances
For the Appellant: Lovejot Gill Mark Reynolds, Representative
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: June 30, 2021
REASONS FOR DECISION AND ORDER
A. Overview
1Lovejot Gill (the “appellant”) appeals from the decision of the Minister of Transportation (the “Minister”) to downgrade his Class A driver’s licence to a Class G driver’s licence. The downgrade was based on the diagnosis of seizure and seizure disorder (epilepsy). The appellant denies that he suffered a seizure or that he suffers from seizure disorder and asks that his Class A licence be reinstated.
2Having considered all the evidence and for the reasons that follow, we order that the Minister’s decision to downgrade the appellant’s licence is confirmed.
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:
Does the appellant suffer from seizures or seizure disorder?
If the appellant does suffer from seizures or seizure disorder, is this likely to significantly interfere with his ability to drive a commercial Class A 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 seizures or seizure disorder, the Minister relies on the reports of three of the appellant’s treating physicians, Dr. Brian Best, neurologist, Dr. Mozhgan Farahani, neurologist, and Dr. Naresh Kumar, the appellant’s family doctor. The appellant argues that the reports of those doctors do not prove that the appellant suffers from seizures or seizure disorder and he relies on the report of Dr. B. Nanar, consulted by the appellant for the purposes of securing a report for this appeal. The appellant also argues that it was his wife who diagnosed the appellant as having experienced a seizure and that she is not qualified to make that diagnosis.
12The medical records presented at the hearing, and the appellant’s testimony, establish that the appellant was taken to hospital on October 26, 2019, after his wife observed what appeared to be a seizure which occurred while the appellant was sleeping. A CT Scan of his brain, conducted on that date, noted a history of seizure and found decreased attenuation and encephalomalacia (softening or loss of brain tissue) within his left temporal lobe. The radiologist who reviewed the CT Scan recommended that an elective MRI be undertaken.
13On December 12, 2019, an encephalogram (“EEG”) was conducted which noted a history of two nocturnal seizures and that CT and MRI scans suggest prenatal or perinatal insult (i.e. damage before, during, or after birth) to the left temporal lobe area of the brain. The EEG was read by Dr. Brian Best, neurologist, and he concluded that a subtle transient left frontotemporal slowing was evident on occasions, which he said could be part of an interictal (between seizure) profile in a subject with epileptic seizures. He further indicated that the significance would have to be interpreted in light of the clinical picture in this case.
14The appellant confirmed that he attended an appointment with Dr. Best in December 2019. Furthermore, the appellant stated that at this appointment, Dr. Best told him that he had had a seizure and that he was to start taking the anti-seizure medication, Keppra.
15On December 17, 2019, Dr. Best completed a Ministry Medical Condition Report form in which he reported seizure due to seizure disorder and prenatal vascular insult.
16On January 14, 2020, the appellant’s driver’s licence was suspended for medical reasons and he was requested to submit a completed Epilepsy and Seizures form when his condition improves in order to consider reinstatement of his driver’s licence.
17On March 5, 2020, a second EEG was conducted which gave a history of nocturnal seizure and which indicated that the appellant was taking Keppra. The EEG was reported as normal, with no epileptiform activity or seizure.
18On May 12, 2020, Dr. Farahani reported that she had treated the appellant between January 2020 and April 20, 2020. Dr. Farahani noted the findings contained in the above EEGs and reported that the appellant was on Keppra daily with no further episode suggestive of seizure. According to Dr. Farahani, the appellant’s initial seizure was likely a generalized tonic clonic seizure during sleep. Dr. Farahani stated that her May 12, 2020 report was requested by the appellant for the purpose of reinstatement of his driver’s licence. Dr. Farahani did not comment on whether the appellant’s licence ought to be reinstated, nor the class of driver’s licence the appellant was seeking to reinstate.
19On June 25, 2020 the appellant’s Class G licence was reinstated.
20At the hearing, the appellant emphasized that the EEGs conducted on December 12, 2019 and March 5, 2020, did not show any epileptiform activity or seizure and that the March 5, 2020 EEG report was reported as normal. The appellant argued that this is evidence that the appellant may not have had a seizure on October 26, 2019, and that he does not suffer from seizure disorder. The appellant did not present any evidence in support of this interpretation of the EEGs and we do not accept the appellant’s position. Dr. Best read the December 12, 2019 EEG report before he diagnosed seizure and seizure disorder. Dr. Farahani had both EEG reports and stated that the appellant likely experienced a generalized tonic clonic seizure on October 26, 2019. Dr. Farahani was silent on whether the appellant has seizure disorder but did not dispute Dr. Best’s diagnosis. As discussed below, Dr. Kumar had the EEG reports relied on by the appellant, and he also diagnosed seizure and seizure disorder.
21On March 26, 2021, a third EEG was conducted which stated that the appellant was not on any medication at that time. As will be discussed below, the appellant confirmed at the hearing that he stopped taking anti-seizure medication in approximately April 2020, against his doctors’ advice. The EEG was reported as normal, with no epileptiform activity or seizure during testing. However, the EEG once again showed some activity in the left frontotemporal area which was “not convincing to be called epileptiform”.
22On May 5, 2021, the appellant was assessed by his family doctor, Dr. Kumar. Dr. Kumar reported that the appellant had a seizure on October 26, 2019 and that the appellant reported being seizure-free since that time. Dr. Kumar stated that the appellant was not taking any medications for seizure disorder since October 2020.
23On June 19, 2021, Dr. Kumar completed the Seizure and Loss of Consciousness form, initially requested in January 2020 and again in June 2021. Dr. Kumar stated that the appellant’s primary medical condition is seizure disorder with seizure only while asleep or upon awakening. Dr. Kumar stated that the appellant has been seizure free for 1 to 3 years.
24On May 17, 2021, the appellant was assessed by Dr. B. Nanar. Dr. Nanar completed a Medical Report form which the appellant relies on to support his request for reinstatement of his Class A licence. The appellant had never seen Dr. Nanar before and obtained his name from friends. All holders of commercial licences are required to provide satisfactory medical reports on a periodic basis in order to maintain their commercial licence. The form that the appellant had Dr. Nanar complete was one that is used for that purpose.
25The appellant did not have a Class A licence when he saw Dr. Nanar and was not required by the Ministry to submit a completed Medical Report form at that time. According to the appellant, he obtained Dr. Nanar’s completed Medical Report form for the purpose of supporting his position in this appeal.
26The appellant testified that he did not advise Dr. Nanar that the reason for having the Medical Report form completed was to support his appeal for reinstatement of his Class A licence. The appellant did not advise Dr. Nanar that his licence was suspended due to seizure or seizure disorder. He did not tell Dr. Nanar about his seizure episode or any of the investigations that had been undertaken with respect to his condition. The appellant told Dr. Nanar that he did not have any neurological diseases including seizures.
27The appellant was asked why he did not ask his own family doctor, Dr. Kumar, to complete this Medical Report form, and he said that Dr. Kumar told him that it would take him two weeks to complete. When asked, the appellant provided no reason why he could not have waited the two weeks for Dr. Kumar to complete the report. The appellant stated that he has never asked any of his treating doctors to complete a report concerning whether the appellant’s Class A licence should be reinstated despite his medical conditions.
28We place very little weight on Dr. Nanar’s report. Dr. Nanar was not made aware of the appellant’s medical history or that the report was intended to be used as evidence in support of the reinstatement of the appellant’s Class A licence. We find that the appellant contrived to obtain a report supportive of his reinstatement by arranging an assessment with a doctor who was unaware of his history of seizure and seizure disorder. He misrepresented his medical history to Dr. Nanar and misled him as to the use that he intended to make of the report.
29The appellant testified that he did not tell Dr. Nanar about his history of seizure or seizure disorder because “it was not in my mind at the time”. We do not accept this explanation. The very reason the appellant arranged the assessment with Dr. Nanar was to obtain evidence which would assist him in rebutting the Minister’s allegation that he suffers from seizure and seizure disorder. It is unlikely that this would not have been in his mind during the assessment. However, even if the appellant’s misrepresentations were innocent, Dr. Nanar had incomplete and incorrect information about the central issue in this appeal when he assessed the appellant and prepared his report, and his report is therefore of little assistance to the Tribunal.
30In any event, Dr. Nanar does not provide any opinion as to whether or not the episode in October 2019 was a seizure or whether the appellant has seizure disorder. The appellant referred the Tribunal to Question 9 of the form which asks whether the patient has any neurological disease including seizure and the “no” box is checked. That is not an opinion given by Dr. Nanar, but an answer to the question on the form given by the appellant, an answer that we have found to be untruthful.
31We accept the evidence of Drs. Best, Kumar, and Farahani. They were involved in the assessment and treatment of the appellant’s medical condition and were privy to the appellant’s relevant medical history. Their evidence is uncontradicted by any of the other medical evidence presented at the hearing, including the evidence of Dr. Nanar. The appellant was diagnosed with seizure and seizure disorder by Dr. Best and by Dr. Kumar. He was diagnosed as having suffered a seizure by Dr. Farahani. The appellant was placed on anti-seizure medication by Dr. Best, and in April 2020, Dr. Farahani understood that he was continuing to take that medication.
32The appellant also argued that the Tribunal should find that he did not suffer a seizure on October 26, 2019 because that diagnosis was made by his wife and she is not qualified to make such a diagnosis. We do not accept this argument. The diagnoses of seizure and seizure disorder were made by Dr. Best, Dr. Farahani, and Dr. Kumar, not the appellant’s wife. While the appellant’s wife may have described the appellant’s episode as a seizure, we do not accept that the treating doctors would base their diagnoses on her use of the word “seizure”.
33The appellant has produced no reliable medical evidence to suggest that Drs. Best, Farahani, and Kumar are wrong and that he does not have seizure disorder and did not suffer a seizure.
34Section 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, permits the Tribunal to take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. Based on Dr. Weinberg’s knowledge as a medical doctor, the Tribunal takes notice that a “normal” EEG does not rule out a diagnosis of seizure or seizure disorder.
35We find that the Minister has established on a balance of probabilities that the appellant suffers from a medical condition, namely seizure or seizure disorder.
b. Is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?
36The Minister has the burden of establishing that the appellant’s seizure or seizure disorder is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find that the Minister has satisfied this burden.
37A Class A licence allows its holder to drive, among other things, large transport trucks. The appellant testified that he intends to work as a transport truck driver, as he has done in the past, if his Class A licence is reinstated.
38According to the CCMTA Standards, individuals with seizure disorder are at increased risk for adverse driving outcomes, and those not receiving anti-seizure drug treatment are at greater risk than those receiving treatment. Seizures and seizure disorder cause episodic impairment of the functions necessary for driving, and a driver cannot compensate for that impairment.
39The CCMTA Standards’ approach for drivers with seizures or seizure disorder, is that seizures must be controlled as a prerequisite to driving. The purpose of a delay in reinstating a licence is to allow time to assess the cause of the seizures and, where seizure disorder is diagnosed, to establish the likelihood that: (1) a therapeutic drug level has been achieved and maintained, (2) the drug being used will prevent further seizures, and (3) there are no side effects that may affect the driver’s ability to drive safely.
40The CCMTA Standards recognize that the risk of commercial driving where there is a history of seizure or seizure disorder is generally greater than for non-commercial driving. Commercial vehicles are larger, more difficult to control, take longer to stop, and can cause much more significant damage, than passenger vehicles. Also, commercial driving generally involves more hours of driving, which increases the chance that a seizure may occur while driving.
41The appellant testified that he typically worked driving transport trucks between ten and twelve hours per day before his licence was suspended and expects that he will do the same should his Class A licence be reinstated.
42CCMTA Standard 17.6.13 applies to commercial drivers whose seizures occur only while asleep or upon awakening and have been diagnosed with seizure disorder. This is the Standard which best applies to the present circumstances. The appellant’s seizure, or seizures, have occurred while he was sleeping, and he has been diagnosed with seizure disorder.
43Standard 17.6.13 provides that the driver will be eligible for reinstatement if the seizure pattern has been consistent for 5 years and there is no prolonged postictal (post-seizure) impairment in wakefulness. This Standard requires that the driver routinely follow the appropriate treatment regime and his doctor’s advice regarding continued monitoring of the seizures, and report to the Minister and the driver’s doctor if the pattern of seizures changes. The Tribunal finds these to be sensible precautions.
44According to the appellant, he has not had any seizure activity since October 26, 2019 and we find that the appellant’s seizure pattern has not been consistent for 5 years as recommend by the CCMTA Standards.
45The appellant testified that the anti-seizure medication that he was prescribed following his consultation with Dr. Best made him feel drowsy and unwell. He further testified that when he also told Dr. Farahani that the anti-seizure medication made him feel drowsy and unwell that she changed the dose of the medication, asked him to report back in one to two months and that she may possibly change the anti-seizure medication if needed. The appellant testified that he stopped taking the anti-seizure medication by April 2020. He did not consult his treating neurologist or his family doctor before he stopped taking this anti-seizure medication. This evidence indicates that the appellant is unable or unwilling to follow the appropriate treatment regime or his doctors’ advice and we find this behaviour demonstrates a lack of insight and judgment on the part of the appellant. Good insight and judgment are very important factors or considerations when determining fitness to drive.
46The appellant denies that he had a seizure or that he has seizure disorder despite having been diagnosed with this condition by a neurologist and his family doctor. As previously stated, in an effort to have his Class A licence reinstated despite his diagnosis of seizure or seizure disorder, the appellant obtained a report from a doctor, Dr. Nanar, who did not know his medical history. The appellant misrepresented his medical history to Dr. Nanar and misled him as to the purpose of obtaining the Medical Report. We are concerned that it is less likely that the appellant will report to the authorities and a physician should the pattern or nature of his seizures change.
47Although the CCMTA Standards are not binding on the Tribunal, we find that they are reasonable in this case. The appellant has failed to demonstrate that his medical condition of seizure or seizure disorder is controlled, and he is willing or able to follow his doctors’ recommendations for treatment of this medical condition. His actions demonstrate poor insight and judgment. We find that reinstating the appellant’s Class A licence would present a significant risk to the safety of the appellant and others using the roadways.
48Based on the above, we find that the Minister has established on a balance of probabilities that the appellant’s medical condition of seizure or seizure disorder is likely to significantly interfere with his ability to drive a commercial motor vehicle safely.
E. ORDER
49For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Minister’s decision to suspend the appellant’s Class A licence.
LICENCE APPEAL TRIBUNAL
_________________________
Dr. Erica Weinberg, Member
_____________________________
Colin Osterberg, Member
Released: July 15, 2021