Holly Wilson v. Minister of Transportation, 2021 CanLII 76757

Licence Appeal Tribunal

Date: 2021-08-10

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 pursuant to section 47(1) of that Act – to downgrade a licence

Between:

Holly Wilson Appellant

And

Minister of Transportation Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Holly Wilson For the Respondent: Sonia De Santis, Agent for Registrar

Heard by Teleconference: July 20, 2021

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal under s. 50 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) from a March 5, 2021, decision of the respondent, the Minister of Transportation (the "Minister"), to downgrade the appellant's class D commercial driver's licence to a class G licence. The reason for the downgrade from D to G was that the applicant suffers from epilepsy.

2For the reasons that follow the Tribunal confirms the decision by the Minister to downgrade the appellant's class D driver's licence.

B. LAW

3The Minister has the power under s. 32(5)(b)(i) of the HTA to suspend or downgrade a licence in accordance with requirements prescribed in the regulations.

4Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires 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 drive a motor vehicle of the applicable class safely."

5Section 14(2)(a) of the O. Reg. 340/94 allows the Minister to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister or on this Tribunal.

6The Minister has the burden of establishing on a balance of probabilities that one or more ground for suspending a driver's licence has been made out.

7Pursuant to section 50(2) of the HTA, after a hearing the Tribunal may confirm, modify or set aside the decision or order of the respondent.

C. ISSUE

8The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.

To answer that issue, I will address the following questions:

a. Does the appellant suffer from a medical condition?

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with her ability to drive a class-D vehicle safely?

D. THE EVIDENCE and ANALYSIS

DOES THE APPELLANT HAVE A MEDICAL CONDITION?

9The Minister received and reviewed an unsolicited medical report from Dr. Theresa Robertson-Chenier, the emergency room physician, that was submitted on January 31, 2021. This medical report indicated the appellant suffered from epilepsy, a condition that could result in sudden incapacitation and therefore is a risk to safe driving.

10The Minister sent a letter to the appellant on February 3, 2021 notifying her that both her G and D licences were suspended and asked her to submit a completed seizure and loss of consciousness questionnaire.

11Dr. Christine Tompkinson, the appellant's neurologist, completed the questionnaire and returned it on February 24, 2021. Dr. Tompkinson confirmed a diagnosis of epilepsy and while she initially said alcohol was not a factor, a later review of her notes indicated the appellant may have a form of epilepsy that is triggered by small amounts of alcohol. Dr. Tompkinson's notes verified that the appellant had had at least three seizures. Dr. Tompkinson stated that the appellant started on Keppra, an anticonvulsant drug, on November 30, 2020 following a seizure. The appellant continues to take Keppra.

12The Minister pointed out that the appellant had a seizure on January 31, 2021 approximately 2 months after having been started on Keppra. This most recent seizure was the one that Dr. Theresa Robertson-Chenier reported to the Minister. It appears the seizure on November 30, 2020 was not reported to the Minister although the appellant thought it had been.

13The Minister pointed out the appellant's driving record contains a conviction for impaired driving in 2020 and was now driving with an interlock device.

14Testimony from the appellant as well as her attending neurologist showed that no definite abnormality was detected on her EEG's or CAT scans. However, both the appellant and neurologist noted the appellant had periods of "zoning out" and occasional episodic twitching movements in her extremities. Both symptoms are often associated with a diagnosis of epilepsy.

15The appellant had an alternate theory. She did not deny she had seizures but felt she did not have epilepsy. The appellant felt the medical evidence pointed to the fact that even small amounts of alcohol caused her seizures or spells as she called them. Since the January 31, 2021 seizure the appellant has taken steps to stop drinking any alcohol and plans never to take alcohol again.

16Based on the medical evidence of two physicians and the testimony of the appellant that she has experienced a number of spells or seizures, the Tribunal finds that appellant has a medical condition, namely, epilepsy.

IS THIS CONDITION LIKELY TO SIGNIFICANTLY INTERFERE WITH HER ABILITY TO DRIVE A COMMERCIAL VEHICLE SAFELY?

17The Minister has the burden of establishing that the appellant's medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Minister has met that burden.

18The Minister drew our attention to the CCMTA recommendations and specifically to section 17.6.12. The CCMTA points out certain conditions can produce episodic loss of consciousness. Epilepsy is one of these conditions. The Minister pointed out the possible catastrophic consequences from a loss of consciousness while driving a commercial or emergency vehicle. Section 17.6.12 states among other criteria commercial drivers must not have had a seizure for 5 years with or without medication before they can be considered for re-licensing.

19The CCMTA standards are guidelines or and recommendations and I acknowledge that they are not the law. However, the Minister outlined how groups of medical experts in jurisdictions throughout Canada and the USA arrived at these standards and that the Ministry of Transportation uses these standards as a basis for their medical decisions.

20The appellant testified she was a single mother of 3 children and had undergone a very stressful year. She had worked at three jobs and was waiting to apply as a firefighter having completed her courses. She admitted she had an impaired conviction and reviewed the circumstances. The appellant testifies she has learned that alcohol affects her differently and she now accepts that fact. She believes even small amounts of alcohol can trigger a spell and she plans to never drink again.

21The appellant testified she is taking her medication regularly and has a follow-up plan with her family doctor and her neurologist. She notes that she had her G licence reinstated and is now driving safely. Currently her car has an interlock ignition installed on it and she feels that adds another layer of safety.

22The appellant testified she is a safe driver and a responsible adult, and she feels her D licence should be restored as she can control her spells. The appellant feels the 5-year seizure free period is excessive.

23The Minister made the following submissions with respect to how the appellant's condition affects the appellant's ability to drive:

a. the appellant's condition is not yet stable. The respondent argues that further time is needed to be sure of stability. The appellant really does not dispute the condition. The seizures or epilepsy needs to be stabilized and monitored and at this point it is not.

b. while the appellant's condition may appear stable, at any time and without warning episodes of unconsciousness could occur with disastrous results, especially if the appellant was driving a commercial vehicle.

c. the appellant has not been able to correct some of her health factors including complete abstinence from alcohol.

d. the appellant's neurologist and an emergency physician have reported the condition to the Registrar. The neurologist and emergency physician both confirm the appellant suffers from epilepsy.

e. Her neurologist has not said she is safe to drive a commercial vehicle

f. The Registrar stressed the danger associated with episodic unconsciousness related to epilepsy.

g. The Registrar pointed out the CCMTA recommendation for 5 years of freedom from seizures and at this point only 7 months had been completed.

24The evidence supports the Minister's submissions. I find, on a balance of probabilities, that the appellant's epilepsy is likely to significantly interfere with her ability to drive a D-class vehicle safely. A review of the evidence and the appellant's submissions shows that she has a significant health issue. Given the nature of her condition, and also that it has only been controlled for 7 months at this time, the appellant is likely to constitute a risk to herself and others if she is permitted to drive a commercial vehicle. While the exact period of stability required before she can be relicensed may be less than the 5 years indicated in the CCMTA standards, I am of the view that 7 months of stability is insufficient in the circumstances.

E. ORDER

25For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Minister's decision to downgrade the appellant's commercial licence for medical reasons.