Tribunals Ontario

Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2022/11/17

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 suspend a driver’s licence under subsection 47(1) of the Act.

Between:

Holly Wilson Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicators: Dr. Dimitri Louvish, Member Jeffery Campbell, Vice-Chair

Appearances

For the Appellant: Holly Wilson, Self-represented For the Respondent: Stella Velocci, Agent

Heard by Teleconference: November 17, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1By letter dated March 5, 2021, the Registrar of Motor Vehicles (the Registrar) suspended the appellant’s Class DZ licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), for medical reasons, specifically seizures. By letter dated June 29, 2021, the Registrar advised the appellant that, in order to consider re-instatement of her commercial licence, it required confirmation that she has remained seizure free for a period of five years either on or off medication. The appellant appeals the suspension and asks the Tribunal to reinstate her licence.

2Having considered all the evidence and for the reasons that follow, we set aside the Registrar’s decision to suspend the appellant’s DZ driver’s licence.

B. Issue

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

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

1. Does the appellant suffer from a medical condition, namely a seizure disorder?
2. If the appellant does suffer from a seizures, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

C. Background

5According to the evidence, the appellant experienced a seizure in November 2020 and in January, 2021. Subsequently, on March 5, 2021, the Registrar advised the appellant that her DZ licence was being downgraded to a G licence. Following another seizure episode in April 2022 the Register advised the appellant on April 21, 2022 that they were suspending her G licence. The G licence was reinstated on July 4, 2022. The appellant’s DZ licence remains under suspension.

The Law

6The Registrar has the authority under s.47(1) of the HTA to suspend or cancel a driver’s licence for any 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).”

7One 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 or addiction likely to significantly interfere with his or her ability to drive safely.

8Section 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 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.”

9Section 203(1) of the HTA requires medical professionals to report prescribed medical conditions to the Registrar, while s. 203(2) gives medical professionals the discretion to report medical conditions that they believe might make it dangerous for a person to drive.

10Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Registrar or on this Tribunal.

11The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.

12Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

D. Evidence and Analysis

a. Does the appellant suffer from a seizures?

Medical Evidence

13In support of its allegation that the appellant suffers from a seizure disorder, the Registrar relies on the Medical Condition Reports (“MCR form”) from an ER physician, Dr. Theresa Robertson-Chenier (“Dr. Robertson-Chenier”) dated January 31, 2021 and April 3, 2022, and a Seizures and Loss of Consciousness forms (“Seizure form”) from treating neurologist, Dr. Christine Tomkinson (“Dr. Tomkinson”) dated February 24, 2021, March 3, 2021, January 11, 2022 and July 4, 2022.

14In the MCR forms Dr. Robertson-Chenier advised that the appellant suffers from epilepsy.

15In a Consult/History/Progress note of the Peterborough Reginal Health Centre dated November 30,2020, Dr. Tomkinson confirmed that the appellant had sustained seizures.

“[The appellant] was admitted yesterday after a witnessed seizure when out at a restaurant with friends…[The appellant] reports that she has had at lease one, perhaps maybe two episodes similar to this in the past.”

16Dr. Tomkinson confirms the appellant’s history of seizures in the Seizure forms of February 24, 2021, March 3, 2021, January 11, 2022 and July 4, 2022.Futher, in her letter dated November 11, 2022, Dr. Tomkinson states,

“I have been [the appellant’s] treating neurologist since November 2020 when she presented with a seizure.”

Testimony of the Appellant

17The appellant testified that, she “does have a medical condition that causes frequent seizures”. The appellant stated that she had seizures in November 2020, January 2021 and April 2022. Due to the seizures, she has been under the care of Dr. Tomkinson since November 2020 and has undergone EEGs and an MRI as well as being on the anti-seizure medication Keppra and, more recently, Brivlera.

18Based upon the medical evidence as well as the testimony of the appellant, we find that the Registrar has established on a balance of probabilities that the appellant suffers from a medical condition, namely seizures.

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

19The Registrar has the burden of establishing that the appellant’s seizure disorder is likely to significantly interfere with her ability to drive a commercial motor vehicle of the applicable class safely. We find that the Registrar has not satisfied this burden.

20The Registrar relies on the CCMTA National Safety Code, chapter 17 which describes seizures and epilepsy and the concerns with driving with that condition. The Registrar relies on chapter 17.6.12 which recommends a 5-year driving restriction for commercial drivers “if the conditions for maintaining a licence are met.”

21The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s seizures are likely to significantly interfere with her ability to drive a motor vehicle safely.

22While the CCMTA recommendations are well-reasoned and helpful, the facts of every case must be individually assessed and considered.

Evidence of the Appellant

23The appellant testified that it is her belief that the seizure episodes occurred due to lifestyle triggers, those being alcohol and sleep deprivation. In each of the episodes of November 2020, January 2021 and April 2022, she was with friends and had consumed alcohol, specifically 3-4 glasses of wine. The testified that, prior latter two episodes, she was also experiencing a lack of sleep.

24The appellant testified that in consultation with her neurologist, Dr. Tomkinson, she began the anti-seizure medication, Keppra, in November 2020 which was later replaced by Brivlera.

25The appellant testified that, since the seizure in April 2022, she has decided to abstain from alcohol and has made lifestyle and health changes, including ensuring sufficient sleep.

26The appellant testified that it has been her desire to be employed with the Peterborough Fire Services. One of the requirements of that employment is the possession of a valid DZ driver’s licence, which she subsequently obtained prior to its suspension. She testified that she had then received an offer of employment with the Fire Services but has been unable to accept that offer due to the suspension of the DZ licence. She further testified that, while the possession of a DZ licence is necessary in order to be accepted for employment, the Fire Services forbids the operation of the fire truck, for which a DZ licence is necessary, for the first half of the training period which is at least 2 years.

Medical Evidence

26The appellant’s MRI of the head dated November 30, 2020, the day following the first seizure indicated, “No definite seizure focus identified”. The EEG done with sleep deprivation, dated March 16, 2021, indicated, “essentially normal”.

27In the Seizure form dated February 24, 2021, Dr. Tomkinson advised that the appellant’s seizure resulted from epilepsy/seizure disorder and that, “[the appellant’s] EEG & MRI complete and normal. Started on anti-seizure medication and stable”. In the Seizure form dated July 4, 2022, Dr. Tomkinson advised, “Previously epilepsy controlled on medication but more recent event provoked by sleep deprivation. I would support a return to driving at 3 months”.

28In a letter dated October 5, 2022, Dr. Tomkinson advised, “[the appellant’s] events have been largely provoked by factors that can be reasonably controlled and [the appellant] is aware of these and has taken measures to ensure control over the last 6 months.”

29In a letter dated November 11, 2022, Dr. Tomkinson further stated,

I am writing to support a re-instatement of [the appellant’s] commercial driver’s license. I have been her treating neurologist since November 2020 when she presented with a seizure. She did not have a known diagnosis of epilepsy at that stage but had had one prior seizure, thus we started anti-seizure medication. It later became clear that her seizures had some clear lifestyle triggers, in the form of sleep deprivation and alcohol consumption, and she is now taking great effort to avoid those triggers. She has also been compliant with her medications. The combination of trigger avoidance and routine anti-seizure medication significantly lowers her risk of having another seizure in the future and, as a result, she has already returned to driving with her G class license. She has been seizure free for more than 6 months now. She takes her diagnosis seriously and we have planned routine follow up.

I hope this letter will help answer any outstanding questions so that consideration can be given for Holly to have her commercial license re-instated sooner than the 5-year waiting period.

30In the case before us, the appellant’s neurologist confirms that the seizures are lifestyle induced and that the appellant is not only compliant with her medications, but also recognizes the importance of avoidance of seizure triggers, namely the consumption of alcohol as well as sleep deprivation. We also recognize that the purpose of the DZ licence is to accommodate her employment with the Peterborough Fire Services. In that environment, any operation of a DZ required vehicle would not only be delayed due to the training schedule but would also be conducted in a limited and highly supervised capacity.

31After a careful consideration of the totality of the evidence before us, and based on the above, we find that the Minister has not discharged the onus of establishing on a balance of probabilities that the appellant’s medical condition of seizures is likely to significantly interfere with her ability to drive a Class DZ vehicle safely.

E. Order

32For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to suspend the appellant’s Class DZ Licence.

Dr. Dimitri Louvish, Member

Jeffery Campbell, Vice Chair