Licence Appeal Tribunal
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 change the class of a driver’s licence pursuant to section 32(5)(b)(i) of the Act
Between
Susan Holt
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: D. Louvish M.D., Member K. Livingstone, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel agent
Date of hearing by teleconference: February 16, 2022
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant appeals the June 2, 2020 and August 26, 2021, decisions of the Registrar of Motor Vehicles (the Registrar) to suspend and then downgrade her commercial driver’s licence on medical grounds, pursuant to s. 35 (b) (i) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “HTA”).
2The decision to suspend the appellant’s licence was made by the Registrar following the receipt of an unsolicited Medical Condition Report dated May 16, 2020. The report indicated the appellant appeared to have suffered a seizure, a condition that affected her ability to drive safely.
3In the June 2, 2020, notice, the Registrar informed the appellant that her driver’s licence was being suspended on medical grounds. The appellant was told her licence would remain suspended until the Registrar received a completed Epilepsy and Seizures form and was satisfied the information conformed with the national medical standards.
4The applicant did not initially return the form but did provide further medical information which, on August 26, 2021 resulted in the reinstatement of her G class licence, while her commercial licence remained under suspension. After receipt of additional medical information, the respondent confirmed the downgrading of the appellant’s driver’s licence in letters dated November 24, 2021 and January 21, 2022.
B. Issue
5The issues in this appeal are:
a. Does the appellant suffer from the medical condition of seizures?
b. If the appellant does have the medical condition of seizures, is it likely to significantly interfere with her ability to drive a commercial vehicle safely such that her driver’s licence should remain downgraded to a G class licence?
C. Result
6For reasons that follow, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to downgrade the appellant’s driver’s licence and order that her commercial licence be reinstated.
D. Law
7The Registrar has the authority to change the class of a driver's licence pursuant to s. 32(5)(b)(i) of the HTA. As stated in that section:
The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver's licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may...
(b) in the case of a person who holds a driver’s licence,
i) impose the conditions authorized by the regulations, remove any conditions or endorsements, or change the class or classes of a driver's licence held by the person, in accordance with the results of the examinations and other prescribed requirements...
8One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is found in ss.14(1) (a) of O. Reg. 340/94 (the “Regulation”) under the HTA which states:
An applicant for or a holder of a driver’s licence must not…
(a) suffer from a physical, nervous, mental or emotional condition to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.
9Section 14(2)(a) of the Regulation allows the Minister of Transportation (MOT) 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 it is not bound by them.
10The Registrar has the burden of establishing the ground(s) for downgrading 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.
E. Evidence and Analysis
i) Does the Appellant Suffer from a Medical Condition?
11The Registrar submitted the following medical evidence before the Tribunal:
a) the medical condition report dated May 16, 2020
b) a report from the appellant’s physician, who is a specialist in Internal Medicine, dated February 8, 2021, including vascular protection clinic consultations, dated July 13, 2020 August 6, 2020, October 16, 2020, an MRI dated May 14, 2020, and a CT Scan dateD May 13, 2020
c) a completed MOT Seizure and Loss of consciousness form dated March 19, 2021 completed by the same physician
d) a completed MOT Seizure and Loss of consciousness form dated August 19, 2021 by the same physician
e) a report from the same physician dated December 16, 2021
f) the driving record of the appellant, with the only entry being the suspension in 2020 for medical reasons
g) excerpts from the CCMTA Medical Standards for Drivers.
12The medical reports filed by the Registrar disclosed the following history:
13On May 16, 2020, the appellant presented at hospital in Perth, Ontario with episodic confusion in association with odd smells. There was no indication of a loss of consciousness. Investigations were undertaken, including an MRI which was negative, and a CT scan of the head which was normal. It was only after an EEG which showed a likely focal epileptiform-like activity that she was diagnosed with a partial complex seizure disorder and started on Tegretol in July 2020. Her dose was increased in October 2020 and February 2021.
14The internal medicine physician’s report from February 8, 2021, indicated the appellant was compliant with her medication and had not had any further episodes since August 2020. At this point he was supportive of the return of her licence although he did not specifically address her commercial licence.
15On March 19, 2021, the same physician completed a seizures and loss of consciousness report, checking the “simple partial seizure” for a diagnosis. He checked the “less than 3 months” in terms of how long the appellant had been seizure free. However, in the comment section, the doctor noted the appellant’s seizures had been “partial complex” with no loss of consciousness and that the last seizure “of note” had been June 2020. Further, he indicated an undated “brief episode of ‘unusual spell’, odd smell lasting 10 seconds, after which he increased her medication “just in case”.
16Another seizure and loss of consciousness report was completed by the same physician on August 19, 2021. At that point the physician reported the appellant had been seizure free for 6 to 12 months, that the appellant had only reported one episode in the last 12 months and that the seizure pattern had been consistent for greater that 1 year. He reported no change in medication for greater than 6 months.
17In his report dated December 16, 2021, the physician commented the appellant had done extremely well up to that point in time. He knew the appellant had her commercial licence and that the Ministry’s position was that she should not drive a commercial vehicle for five years. The physician advocated that the appellant’s commercial licence suspension be limited to one year and not extended to 5 years.
18The appellant testified as to her recollection of her symptoms that led to her attendance at the hospital in May 2020.
19The appellant is a long distance commercial driver who normally shares her trips with her husband, who is also a licenced commercial driver. She has driven transport trucks for many years.
20She began having dizzy spells in September of 2019 but never while she was driving a truck. She initially thought it was a change in her glasses’ prescription.
21In February 2020, while driving a truck, she had a dizzy spell and pulled over to let her husband drive. The spell did not last too long but she decided to stop driving after that until the cause of the dizziness was determined. She had numerous investigations done over next several months including the wearing of a heart monitor and being worked up for a cardiac disease until her treating physicians ordered EEG test which showed a likely focal area of epileptiform-like activity.
22She had little recollection of the day that led to her hospitalization but, once hospitalized, she underwent several tests. She said it took the better part of three months before physicians were able to determine a diagnosis and it was only in July 2020 that she was started on Tegretol. She had an increase of the dosage in October 2020.
23Since that time she has had one brief episode in February of 2021 lasting about 10 seconds, during which time she noticed an odd smell. With respect to that incident, she said her treating Internal Medicine specialist did not consider that to be a “proper seizure episode”. At that point she had one adjustment of her anti-seizure medication Tegretol and had just completed another blood test which showed she was on the low end of the therapeutic range of the medication. The doctor adjusted her medication accordingly. There has been no further increase of her medication. She has no follow up appointments scheduled with the Internal Medicine specialist; however, she completes a blood test every three months through her family physician to ensure that her Tegretol blood level remains in therapeutic range.
24The appellant testified that when her licence was reinstated in August 2021, the notification did not mention that it was only for a G class licence, so she assumed her commercial licence had been reinstated. As a result she obtained a position driving a school bus and in September 2021, she commenced regular shifts driving school buses. She was also driving her own vehicle regularly. It was only when her insurance company made inquiries about the nature of her licence and she contacted the MOT, that she was informed her commercial licence had not been reinstated.
25The appellant testified that she is extremely conscious about being compliant with her medication. Both she and her husband have purchased Fitbits so there is an alarm reminder of when to take her medication.
26The appellant’s husband testified and corroborated the appellant’s evidence. Additionally, he was able to shed more light on the episode that led to her hospitalization as he was with her that day.
27He agreed the appellant’s dizzy spells began in September 2019 and said they occurred sometimes a couple of times a week. She never lost consciousness.
28On the day of her hospitalization, she became confused and could smell an odour. He took her to the hospital where she remained for two days. Numerous medical investigations were completed including a CT of her head, a multitude of blood tests and a lumbar puncture although some tests such as an MRI of her head and EEG were slower to be completed because of the pandemic.
29The appellant’s husband testified that once the diagnosis of partial complex seizure disorder was made and the appellant was started on her medication, the appellant was “fine” and he did not recall the doctor saying the seizures may get worse.
30Regarding the incident in February 2021, he said the appellant had a brief moment of reportedly sensing an odd smell that lasted 2-3 seconds and then it was gone. Despite the brevity of the incident, they made an appointment to see her internist. After reviewing the last blood tests done in December 2020, the internist determined her level was below the therapeutic range and increased the dose of her medication.
31Based on the above, we are satisfied on the balance of probabilities that the appellant suffers from the medical condition of partial complex seizure disorder.
ii) Is the medical condition, seizures, likely to significantly interfere with her ability to safely drive a commercial vehicle?
32The Registrar submitted the appellant’s medical condition is such that she poses a risk to road safety if she is allowed to return to commercial driving.
33The Registrar relied on guideline 17.6.14 contained in the CCMTA with respect to commercial drivers with simple partial seizures, which states as follows:
Commercial drivers are eligible for a licence if:
It has been 5 years since the last seizure OR,
The driver is experiencing seizures but the seizure pattern has been consistent for 3 years – and therefore no seizure free waiting period is required
Favourable assessment from a neurologist to drive
No impairment in level of consciousness or cognition
No head or eye deviation with seizures
The conditions for maintaining a licence are met
34The Registrar stressed the potential risk the appellant would pose if she were to have a seizure while driving a big commercial vehicle and submitted that insufficient time had passed since the appellant’s last episode. The Registrar submitted that a longer period of stability is warranted and noted a concern that the appellant’s medication had been increased twice since she started taking it in July 2020, indicating that this was a sign that her seizures were still being brought under control.
35While acknowledging the appellant’s treating Internal Medicine specialist was supportive of the return of her commercial licence, the Registrar noted the safety of the roads was the responsibility of the MTO.
36We do not find that the concern raised by the Registrar about the increase in the appellant’s medication dosage is valid based on the medical documentation on file. Increase in medication is something to be expected when starting a new anti-seizure medication and it is not indicative of instability. We find the appellant has not had any reoccurrences of her initial symptoms since July 2020 and the abnormal smell sensation that lasted 2-3 seconds was not an actual seizure. The appellant promptly alerted her treating specialist to this sensation, her medication dose was increased and there have not been any more episodes such as the one in July 2020 to date.
37We found the appellant was straightforward and credible in her evidence as was her husband.
38We find that the appellant has good insight into her condition and has been diligent about her treatment regimen, seeking medical attention when needed. Her husband is an active participant in ensuring she maintains her treatment regimen. Both of them having Fitbits, to ensure the appellant does not miss her medication, is an example of the commitment to maintaining her medical stability.
39The appellant’s Internal Medicine specialist is supportive of the return of her commercial licence.
40We are aware of the severity of the consequences should the appellant have a seizure while she is driving a commercial vehicle. We find the appellant is also cognizant of the consequences, as is evident by her decision not to drive until her treating specialist determined the cause of her dizzy spells and she was put on anti-seizure medication.
41However, we are satisfied that, given the absence of seizures for over 20 months, the position of her treating physician that she is capable of returning to commercial driving is a reasonable one. With the acute attention the appellant is constantly paying to her condition, her suffering a seizure while working is highly unlikely, and that risk is acceptable on a reasonable evidence-based risk analysis. Thus, we find that on a balance of probabilities and within all reasonable medical certainty, the appellant’s condition is not likely to interfere with her ability to drive a commercial vehicle safely.
F. Order
42For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, we therefore set aside the decision of the Registrar and reinstate the appellant’s commercial licence.
LICENCE APPEAL TRIBUNAL
D. Louvish M.D.
K Livingstone
Released March 15, 2022