Date: 2022-04-20

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 driver’s licence pursuant to Section 47(1) of the Act

Between:

Christopher Balfour

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Dimitri Louvish, Member

Colin Osterberg, Member

APPEARANCES

For the Appellant: Christopher Balfour, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: April 20, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1On December 2, 2019, the Registrar suspended the appellant’s Class G 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 suffered a seizure. The Registrar takes the position that the appellant suffers from a medical condition, namely seizure, that is likely to significantly interfere with his ability to drive safely. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

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

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:

1. Does the appellant suffer from seizures or seizure disorder?

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

C. lAW

5Under 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 (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. Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

7Section 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.

8A person whose licence is suspended under these provisions may appeal to the Tribunal under s. 50(1) of the Act.

9On 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.

10Following 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?

11In support of its allegation that the appellant suffers from a medical condition, namely seizures or seizure disorder, the Registrar relies on Medical Condition Reports (“MCR”s) of Dr. Jonathan Blackadar and Dr. Matthew Clarke dated January 30, 2019 and November 27, 2019 respectively.

12The appellant does not dispute that he had seizures in 2019 but says that he has not had a seizure since then. He believes that the seizures were caused by the medication he was taking to stop smoking and that since he stopped taking that medication, he has had no further seizures. He filed the results of an EEG done in December 2020 and an MRI in March 2021 which failed to demonstrate a cause for his seizures and which he argues support his position.

13On January 30, 2019, Dr. Blackadar, an emergency room physician, submitted an MCR in compliance with s. 203(1) or s. 203(2) of the Act which require medical practitioners to report to the Registrar persons who appear to have medical conditions which may make it dangerous for the person to operate a motor vehicle. In the MCR, Dr. Blackadar indicated that the appellant suffered a seizure of unknown cause.

14On February 1, 2019, the Registrar suspended the appellant’s licence pending receipt of a completed Epilepsy and Seizure Form which it asked the appellant to have completed by his health care provider.

15On February 21, 2019, Dr. Vincenzo Susini, the appellant’s family doctor, completed the Epilepsy and Seizure Form. Dr. Susini reported that the appellant had experienced one episode of syncope which was caused by stress and sleep deprivation. Dr. Susini states that the syncope episode was successfully treated and/or resolved.

16According to Alison Balfour, the appellant’s wife, she was present when the seizure occurred on January 20, 2019. Ms. Balfour says that the appellant was driving and was stopped at a red light when he suddenly lost consciousness and began convulsing. The convulsions lasted for a couple of minutes and during that time the appellant was unresponsive. When the shaking stopped, the appellant’s head slumped forward and he was drooling.

17On November 27, 2019, Dr. Matthew Clarke, emergency room physician, submitted an MCR which states that the appellant suffered a second seizure due to unknown cause.

18On December 2, 2019, the Registrar suspended the appellant’s licence pending receipt of a completed Epilepsy and Seizure Form which it asked the appellant to have completed by his health care provider. The appellant has not returned the completed form as required by the Registrar.

19Ms. Balfour was also present when the second seizure occurred. She says that the appellant was playing a video game when he lost consciousness and began convulsing. This event was not as severe as the first seizure and did not last as long. She made a video recording of the second episode and showed it to Dr. Clarke when the appellant was taken to hospital. As noted, Dr. Clarke diagnosed that the appellant had suffered a seizure.

20The appellant believes that his seizures were caused by the medication that he was taking at the time to help him stop smoking. He says that he was prescribed too high a dose of that medication and that this provoked the seizure. He has since stopped taking that medication. As noted, Dr. Blackadar and Dr. Clarke reported that the cause of the appellant’s seizures is unknown. Dr. Susini stated that the first episode was due to stress and sleep deprivation. Based on the evidence presented, we are not satisfied that the appellant’s seizures were caused by medications he was taking.

21At the hearing, the appellant produced a prescription history from Shoppers Drug Mart for 2020, 2021, and 2022 which indicate that he filled prescriptions for Trazodone, Salbutamol, Pregabalin, and Aripiprazole in 2020 at that pharmacy. Pregabalin is an anti-seizure medication and Aripiprazole is used to treat schizophrenia and bipolar disorder. The appellant says that he only took those medications for a short time and that he prefers to rely on diet and natural remedies.

22Dr. Susini ordered an EEG which took place December 18, 2020, and an MRI which took place March 7, 2021. Neither of those tests reveal a cause for the appellant’s seizures.

23Section 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. Louvish’s knowledge as a medical doctor, the Tribunal takes notice that “normal” results of EEG and MRI testing do not rule out a diagnosis of seizure or seizure disorder.

24We find that the appellant likely suffered two seizures in 2019 with the cause of those seizure being unknown. Although Dr. Susini diagnosed syncope with respect to the January 30, 2019 event, the appellant and Ms. Balfour say that Dr. Susini did not personally examine or interview the appellant or Ms. Balfour before coming to that conclusion. Ms. Balfour’s description of the incident indicates a seizure rather than syncope and the video she took of the second incident, which she reported as being less severe than the first, led to a diagnosis of seizure by Dr. Clarke.

25We find that the Registrar 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?

26The Registrar 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 Registrar has satisfied this burden.

27The appellant’s first seizure occurred while he was driving. Fortunately, the appellant’s car was stopped at a red light when the seizure occurred and his wife was able to apply the car’s brake so that the appellant’s loss of control did not result in a serious accident. The appellant’s second seizure occurred shortly before he and Ms. Balfour were to pick up their young nieces with the vehicle. Again, only good luck prevented a serious accident from happening on that occasion.

28The appellant says that he has just graduated from a college program in addictions and mental health. He says he needs his licence in order to obtain employment in that area because a significant part of his job activities will involve driving clients to appointments and taking them shopping and on other excursions.

29According 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.

30The 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 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.

31CCMTA Standard 17.6.6 applies to non-commercial drivers who have been diagnosed with epilepsy (at least two seizures). This is the Standard which best applies to the present circumstances. This Standard provides that a driver will be eligible for a licence if it has been six months since the seizure occurred with or without medication or as little as three months on the recommendation of a neurologist. The Standard recommends, among other things, obtaining confirmation from a treating physician that the driver regularly follows the prescribed treatment regimen and the physician’s advice regarding prevention of seizures. The standard also recommends obtaining an opinion from the treating physician on whether the driver is compliant with their treatment regime. We find these to be sensible precautions.

32According to the appellant, he has not had any seizure activity since 2019. He says that he stopped taking the anti-seizure medication that he was prescribed because he does not like taking medication and prefers natural remedies. He says his family doctor, Dr. Susini, moved in 2020 and he has not been able to find another family doctor since that time. He has asked doctors at a walk-in clinic to complete the Epilepsy and Seizure Form requested by the Registrar, but they have declined to do so without seeing his complete medical record.

33We find that the Registrar 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 motor vehicle. He experienced two seizures in 2019 for which a cause was never determined – one while he was driving and the other while he was about to start driving. He was asked to have his family doctor complete the Epilepsy and Seizure Form in December 2019 and his family doctor declined to do that in 2020 up until he stopped being the appellant’s family doctor. The appellant has asked other doctors he has seen, including doctors at a walk-in clinic, to support the reinstatement of his licence and they have refused to do so.

34The evidence does not satisfy us that the appellant’s condition is controlled or that he is willing to follow treatment recommendations. We find the Registrar has satisfied the onus of establishing that the appellant’s condition would present a significant risk to the safety of the appellant, his potential passengers, and others using the roadways.

E. ORDER

35For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s Class G licence.