Licence Appeal Tribunal
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 under subsection 47(1) of the Act.
Between:
Shane Featherstone
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Shane Featherstone, Self-Represented
For the Respondent: Stephan Grootenboer, Agent for the Registrar
Heard by Teleconference: January 06, 2022
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1On November 26, 2021, the Registrar suspended the appellant’s G-class licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), after receiving a report from an Ontario Provincial Police constable requesting the appellant undergo a driver’s licence review. The constable noted the appellant suffered from epilepsy and that an epileptic seizure may have caused the appellant to lose control of his vehicle and go off the road. During the hearing the issue of the appellant’s sleep apnea was raised as another possible cause of the November 8, 2021 accident and the Registrar added it to his reasons to have the suspension upheld. The appellant argues neither his epilepsy nor his sleep apnea were factors in his car accident of November 8, 2021 and therefore appeals the suspension and asks the Tribunal to reinstate his licence.
1Having considered the evidence and for the reasons that follow, the Tribunal sets aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
2The issue in this appeal is whether the appellant suffers from these medical conditions, specifically epilepsy and sleep apnea, and whether either or both are likely to significantly interfere with his ability to drive a vehicle safely.
3To answer that issue, I will address the following questions:
a. Does the appellant suffer from a medical condition or conditions?
b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?
C. LAW:
4Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).
5Under 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.
6A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
7On 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.
8Following a hearing, the Tribunal may, under s. 50(2) of the HTA, 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?
9The Registrar alleges that the appellant suffers from epilepsy based on the medical evidence submitted in a previous medical suspension in 2020 as well as the testimony of the appellant. The Registrar further alleges the appellant suffers from sleep apnea based on the testimony of the appellant in this hearing. The Registrar confirms the condition of epilepsy was brought to the Ministry’s attention through a request for driver’s licence review submitted by OPP Constable Hookerdyk on November 8, 2021, as part of his investigation of a single car accident in which the appellant was the driver. The condition of sleep apnea came to the attention of the Registrar during this hearing and became a condition of concern for the Registrar.
10The appellant confirmed the fact he had had a single seizure and had had a diagnosis of epilepsy made by his neurologist in 2020. The appellant and Registrar agree that the appellant’s medical suspension from 2020 was lifted on the basis favourable medical reports provided by the appellant’s family doctor. On November 8, 2021, the date of the accident that triggered the current suspension, the appellant had a valid licence. During the hearing the appellant testified he had been diagnosed with sleep apnea in the past and that he regularly used a C-pap machine to treat this condition. The appellant confirms he has both conditions of epilepsy and sleep apnea.
11The medical evidence presented at the hearing as well as the appellant’s testimony supports the conclusion that the appellant suffers from epilepsy and as well has the medical condition of obstructive sleep apnea.
b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?
12The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met that burden.
13The Registrar pointed out that on November 8, 2021 an OPP officer investigating a traffic accident in which the appellant’s vehicle went off the road requested the appellant have a driver licence medical review expressing concerns about epilepsy being a possible cause of the accident.
14The Registrar drew attention to the CCMTA (Canadian Council of Motor Transport Administrators) standards and recommendations. He pointed out the dangers that epilepsy and sleep apnea could cause while driving. The Registrar pointed out the fact that it requested a seizure and loss of consciousness questionnaire, but the appellant had not yet returned the completed form. The Registrar argued that this form would give the Registrar the medical information needed to adjudicate this case and without that information the licence should remain suspended.
15The appellant maintains he is a safe driver and that the conditions he suffers from (epilepsy and sleep apnea) did not cause or contribute to the accident on November 8, 2021. The appellant argues both conditions have been and currently are under control.
16The Registrar made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive safely:
the appellant’s conditions epilepsy and sleep apnea are confirmed by medical evidence and the testimony of the appellant.
the CCMTA clearly states the possible dangers that epilepsy and sleep apnea can present to people driving a motor vehicle.
the appellant has not provided the Registrar with the completed questionnaire on seizure and loss of consciousness.
the Registrar argues that loss of consciousness from a seizure or as a complication of sleep apnea is the most reasonable explanation of the accident on November 8, 2021.
The Registrar argues that the police officer investigating the accident of November 8, 2021 felt that epilepsy may have been the cause of the accident and asked for a driver’s licence medical review.
The Registrar points out that the appellant is not having regular blood tests to follow his medication levels.
17The appellant addressed the Registrar’s arguments. He explained in his notice of appeal and in his testimony that the accident was caused by wheels hitting loose gravel and his car being pulled into the ditch. The appellant argues his alternate theory is correct.
18The appellant argued that he did not lose consciousness and only seemed dazed because he had been struck by the airbag deployment. He got out of his car by himself and immediately spoke to bystanders who were there to help. This event was totally different from his only seizure where his wife called 911 and he was unconscious for 15 to 20 minutes having generalized convulsions prior to the arrival of the paramedics. The appellant admits he has sleep apnea and argues this condition is under control and he is no longer snoring and is well rested through the day. He uses his C-pap on a regular basis. He again testified he was not unconscious when the car hit the gravel and he actively took steps to try and avoid swerving into the oncoming lane as well as to try and stop the car. He testifies he has never had an episode of unconsciousness or loss of awareness other than during his single seizure.
19The appellant points out that neither the paramedics nor the police officer told him not to drive and neither party insisted he go to hospital. The appellant testified that later in the day when he went to hospital and underwent tests he was not diagnosed with a seizure and was advised not to drive nor was a medical condition report issued by the examining doctors.
20The appellant states that he is on Keppra (an anti-convulsant) and he takes his medication regularly and does not miss any doses. He was taking Keppra as prescribed at the time of the November 8 accident. He has not had a seizure since he was started on Keppra in 2020.
21The appellant admits he has not had the medical questionnaire completed. He testifies that he went to have this form completed but was refused entry to his doctor’s office because he was only wearing a face shield. He had a note from another MD in the same clinic exempting him from a mask and allowing a face shield only. The cause of this exemption was severe asthma. He was reported to police by the medical receptionist and told to find a new doctor. He is actively looking and quite willing to have the form filled in but in this time of COVID-19 restrictions this has proven impossible. He has registered with the provincial agency to find a family doctor and has put his name on waiting lists. In my experience as an adjudicator and a medical doctor this is a common and persistent problem in all areas of the province of Ontario.
22The appellant argues that not only did the police officer not advise him not to drive but that the police officer issued a careless driving charge. The appellant continued to drive until the notice from the Registrar arrived in the mail. If the officer’s main concern was a medical condition, then he would have advised the appellant not to drive and there would have been no basis for a careless driving charge.
23The appellant agrees that he is not having regular blood tests to follow his Keppra level and states that this is something his neurologist did not ask for. In my experience as a qualified physician in the province on Ontario, it is not uncommon not to check blood levels of Keppra unless the dose is changed.
24In my view the evidence does not support the Registrar’s submissions. I find, on a balance of probabilities, that the appellant’s medical conditions of epilepsy and sleep apnea are not likely to significantly interfere with his ability to drive a vehicle safely. A review of the evidence and the appellant’s submissions shows that the appellant’s theory of the cause of the accident of November 8 2021 is at least equally or likely more probable than the Registrar’s theory. There is no medical evidence that the accident of November 8, 2021 was caused by a medical condition. Yes, the appellant has significant health issues, but he has taken steps to control these conditions and he has insight into the potential dangers of these conditions. The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met that burden.
E. ORDER:
26For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage, Member
RELEASED: January 13, 2022