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 to change the class of a driver’s licence under s. 32(5)(b)(i) of the Act
Between:
Amanpreet Dhanjoon
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Amanpreet Dhanjoon, Self
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: January 5, 2022
A. Overview:
1Amanpreet Dhanjoon (the appellant) appeals the downgrade of her commercial Class F driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”), effective February 23, 2021.
2The issue in this appeal is whether the appellant’s reported medical condition of seizures is likely to significantly interfere with her ability to drive a commercial vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Minister of Transportation (the “Minister”) has not met the burden 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 commercial Class F vehicle safely. Therefore, I set aside the decision of the Minister to change the class of the appellant’s driver’s licence.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from seizures, and if so whether it is likely to significantly interfere with her ability to drive a commercial vehicle safely.
5To answer this question, I will address the following issues:
a. Does the appellant suffer from seizures?
b. Is the appellant’s medical condition, if any, likely to significantly interfere with her ability to drive a commercial Class F vehicle safely?
C. LAW:
6Under the HTA the Minister is responsible for ensuring that commercial drivers are medically fit to drive commercial vehicles on the highway. In this case the Minister acted pursuant to s. 32(5)(b)(i) of the HTA and s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”).
7Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.
8A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.
9On appeal, the Minister has the burden of establishing on a balance of probabilities that the licence should remain downgraded.
10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.
11Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from seizures?
12I find, on a balance of probabilities, that the appellant suffers from seizures.
13In mid-August 2020, the Ministry of Transportation (“the Ministry”) received two unsolicited Medical Condition Reports (“MCR”) from different physicians, both indicating that the appellant suffered a seizure due to epilepsy, which may make it dangerous for her to operate a motor vehicle.
14In response to the MCR, by letter dated September 10, 2020, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s Class F and Class G driver’s licence. The letter indicated that when the appellant’s condition improved, she should have her treating physician, specialist or nurse practitioner complete a Seizures and Loss of Consciousness (“SLOC”) form.
15On the February 16, 2021 completed SLOC form, the appellant’s neurologist, Dr. G., indicated that the appellant had a primary medical condition of epilepsy and she had been seizure free with or without medication for 6-12 months.
16On February 23, 2021, the appellant’s Class G driver’s licence was reinstated.
17In a 2017 Medical Report submitted to the Ministry, the appellant’s family physician indicated that the appellant had a history of childhood epilepsy, with her first seizure in 2011, her last seizure at age 15 and that the seizures resolved at age 16.
18In a November 11, 2021 letter to the Ministry, Dr. G. indicated that the appellant’s “recent repeat” MRI scan of the brain demonstrated a calcified lesion in the left cortex, which was stable when compared to a MRI scan from 2007, and that her routine and sleep-deprived electroencephalographs were both normal. Dr. G. indicated that the appellant had an “underlying localization-related epilepsy”.
19The appellant does not deny that on August 16, 2020 she suffered a tonic clonic seizure. She testified that during late childhood and early adolescence she: had seizures; was followed by a pediatric neurologist; was weaned off anti-seizure medication; was seizure free off medication for over 12 years prior to the August 2020 seizure; and suffers from a seizure disorder (epilepsy).
20Based on the above, I find, on a balance of probabilities, that the appellant suffers from the medical condition of seizures.
b. Is the appellant’s medical condition of seizures, if any, likely to significantly interfere with her ability to drive a commercial Class F vehicle safely?
21The Minister has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely. I find that the Minister has not met its burden.
22By letters dated February 23, 2021 and December 15, 2021, the Ministry indicated that in order to re-obtain her commercial driver’s licence it required confirmation that the appellant has remained seizure-free for a period of five years on or off medication. The respondent stated that this was consistent with 17.6.12 of the CCMTA Standards (Epilepsy – Commercial Drivers). The respondent emphasized that: the evidence confirms that the appellant has been diagnosed with epilepsy; as in this case, sometimes seizures return; the 5-year rule is there to try to manage a period of stability; that seizures with loss of consciousness result in sudden impairment; it is prudent that commercial drivers are held to a higher standard and need a greater degree of certainty that another seizure will not occur; and that 17.6.12 of the CCMTA Standards does not require a neurologist’s support or recommendation for re-licencing.
23In addition, the respondent referred to two previous Tribunal decisions in support of its case, specifically 10366/MED and 11395/MED.
24The appellant testified that she is a paramedic and requires her Class F licence to be “on the road”, even as the second worker. Since her seizure, the appellant has received workplace accommodation and works day shifts only. This accommodation will continue if or when her Class F licence is reinstated and she is still employed doing office work 40 hours per week.
25The appellant testified that on August 16, 2020 she was about four hours into her day shift when she and her co-worker (“partner”) received a call to attend to someone whose location was about a five-minute drive from their base. Shortly after getting into the ambulance she felt as if she was getting a migraine. She informed her partner, who was driving, that she felt unwell and a second ambulance team was requested to attend the call so that she could be replaced. By the time she and her partner arrived at the call location she was becoming mildly confused and not able to articulate accurately. Her partner attended to the patient while she stayed with the Fire Fighters who were already on the scene. At this point she felt her symptoms worsening and she had a generalized tonic clonic seizure witnessed by the Fire Fighters. The appellant stated that the long “prodrome” in 2020 was very similar to the prodromes she had in childhood.
26The appellant stated that she has worked shift work and long hours for a number years without anti-seizure medication and without incident. She believes that, in general, she can handle increased stress. However, she is of the opinion that leading up to her August 2020 seizure, her stress was extraordinary. At that time her fiancé was out of work, she was taking on a lot of overtime for financial reasons (e.g. 60 hours per week as opposed to a required 42 hours per week); her grandfather, whom she was very close to, died and because of the pandemic she was unable to see him prior to his death; she had to cancel her wedding because of the pandemic; and she was moving into a new home with her fiancé. She stated that the week of her seizure she had worked seven days in a row as a paramedic and was not only chronically, but very, sleep deprived.
27The appellant described the months following her only adult seizure as a “learning experience” and explained how she has improved her lifestyle and her understanding of her condition of seizures since then. These measures include: exercising regularly; meditating; prioritizing her sleep to ensure a minimum of eight rest hours; discontinuing the use of alcohol and caffeine; adopting a ketogenic diet; joining an epilepsy support group for working professionals; and taking courses through her employer that focus on mental health and resiliency.
28In addition, the appellant referred to three previous Tribunal decisions in support of her case, specifically 11073/MED, 11986/MED and 11692/MED, and asked that the Tribunal take into account the unique and extreme circumstances leading up to her seizure in August 2020. I would like to point out that I was the presiding member for 11986/MED.
29Although I am not bound by the CCMTA Standards, I find them persuasive when making a driver fitness evaluation. They emphasize making a risk analysis of all relevant sources of information that considers factors, including whether the impairment is persistent or episodic and the individual characteristics and abilities of each driver (e.g., whether the driver is a commercial or non-commercial driver, the driver’s ability to compensate for any impairment, the driver’s compliance with treatment, and whether the driver has insight into their medical condition and the impact that their medical condition may have on driving). As per the CCMTA Standards, a seizure with loss of awareness or loss of consciousness while driving is considered to be a sudden episodic impairment. A driver cannot compensate for such an impairment.
30As per the CCMTA Standards, commercial drivers generally spend more time driving in inclement weather and under far more adverse driving conditions than drivers of non-commercial vehicles, cannot readily abandon their vehicle should they become unwell and should a crash occur, the consequences of a crash are much more likely to be serious given the size of commercial vehicles. In the case of Class F driver’s licence, a holder can drive a regular, non-school bus with seating for up to 24 passengers, including a 15-passenger van and an ambulance.
31I accept that Chapter 17 of the CCMTA Standards defines epilepsy as “a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause”. However, based on my knowledge as a licenced and duly qualified physician in the province of Ontario1, I am aware that some specialists may also make a diagnosis of epilepsy in individuals following a single seizure, if follow-up examination and investigations are highly suggestive of the condition.
32In the case before me, the appellant has a history of childhood seizures which were quiescent off medication for more than 12 years. As described above, she testified that her prodrome (also known as an aura) on August 16, 2020 was similar to her auras in childhood. As per the CCMTA Standards: an aura is the unusual sensations that warn of an impending seizure; an aura is actually a simple partial seizure; and partial seizures can evolve into secondary generalized seizures, such as tonic clonic seizures. The evidence indicates that the appellant has a stable calcified lesion in the left cortex of her brain and Dr. G. has diagnosed the appellant with “underlying localization-related epilepsy”. Based on the above, I find that on a balance of probabilities, Dr. G. is of the opinion that the appellant’s childhood seizures and her August 2020 seizure emanate from the same underlying structural lesion in her brain and are related to one another. Based on the above, I find that the Minister has applied the proper CCMTA Standard (17.6.12) in this case.
33I note in file 11692/MED, the Tribunal stated that the individual’s neurologist felt that the individual’s single adult seizure was unprovoked (cause unknown), was not related to her childhood absence seizures and the individual was not deemed to have epilepsy. Similarly, in file 11073/MED, the Tribunal concluded that there was not enough evidence to conclude that the individual’s single seizure was epileptic.
34In file 10366/MED, I agree with the statement, “The Tribunal is mindful of the relative uncertainty of recurrence of a seizure within the five year guideline, but this standard is a nationally approved medical standard that is cited in the Act. Furthermore, the longer period that a commercial driver must be seizure free is justified in the context of the increased risk and impact on public safety that a commercial driver may have in contrast to the driver with a class ‘G’ licence”. However, I note in file 10366/MED, the hearing occurred nine months after the individual’s two seizures (which occurred one day apart), plus the individual, herself, did not believe she had epilepsy.
35In the case before me, the evidence indicates that the appellant is now 17 months post seizure and she does not disagree with her diagnosis. The appellant testified that her safety and the safety of others are a priority. Based on this and other evidence before me, I find that the appellant has insight into her medical condition and the impact that her medical condition may have on driving.
36In file 11395/MED, I agree with the statement “epilepsy is a serious medical condition”. I note that in this file, the individual was seizure free for two years at the time of his hearing. In this file, the Tribunal stated that the individual’s second seizure came after a prescribed dose reduction of his anti-seizure medication, a missed dose of medication, plus sleep-deprivation and dehydration which were deemed to be provoking factors in the individual’s first seizure. Furthermore, the Tribunal stated that both of this individual’s seizures were preceded with about 30 seconds of warning and partially caused by non-compliance.
37In the case before me, the appellant was not on any anti-seizure medication prior to her August 2020 seizure, as it had been discontinued by her pediatric neurologist years earlier. The appellant is now on anti-seizure medication, testified she plans to stay on anti-seizure medication indefinitely, described the methods she has put in place to ensure she will not miss a dose of medication and candidly admitted that she and her neurologist discussed possible future pregnancy prior to choosing an anti-seizure medication. The appellant also has made other significant lifestyle changes since August 2020 including prioritizing her sleep, obtaining work accommodation to work only day shifts, and plans not to take overtime in the future. Dr. G.’s letter to the Ministry, dated November 11, 2021, is consistent with the appellant’s testimony and he states that the appellant has been fully compliant with his recommendations. Dr. G. wrote, “This seizure occurred in the setting of chronic sleep restriction and stress following the death of her grandfather and working 60+ hours per week as a first responder. These factors likely served as provoking factors for the seizure.” Furthermore Dr. G. wrote, “My best medical judgement is that she does have a mild underlying localization-related epilepsy, which is effectively controlled with the current medication therapy. I support her appeal to have her F-class driver’s licence reinstated.” Based on the above, I find that the appellant’s risk of a future seizure is significantly less that it was in August 2020.
38In addition, the appellant testified that her prodromes last several minutes, unlike the 30 second warning the individual in file 11395/MED experienced. The CCMTA Standards state, “the aura symptoms an individual experiences and the progression of those symptoms tend to be similar every time.”
39I acknowledge that it is impossible to predict if or when the appellant may have a seizure in the future. In this case, the appellant was off anti-seizure medication for more than 12 years without incident and Dr. G.’s opinion is that the August 2020 seizure was provoked by factors, most of which the appellant is now able to control. The appellant testified that she is now mindful of the number of hours she works, has reviewed her work contract which states that overtime is optional, plans not to take on overtime once her Class F licence is reinstated, and her workplace accommodation will continue once her Class F licence is reinstated. In addition, the appellant is now on anti-seizure medication which she intends to take lifelong. Based on the above, I find that currently the appellant’s risk of a future seizure is low and is certainly much lower than it was in August 2020. Finally, based on the evidence, I find that should the appellant have another seizure in the future while driving a Class F vehicle, a prodrome of several minutes should, on a balance of probabilities, be a long enough time for the appellant to pull over safely before losing awareness or consciousness.
40After a careful consideration of the totality of the evidence before me, and based on the above, I 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 F vehicle safely.
41I commend the appellant for the lifestyle changes and personal health education she has made to date. I encourage the appellant to continue with her lifestyle modifications and to stay compliant with her anti-seizure medication and appointments with her neurologist.
E. ORDER:
42For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Minister’s decision to change the class of the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: January 21, 2022
Footnotes
- Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.