Surjit Sooch v. Minister of Transportation, 2022 CanLII 4638

Surjit Sooch v. Minister of Transportation

Date: 2022-01-10

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:

Surjit Sooch

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Surjit Sooch, Self Helen Sooch, Wife

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: December 29, 2021

A. Overview:

1Surjit Sooch (the appellant) appeals the downgrade of his commercial Class AZ driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”), effective November 15, 2021.

2The issue in this appeal is whether the appellant’s reported medical condition of seizures is likely to significantly interfere with his 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 met the burden of establishing on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive commercial Class AZ vehicle safely.

4Accordingly, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from seizures, and if so whether it is likely to significantly interfere with his ability to drive a commercial vehicle safely.

6To 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 his ability to drive a commercial Class AZ vehicle safely?

C. LAW:

7Under 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”).

8Under 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.

9A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.

10On appeal, the Minister has the burden of establishing on a balance of probabilities that the licence should remain downgraded.

11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

12Section 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?

13I find, on a balance of probabilities, that the appellant suffers from seizures.

14On August 8, 2021, the Ministry of Transportation (“the Ministry”) received an unsolicited Medical Condition Report (“MCR”) from emergency room (“ER”) physician, Dr. Le. On the MCR, Dr. Le indicated that he was of the opinion that the appellant suffered a seizure, which may make it dangerous for the appellant to operate a motor vehicle.

15In response to the MCR, by letter dated August 11, 2021, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s Class AZ and Class G driver’s licence. The letter indicated that when the appellant’s condition improved, he should have his treating physician, specialist or nurse practitioner complete a Seizures and Loss of Consciousness (“SLOC”) form.

16On the November 12, 2021 completed SLOC form, the appellant’s family doctor, Dr. Lo, indicated that:

i) the appellant had a primary medical condition of single unprovoked seizure;

ii) this was the appellant’s first seizure;

iii) the appellant had been seizure-free with or without medication for 3 to 6 months; and

iv) his CT brain scan and electroencephalogram (“EEG”) were normal.

17On November 15, 2021, the appellant’s Class G driver’s licence was reinstated.

18The appellant testified that in the very early morning hours of August 8, 2021 he completed a long-haul trucking trip from Salt Lake City, having driven three nights in a row. His wife picked him up at “the yard” around 12:30-1:00 a.m. and drove him home. Once he got home, he ate some food and went to bed.

19The appellant’s wife testified that around 3:30-4:00 a.m. she woke up to her husband walking in the bedroom. She stated that her husband: did not seem himself; was “walking around in a lost way”; was staring at her; was not responding appropriately to her (e.g. not answering her questions fully); and seemed confused. When the paramedics arrived, she explained to the paramedics what she had observed, they gave the appellant something for low blood sugar, and the appellant got on the stretcher himself prior to being transported to hospital.

20The appellant testified that he does not remember any of the above events, rather he recalls waking up in the ER sometime later. The appellant testified that prior to being released from hospital that day he was told that he had suffered a seizure and that some tests had been arranged as an out-patient.

21The appellant is of the opinion that he “doesn’t know” if he had a seizure on August 8, 2021. Despite being told by both Drs. Lo and Le that he had a seizure, the appellant believes that the “event” has to do with the fact that it was discovered, at that time, that he no longer required the blood pressure medication that he had been taking for a long time.

22The appellant’s wife testified that she “does not think” that her husband had a seizure on August 8, 2021. She is basing her opinion on the facts that: the ER doctor did not directly talk to her/call her; there is no medical evidence to prove that it was a seizure (i.e. all the tests performed were “totally clean”); her husband is not on any new medication; and unlike portrayals of seizures from television shows and research she conducted on the internet, her husband did not shake, fall to the ground or have incontinence during the event.

23I prefer the opinions of Drs. Le and Lo, both trained healthcare professionals, over that of the appellant and his wife, that the appellant suffered a seizure on August 8, 2021. Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I am aware that medicine is not an exact science, medical testing has limitations and the absence of findings on medical testing does not necessarily mean that someone is completely healthy. I am also aware that a normal EEG and CT brain scan does not rule out the medical condition of seizures. In addition, I am aware that not all persons who experience seizures shake, fall to the ground or have incontinence. I note that Chapter 17 of the CCMTA Standards (Seizures and Epilepsy) states that “a seizure does not always mean that a person falls to the ground in convulsions”. I am aware that during a complex partial seizure (currently called a “focal impaired awareness seizure” or a “focal onset impaired awareness seizure”), the person experiencing the seizure loses awareness. Hence, the person experiencing the seizure may not know they have had one. I am also aware that the current standard of care for someone who has suffered a single, unprovoked (cause unknown) seizure in the setting of a normal neurological exam, CT brain scan and EEG is not to be prescribed anti-seizure medication. Furthermore, the appellant testified that Dr. Lo never told him that the event was the result of his blood pressure or blood pressure medication. I find that had Dr. Lo thought that the appellant’s event had to do with his blood pressure or blood pressure medication, she would have indicated this on the SLOC form. Dr. Lo had the option on the SLOC form to indicate that the appellant’s primary medical condition was a “provoked seizure with no structural brain abnormality” (i.e. caused by something in particular), but she indicated it was a “single unprovoked seizure” (cause unknown). Similarly, Dr. Lo had the option on the SLOC form to fill in Section A (Syncope/Loss of Consciousness), but she marked it “N/A” (not applicable).

24Based on the above and the totality of the evidence before me, I find, on a balance of probabilities, that the appellant suffered an unprovoked seizure with loss of awareness on August 8, 2021. Thus, 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 his ability to drive commercial Class AZ vehicle safely?

25The Minister has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. I find that the Minister has met its burden.

26I find on a balance of probabilities, that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely.

27The appellant testified that he is a long-haul truck driver, often making trips to/from western Canada or the USA. During a normal week he might drive 11 hours per day, 5-6 days per week or 70 hours per week. The appellant indicated that he would be willing to restrict where or the distance he would drive his truck in order to get his Class AZ licence reinstated.

28The appellant’s wife argued that: they have been patient, understanding and have complied with all the tests requested; medical professionals have not proven that her husband had a seizure and without proof of the medical condition his licence should be given back; they feel cheated, frustrated and as if they are being punished or penalized; they are now struggling financially; and Dr. Lo sent in an amended SLOC form on November 19, 2021 in which she added “No medication needed. No epilepsy. At this point fit to drive”.

29By letters dated November 15 and December 14, 2021, the Ministry indicated to the appellant that in order to re-obtain his commercial driver’s licence it required confirmation that the appellant has remained seizure-free for a period of one year. The respondent stated that this was consistent with 17.6.5 of the CCMTA Standards (Single unprovoked seizure – Commercial Drivers). The respondent also explained to the appellant that the Ministry cannot place a distance or location restriction on his AZ licence.

30The overriding consideration in this appeal is whether the Minister has proven, on a balance of probabilities, that the appellant’s single unprovoked seizure is likely to significantly interfere with his ability to drive a commercial vehicle safely.

31Although 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).

32Currently the appellant has not accepted that he suffered a seizure on August 8, 2021. I find that this means the appellant currently has limited insight into his medical condition of seizures and the impact that this medical condition may have on driving.

33As 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.

34Although the appellant was not driving at the time of his seizure with loss of awareness, a seizure with sudden loss of awareness while driving is considered to be a sudden episodic impairment. A driver cannot compensate for such an impairment. Should the appellant’s seizure with loss of awareness have occurred only a few hours earlier on August 8, 2021 while he was still driving his truck, the consequences to him or the public could have been devastating.

35It currently has been only five months since the appellant’s unprovoked seizure. I acknowledge that both the appellant and Dr. Lo feel that he is “fit to drive”. I also acknowledge that the appellant’s temporal risk for a recurrent seizure is now lower than it was on November 15, 2021 when his Class G licence was reinstated. However, I find a higher level of fitness to drive is crucial for commercial drivers who have the medical condition of seizures. In other words, given the increased risk to the public given the size of commercial motor vehicles and the frequency that they are driven, a medical condition such as seizures is more likely to “significantly interfere” with the driver’s ability to drive safely than if they were driving a passenger car.

36I acknowledge the burden, financial and otherwise, that the lack of a commercial driver’s licence is having on the appellant and his family. However, driving a commercial vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence downgrade, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

37In summary, I find on a balance of probabilities that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive a Class AZ vehicle safely. In arriving at this conclusion, I have relied on the following:

1. A normal EEG and CT brain scan does not rule out the medical condition of seizures.

2. The current standard of care for persons who have suffered a single, unprovoked seizure in the setting of a normal CT brain scan and EEG is not to be prescribed anti-seizure medication.

3. The appellant has yet to fully accept that he had an unprovoked seizure on August 8, 2021. I find that this lack of acceptance implies that the appellant has a reduced level of insight into his medical condition of seizures and the impact that this medical condition may have on his ability to drive. An individual’s level of insight is an important consideration when assessing the risk of an episodic impairment of functional ability to drive.

4. The CCMTA Standards provide reasons or evidence for the temporal seizure-free distinction between commercial and Class G driving, as in this case. The CCMTA Standards also recommends an individualized full risk analysis. I find a higher level of fitness to drive is crucial for commercial drivers who have the medical condition of seizures.

5. Commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles. Furthermore, should a crash occur, the consequences are much more likely to be serious given the gross weight of the vehicle involved.

6. Currently, the appellant has been seizure-free for only five months.

E. ORDER:

38For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the appellant’s driver’s licence is confirmed.

LICENCE APPEAL TRIBUNAL

_______________________

Dr. Erica Weinberg, Member

Footnotes

1. 1Pursuant 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”.