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:
Balakumaran Shanmugaratna Kurukkal
Appellant
And
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Balakumaran Shanmugaratna Kurukkal, Appellant Raiessa Mahabir, Representative
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: June 16, 2022
A. Overview:
1Balakumaran Shanmugaratna Kurukkal (the appellant) appeals the downgrade of his commercial Class A driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”), effective March 11, 2022.
2The issue in this appeal is whether the appellant’s reported medical condition of seizure 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 seizure is likely to significantly interfere with his ability to drive a commercial Class A 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 seizure, 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 seizure?
b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class A 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 seizure?
13I find, on a balance of probabilities, that the appellant suffers from seizure.
14On October 8, 2021, the Ministry of Transportation (“the Ministry”) received an unsolicited Medical Condition Report (“MCR”), with an examination date of October 7, 2021, from Dr. L., the appellant’s family physician. On the MCR, Dr. L. indicated that she was of the opinion that the appellant suffered a possible seizure which may make it dangerous for him to operate a motor vehicle. In the discretionary portion of the MCR, Dr. L. wrote “single episode, LOC [loss of consciousness], ? [query] seizure, investigating”.
15In response to the MCR, and by letter dated October 12, 2021, the Ministry suspended the appellant’s Class A and Class G driver’s licences with the reported medical condition of seizure. 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 form.
16On March 3, 2022, the appellant’s neurologist, Dr. M., wrote a letter to Dr. L. which was copied to the Ministry. In the letter, Dr. M. indicated:
the appellant had his first and only seizure on October 3, 2021;
magnetic resonance imaging (“MRI”) of the head revealed no clear etiology (cause);
electroencephalogram (“EEG”) was normal, showing no epileptiform activity or seizures, and no abnormal/focal slowing;
clinical suspicion of seizure remains; and
the appellant had no recurrence since October 3, 2021 and no risk factors for epilepsy.
17By letter dated March 11, 2022, the Ministry reinstated the appellant’s Class G driver’s licence.
18The appellant testified that he previously had two distinct jobs. His “IT” job entails working four-12 hour shifts in a row, with: two-day shifts; followed by two-night shifts; followed by four days off. The IT job does not require a commercial driver’s licence. Prior to October 3, 2021 on the last three of his four days off, the appellant would work 6-8 hours per day using his Class A licence driving around the Greater Toronto Area.
19The appellant testified that on October 2, 2021 he finished his two consecutive IT night shifts and came home to rest. He stated he did not sleep well or eat well during the day. Later that day he and his family went to a friend’s birthday party, he consumed 3-4 beers and they stayed overnight. On October 3, 2021 at about 6 a.m., they drove home. As the appellant felt tired, he asked his wife to drive. He sat in the front passenger seat, with the seat pushed back/down. According to the appellant, while his wife was driving, she observed him to shake, make noises and lose consciousness. She pulled over and parked the vehicle, and the emergency services were called. The appellant stated that he woke up about 5-10 minutes after the event and was attended to by emergency services. The appellant did not go to a hospital following the event.
20The appellant testified that he is now aware that the event on October 3, 2021 was a seizure.
21Based on the above I find on a balance of probabilities that the appellant suffers from the medical condition of seizure.
b. Is the appellant’s medical condition of seizure, if any, likely to significantly interfere with his ability to drive commercial Class A vehicle safely?
22The 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.
23I find on a balance of probabilities, that the appellant’s medical condition of seizure is likely to significantly interfere with his ability to drive a commercial Class A vehicle safely.
24The appellant is of the opinion that his seizure was caused by “collective issues”, specifically his lack of sleep, not eating well and drinking alcohol. He confirmed that he told Dr. M. these “collective issues” during his first appointment. However, later at the hearing, the appellant admitted that Dr. M. never gave him an explanation or reason for his seizure occurring. I note that nowhere in Dr. M.’s March 2022 letter did he indicate that the appellant’s seizure was provoked (caused or induced) by any factor. In fact, Dr. M. wrote “Given the lack of any recurrence, I do not think a …sleep deprived [emphasis added] EEG is necessary at this point”.
25Dr. M.’s letter also stated, “This letter will be forwarded to the Ministry…for review. He [the appellant] was advised regarding precautions and not to drive until he hears from the Ministry…”. Nowhere in the March 2022 letter does Dr. M. overtly state that the appellant is safe to return to driving, nor does Dr. M. specifically refer to either Class of the appellant’s driver’s licence. The appellant testified that he told Dr. M. at his first appointment that he held a Class A driver’s licence. I am of the opinion that Dr. M., in his March 2022 letter, is solely providing the Ministry with what he believes is the most accurate and up-to-date medical information on the appellant’s condition of seizure.
26By letters dated March 11 and May 19, 2022, the Ministry indicated that should the appellant wish to regain his commercial licence he would be required to file a further report from his treating physician, specialist or nurse practitioner confirming that he has remained seizure-free for a period of 12 months or has established a one-year seizure-free period.
27The appellant pointed out Dr. L.’s recent letters to the Ministry, both sent after the appellant’s Class G driver’s licence was reinstated. Both letters referred to Dr. M.’s March 2022 letter.
28In her April 5, 2022 letter, Dr. L. stated, “He has been fully investigated with bloodwork, MRI and EEG which were all normal. He was seen by Dr. M., who felt he [the appellant] was safe to return to driving”. As previously stated, nowhere in Dr. M.’s March 2022 letter does he overtly state that the appellant is safe to return to driving, nor does he mention the class(es) of the appellant’s driver’s licence.
29The respondent pointed to the CCMTA Standards and stated that the Minister’s position was consistent with 17.6.5 of the CCMTA Standards (Single unprovoked seizure – Commercial Drivers). The respondent stated that the medical evidence indicated that no cause had been determined for the appellant’s seizure, his seizure was therefore an “unprovoked” seizure and the proper CCMTA Standard had been applied. He spoke to the higher standards required for holders of commercial licences for many medical conditions, including seizures. He stated that for commercial drivers who have suffered a single unprovoked seizure, there must be a greater certainty that further seizures will not occur. He pointed out factors such as the risk of sudden impairment in the functions necessary for driving during a seizure with loss of consciousness and the size/weight of a Class A vehicle. He also pointed to the fact that the appellant testified that he had no warning signs prior to his seizure and was “unsure” if he could have pulled over safely if he had been driving on October 3, 2021.
30The respondent pointed to a previous Licence Appeal Tribunal decision (13732 MED). The appellant pointed out a “key difference” between 13732 MED and himself. He has accepted that he had a seizure on October 3, 2021 and therefore has insight into his medical condition. He pointed out that this is in contrast to the appellant in 13732 MED who denied that his event was a seizure. I note that I was the presiding member at 13732 MED.
31I acknowledge that the appellant has accepted his diagnosis of a single seizure on October 3, 2021 and that he has been seizure-free for eight months. I also acknowledge that the appellant: admitted that he was originally confused and thought that both Classes of his driver’s licence would be reinstated at the same time; understands the necessity for safety on the road when driving with either of his driver’s licences; stated that 60% of his income comes from his Class A driving; is willing to comply with any prescribed regimens by his treating physicians; and is requesting an “exception” to the 12-month seizure free requirement to regain his Class A licence.
32The 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.
33Although it is not bound by the CCMTA Standards, they may be considered and applied by this Tribunal. They emphasize making a risk analysis of all relevant sources of information that considers factors, including whether the impairment is persistent or episodic, as well as 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).
34During the hearing the appellant made statements such as: he “is fine”; there is “nothing wrong”; his treating physicians have “not expressed concerns of another episode likely occurring”; and that Dr. M. “did not indicate that a future seizure was likely”.
35Furthermore, in his Notice of Appeal the appellant wrote, “I do not have any concerns, nor do my neurologist or family doctor have any concerns of a recurrence. Considering the significant gap in time since the first and only occurrence, there is confidence that there are no underlying health conditions that contributed to the initial occurrence and therefore a recurrence is not foreseen”.
36Nowhere in Dr. M.’s March 2022 letter does he indicate that he has no concerns of a recurrence of the appellant’s seizure. Nowhere in Dr. L.’s April 5, 2022 and May 18, 2022 letters does she express any opinion regarding future seizures. The appellant did not admit any documentary evidence in support of his assertion that his physicians had no concerns regarding a recurrence.
37Although the appellant has acknowledged he had a single seizure on October 3, 2021, based on the above, I find on a balance of probabilities, that the appellant does not have full insight into his medical condition of seizure and the impact that this medical condition may have on driving.
38As 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.
39Although the appellant was not driving at the time of his seizure with loss of consciousness, a seizure with sudden loss of consciousness while driving is considered to be a sudden episodic impairment. A driver cannot compensate for such an impairment. The appellant testified that he had no warning signs prior to his seizure and stated he was ‘unsure’ if he would have had time to pull over prior to losing consciousness. Should the appellant’s seizure with loss of consciousness have occurred a few hours or days later, when potentially he was driving a Class A vehicle, the consequences to him or the public could have been devastating.
40It currently has been eight months since the appellant’s single unprovoked seizure. I acknowledge that the appellant’s temporal risk for a recurrent seizure is now lower than it was on March 11, 2022 when his Class G licence was reinstated. However, as reflected in the CCMTA Standards, I agree that a higher level of fitness to drive is both crucial and appropriate for commercial drivers who have the medical condition of seizure. In other words, given the increased risk to the public because of the size of commercial motor vehicles and the frequency with which they are driven, a medical condition such as seizure is more likely to “significantly interfere” with the driver’s ability to drive safely than if they were driving a passenger car.
41I acknowledge the burden, financial and otherwise, that the lack of a commercial driver’s licence is having on the appellant and his family. I also acknowledge that reinstating the appellant’s Class A driver’s licence is in his best interests. 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.
42In summary, I find on a balance of probabilities that the appellant’s medical condition of seizure is likely to significantly interfere with his ability to drive a Class A vehicle safely. In arriving at this conclusion, I have relied on the following:
The appellant accepts that he had a seizure with sudden loss of consciousness on October 3, 2021. Although he believes that his seizure was caused by “collective issues”, none of his treating physicians, including his neurologist, have stated this in the written medical evidence.
The appellant currently feels he “is fine”, “there is nothing wrong” and he does not have any concerns about another seizure occurring. Despite the appellant stating that his physicians “did not indicate that a future seizure is likely,” neither of his treating physicians have expressed any opinion regarding future seizures or their likelihood in the written medical evidence before me. I find as a result that the appellant currently does not have full insight into his medical condition of seizure and the impact that this medical condition may have on driving. An individual’s level of insight is an important consideration when assessing the risk of an episodic impairment of functional ability to drive.
A driver cannot compensate for an episodic impairment of the functions necessary to drive which occurs with an unprovoked seizure with loss of consciousness.
The CCMTA Standards provide reasons and justification for the temporal seizure-free distinction between commercial and Class G driving, as in this case. The CCMTA Standards also recommend an individualized full risk analysis. A higher level of fitness to drive is crucial for commercial drivers who have the medical condition of seizure.
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.
Currently, the appellant has been seizure-free for only eight months.
E. ORDER:
43For 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
Erica Weinberg, Member
Released: June 29th, 2022