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:
David Stokes
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: David Stokes, Appellant DeeAnna Stokes, Support person and witness
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: July 20, 2022
A. Overview:
1David Stokes (the appellant) appeals the downgrade of his commercial Class D driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”), effective December 31, 2015.
2The issue in this appeal is whether the appellant’s reported medical condition of epilepsy (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 epilepsy is likely to significantly interfere with his ability to drive a commercial Class D 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 epilepsy, 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 epilepsy?
b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class D 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 epilepsy?
13I find, on a balance of probabilities, that the appellant suffers from epilepsy.
14The appellant does not deny that he has the medical condition of epilepsy.
15The appellant's oral testimony and the plethora of medical reports submitted as evidence indicate that he has:
a. a number of tumours in his brain caused by the condition of tuberous sclerosis complex (mosaic);
b. suffered numerous seizures; and
c. been diagnosed with epilepsy by several neurologists.
16The written evidence indicates that around 3.5-4 years of age, the appellant had four or so events of generalized stiffening, loss of awareness and blank staring for 40 seconds. An electroencephalogram (“EEG”) showed right temporal lobe brain abnormalities with epileptiform features.
17The appellant remained seizure-free from this time until he was nearly 30 years of age.
18In November 2013, after being sleep-deprived, the appellant suffered a nocturnal tonic clonic seizure with loss of consciousness when he went to the bathroom to urinate.
19Around Christmas 2014 the appellant had two daytime seizures, about 20 minutes apart, in which he noticed a “strange déjà vu” feeling, had blank staring for around five seconds and was very fatigued afterwards. These events were in the setting of sleep-deprivation and significant alcohol consumption the previous night.
20On January 9, 2015, the appellant’s family doctor, Dr. B., sent an unsolicited Medical Condition Report (“MCR”) to the Ministry of Transportation (the “Ministry”). On the MCR Dr. B. indicated that the appellant was undergoing urgent neurological evaluation for ? (query) seizures.
21By letter dated January 15, 2015, the Ministry suspended the appellant’s Class D and Class G driver’s licence for the reported medical condition of seizure.
22In early February 2015, the appellant had his initial consultation with neurologist, Dr. J. Based on the appellant’s history and recent magnetic resonance imaging (“MRI”) of his brain, Dr. J. prescribed the anti-seizure medication (“AED”) lamotrigine. Further medical notes from Dr. J. indicated that: the appellant continued to experience further seizures while the AED was being titrated, the seizures were primarily nocturnal in nature; a June 2015 EEG revealed right temporal spikes and slowing; and his MRI was suggestive of tuberous sclerosis complex inclusive of tubers and nodules. In her September 14, 2015 clinic note, Dr. J. indicated the appellant was seen in clinic for follow-up of “focal epilepsy with secondary generalization in the context of underlying tuberous sclerosis complex” and that his last known seizure on May 20, 2015 was nocturnal and generalized tonic clonic in nature.
23On November 24, 2015, Dr. J. completed a Ministry Epilepsy and Seizure (“ES”) form.
24Following review of the ES form, and by letter dated December 31, 2015, the Ministry reinstated the appellant’s Class G licence. The Ministry letter indicated that should the appellant wish to regain his commercial licence they would require confirmation that he had remained seizure-free for a period of five years.
25In 2017, Dr. J.’s clinic notes indicated that during the first half of 2017, and despite taking his AED, the appellant experienced an increase in seizures which often happened in the middle of the night or early morning.
26On October 13, 2017, Dr. D. took over the appellant’s neurological care. Dr. D.’s initial clinical note stated that the appellant had many nocturnal breakthrough (“BT”) seizures even on his AED. His note also spoke to the appellant’s fiancé’s concerns regarding the appellant’s BT seizures and the appellant’s stress and sleep deprivation, plus their upcoming wedding and holiday season. The appellant’s dose of AED was increased and Dr. D. discussed the introduction of a second AED, namely clobazam.
27As per Dr. D.’s further clinical notes, due to ongoing BT nocturnal seizures, the appellant was to start the second AED in early 2018. However, the appellant chose to not do so until after his July 5, 2018 visit with Dr. D. Dr. D.’s clinic note, dated October 22, 2018, indicated that with the introduction of the second AED, the appellant had much better control of his nocturnal events.
28On October 19, 2018, the appellant and his wife attended a friend’s birthday party. The appellant testified that he consumed a large quantity of alcohol, did not get much sleep and they stayed overnight. On the morning of October 20, 2018, the appellant’s wife drove them home. Later that morning, the appellant decided to drive to the “work yard” to “fix things”. He stated that while driving at about 50 km/hr he: “felt odd” for only seconds; had a single vehicle motor vehicle collision (“MVC”); and ended up driving over the curb and into a hydro pole. The appellant testified that the police/EMS who attended the scene did not ask if he suffered from any medical condition or if he lost consciousness. The appellant did not tell them that he suffers from epilepsy and did not go to the hospital following the MVC.
29According to the appellant’s wife, it took the appellant a day or so to admit he suffered a daytime seizure with loss of consciousness on October 20, 2018 which resulted in the MVC. After this realization, the appellant: contacted the police; told them what happened; told them he had a pre-booked appointment with his neurologist on October 22, 2018; and was later charged with careless driving for the MVC.
30According to Dr. D.’s clinic note of October 22, 2018, despite the introduction of the second AED, the MVC was felt to be attributed to a seizure, most likely related to sleep deprivation from the night prior. Dr. D.’s clinic note discussed: concerns regarding the appellant’s “systemic bodily stress/stressors” (such as sleep deprivation and the stress of being a parent in the future) putting the appellant at an increased risk of having seizures; an admission to the Epilepsy Medical Unit (“EMU”) to see if there was a lesion that could be contributing to the appellant’s seizures that could be excised safely; that he would be writing to the Ministry, and that the appellant should not drive until further instructions from the Ministry had been provided.
31On October 22, 2018 the Ministry received by fax only the first page of the MCR sent in by Dr. D. As the first page of the MCR did not specify which medical condition was of concern, by letter dated November 5, 2018 the Ministry requested more information regarding the appellant’s “medical condition” of concern.
32Following the review of a narrative letter from Dr. D. dated December 20, 2018, by letter dated January 8, 2019, the Ministry again suspended the appellant’s Class G driver’s licence, for the reported condition of seizure.
33On April 24, 2019, the appellant’s Class G driver’s licence was reinstated following the submission of a completed ES form.
34Beginning late May 2019, the appellant experienced more BT seizures which were nocturnal or early morning coming out of sleep. The dose of his second AED was increased, and consideration was given to adding in a third AED.
35Dr. D.’s December 23, 2019 clinic note stated that the appellant was still having his typical nocturnal seizures, particularly when he was up late at night or if there was some type of anxiety occurring. A third AED (lacosamide) was added for the pharmacological management of the appellant’s seizures and a referral for counselling was made. In addition, at this time the appellant was waiting for further testing (depth electrodes) to determine if he was a candidate for resective epilepsy surgery.
36The appellant and his wife testified that his last nocturnal seizure was February 14, 2020.
37On February 28, 2020, in response to a January 31, 2020 update letter from Dr. D. on behalf of the appellant, the Ministry indicated that the appellant was not currently eligible for a commercial licence and they required confirmation that he had remained seizure-free for five years, with or without medication.
38On November 12, 2020, the appellant had chronic recording electrodes implanted. Following a week of recording seizures, it was determined that one of his lesion/tumour areas was very active and should be addressed surgically. On November 18, 2020, the appellant had a surgical ablation procedure (thermal coagulation of a lesion/cortical scar using stereotactic reimplanted recording electrodes) for his right frontal epilepsy. The appellant’s three AEDs were resumed post-surgery.
39In a March 4, 2022 letter to the Ministry written on the request of the appellant, Dr. D. indicated:
a. the appellant had a diagnosis of epilepsy;
b. he had remained seizure-free during the last assessment interval (August 19, 2021 – February 24, 2022);
c. a January 2022 EEG was reported as normal, with no epileptiform discharges observed in wakefulness or in sleep; and
d. he was continuing with his current doses of medications (AEDs).
40By letter dated May 16, 2022, the Ministry again indicated that should the appellant wish to regain his commercial licence they must receive confirmation that he has remained seizure-free for a period of five years.
41Based 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 epilepsy, if any, likely to significantly interfere with his ability to drive commercial Class D vehicle safely?
42The 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.
43I find on a balance of probabilities, that the appellant’s medical condition of epilepsy is likely to significantly interfere with his ability to drive a commercial Class D vehicle safely.
44The appellant and his wife testified that the appellant works as a crane operator in his family’s business. They testified that two of the cranes the appellant operates require a Class D driver’s licence to drive to/from a job site, whereas the three other cranes he operates can be driven to/from a job site with a Class G licence. They stated that the heavier cranes (Class D) can be driven at up to 85 km/hr, whereas the slightly lighter cranes’ maximum speed is considerably lower. The appellant testified, that although he works long hours (including night emergency calls when needed), only a small proportion of his workday usually necessitates driving/moving cranes to/from job sites. He stated that he potentially may go to 2-3 job sites in a day, driving one half hour to a job site (i.e., at most 80-100 km away). Furthermore, the appellant stated that the larger cranes may sit at one job site for 1-3 days for the work to be completed.
45As per a letter from his employer, submitted as evidence, the appellant currently “drives his own vehicle to jobsites to operate [their] commercial cranes”, and he drives the “non-commercial crane to/from jobsites daily on the roadways and has never once had an incident with traffic, people, obstruction or otherwise”.
46When questioned whether or not he would consider different employment requiring a Class D licence in the future, the appellant stated that there is only a slim chance of that happening. The appellant emphasized that he works in the family business, wishes to take over the business at some point, and has a unique and specialized skill set.
47The appellant’s wife testified that the appellant’s daytime seizure on October 20, 2018, which resulted in the MVC, was a life changing event for the appellant. She stated that: the appellant no longer drinks alcohol; he has “exhausted all of his [seizure] triggers”; the surgery has “eliminated the seizures/seizure focus”; he has a “normal EEG”; and she is confident that the appellant will remain seizure-free. She stated that: the appellant is now able to get up during the night to help with their two young children without incident; he is able to work the next day without incident even if he is up the previous night helping with their children or doing emergency crane work; he has had no incidents despite stressors in his life since the epilepsy surgery; and she now feels confident in his driving without having an incident.
48The appellant testified that he realizes that on October 20, 2018 when he suffered a seizure with loss of consciousness while driving, he could have killed himself or someone else. He expressed remorse and indicated that he has too much to lose now having a young family. When questioned, he testified that he is compliant with his AEDs.
49When questioned regarding the other lesions/tumours in his brain and whether any healthcare professional had commented on their “activity”, the appellant’s wife stated that they were told: there were no concerns at this time; the lesions/tumours were stable; there was a possibility of the lesions/tumours discharging in the future; and it cannot be certain.
50By letters dated December 31, 2015, February 28, 2020 and May 16, 2022, the Minister is of the opinion that in order to consider reinstating the appellant’s commercial licence, they require confirmation that the appellant has remained seizure-free for five years, with or without medication.
51The respondent pointed to Chapter 17 of the CCMTA Standards and stated that the Minister’s position was consistent with 17.6.12 of the CCMTA Standards (Epilepsy – Commercial Drivers). He acknowledged that the appellant’s seizure history and management was complicated, but the Minister’s position was that this was the appropriate Standard. The respondent spoke to the higher standards required for holders of commercial licences for many medical conditions, including seizures. He pointed out factors such as: the risk of sudden impairment in the functions necessary for driving during a seizure with loss of consciousness; commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles; the size/weight of a Class D vehicle; and the consequences and the need for a greater certainty that future seizures will not occur for drivers of commercial vehicles.
52The respondent acknowledged that operating a crane is the appellant’s livelihood and that the appellant testified that driving cranes to/from jobsites is a small portion of his job. However, the respondent pointed out that the Minister cannot put a restriction or condition on the appellant’s Class D licence once reinstated, i.e., only driving certain Class D vehicles or driving a Class D vehicle for only a few hours a day.
53The overriding consideration in this appeal is whether the Minister has proven, on a balance of probabilities, that the appellant’s epilepsy is likely to significantly interfere with his ability to drive a commercial vehicle safely.
54Although 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).
55Based on the evidence before me, I find that the appellant is compliant with his AEDs and has gained considerable insight into his medical condition of epilepsy, in particular since his daytime seizure with loss of consciousness resulting in a MVC on October 20, 2018.
5617.6 of the CCMTA Standards (Guideline for assessment) states that the guidelines identify exceptions to the requirement to remain seizure-free for non-commercial drivers who have epilepsy and who have only simple partial seizures, or seizures that only occur while they are asleep or immediately upon awakening [emphasis added].
57I note that 17.6.12 of the CCMTA Standards (Epilepsy – Commercial Drivers) does not apply to commercial drivers whose seizures only occur while they are asleep or immediately after awakening, or who have only simple partial seizures (no impairment in level of consciousness), the symptoms of which do not impair their functional ability to drive [emphasis added].
5817.6.12 of the CCMTA Standards states that these commercial drivers are eligible for a licence if:
- they have not had a seizure with or without medication for five years.
59Furthermore, I note that 17.6.13 of the CCMTA Standards (Epilepsy with seizures only while asleep or upon awakening – Commercial Drivers) [emphasis added] states that these commercial drivers are eligible for a licence if:
the driver is experiencing seizures but the seizure pattern has been consistent for at least five years; and
no prolonged postictal impairment in wakefulness.
60In addition, I note that 17.6.10 of the CCMTA Standards (Surgery for Epilepsy – Commercial Drivers) states that these commercial drivers are eligible for a licence if:
they have not had a seizure for five years after surgery with or without anti-epileptic medication; and
waiting period may be reduced to three years upon neurologist/specialist recommendation.
61Although the appellant’s seizures since 2013 have primarily occurred while asleep or immediately upon awakening, the medical evidence before me indicates that the appellant has not only had this type of seizure. Furthermore, the medical evidence before me indicates that appellant has not only had simple partial seizures (i.e., focal onset seizures with no secondary generalization or impairment in the level of consciousness).
62Excluding any seizures the appellant experienced during his stays in the EMU, where his AEDs were reduced or withdrawn, as per the evidence before me, the appellant’s:
a. last daytime seizure with loss of consciousness was on October 20, 2018;
b. last nocturnal/upon awakening seizure was on February 14, 2020; and
c. ablation epilepsy surgery was on November 18, 2020.
63Therefore, excluding any seizures the appellant experienced during his stays in the EMU where his AEDs were reduced or withdrawn, as of the date of the hearing, it has been approximately:
a. 3 years and 9 months since the appellant’s last daytime seizure with loss of consciousness;
b. 2 years and 5 months since the appellant’s last nocturnal/upon awakening seizure; and
c. 1 year and 4 months since the appellant’s ablation epilepsy surgery.
64I acknowledge that the appellant and his wife feel as if they have “exhausted” all of the appellant’s seizure triggers and his seizure-focus has been eliminated, and that the appellant’s wife is confident that he will be seizure-free going forward. However, medicine is not such an exact science.
65I accept, as per the evidence, that the appellant’s most recent EEG was reported as normal and showed no epileptiform activity, and that his previous EEGs were all abnormal. However, a normal EEG neither negates the appellant’s diagnosis of epilepsy nor the fact that he may have future BT seizures/seizure recurrence.
66Moreover, I am persuaded by Dr. D.’s answers to “question and answer” type questions posed by the appellant’s previous lawyer and submitted to the Ministry by letter dated August 4, 2021. In particular I am drawn to the following statements:
The ability of [the appellant] to operate a commercial vehicle is not in question. The threshold regarding the risk of seizure recurrence is the limiting factor; which, as you know, is one derived and set by the [Ministry]; and
The treatment modalities (epilepsy surgery, use of [AEDs]) are meant to decrease the risk of recurrent seizures. Prior to the ablative surgical procedure, despite modifications the regimen of [AEDS], [the appellant] continued to have seizures as described above (mostly nocturnal). [The appellant] has not reported seizure recurrence since the surgical ablation procedure. However, insufficient time has passed to provide an accurate risk assessment of seizure recurrence. Although I am hopeful that this procedure will help [the appellant] remain seizure-free with or without reduction in [AED] over time, I cannot guarantee this.
67Furthermore, I find Dr. D.’s follow-up note from the appellant’s February 24, 2022 appointment compelling. In this note, Dr. D. stated:
We had a discussion regarding our ongoing plan. Although [the appellant] has been seizure-free since his procedure in November of 2020, I still feel that it would be beneficial for him to remain on his current dose of [AEDs] to reduce the risk of any further BT seizures.
68Moreover, I note that Dr. D. has not overtly supported the reinstatement of the appellant’s commercial licence in either of the above notes.
69As 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. The appellant testified that on October 20, 2018 while he was behind the wheel of his personal vehicle, he felt odd for only seconds before he lost consciousness from a seizure. During this seizure the appellant’s vehicle mounted the curb and crashed into a hydro pole. Had the appellant been driving a commercial vehicle that day, the consequences to him or the public could have been devastating.
70I 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. I acknowledge that the appellant’s current vocation only requires him to drive cranes to/from jobsites for part of his workday, and that he currently has no plans to change his vocation. However, as stated by the respondent at the hearing, the Minister cannot put a restriction or condition on the appellants Class D licence once it is reinstated.
71I 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.
72In 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 D vehicle safely. In arriving at this conclusion, I have relied on the following:
The appellant has a diagnosis of epilepsy thought to be due to multiple lesions/tumours in his brain (tuberous sclerosis complex - mosaic). One of these lesions/tumours was ablated on November 18, 2020. He remains on 3 AEDs. The appellant’s last reported daytime seizure with loss of consciousness was on October 20, 2018 (while on two AEDs) and his last reported nocturnal/early morning wakening seizure was on February 14, 2020 (while on three AEDs).
As per the medical evidence before me, the appellant’s recent normal EEG neither negates his diagnosis of epilepsy nor the fact that he may have a seizure recurrence (BT seizure).
A driver cannot compensate for the episodic impairment of the functions necessary to drive which occurs with a seizure with loss of consciousness. This fact was demonstrated by the MVC which occurred when the appellant had a daytime seizure while driving his personal vehicle less than four years ago.
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. I find the need for a greater certainty that future seizures will not occur for drivers of commercial vehicles is both reasonable and prudent.
Although the appellant’s chosen vocation as a crane operator would not involve driving a commercial vehicle on roadways for extended periods of time per day, the Minister cannot put a restriction or condition on the appellant’s Class D licence, once reinstated.
Although the appellant’s wife feels confident that the appellant will now remain seizure-free/not have a further incident, the medical evidence available to me does not explicitly state that.
On August 4, 2021, Dr. D. indicated that although he was hopeful that the ablation procedure will help the appellant remain seizure-free with or without AEDs, he was of the opinion that insufficient time had passed to provide and accurate risk assessment of seizure recurrence.
On February 24, 2022, Dr. D. still felt that it would be beneficial for the appellant to remain on his current dose of AEDs to reduce the risk of any further BT seizures. I find that this means, that approximately five months ago, Dr. D. still had concerns about seizure recurrence.
Dr. D. has not overtly stated in writing that he supports earlier relicensing of the appellant’s commercial licence.
E. ORDER:
73For 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: July 28, 2022