Date: 2022-07-13

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles pursuant to s. 47(1) of the Act to Suspend a Licence

Between:

James Johnston

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Dimitri Louvish, M.D., Member Jennifer Friedland, Member

Appearances:

For the Appellant: Self-Represented

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By teleconference, May 26, 2020

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, made on November 4, 2020, to continue the downgrade of the appellant’s commercial ADZ licence to a class G licence pursuant to s.32 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or “Act”).

2The appellant had a single seizure in April 2017 after which his G licence and his commercial licence were both suspended. Both licences were then reinstated following an appeal to this Tribunal released April 4, 2018.¹

3The appellant then had a second seizure in August 2019 having stopped taking his medication while on holiday. Both his licences were again suspended. He appealed that decision as well but this time was unsuccessful.²

4Almost 2 ½ years have passed since the LAT decision confirming the Registrar’s decision to continue his suspensions. Since then the appellant has had his G licence reinstated, but not his commercial licence. The Registrar continues to request that he show that he has been seizure free for at least 5 years before that class of licence is reinstated.

5The appellant asks for his commercial licence to be reinstated now. He explains that his second seizure (if it in fact was a seizure) was due to stopping his medication while on holiday which he did for reasons that have no likelihood of happening again. Specifically, he found the pills too big to swallow and had been chewing them which made him feel unwell. He stopped the pills and went to see his doctor. His doctor has since prescribed a lower dose smaller pill to be taken more frequently.

6Both the appellant’s family physician and his neurologist whom he had been seeing since his first seizure approve him being fully licenced again, including to drive a commercial vehicle.

7The appellant’s use of a commercial licence is only for the purpose of moving animals and hauling hay around his farm. He has a day job and does not require a commercial licence for any other purpose.

B. ISSUE

8The issue in this case is whether the appellant has a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

C. RESULT

9For the reasons given below, we find that the appellant does have a medical condition – namely seizures – however given the context of his second seizure and the recommendations of his family doctor and neurologist, we find that once he can show that he has been seizure free for 3-years since the last incident, this condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

10We therefore modify the Registrar’s decision such that the appellant must show that he has been seizure free for 3-years before having his commercial licence reinstated.

D. Law & STATUTORY CONTEXT

11The purpose of the licence provisions of the HTA is to “protect the public.” Section 31 (a) describes that one of the ways this is done is by ensuring that:

31(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely.

12Ontario Regulation 340/94 is a regulation made under the HTA that deals specifically with drivers’ licences. At section 14(1)(a) it specifies that:

14.(1) An applicant for or a holder of a driver’s licence must not,

a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely ...

13The provision goes on to state that:

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and

b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information. O. Reg. 453/10, s. 1.

14The reports of examinations that the Registrar may require under the above provision include those listed in s.15(e) of the Regulation, namely: medical and physical examinations, tests and procedures to determine the person’s fitness to drive or to determine whether the person meets the qualifications prescribed by section 14 and other provisions.

15The Registrar has the power under s. 47(1) to suspend a licence for “any sufficient reason.” This includes where a person has a medical condition likely to significantly interfere with the person’s ability to drive a motor vehicle of the applicable class safely.

16The Registrar also has the power under 32(5)(b)(i) to, among other things, change the class or classes of a driver’s licence held by a person, in accordance with the results of examinations and other prescribed requirements.

17A person who is aggrieved by a decision of the Registrar or the Minister may bring an appeal to this Tribunal under s. 50 (1) of the HTA.

18Following a hearing, under s. 50 (2) of the HTA, the Tribunal may confirm, modify or set aside the Registrar’s decision.

19The Registrar has the burden of establishing on a balance of probabilities that its decision should be confirmed.

E. FACTS

20The facts are generally set out in the overview above and can also be reviewed in the two prior decisions of the Tribunal relating to the appellant’s case.³

21We will elaborate only on the relevant details from the last decision to show why we are departing from it now. We will also review the facts that have arisen since that last decision.

LAT Decision Feb 6, 2020

22The prior decision of the Tribunal followed a hearing that took place on January 21, 2020 – which was just five months since the appellant’s second seizure.

23At paragraph 34 of that decision, the member noted that during the hearing, the appellant testified that his doctors were supportive of the return of his licence. However there were no letters of support confirming this. There are now. We will review those letters below.

24At paragraph 35, the Tribunal referred to the medical standards for drivers produced by the Canadian Council of Motor Transport Administrators (CCMTA). Pursuant to these standards, which the HTA specifically entitles the Registrar to consider, a person diagnosed with epilepsy has to show they have been seizure free for 5-years before being granted a commercial licence. The Tribunal concluded that those standards should be adhered to in the appellant’s case because “the appellant’s diagnosis is quite recent and more time is require to ensure that the appellant is seizure free” The Tribunal continued, “I appreciate the appellant’s intuitive actions in understanding what may have caused his latest seizure but without more time to show stability, the risk to the public remains unacceptably high. In this regard, taking into account public safety, the CCMTA standards reasonably reflect the recommended period of being seizure free.”

Evidence since the last hearing

25Since the last hearing, the appellant has produced the following letters from his medical team:

• Letter from Dr. Rabinovitch dated February 4, 2020 – Dr. Rabinovitch is the appellant’s neurologist and had been seeing the appellant since May 2017 following his first seizure. He writes that the appellant is “under excellent control at this time. I do not think there needs to be any restrictions on him.”

• Letter from Dr. Rabinovitch dated October 9, 2020 – after following up with the appellant, Dr. Rabinovitch writes, “He has been years seizure-free. He only [had] a spell when he had difficulty swallowing the largest 750 mg per day. I do not think there is any concerns about him having any restrictions on his ability to drive. Currently he is completely symptom free using a 250 mg size pills 3 pills twice a day. I believe that he can return to having his class A1 license.”

• Medical Report from Dr. Connelly dated January 13, 2021 – this is the appellant’s family physician of 17 years who confirms that the appellant’s “last spell” was “August 2019 when he had difficulty swallowing his medication. The patient was switched to smaller pills and there have been no seizures. His neurologist feels he can return to having his class A1 license…”

26The appellant testified and we found him credible and forthright. Consistent with his position at the last hearing, he questions whether he in fact had a seizure in August 2019 while on vacation with his family but accepts that this was his diagnosis.

27He explained he stopped taking his medication (Keppra) because he could not swallow the pills whole and was chewing them which interfered with the release of the medication and made him feel unwell. He went off the medication in order to relax on vacation. He confirmed that he did not fall down and that his wife did not notice anything unusual. He described not feeling well while at the amusement park with his family. He went to his doctor upon return from vacation.

28The appellant further testified that he understands how important it is to take his medication regularly. To that end, following this incident, his doctor gave him a new prescription for a smaller dose of Keppra in smaller size pills to take more frequently. He testified that he has had no problems swallowing the smaller pills, that he takes them regularly, and that he does not ever miss a dose. Further he is aware that he must take this medication for the rest of his life.

29We questioned the appellant as to why he had not provided any updated letters from his medical team. He explained that his neurologist has since retired and that for various reasons, including Covid-19 restrictions and delays, he has not managed to book an appointment yet with Dr. Rabinovitch’s replacement. He explained that he has called for an appointment but because they are backlogged they ask him whether he has something in particular that is bothering him and he is unable to express urgency because in truth he feels fine. He seems to appreciate that he may need to try a little harder to get an appointment if he in fact wants his commercial licence reinstated.

30The appellant again expressed that he only needs his commercial licence for hauling hay and taking animals to pasture. He described that he does not own a transport, just a small trailer. There was some discussion about whether the appellant in fact needed a commercial licence to drive the trailer. The appellant testified to his understanding that he could probably get away with driving it without a commercial licence but that it is registered commercial and therefore he is not prepared to drive it unless his commercial licence is reinstated. The Registrar’s agent noted that a commercial licence does not distinguish between types of vehicles and that the appellant could also drive a highway transport truck if granted a commercial licence.

F. ANALYSIS

31We find that the appellant suffers from a medical condition, namely seizures. He does not dispute this finding.

32There is some discrepancy in the reports as to whether his seizures are caused by epilepsy or some other cause, either way, the MCCTA Standards determine that more than one seizure puts a person in the epilepsy category.

33If we were to strictly apply the CCMTA medical standards for epilepsy, we would agree that the appropriate length of time to be seizure free is 5-years before the appellant would be considered safe to drive a commercial vehicle again. However, for a number of reasons we find it makes sense to depart from those standards in this case.

34First, the CCMTA standards are not mandatory standards. Both the Tribunal and the Registrar are free to depart from them. While a departure from the Standards should not be done lightly, the Tribunal should not be closed to individual circumstances that may favour such a departure.

35Second, the question that the Tribunal must ask itself is not whether the appellant has a particular medical condition, but whether that condition is likely to significantly interfere with the person’s ability to drive a motor vehicle of the applicable class safely. With respect to regaining a commercial vehicle licence after a diagnosis of epilepsy with seizures, the Standards do not look at individual circumstances. Rather they presume that a person with that condition cannot be considered safe to drive until they have been seizure free for 5- years. However, one reason to depart from the Standards is where there is evidence that the person could, in fact, operate a commercial motor vehicle safely, before the 5-years is up. We find that such is the case here.

36In this case, the evidence satisfies us that the appellant had a second seizure for a specific reason; namely because he stopped taking his medication. He stopped taking that medication for a specific reason, as well; namely, because he found his pills too big to swallow, and was chewing them instead which made him feel unwell so he stopped taking his medication while on holiday. He should not have been chewing his medication. And he should not have stopped taking his medication. He knows that now. The appellant has since been prescribed a smaller dose which he takes more frequently. He reports no trouble swallowing the smaller size pills. He takes them regularly as prescribed and he has not had any further seizures.

37Given the above, we are unable to conclude that the appellant’s medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely. We find, rather, that his seizures are controlled by medication, and that as long as he takes his medication, he can safely drive a commercial vehicle. We have no reason to believe that he will not keep taking his medication properly. The appellant testified with maturity. We do not see him as being at any risk of forgoing his medication in the future.

38We do have one concern however, and that is that the appellant’s most recent letter from his doctor is January 2021 which is a year and a half ago. We are assuming that the appellant has in fact been seizure free since that time, as he has testified. But this needs to be confirmed.

39Because we do not have a current letter confirming that the appellant remains seizure-free, we are not setting aside the Registrar’s decision and determining that the appellant’s commercial licence should be immediately reinstated. Rather, our decision is to modify the Registrar’s decision such that the appellant’s commercial licence is to be reinstated upon confirmation that he has been seizure free for three years. This will allow him to have his commercial licence reinstated upon confirmation that he has been seizure free for 3-years since August 10, 2019. An updated report from his medical doctor confirming that he has been and is still seizure free will suffice.

Conclusion

40The Tribunal, hearing the appellant’s appeal nearly 2 ½ years ago, concluded that the “CCMTA should be adhered to in this case because the appellant’s diagnosis is quite recent and more time is required to ensure that the appellant is seizure free.” More time has now passed and the appellant remains seizure free. Moreover, he has the support of his neurologist saying that he is well controlled, remains seizure free and that there should be no restrictions on his licence, including his commercial licence.

41We find that the appellant’s seizures are well controlled by medication and that there is no discernible risk that the appellant will stop taking his medication in the future. In that context, we find the appropriate time for the appellant to remain seizure free before regaining his licence is 3-years. We therefore modify the Registrar’s decision accordingly.

G. ORDER

42Pursuant to the powers of this Tribunal under s. 50(2) of the HTA, the Registrar’s decision to continue the downgrade of the appellant’s commercial licence is modified. The Registrar is ordered to reinstate the appellant’s commercial licence upon confirmation from his physician or neurologist that he has been seizure free for 3-years..

LICENCE APPEAL TRIBUNAL

___________________________________ Dr. Dimitri Louvish, Member

___________________________________ Jennifer Friedland, Member

Footnotes

1. 1J.J. v. Minister of Transportation, 2018 CanLII 52304 (ON LAT)
2. 2James Johnston v. Minister of Transportation, 2020 CanLII 27345 (ON LAT)
3. 3See supra footnotes 1 and 2.