Randy Meeuse v. Minister of Transportation, 2022 CanLII 70545

Date: 2022-08-02

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 subparagraph 32(5)(b)(i) of the Act.

Between:

Randy Meeuse

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Randy Meeuse, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: July 20, 2022

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal under s. 50 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) from a July 2, 2020, decision of the respondent, the Minister of Transportation (the “Minister”), to downgrade the appellant’s class DZ commercial driver’s licence to a class G licence. The reason for the downgrade from DZ to G was that the applicant suffers from seizures.

2For the reasons that follow the Tribunal confirms the decision by the Minister to downgrade the appellant’s class DZ driver’s licence.

B. LAW

3The Minister has the power under s. 32(5)(b)(i) of the HTA to suspend or downgrade a licence in accordance with requirements prescribed in the regulations.

4Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any . . . physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”

5Section 14(2)(a) of the O. Reg. 340/94 allows the Minister to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Minister or on this Tribunal.

6The Minister has the burden of establishing on a balance of probabilities that one or more ground for suspending a driver’s licence has been made out.

7Pursuant to section 50(2) of the HTA, after a hearing the Tribunal may confirm, modify or set aside the decision or order of the respondent.

C. ISSUE

8The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.

To answer that issue, I will address the following questions:

a. Does the appellant suffer from a medical condition?

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a class DZ vehicle safely?

D. THE EVIDENCE and ANALYSIS

DOES THE APPELLANT HAVE A MEDICAL CONDITION?

9The Minister received a medical condition report from Dr. Chris Hollingsworth dated July 27, 2019. This report alerted the ministry that the appellant had suffered a seizure on this date.

10On behalf of the Minister, the Registrar of Motor Vehicles (“Registrar”) sent a letter on July 30, 2019, informing the appellant that his licence had been suspended and asking the appellant to have an epilepsy and seizure questionnaire form filled out by his physician and returned to the Registrar.

11The initial questionnaire was filled in by Dr. Jorge Burneo, the appellant’s neurologist, and a specialist in neurology at the University Hospital in London, Ontario. This questionnaire confirmed the diagnosis of seizure, identified it as a complex partial seizure and noted the cause was idiopathic or unknown. At that time no medication was given to the appellant by the emergency doctor or the neurologist.

12On March 22, 2020, the appellant suffered a second seizure. This seizure also occurred at night as noted by the neurologist and, following this episode, an anti-seizure medication was prescribed by the neurologist. Between March 2020 and June 2022, communication continued between the Registrar and the appellant. There were numerous pieces of information shared between the neurologist and the Registrar.

13As a result of the communication, the appellant’s DZ licence was downgraded to a G licence and the Minister’s position was that the DZ licence would remain suspended until a five-year seizure free period had been maintained.

14The appellant did not deny having had seizures but felt that his situation had changed, and his condition was under control. He disagreed with the need for a five-year period of stability.

15The respondent pointed out that the medical evidence and the appellant’s testimony confirmed the diagnosis of seizure.

16Based on the medical evidence of the emergency physician, the neurologist and the testimony of the appellant himself, l find that appellant has a medical condition of epilepsy.

IS THIS CONDITION LIKELY TO SIGNIFICANTLY INTERFERE WITH HIS ABILITY TO DRIVE A COMMERCIAL VEHICLE SAFELY?

17The respondent has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the respondent has met that burden.

18The respondent drew my attention to the CCMTA Standards, which state that certain conditions can produce episodic loss of consciousness. Epilepsy is one of these conditions. The Minister submitted that there are possible catastrophic consequences from a loss of consciousness while driving a commercial vehicle. The Minister pointed out that the CCMTA Standards’ recommendation for commercial drivers with epilepsy is a 5-year period of stability.

19The CCMTA Standards are guidelines and recommendations and I acknowledge that they are not the law. However, I accept that they were produced by a group of medical experts in jurisdictions throughout Canada and the USA. The Regulation expressly allowed the Minister to consider them and although, as noted, they are not binding, they can be persuasive.

20The appellant’s position was that his seizures were brought on by stress and exhaustion, that his situation has changed, and that steps have been taken to make the possibility of another seizure extremely low.

21The appellant submits:

A. He was put on medication Levetiracetam or Keppra (an anti-seizure medication that is used alone or in combination with other medications to control complex partial seizures).

B. He was put on this medication in March 2020 after his second seizure and since that time he has had no seizure activity. He takes his medication regularly. He has the support of his wife and daughter in the changes he has made in his lifestyle and in remembering to take his medication.

C. He does not take alcohol and he takes no recreational drugs.

D. All his scans and EEGs are normal.

E. He visits his neurologist on a regular basis and has continuing follow up appointments organized. His neurologist supports the reinstatement of his commercial driving privileges and has written a letter of support to the Registrar.

F. He has made large changes in his lifestyle to reduce stress in his life. He was farming as well as holding his job with the township. He has sold his farm and equipment and now is not actively farming at all. He gets more rest and spends time in leisure activities rather than working all the time.

G. He feels better and has lost weight and is more physically fit.

H. He no longer needs his CPAP machine and sleeps well at night.

I. He is a snow-plow operator and is called out at night, but he is not allowed to drive more than 8 hours at a time. He must go home and rest for 8 hours before returning to driving. He is well aware of weather forecasts and would go to bed early if he had a sense, he was going to be called out to plow snow through the night.

22The appellant testified he is a safe driver and a responsible adult. He feels his DZ licence should be restored as he is stable and symptom free and has had no further spells.

23The appellant’s position was that each case must be decided individually and, although the CCMTA Standards recommended a period of 5 years of stability, the circumstances of his case made the 2 years and 5 months of stability a sufficient period of time to allow him to regain his DZ commercial licence. He emphasised his neurologist’s support of commercial driving, the fact that medication was not started until after the second seizure and the major lifestyle changes, he has made.

24The Minister made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:

A. The appellant’s condition may not be stable.

B. The appellant’s condition may appear stable, but at any time and without warning episodes could occur with disastrous results, especially if the appellant was driving a commercial vehicle. The CCMTA Standards note that seizures may occur even after a few years of stability.

C. The Minister stressed the danger associated with unconsciousness related to seizures.

D. The Minister pointed out that the Ministry of Transportation must be proactive and there is a greater need for safety in licensing commercial drivers. The Minister stated the Ministry of Transportation does the licensing and not the doctor.

E. The Minister pointed out that the nature of the appellant’s commercial driving was snow plowing, which was stressful, and often involved being called out at night, which could interfere with sleep and, in turn, might affect the nocturnal seizure pattern exhibited by the appellant.

25The evidence supports the Minister’s submissions. I find, on a balance of probabilities, that the appellant’s epilepsy is likely to significantly interfere with his ability to drive a DZ-class vehicle safely. A review of the evidence and the appellant’s submissions shows that he has a significant medical condition. Given the serious nature of his condition, the appellant is likely to constitute a risk to himself and others if he is permitted to drive a commercial vehicle. While the neurologist is supportive of reinstatement of the commercial licence, his recommendation is inconsistent with the CCMTA. I am of the view that the CCMTA recommendation is a well-reasoned and safe standard and should be followed in this case given its circumstances and the risk involved. While the appellant has made very strong case for reinstating the DZ licence noting the significant progress in the management of his lifestyle and health issues, there is still the real possibility of a further seizure. The nature of night on call work and the stress of snow plowing in winter conditions is of great concern in a man who has experienced nocturnal seizures possibly brought on by exhaustion and stress as stated by the appellant himself.

ORDER

26For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Minister’s decision to downgrade the appellant’s commercial licence for medical reasons.