Date: 2022-07-12

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 to suspend a driver’s licence under subsection 47(1) of the Act

Between:

Roselle Greuter

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Roselle Greuter, Appellant

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: June 28, 2022

A. Overview:

1Roselle Greuter (the “appellant”) appeals the suspension of her Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), effective April 17, 2022.

2The issue in this appeal is whether the appellant’s reported medical condition of syncope/loss of consciousness is likely to significantly interfere with her ability to drive a vehicle safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s syncope/loss of consciousness is likely to significantly interfere with her ability to drive a vehicle safely.

B. ISSUES:

4The issue in this appeal is whether the appellant suffers from syncope/loss of consciousness, a medical condition, which is likely to significantly interfere with her ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Does the appellant suffer from syncope/loss of consciousness?

b. If the appellant suffers from syncope/loss of consciousness, is it likely to significantly interfere with her ability to drive a vehicle safely?

C. LAW:

6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

7Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

8Section 15(1.1) of the Regulation states that it is a condition of having a driver’s licence that the holder submit to certain medical and physical examinations and tests that the Registrar requires.

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

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

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

12Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (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. PRELIMINARY ISSUE:

13Upon marking the Exhibits, it became apparent that prior to the hearing, the Registrar had not received a medical document submitted by the appellant after the case conference. This document included blood test results from June 1, 2022 and the results of an electroencephalogram (“EEG”) performed on June 5, 2022. At the hearing this documentation was forwarded via Tribunal staff to the respondent. In addition, it was determined that the respondent was going to point to specific email communication between the parties and the Tribunal. As neither party objected to me seeing this communication, the email communication was forwarded to me via Tribunal staff.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from syncope/loss of consciousness?

14I find, on a balance of probabilities, that the appellant suffers from syncope/loss of consciousness.

15The appellant testified that in late January 2022 she suffered an ‘event’ one evening while at home. She stated that she had fallen asleep in a chair watching TV. Sometime prior to midnight she woke up, got out of the chair quickly, walked to the kitchen to get a drink from the fridge and “had a fainting spell”. She initially testified that she did not lose consciousness, but later stated that she “woke up” when she hit the floor. She stated she landed on the floor sideways hurting her knee and elbow. The appellant denied any warning signs prior to her fall to the floor.

16Following the event, the appellant made an appointment with her family physician, Dr. S., to determine the cause. She stated that Dr. S. ordered a 14-day Holter monitor test (a heart monitoring test) and he wanted to wait for the test result before proceeding further. The Holter monitor test began in late March 2022 and continued through early April 2022.

17On April 4, 2022, the appellant had a follow-up appointment with her radiation oncologist, Dr. L., for her previously treated breast cancer. The appellant testified that upon examination, Dr. L. noticed the appellant’s Holter monitor. The appellant stated that Dr. L.: was “adamant” that her January 2022 event had been a seizure; told her she required a CT brain scan; told her she should not be driving; and told her she would be notifying the Ministry of Transportation (the “Ministry”). The appellant stated: she told Dr. L. that she was going to drive home; after she left the office, Dr. L. called the police; the police pulled her over on the highway; the police physically took her driver’s licence from her; and her husband came and picked her up.

18On April 4, 2022, the Ministry received an unsolicited Medical Condition Report from Dr. L. On the report, Dr. L. indicated that she was of the opinion that the appellant was suffering from sudden incapacitation from recurrent episodes of syncope, which may affect her ability to drive safely.

19By letter dated April 7, 2022, the Ministry suspended that appellant’s driver’s licence with the reported condition of syncope/loss of consciousness and requested that her treating physician complete a Seizures and Loss of Consciousness (“SLOC”) form.

20The appellant does not deny that she suffered an event in January 2022, but denies that she has “recurrent syncope”, as per Dr. L. The appellant’s evidence indicated that in both 1985 and 1986, while pregnant, she had a “fainting spell” and in 2019 she had two “fainting spells” while working outside when the temperature was 30°C. The appellant testified that prior to each of these previous four events she: became “lightheaded”, “saw stars”, knew what was going on, and tried to go to the ground/sit down as a preventative measure. She stated that to this day she has not forgotten what these “fainting spells” felt like.

21As per Chapter 19 of the CCMTA Standards, “syncope refers to a partial or complete loss of consciousness”, recurrent syncope refers to “two or more episodes within a 12 month period” and a single episode is defined as “one episode within a 12 month period”. Therefore, I find that the appellant’s January 2022 event was a single episode of syncope/loss of consciousness.

22I find on a balance of probabilities that the appellant suffers from syncope/loss of consciousness.

b. If the appellant suffers from syncope/loss of consciousness, is it likely to significantly interfere with her ability to drive a vehicle safely?

23The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

24The appellant is of the opinion that her January 2022 event was a “fainting spell”. She gave many explanations for the event including:

• she got up fast from the chair;
• she was thirsty when she got up which is an indication that she was dehydrated;
• she has fainted before, and knows what that feels like; and
• the side effects from her medications or menopause include hot flashes and fainting spells.

25In the appellant’s Notice of Appeal and initial testimony, she made statements about the January 2022 event including:

• “there is no evidence in my medical history that would suggest that this one episode is anything but a fainting spell”;
• “on May 17, 2022, Dr. S. indicated that I am able to return to work…The suggestion that I can return to work clearly validates that there are no concerns that are directly related to any medical condition”;
• “the totality of my health was not taken into consideration”;
• “all of the tests done to date” [i.e., blood tests, 14-day Holter monitor, CT brain and EEG] “show that nothing is wrong”;
• neither my CT brain scan nor EEG “show evidence of a seizure” or “indicate anything else”; and
• “more tests may not come up with an answer”.

26When specifically asked about the results of her EEG done on June 5, 2022, the appellant acknowledged that Dr. S. had gone over the results with her. She stated that Dr. S. told her “what it could be”. The appellant stated that she has had no recent head injury (one previous concussion at work) or “symptoms related to the EEG result” such as: nausea, headache, blurry vision or behaviour problems. She also stated that she has “no signs or symptoms of any major malfunction of her brain”, there is no evidence of a brain tumor on her CT brain scan, one cannot determine how old the abnormality in her EEG is, and there is “nothing to substantiate a concern regarding the EEG results”.

27I note that the EEG report states:

• EEG Classification: Dysrhythmia Grade 1 left temporal;
• Clinical Interpretation: The recording shows a focal abnormality of nonspecific nature in the left temporal region. It does raise the possibility of a structural lesion.

28The appellant testified that she has an upcoming magnetic resonance imaging (“MRI”) scan of her brain, followed by a consultation with a neurologist at a later date.

29As per the email communication between the parties and received by the Tribunal, as of June 16, 2022 Dr. S. was still not willing to complete the SLOC form, as “he does not feel comfortable signing the form as there is still no determined reason for my [the appellant’s] syncope”.

30When questioned whether the appellant thought it was reasonable that Dr. S. wanted further testing done prior to completing the SLOC form, the appellant stated, “No, it is not. The tests may never come up with an answer.”

31As per its April 7, 2022 and June 8, 2022 letters to the appellant, the Registrar is of the opinion that it requires a completed SLOC form.

32The respondent pointed to the fact that, by law, the Registrar can require the holder of a driver’s licence to submit to certain medical and physical examinations, tests and procedures.

33The respondent pointed to Chapter 19 of the CCMTA Standards (Syncope). He pointed to the fact that syncope has many different causes, the waiting period depends on the cause of the syncope, the appellant’s treating physician has not yet indicated a cause or treatment plan for the appellant’s syncope, the possibility of a recurrence remains and without the requested information the appropriate CCMTA Standard cannot be applied.

34Furthermore, the respondent emphasized that the appellant had no warning signs prior to her January 2022 event and that even a brief episode of syncope can be catastrophic when driving.

35The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s single episode of syncope/loss of consciousness in late January 2022 is likely to significantly interfere with her ability to drive a motor vehicle safely.

36Although it is not bound by the CCMTA Standards, they may be considered and applied by this Tribunal.

37I acknowledge that the appellant is of the opinion that her January 2022 event was a “fainting spell”, similar to her four previous “fainting spells”. Chapter 19.6 of the CCMTA Standards defines a “typical vasovagal” syncopal episode as one that “occurs when standing and is preceded by warning signs [emphasis added] that are sufficient to allow a driver to pull off the road before losing consciousness”. As per the appellant’s testimony, her four previous “fainting spells” were preceded by warning signs. Her warning signs (prodrome) for these events gave her sufficient lead time to go to the ground/sit down as a preventative measure. However as per the appellant’s testimony, her January 2022 event was not proceeded by any warning sign and she “woke up” after she landed on the floor. Based on the above, I find on a balance of probabilities, that the appellant’s January 2022 event was not similar to her previous four “fainting spells” and, on a balance of probabilities, was not a typical vasovagal syncopal episode.

38In addition, I acknowledge that the appellant is of the opinion that: further medical testing is not needed or reasonable, even in the presence of an abnormal EEG; more tests may not come up with an answer for the event; the totality of her heath was not taken into consideration; and there is no medical evidence to indicate any medical condition warranting a suspension of her driver’s licence.

39Based on the evidence before me, I find that the totality of the appellant’s health was taken into consideration. Dr. L., the appellant’s radiation oncologist, would be aware that the appellant has a history of breast cancer and blood clots. As a radiation oncologist, Dr. L. would known that breast cancer can metastasize to the brain and blood clots can travel to the brain. Either of these conditions, could constitute a ‘structural lesion’ which could cause syncope/ loss of consciousness or seizure.

40Furthermore, the evidence demonstrates that Dr. L. was so concerned about the appellant’s health on April 4, 2022, not only did Dr. L. tell the appellant she should not be driving, Dr. L. called the police after the appellant told Dr. L. she was going to drive home, and sent a MCR to the Ministry.

41I agree with the appellant that it is not possible to determine how old the abnormality in her EEG is. There are no previous EEGs for comparison.

42However, based on the evidence before me, I find on a balance of probabilities that there are concerns regarding the appellant’s EEG results. Her EEG results were classified as “Dysrhythmia Grade 1 left temporal” and the clinical interpretation stated that the recording showed a focal abnormality of nonspecific nature in the left temporal regions and raises the possibility of a structural lesion.

43I agree that more tests or consultations may not come up with an explanation for the appellant’s January 2022 event. Medicine is not an exact science.

44However, taking the appellant’s medical history into consideration, I find that it is both reasonable and prudent that Dr. S. has ordered an MRI of the brain and has started the process for a neurological consultation. As per the appellant, Dr. S. is not yet willing to complete the SLOC form as “he does not feel comfortable signing the form as there is still no determined reason” for her syncope.

45Moreover, 19.4 and 19.5 of the CCMTA Standards indicate that syncope causes an episodic impairment of all the functions necessary for driving. The appellant had no warning signs (prodrome, lead time) prior to her January 2022 event. Had the appellant been driving at the time of the event, she would not have been able to compensate for the episode of syncope/loss of consciousness and the consequences of the event could have been devastating.

46I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

47Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged its onus of establishing that the appellant’s syncope/loss of consciousness is likely to significantly interfere with her ability to drive a vehicle safely.

F. ORDER:

48For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.