Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
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:
Michael Harvey Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicators: Dr. Peter Savage, Member Jeffery Campbell, Vice-Chair
Appearances
For the Appellant: Michael Harvey, Self-represented For the Respondent: Steve Grootenboer, Agent
Heard by Teleconference: October 7, 2022
REASONS FOR DECISION AND ORDER
A. Overview
1By letter dated May 27, 2022, the Registrar of Motor Vehicles (the Registrar) suspended the appellant’s Class G1 licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), for medical reasons. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.
2Having considered all the evidence and for the reasons that follow, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
B. Issue
3The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.
4To resolve that issue, we will address the following questions:
Does the appellant suffer from a medical condition, namely a sensory/focal seizure in the context of subdural hematoma?
If the appellant does suffer from a sensory/focal seizure in the context of subdural hematoma, is this likely to significantly interfere with his ability to drive a motor vehicle safely?
C. The Law
5The Registrar has the authority under s.47(1) of the HTA to suspend or cancel a driver’s licence for any grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”
6One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
7Subsection 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 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.”
8Section 203(1) of the HTA requires medical professionals to report prescribed medical conditions to the Registrar, while s. 203(2) gives medical professionals the discretion to report medical conditions that they believe might make it dangerous for a person to drive.
9Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Registrar or on this Tribunal.
10The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.
11Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
D. Evidence and Analysis
a. Does the appellant suffer from a sensory/focal seizures?
12The appellant testified that, on April 15, 2022, he suffered a fall at a hockey game after which he began to experience numbness in his right arm and severe headaches. On April 24, 2022, he was admitted to hospital at where he was diagnosed with subdural hematoma for which he received bur surgery on April 27, 2022 and again on May 17, 2022.
13The appellant testified that the day prior to his first surgery, after receiving an IV port installed in his right hand he began experiencing the additional symptom of tingling and ‘electricity’ from his right wrist to his elbow. He testified that he experienced the same symptoms after receiving a second IV port in his right hand weeks later.
14The appellant testified that after the surgery of April 27, 2022, his initial symptoms did not subside. A second surgery of May 17, 2022 proved to be more successful, causing his symptoms to dissipate. He was prescribed Keppra for the suspected partial seizures, which he took until early July.
15In support of its allegation that the appellant suffers from a partial seizure, the Registrar relies on the Medical Condition Report (“MCR form”) from a neurology resident, Dr. Wang (“Dr. Wang”) dated May 19, 2022, and a Seizures and Loss of Consciousness form (“Seizure form”) from treating neurologist, Dr. Jocelyn Zwicker (“Dr. Zwicker”) dated August 15, 2022.
16In the MCR form of May 2, 2022 Dr. Wang advised that the appellant suffers from a sensory/focal seizure in context of subdural hematoma.
17In the Seizure form, Dr. Zwicker advised that the appellant suffered from a provoked seizure caused by a structural brain abnormality. Dr. Zwicker advised that the appellant has been seizure free for 3-6 months. Dr. Zwicker stated,
“The patient started having intermittent numbness of the right arm and headaches in April, 2022. He was diagnosed with a left subdural hematoma. Due to the intermittent and migratory nature of the sensory symptoms, focal sensory seizures were suspected and he was started on Keppra. The subdural hematoma was evacuated on April 27th and again May 17th. He has not had any recurrent episodes of sensory loss in the right arm since late May 2022. The Keppra was tapered off in June with the last dose on July 5th. The most recent CT head July 13th showed decrease in size of the subdural hematoma with no significant associated mass effect. His neurological examination between episodes of arm numbness has always been normal.”
18The appellant testified that he believes that the sensory focal seizure may have been a misdiagnosis and offered various theories as to the cause of the arm numbness. These include numbness caused by sleeping with his right hand above his head, a diagnosis of carpal tunnel in August, and that the symptom of tingling and electricity in his right arm arose from the installation of the IV ports in his right hand.
19As much as the appellant’s theories may present alternate possibilities, they are without medical substantiation. We prefer the diagnosis of Dr. Wang of sensory/focal seizure in the context of subdural hematoma for which the appellant received two surgeries, the second of which resulted in the subsiding of the appellant’s symptoms.
20We find that the Registrar has established on a balance of probabilities that the appellant suffered from a medical condition, namely sensory/focal seizure in the context of subdural hematoma.
b. Is the appellant’s medical condition of sensory/focal seizures likely to significantly interfere with his ability to drive a vehicle safely?
21The Registrar has the burden of establishing that the appellant’s sensory/focal seizures are likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find that the Registrar has not satisfied this burden.
22The Registrar relies on the CCMTA National Safety Code, chapter 17 which describes seizures and epilepsy and the concerns with driving with respect to that condition. The Registrar relies on chapter 17.6.1 which recommends a 6-month driving restriction “since the provoking factor stabilized, resolved, or was corrected, with or without treatment, and they have not had a seizure during that time.”
23The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s sensory/focal seizures are likely to significantly interfere with his ability to drive a motor vehicle safely.
24While the CCMTA recommendations are well-reasoned and helpful, every case is individual, and the facts of each case must be considered independently
25It is of interest and import that there is no medical evidence that the appellant has suffered a loss of consciousness or a loss of any bodily function due to the seizure/focal seizures.
26The appellant testified that he believes that the surgery of May 17, 2022 ‘fixed’ the medical issues and he has not had any of the recurring symptoms since May 31, 2022.
27In the Seizure form, Dr. Zwicker advised that the appellant has not had any recurrent episodes of sensory loss in the right arm since late May 2022.
28We note that that neither the appellant’s neurosurgeon nor his neurologist has advised that he abstain from driving, although it is not uncommon to advise a patient to refrain from driving for 30 days following bur hole surgery.
29We also note that while the appellant was prescribed the anti-seizure medication Keppra, he was weaned off that medication by July 5, 2022, indicating that neither his neurologist nor neurosurgeon believes seizure management was necessary at that point.
30As the appellant has been seizure free for over 4 months and the appellant’s physicians have discontinued the anti-seizure medication, we find that this present case is one in which it is appropriate to depart from the CCMTA standards.
31Based on the evidence, we find that the Registrar has not established on a balance of probabilities that the appellant’s medical condition of sensory/focal seizures is likely to significantly interfere with his ability to safely drive a motor vehicle.
E. Order
32For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to suspend the appellant’s Class G Licence.
LICENCE APPEAL TRIBUNAL
___________________________
Dr. Peter Savage, Member
Jeffery Campbell, Vice Chair
Released: October 14, 2022