Date: 2022-01-09

Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”), from a decision of the Minister of Transportation to change the class of a driver’s licence pursuant to Section 32(5)(b)(i) of the Act

Between:

Jonathan Hogan

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Adjudicators: Dr. Dimitri Louvish, Member Colin Osterberg, Member

Appearances

For the Appellant: Jonathan Hogan, Self-represented

For the Respondent: Steve Grootenboer, Agent

Heard by Teleconference: December 21, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1Jonathan Hogan (the “appellant”) appeals the decision of the Minister of Transportation (the “Minister”) to downgrade his commercial Class F driver’s licence for medical reasons effective February 10, 2022, after receiving a report from a treating physician that the appellant suffered three seizures. The Minister takes the position that the appellant suffers from a medical condition, namely seizure, that is likely to significantly interfere with his ability to drive safely.

2The appellant appeals the suspension and asks the Tribunal to reinstate his Class F licence.

3Having considered all the evidence and for the reasons that follow, we set aside the decision of the Minister and order that the appellant’s Class F driver’s licence be reinstated.

B. ISSUES

4The 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 commercial vehicle safely.

5To resolve that issue, we will address the following questions:

1. Does the appellant suffer from seizures or seizure disorder?

2. If the appellant does suffer from seizures or seizure disorder, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

C. LAW

6Under the Act, the Minister is responsible for ensuring that drivers are medically fit to drive vehicles on highways. In this case, the Minister acted pursuant to s. 32(5)(b)(i) of the Act and s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the Act.

7Section 14(1)(a) of the Regulation states 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 safely drive a motor vehicle of the applicable class. Under 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.

8Section 14(2)(a) of the Regulation allows the Minister 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. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on us.

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

10On appeal, the Minister has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition.

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

D. EVIDENCE AND ANALYSIS

a. Does the appellant suffer from a medical condition?

12In support of its allegation that the appellant suffers from a medical condition, namely seizures or seizure disorder, the Minister presented into evidence, medical reports of Dr. Andrew Swartz, Dr. Logan Moodley, and Dr. Jeff Price.

13Dr. Swartz is an emergency room doctor who assessed the appellant on October 26, 2021, after the appellant reported having a seizure. Dr. Swartz completed a Medical Condition Report identifying this occurrence, which he sent to the Minister as he was required to do under s. 203 of the Act.

14On October 27, 2021, the Minister suspended the appellant’s driving privileges and requested that he have his treating physician complete a Seizures and Loss of Consciousness Report in order for the Minister to consider licence reinstatement.

15On February 3, 2022, Dr. Moodley, neurologist, reported that the appellant had been under his care for seizure disorder. Dr. Moodley reported that the appellant’s last seizure was in the beginning of November 2021, that the appellant is on appropriate antiseizure therapy and is compliant in his treatment.

16Dr. Moodley reported that the appellant should remain seizure-free for a minimum of 3 months before being licenced to operate his private vehicle and one year before being licenced to operate a commercial vehicle. He reported that all of the appellant’s seizures had been in his sleep and that, if nocturnal epilepsy is ultimately diagnosed, there would be no need for daytime restrictions, including driving restrictions.

17On February 10, 2022, the Minister reinstated the appellant’s Class G licence but maintained the suspension of his Class F licence pending confirmation that the appellant remained seizure-free for a period of 5 years with or without anti-seizure medication.

18On November 19, 2022, Dr. Price, the appellant’s family physician, completed a Seizures and Loss of Consciousness Report. Dr. Price confirms the diagnosis of epilepsy and that the appellant had been seizure-free for more than one year. Dr. Price reports that the appellant is doing well with lifestyle changes and medication and that his last seizure was November 7, 2021.

19The appellant does not dispute the diagnosis of seizure and says that he had three seizures between October 26, 2021 and November 7, 2021. He says he had never had a seizure before or since, and attributes those seizures to his obesity related sleep apnea, his over-use of alcohol and cannabis, and his work-related stress and exhaustion.

20We find that the Minister has established on a balance of probabilities that the appellant suffers from a medical condition, namely seizure or seizure disorder.

b. Is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?

21The Minister bears the onus of establishing that the appellant’s seizure or seizure disorder is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

22A Class F licence allows its holder to drive, among other things, an ambulance while on an emergency call. The appellant is employed as an ambulance attendant. Since he suffered his seizures, the appellant has been assigned modified duties and is unable to attend to his regular duties, including driving ambulances. If his licence is reinstated, the appellant intends to return to his full duties as an ambulance attendant and driver.

23The evidence is that the appellant suffered three seizures between October 26, 2021 and November 7, 2021, all occurring while he was sleeping.

24According to the appellant, he weighed 320 lbs at that time and was not coping well with the COVID-19 pandemic. He was diagnosed with sleep apnea. He was working long and unhealthy hours and was over-using alcohol and cannabis daily.

25Since the seizures, the appellant has made significant lifestyle changes. He has stopped drinking and using cannabis. He has lost more than 120 lbs. He is working regular hours with no overtime. He eats a healthy diet and exercises regularly. According to Dr. Price’s December 12, 2022 report, the appellant’s lifestyle is “extremely healthy”. He no longer has sleep apnea and no longer needs to use a CPAP machine.

26In his report, Dr. Price states:

I do fully support him being able to drive an ambulance. He should be able to re- obtain his Class F Licence.

27The appellant says he is committed to maintaining a healthy lifestyle and to remaining seizure-free. He accepts that he will be taking anti-seizure medication for an indefinite time into the future and intends to do so in order to remain seizure-free. Although the appellant has been able to continue his employment on modified duties while his Class F licence is suspended, he would much prefer to be able to resume working as an ambulance attendant and is determined to do what it takes to do that, including remaining seizure-free and having his Class F licence reinstated.

28The Minister relies on the CCMTA Standards and argues that the appellant should be seizure-free for at least five years before his Class F licence is reinstated.

29The CCMTA Standards’ approach for drivers with seizures or seizure disorder is that seizures must be controlled as a prerequisite to driving. The purpose of a delay in reinstating a licence is to allow time to assess the cause of the seizures and to establish the likelihood that: (1) a therapeutic drug level has been achieved and maintained, (2) the drug being used will prevent further seizures, and (3) there are no side effects that may affect the driver’s ability to drive safely.

30CCMTA Standard 17.6.13 applies to commercial drivers whose seizures occur only while asleep or upon awakening and have been diagnosed with seizure disorder. This is the Standard which best applies to the present circumstances. The appellant’s seizure, or seizures, have occurred while he was sleeping, and he has been diagnosed with seizure disorder.

31Standard 17.6.13 provides that the driver will be eligible for reinstatement if the seizure pattern has been consistent for 5 years and there is no prolonged postictal (post-seizure) impairment in wakefulness. This Standard requires that the driver routinely follow the appropriate treatment regime and his doctor’s advice regarding continued monitoring of the seizures, and report to the Minister and the driver’s doctor if the pattern of seizures changes.

32Although we are not bound by the CCMTA Standards, we find them persuasive when making a driver fitness evaluation. The CCMTA Standards emphasize making a risk analysis of all relevant sources of information including whether the impairment is persistent or episodic and the individual characteristics and abilities of each driver. In conducting the analysis, we are to consider factors such as 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. As per the CCMTA Standards, a seizure while driving is considered to be a sudden episodic impairment and a driver cannot compensate for such an impairment.

33We understand that an ambulance driver, like other commercial drivers, spends more time driving in inclement weather and under 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 more likely to be serious given the size of the ambulance, the speed at which the ambulance may sometimes be driven, and the fact that passengers in the ambulance may be in need of immediate medical attention.

34The appellant’s seizures all took place while he was sleeping. They all occurred within a two-week period at a time when the appellant’s lifestyle was extremely unhealthy and likely to have contributed significantly to the occurrence of the seizures.

35The appellant’s actions since his seizures have demonstrated that he has insight into the seriousness of his medical condition and that he is prepared to take significant action to lessen the likelihood that his seizures may occur. The appellant has lost over 120 lbs, has stopped drinking and using cannabis, has taken his anti-seizure medications as prescribed, exercises regularly, works more reasonable hours, does not have sleep apnea, and gets more adequate sleep than in the time leading up to the seizures.

36The appellant’s treating neurologist, in his report in February 2022, was of the opinion that the appellant was compliant with the medical treatment being prescribed and that his commercial licence could be considered for reinstatement after one year if he remained seizure free. That year has passed.

37The appellant’s family doctor confirms that the appellant’s lifestyle has undergone a substantial change and that it is now an extremely healthy one. The family doctor confirms that the appellant has been seizure-free for more than a year and supports the reinstatement of his Class F licence. The appellant has satisfied us that he is determined to continue his healthy lifestyle and to continue to take anti-seizure medication in order to ensure that his seizures do not recur.

38After a careful consideration of the totality of the evidence presented, and in particular the significant changes the appellant has made to the lifestyle factors which are likely to have contributed to the seizures, his insight into his condition, his compliance with treatment recommendations, and the support of the appellant’s treating physicians, we find that the Minister has not discharged the onus of establishing on a balance of probabilities that the appellant’s medical condition of seizures is likely to significantly interfere with his ability to drive a Class F vehicle safely.

E. ORDER

39For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence for medical reasons and order the Minister to reinstate the appellant’s Class F licence.