Licence Appeal Tribunal File Number: 15633/MED

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

Between:

Manpreet Gill

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

Manpreet Gill, Self-Represented

For the Respondent:

Ian Sookram, Representative

HEARD by teleconference: March 12, 2024

OVERVIEW

1Manpreet Gill (the “appellant”) appeals from the decision of the Minister of Transportation (the “Minister”, the “Ministry” or the “respondent”) to change their Class A licence to a Class G licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), effective June 28, 2021.

2The Registrar of Motor Vehicles (the “Registrar”) has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason.

3The Minister has the authority under Section 32(5)(b)(i) of the Act, to impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements.

4Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states 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 their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that they are able to drive safely.

5Section 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (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 the Tribunal.

6By letter dated December 14, 2020, the Registrar suspended the appellant’s driver’s licence following the receipt of a Motor Vehicle Collision Report indicating that the appellant suffers from a medical condition that may affect their ability to drive safely. Following the receipt and review of additional medical documentation, the appellant’s Class G licence was reinstated on June 28, 2021. By the suspension of the appellant’s Class A licence and reinstatement of their Class G licence, the Minister changed the class of the appellant’s driver’s licence for the purposes of s. 32(5)(b)(i) of the Act.

7The Minister takes the position that the appellant suffers from a medical condition, namely epilepsy (seizure disorder), that is likely to significantly interfere with their ability to drive a Class A vehicle safely and that this provides sufficient reason to change the class of their licence under s. 32(5)(b)(i) of the Act.

8The appellant appeals the change in class of their licence under s. 50(1) of the Act. They acknowledge that they suffer from seizures but deny that their seizures interfere with their ability to drive a Class A vehicle safely.

9Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Minister.

ISSUES

10The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a Class A vehicle safely.

11To resolve that issue, I will address the following questions:

i. Does the appellant suffer from seizure disorder/epilepsy?

ii. If so, is this likely to significantly interfere with their ability to drive a Class A vehicle safely?

12The Minister bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

13Having considered all the evidence and submissions and for the reasons that follow, I find that the Minister has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a Class A vehicle safely and I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from seizure disorder/epilepsy?

14The evidence presented at the hearing establishes on a balance of probabilities that the appellant suffers from a medical condition, namely seizure disorder/epilepsy.

15The Minister’s position is supported by medical reports completed by Nurse Practitioner S. and Dr. S.

16On June 4, 2019, Nurse Practitioner S. completed a Medical Condition Report, which stated that in their opinion the appellant suffers from Sudden Incapacitation due to seizure due to alcohol use disorder and from Substance Use Disorder in relation to alcohol.

17By letter dated July 2, 2019, the Registrar suspended the appellant’s driver’s licence for seizure-alcohol related.

18In a November 4, 2020 completed Substance Use Disorder form, the appellant’s family physician, Dr. S., reported: the appellant had an alcohol withdrawal seizure greater than or equal to 12 months ago; the seizure was not due to a seizure disorder (i.e., epilepsy); the appellant successfully completed a treatment program; and the appellant had abstained from alcohol for 6-12 months.

19By letter dated November 18, 2020, the Registrar reinstated the appellant’s driver’s licence.

20On November 27, 2020, while driving, the appellant was involved in a single vehicle motor vehicle collision. The motor vehicle collision report states, “driver had a seizure; accelerated to oncoming side of traffic; went offroad striking a fire hydrant and flipping vehicle through fence”. I also note that the report states that fire services assisted to extract the occupants and that two parties were transported by ambulance to hospital.

21The appellant does not deny that they suffered these two witnessed seizures, one witnessed by their family while at home in June 2019 and the other witnessed by their friend, the passenger in the vehicle, while they were driving on November 27, 2020. According to the appellant, it was their friend who told police that the appellant suffered a seizure while driving.

22Dr. S. has filed many completed Ministry forms on behalf of the appellant since 2020.

23Since the appellant’s seizure on November 27, 2020, Dr. S. has consistently written on the completed Ministry forms that the appellant suffered a provoked (i.e., alcohol withdrawal) seizure in 2019, has the diagnosis of epilepsy and has taken anti-seizure medication since the unprovoked seizure in November 2020.

24In the Comments section of the January 24, 2024 completed Seizure and Loss of Consciousness form, Dr. S. wrote, “…Seen by Dr. B. on October 3, 2019 where it was mentioned about the history of seizure one and half years ago. He had his last unprovoked tonic clonic seizure on November 27, 2020…”.

25The appellant acknowledges that they had an appointment with neurologist, Dr. B., following their seizure in June 2019, but denies having a seizure prior to June 2019.

26For the following reasons, I prefer the information provided by Dr. S. in the completed Ministry forms over the evidence of the appellant and find, on a balance of probabilities, that the appellant has suffered two unprovoked seizures in addition to a provoked (alcohol withdrawal) seizure:

i. Dr. B., a neurologist, is qualified to take a thorough neurological history, make a diagnosis of a previous history of tonic clonic seizure and determine whether the appellant suffers from that condition;

ii. Dr. S. has access to Dr. B.’s consultation note;

iii. Dr. S. wrote, “his [the appellant’s] last unprovoked tonic clonic seizure on November 27, 2020…”. “Last” means that there was a previous occurrence of an unprovoked seizure;

iv. the CCMTA Standards refer to epilepsy as a condition characterized by recurrent (at least two) seizures, which do not have a transient provoking cause (i.e., unprovoked); and

v. since November 2020, Dr. S. consistently wrote on the completed Ministry forms that the appellant has epilepsy in addition to having suffered a provoked seizure in June 2019.

27I assign less weight to the appellant’s oral evidence that they did not have a seizure prior to 2019. The appellant did not submit any medical evidence to dispute the medical information provided by Dr. S. The appellant had the opportunity to submit evidence from their appointments with Drs. B. and S., and from their current neurologist, Dr. D., but they did not.

28Based on the above, I find that the Minister has established on a balance of probabilities that the appellant suffers from seizure disorder/epilepsy.

Is the appellant’s medical condition likely to significantly interfere with their ability to drive a Class A vehicle safely?

29I find that the Minister has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a Class A vehicle safely.

30The Minister’s representative argues that, as demonstrated by the appellant’s November 2020 motor vehicle collision when they suffered a seizure while driving, the primary concern for drivers with epilepsy is the potential for a seizure causing a sudden impairment in the functions necessary for driving for which a driver cannot compensate. They emphasized that the appellant had no warning symptoms prior to their seizure and further argued that drivers of ‘commercial’ (e.g., Class A) vehicles generally spend more time driving on the road and there is thus an increased risk to public road safety.

31The Minister relies on the CCMTA Standards, in particular Chapter 17.6.12 (Epilepsy – Commercial drivers). 17.6.12 provides that a commercial driver is eligible for a licence if: they have not had a seizure with or without medication for 5 years; and the conditions for maintaining a licence are met. This Standard also requires that the driver routinely follow the appropriate treatment regime and their doctor’s advice regarding continued monitoring of seizures, and report to the Minister and the driver’s doctor if a seizure occurs.

32The appellant stated that they acknowledge and accept that the Minister requires them to be seizure free for 5 years prior to the reinstatement of their Class A licence.

33However, the appellant asked the Tribunal to consider the start of their ‘seizure free time’ requested by the Minister to be June 4, 2019, when their provoked (alcohol withdrawal) seizure occurred, not November 27, 2020, when their last unprovoked seizure occurred.

34The appellant argued that the situation is not their fault, but rather the fault of their treating doctors and the medical system. They stated that if they had been prescribed anti-seizure medication following their June 2019 seizure, then their November 2020 seizure would not have occurred.

35In addition, the appellant testified regarding the many ways they maintain compliance with their anti-seizure medication; their recent electroencephalogram result, which was normal; their abstinence from alcohol; and the difficulties and challenges they are facing without their Class A licence.

36While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

37Although I am not bound by the CCMTA Standards, I find them reasonable.

38Given the evidence and submissions, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

39The 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, I am 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, particularly one, as in this case, where the driver does not experience warning symptoms of a seizure, is considered to be a sudden episodic impairment and a driver cannot compensate for such an impairment. This was clearly demonstrated when the appellant had an unprovoked seizure while driving their Class G vehicle on November 27, 2020, resulting in a motor vehicle collision.

40Furthermore, the CCMTA Standards when viewed as a whole, provide reasons/evidence for the temporal seizure free distinction between commercial and Class G drivers. I understand that a Class A driver, like other commercial drivers, spends more time driving in inclement weather and under more adverse driving conditions and drives longer distances 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 and/or gross weight of a Class A vehicle.

41I do not agree with the appellant that their situation is the fault of treating doctors and/or the medical system. As a licenced and duly qualified physician in the province of Ontario, I know that the prescribing of anti-seizure medication is not the current standard of care for persons who have suffered an alcohol withdrawal seizure. The current standard of care for the treatment of an alcohol withdrawal seizure is the treatment of any underlying alcohol use disorder. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The medical information provided by Dr. S. states that the appellant had treatment for their alcohol use disorder and that abstinence was achieved.

42I acknowledge the appellant’s request to consider the start of their ‘seizure free time’ to be June 4, 2019. In other words, the appellant is requesting that they be considered as being four years and nine months seizure free as of the date of the hearing, as opposed to a little over three years and three months seizure free which they are currently considered. However, based on the evidence and submissions, I do not accept this submission. The medical evidence and the CCMTA Standards clearly distinguish between provoked seizures (e.g., alcohol withdrawal) where the provoking factor has been treated and stabilized, and unprovoked, cause unknown, seizures (e.g., seizure disorder/epilepsy), which is the matter before the Tribunal.

43Moreover, the appellant has no support for early relicensing for their Class A licence from any treating healthcare practitioner. The appellant stated that they recently requested, at their appointment with Dr. D., a written letter of support for early relicensing but Dr. D. declined to provide one.

44I acknowledge the burden, financial and otherwise, that the lack of a Class A licence is having on the appellant and their family. However, driving a Class A vehicle is a privilege, not a right. While I understand the practical challenges that can result from the change of class of a driver’s licence, I must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

45I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a Class A vehicle safely.

Conclusion

46I find that the Minister has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely seizure disorder/epilepsy that is likely to significantly interfere with their ability to drive a Class A vehicle safely.

ORDER

47For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Minister’s decision to change the class of the appellant’s driver’s licence.