Licence Appeal Tribunal File Number: 15645/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:

Milton Bedoya

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member Dr. Kailey Minnings, Member

APPEARANCES:

For the Appellant:

Milton Bedoya, Self-Represented

For the Respondent:

Sharon Nelson, Representative

HEARD by teleconference: March 13, 2024

OVERVIEW

1Milton Bedoya (the “appellant”) appeals from the decision of the Minister of Transportation (the “Minister”, the “Ministry” or the “respondent”) to change their Class D 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 February 9, 2024.

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 s. 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.

5By letter dated January 18, 2024, the Registrar suspended the appellant’s driver’s licence following the receipt of a Medical Condition Report (“MCR”) which stated that the appellant suffers from a medical condition that may affect their ability to drive safely. Following the receipt and review of additional medical information, the appellant’s licence was reinstated as a Class G licence on February 9, 2024. By reinstatement of their licence as Class G rather than Class D, the Minister changed the class of the appellant’s driver’s licence for the purposes of s. 32(5)(b)(i) of the Act.

6The Minister takes the position that the appellant suffers from a medical condition, namely seizure, that is likely to significantly interfere with their ability to drive a Class D vehicle safely and that this provides sufficient reason to change the class of their licence under s. 32(5)(b)(i) of the Act.

7The appellant appeals the change in class of their licence under s. 50(1) of the Act. They acknowledge that they suffer from seizure but deny that their seizure interferes with their ability to drive a Class D vehicle safely.

8Pursuant 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

9The 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 D vehicle safely.

10To resolve that issue, we will address the following questions:

i. Does the appellant suffer from seizure?

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

11The Minister bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

12Having considered all the evidence and submissions and for the reasons that follow, we 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 D vehicle safely and we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from seizure?

13The evidence presented at the hearing establishes on a balance of probabilities that the appellant suffers from a medical condition, namely seizure.

14The Minister’s position is supported by medical reports completed by Drs. La., C. and Li.

15On January 14, 2024, emergency department physician, Dr. La., completed a MCR which stated that in their opinion the appellant suffers from Sudden Incapacitation due to seizure with an unclear etiology or cause.

16On January 25, 2024, neurologist, Dr. C., completed an MCR which stated that in their opinion the appellant suffers from Sudden Incapacitation due to first onset seizure. Dr. C. also handwrote, “Had one 20 second episode of decreased level of consciousness. Normal CT head (computed tomography) and EEG (electroencephalograph). Commercial truck driver”.

17On a February 1, 2024 completed Seizures and Loss of Consciousness form, Dr. Li. reported that the appellant’s primary medical condition is single unprovoked seizure.

18The appellant does not deny that while at home on the evening of January 13, 2024, they had an episode of loss of consciousness which was witnessed by their wife, and that this episode was likely a seizure.

19Based on the above, we find that the Minister has established on a balance of probabilities that the appellant suffers from seizure.

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

20We 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 D vehicle safely.

21The Minister’s representative argues that sudden incapacitation due to seizure with loss of consciousness will significantly interfere with a driver’s ability to drive safely. They emphasized that according to Dr. C.’s medical reports: the appellant had no warning prior to the seizure; there were no identifiable triggers; the cause of the seizure is unknown; the appellant was told by Dr. C. that there was a 30-40% chance of another seizure occurring in the next 1-2 years; Dr. C. completed an unemployment medical certificate indicating an estimated period of incapacitation for driving a truck of six months from the date of the seizure; and Dr. C. also wrote, “he is unable to complete the essential duties of his job as a commercial driver for a six month period due to medical illness”.

22Section 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.

23The Minister relies on the CCMTA Standards, in particular Chapter 17.6.5 (Single unprovoked seizure – Commercial drivers). 17.6.5 provides that commercial drivers are eligible for a licence if: it has been at least 12 months since the seizure occurred; complete neurological assessment has been conducted to determine the cause of the seizure, and epilepsy is not diagnosed; and CNS imaging and EEG results are satisfactory. The Minister’s representative also stated that commercial drivers who have experienced a single unprovoked seizure are held to a higher standard than Class G drivers and are required to have a longer period of stability prior to reinstatement of their commercial licence.

24The appellant testified that: they are in good health and feel well; their EEG and CT brain are normal; they know their body and there is nothing wrong with their brain; there are no signs that they will have another seizure; they do not think they will have another seizure; and they feel they are safe to return to driving a Class D vehicle.

25While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

26Although we are not bound by the CCMTA Standards, we find them reasonable.

27Given the evidence and submissions, we are persuaded to apply the CCMTA Standards in the circumstances of this case.

28The 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, 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 thus a driver cannot compensate for such an impairment.

29Furthermore, the CCMTA Standards when viewed as a whole, provide reasons and justification for the temporal seizure free distinction between commercial and Class G drivers. We understand that a Class D driver, like other commercial drivers, spends more time driving in inclement weather and under 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 D vehicle.

30We accept that the appellant has been seizure free for two months since the date of their unprovoked, etiology unknown seizure on January 13, 2024.

31However, for the following reasons we find on a balance of probabilities, that a two-month seizure free period is an insufficient length of seizure free time for the appellant to regain their Class D driving privileges:

i. medicine is not an exact science. A normal CT head and a normal EEG, singularly or combined, do not rule out the diagnosis of seizure nor do they guarantee that another seizure will not occur in the future. As licenced and duly qualified physicians practicing in Ontario, Drs. Weinberg and Minnings take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S. O. 1990, c.S.22;

ii. the appellant admitted that should they have been driving on January 13, 2024 when their unprovoked seizure with no warning occurred, that a motor vehicle collision, including loss of life, may have occurred;

iii. Dr. C. has completed a workplace letter and a Service Canada Medical Certificate for Employment Insurance Sickness Benefits indicating an expected six-month period of incapacitation for the appellant’s essential duties as a commercial driver due to medical illness;

iv. we agree that a higher level of fitness to drive is both crucial and appropriate for commercial drivers who have the medical condition of seizure. In other words, given the increased risk to the public because of the size and weight of a commercial vehicle and the frequency with which they are driven, the medical condition of seizure, such as the kind of seizure the appellant suffered on January 13, 2024, is more likely to ‘significantly interfere’ with the driver’s ability to drive safely, and thus to result in more significant harmful consequences, than if they were driving a passenger car;

v. we find the need for a greater certainty that future seizures will not occur for drivers of commercial vehicles is both reasonable and prudent. Dr. C.’s medical report states that there is a 30-40% chance of another seizure occurring in the next 1-2 years; and

vi. the appellant does not have support from any treating healthcare provider, including their neurologist, for reinstatement of their Class D licence at this time.

32We are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a Class D vehicle safely.

Conclusion

33We 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, that is likely to significantly interfere with their ability to drive a Class D vehicle safely.

ORDER

34For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence.