Richard Boyd v. Minister of Transportation, 2024 CanLII 28806

Licence Appeal Tribunal File Number: 15469/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

Richard Boyd

Applicant

and

Minister of Transportation

Respondent

DECISION

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

APPEARANCES:

For the Appellant: Richard Boyd, Self-Represented For the Respondent: Sharon Nelson, Representative, March 6 and 15, 2024 Ian Sookram, Representative, March 15, 2024

Heard by Teleconference: March 6 and March 15, 2024

OVERVIEW

1Richard Boyd (the "appellant") appeals from the decision of the Minister of Transportation (the "Minister", the "Ministry" or the "respondent") to change their Class AC licence to a Class GM licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"), effective November 16, 2023.

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 April 24, 2023, 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 GM licence on November 16, 2023. By reinstatement of their licence as Class GM rather than Class AC, 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 AC 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 seizures but deny that their seizures interfere with their ability to drive a Class AC 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 AC 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 AC 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 AC 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. H., J. and R.

15On April 20, 2023, neurosurgeon, Dr. H., completed a MCR which stated that in their opinion the appellant suffers from seizure due to post operative cranial (brain) surgery.

16In a September 13, 2023 clinic note, neurologist, Dr. J., stated that the appointment was for follow-up of acute symptomatic focal aware cognitive and motor seizures post left frontal meningioma resection on April 14, 2023.

17In a November 3, 2023 completed Seizures and Loss of Consciousness form, the appellant's family doctor, Dr. R., reported that: the appellant's primary medical condition is provoked seizure caused by a structural brain abnormality; this was not the appellant's first seizure; it had been six months since the provoking factor had stabilized, resolved, or been corrected; the appellant had been seizure free for 6-12 months; and there had been no seizure recurrence since April 14, 2023.

18The appellant does not deny that post-operatively on April 14, 2023, they had two witnessed episodes about 10 minutes apart where they were unable to talk or were mumbling for about 15-20 seconds each time. The appellant denied movement or twitching in their arms or legs during these episodes but recalled that their face twitched. The appellant testified that they: were told by healthcare professionals that these episodes were seizures; had an urgent MRI brain (magnetic resonance imaging); were told that there was post-surgical blood around their brain; and were started on anti-seizure medication prior to being discharged home.

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 AC 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 AC vehicle safely.

21The Minister's representatives argue that seizures can significantly interfere with a driver's ability to drive safely and it is prudent to hold drivers of commercial (e.g., Class AC) vehicles to higher standards as there is thus an increased risk to public road safety.

22They emphasized that, according to Dr. J.'s clinical note, the appellant's electroencephalogram ("EEG") from the summer of 2023 "demonstrated frequent left frontal central epileptiform discharges in keeping with an active focal seizure tendency" and that the "irritative zone is likely localized to the residual scar tissue around the tumour resection cavity".

23Section 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.

24The Minister relies on the CCMTA Standards, in particular Chapter 17.6.1 (Provoked seizure caused by a structural brain abnormality) and Chapter 17.6.12 (Epilepsy – Commercial drivers). 17.6.1 states that if more than one seizure occurs, the epilepsy standard is applied. Chapter 17.6.12 provides that commercial drivers are eligible for licence if they have not had a seizure with or without medication for five years and the conditions for maintaining a licence are met.

25When questioned whether or not Chapter 17.6.14 of the CCMTA Standards (Epilepsy with simple partial seizures – Commercial Drivers) applies in this case, the respondent stated that the appellant has only been seizure free for 11 months and according to this standard, "information from health care providers" includes the proviso that the symptoms of the seizures have been consistent for at least one year.

26The appellant testified that: they did not lose consciousness during either of their seizures on April 14, 2023; they are compliant with their anti-seizure medication; they have not had any further seizure since April 14, 2023; and that no healthcare professional has told them that they have epilepsy.

27In addition, the appellant acknowledged that: they are aware that their EEG shows 'spikes', likely from scar tissue; these spikes possibly could cause another seizure; that Dr. J. will be ordering another EEG soon to make further determinations; and that Dr. J. has not yet supported the return of their Class AC licence.

28While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

29Although we are not bound by the CCMTA Standards, we find them reasonable.

30Given the evidence and submissions, we are persuaded to apply the CCMTA Standards in the circumstances of this case.

31The 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 can cause a sudden episodic impairment and a driver cannot compensate for such an impairment.

32Furthermore, 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 AC 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 AC vehicle.

33We accept that the appellant: has been seizure free for 11 months since the date of their two seizures on April 14, 2023 post cranial surgery; did not lose consciousness during these seizures; and is compliant with their anti-seizure medication.

34We also acknowledge that the appellant's most recent magnetic resonance imaging of the brain shows: resolution of their post-operative bleed (left sylvian fissure subarachnoid hemorrhage); expected post-operative changes; and no residual tumour.

35Furthermore, we accept the appellant's testimony that no healthcare professional has expressed to them that they have epilepsy.

36However, regardless of which is the most appropriate CCMTA Standard to apply in the circumstances of this case (i.e., Chapters 17.6.1 and 17.6.12 or 17.6.14), we find on a balance of probabilities, that an insufficient seizure free period has passed since the appellant's two focal seizures 11 months ago. 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 is more likely to 'significantly interfere' with the driver's ability to drive safely and to result in more significant harmful consequences, than if they were driving a passenger car or motorcycle. In addition, as stated by Dr. J., the appellant's EEG demonstrates frequent left frontal central epileptiform discharges ('spikes') in keeping with an active focal seizure tendency and that this irritative zone is likely localized to the residual scar tissue around the tumour resection cavity. Furthermore, there is no information from Dr. J. stating the risk of a future seizure. We find the need for a greater certainty that future seizures will not occur for drivers of commercial vehicles is both reasonable and prudent. Moreover, the appellant does not have support from any treating healthcare provider, including their neurologist, for reinstatement of their Class AC licence at this time.

37We acknowledge the burden, financial and otherwise, that the lack of a Class AC licence is having on the appellant and their family. However, driving a Class AC vehicle is a privilege, not a right. While we understand the practical challenges that can result from the change of class of a driver's licence, we must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

38We 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 AC vehicle safely.

Conclusion

39We 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 AC vehicle safely.

ORDER

40For 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.