Licence Appeal Tribunal File Number: 15621/MED

An 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 licence pursuant to Section 47(1) of the Act.

Between:

John Ridge

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: John Ridge, Appellant

For the Respondent: Stephen Grootenboer, Agent

Held by teleconference: March 5, 2024

OVERVIEW

1John Ridge (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar” or the “respondent’) to suspend his Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received an unsolicited medical report stating that the appellant suffers from a medical condition that may affect his ability to drive a motor vehicle safely.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 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 of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar 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 and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. He denies that he suffers from seizure and denies that he suffers from a medical condition which interferes with his ability to drive safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

ISSUES

6The 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.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from seizure?

ii. If so, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from seizure?

10The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely seizure.

11The Registrar’s position is supported by:

i. a Medical Condition Report Form dated May 12, 2023, from Dr. D.;

ii. an EEG result dated April 5, 2023.

12The Medical Report Form submitted by Dr. D., dated May 12, 2023, supports the Registrar’s position that the appellant suffers from seizure. Dr. D. checked the box indicating the appellant suffered from epilepsy, and that this is a disorder that has a moderate or high risk of sudden incapacitation, or that has resulted in sudden incapacitation and that has a moderate or high risk of recurrence.

13The respondent testified that the results of an EEG completed April 5, 2023 further support the diagnosis of epilepsy as the clinical information provided in the referral for the EEG states, “64 years old, Male, with recurrent seizures on Keppra.”

14The appellant does not agree that he has epilepsy or suffers from seizures. The appellant reported that neurologist Dr. D. spent only a brief amount of time during his appointment and did not allow him the opportunity to share his history sufficiently. The appellant testified that he suffered from several medical episodes which he attributes to a residual brain injury from having police use a taser on him, but he understands these episodes are interpreted by physicians as seizures.

15The appellant testified that he has had several of these events, many of which have been witnessed. The appellant testified the first event was witnessed by a friend in 2020. The appellant described being told by the friend that he awoke at night shaking and foaming at the mouth. A second event occurred while the appellant was undergoing medical testing. The appellant submitted in his notice of appeal that, “during the examination I had a grand mal seizure” and this event was witnessed by hospital staff. The appellant testified that a third event occurred while in a parked van and was witnessed by bystanders who were reportedly alarmed by what they witnessed and called an ambulance. The appellant described being taken to hospital where he was told he had a seizure. A fourth incident he described as having occurred while in bed and following which the appellant got out of bed and left his apartment in a confused state, alarming other residents. The appellant reported that during a fifth event his sister witnessed him having a seizure in bed and he described having no recollection of the event.

16The appellant testified he was told he has had a seizure by three physicians: his previous family physician Dr. G., an emergency physician, and the neurologist who filled out the MCR form, Dr. D. The appellant testified he had been referred to other neurologists for seizures prior to Dr. D. but never received confirmation of the appointments and so had not attended.

17The appellant additionally testified that he has been referred for investigations to evaluate the etiology of the seizures and has completed both an MRI of his head and an EEG. He testified that he was prescribed the anti-seizure medication Keppra in 2022. The appellant reported he was unable to tolerate the side effects of the medication, and was prescribed a different anti-seizure medication by neurologist Dr. D. As set out in more detail below, he does not currently take medication.

18The respondent submitted that they received no medical evidence to confirm or suggest that the seizures suffered by the appellant were in any way related to a side effect of having had a taser used on him by police.

19The medical evidence before the Tribunal comprises one medical submission completed by a neurologist who documented that the appellant suffers from epilepsy. By the appellant’s own account, three physicians over the past four years have diagnosed him with a seizure, and he has been referred for relevant investigations, including an MRI of his head and an EEG. The appellant also confirmed that he has been prescribed two different anti-seizure medications.

20Based on the medical submissions and appellant’s testimony, I find that the Registrar has established on a balance of probabilities that the appellant suffers from seizures.

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

21I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

22The Registrar argued that the appellant’s seizure disorder is likely to interfere with his ability to drive safely and relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”). Chapter 17 describes seizures and epilepsy and the associated concerns with driving. Standard 17.6.6 applies to non-commercial drivers who have been diagnosed with epilepsy, and states that a driver is eligible for a licence if it has been 6 months since the seizure occurred with or without medication and the waiting period may be reduced to no less than 3 months on neurologist’s recommendation if rationale is provided.

23The CCMTA Standards indicate that seizures, such as the type of seizure the appellant is described to have suffered, cause an episodic impairment of the functions necessary for driving, for which a driver cannot compensate. Thus, experiencing a seizure would significantly interfere with a driver’s ability to drive safely and present a safety risk to the driver, themselves, and other road users. The CCMTA Standards also outline research that indicates that, in general, individuals with epilepsy have an increased risk of adverse driving outcomes, and that studies of crash rates indicate that those not receiving antiepileptic drug treatment are at greater risk than those receiving treatment.

24The CCMTA Standards describe that seizures must be controlled as a prerequisite to driving, and that the purpose of a seizure free period for epilepsy is to establish the likelihood that:

i. A therapeutic drug level has been achieved and maintained.

ii. The drug being used will prevent further seizures, and

iii. There are no side effects that may affect the driver’s ability to drive safely.

25Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration but is not bound by them.

26The respondent submitted that the Registrar would require confirmation that the appellant had remained seizure free for six months or that this period could be reduced to three months with recommendation from a treating neurologist.

27The appellant testified that he has reached out to his family doctor, Dr. O., to complete the Seizure and Loss of Consciousness Form requested by the Registrar. The appellant described his last appointment with Dr. O. over a year ago but submitted a request several weeks ago to have the form completed. I note that the hearing was adjourned at the case conference to allow for further time to gather this medical evidence. However, at the time of the hearing, the appellant had not heard back from Dr. O.’s office regarding the forms being completed.

28The appellant testified that Dr. D. was not able to complete the Seizure and Loss of Consciousness Form as he was no longer a patient in Dr. D’s practice. He reported that after the initial appointment in May 2023, when she had diagnosed epilepsy and submitted the MCR, he had one further follow up phone appointment in August 2023. During this appointment he testified he told Dr. D. he wanted his driver’s licence reinstated which resulted in an argument, and he subsequently received a letter form Dr. D. advising he had been discharged from her practice.

29The appellant testified he has not had a seizure in over a year but acknowledged that he has had several seizures in his sleep that he would not have known about had he not been told by someone else.

30The appellant testified that he has been prescribed Keppra, an anti-seizure medication, during a visit to the emergency department in 2022. He initially did not fill the prescription because he did not feel it was necessary. However, when he continued to experience seizures, he decided to fill the prescription. After initiating the medication, the appellant described experiencing side effects of the medication and therefore reduced the dose of the medication. The appellant was not able to clarify the dose of the medication and testified he reduced the dose himself and not at the recommendation of a treating physician.

31The appellant testified that when he met with the neurologist Dr. D. in May 2023, he described taking the reduced dose of Keppra to Dr. D, who advised that this was not an appropriate therapeutic dose of the medication. The appellant was then prescribed a different anti-seizure medication the name of which he could not recall. He described not filling this new prescription after discussion with the pharmacist and concern the pharmacist was inflating the price. The appellant described resuming the medication Keppra and then stopping it again about 4-6 weeks before the hearing. He described being on a journey to heal his own mind from these episodes and said he is currently taking CBD to control his seizures.

32The appellant testified he is feeling better than he has in years, and attributes this to fixing up a house that had previously almost burned down and racing his motorcycle at 200 MPH. He described the rush of adrenaline he experienced traveling at this high speed as being therapeutic to his mind, along with the rush from driving his vehicle on backroads to avoid law enforcement due to his suspended licence. He described never ceasing driving despite his suspended driver’s licence and described a recent physical altercation with the police regarding this concern.

33The appellant submitted as part of his notice of appeal that the main reason for the appeal was to avoid a charge for driving with a suspended licence which will cause his insurance to increase. Note was made on the submitted driver’s record that the appellant had 36 prior driving infractions.

34Although this Tribunal is not bound by the CCMTA Standards, they are the result of a lengthy and intensive process to provide medical standards based on the best evidence available, and with a focus on functional ability to drive rather than exclusively on medical diagnoses. Every case should be considered on its on merits. I conclude that applying the Standards in this case is appropriate. My review of the evidence shows that the conditions recommended for relicensing outlined in the CCMTA Standards have not been met.

35I considered the appellant’s position that the diagnosis of seizure will not impact his ability to drive safely. However, this is weighed against the scientific research that demonstrates individuals with epilepsy have an increased risk of adverse driving outcomes, and studies of crash rates indicate that those not receiving antiepileptic drug treatment are at greater risk than those receiving treatment. It is very concerning that, by the appellant’s own testimony, he has not followed the treatment advice of the several physicians who have prescribed his anti-seizure medications. This includes both changing the dose of the medication and discontinuing the medication.

36Based on the appellant’s testimony of not recognizing seizures when they have occurred while sleeping, it is difficult to know how long a seizure free period has elapsed, but it is concerning that he has discontinued anti-seizure medication in the last 4-6 weeks without any medical oversight. With a recent discontinuation of the anti-seizure medication against physician recommendation, the appellant will be vulnerable to an increased risk of seizure recurrence.

37Based on the evidence and submissions, I disagree with the appellant’s position that he does not have seizure disorder and does not accept that a neurologist is able to accurately make this diagnosis. I find it alarming that the appellant has continued to drive despite his suspended licence and that he has driven at speeds up to 200 MPH. Driving is a privilege and not a right, and this total disregard of the system to ensure that drivers are safe to operate a motor vehicle demonstrates limited insight into the diagnosis of epilepsy and its associated risks while driving.

38Given the complete incapacitation experienced when having a seizure and the inability to compensate while driving, I accept and apply the CCMTA guidance that having a period of stability is reasonable. With the lack of physician involvement in the appellant’s current decision to discontinue the anti-seizure medication and the absence of any support of a physician or healthcare practitioner, I take note of no confirmed period of stability, and find this to be insufficient to set aside the suspension.

39As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

40I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely seizure, and that condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

41For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.