Licence Appeal Tribunal File Number: 15693/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 downgrade a licence pursuant to Section 32(5)(b)(i) ( of the Act.

Between:

Jorawar Gill

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR:

Peter Savage M. D.

APPEARANCES:

For the Appellant:

Jorawar Gill, Appellant

Sandeep Dhah, Representative of Appellant

For the Respondent:

Ian Sookram, Agent for Minister

HEARD: April 5, 2024

OVERVIEW

1Jorawal Gill (the “appellant”) appeals from the decision of the Minister of Transportation (“Minister”) to downgrade their Class A licence under s.32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Minster received a report from a treating health care provider that the appellant suffers from a medical condition that may affect their ability to drive a vehicle of the applicable class 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.

3Section 32(5)(b)(i) of the Act states that the Minister may 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.

4The Minister takes the position that the appellant suffers from a medical condition, namely epilepsy, that is likely to significantly interfere with their ability to drive a commercial vehicle safely and that this provides sufficient reason to downgrade their licence under s. 32(5)(b)(i) of the Act.

5The appellant appeals the downgrade under s. 50(1) of the Act. They acknowledge that they suffer from epilepsy but deny that they suffer from a medical condition which interferes with their ability to drive a commercial vehicle safely.

6Pursuant to section 50(2) of the Act, after a hearing the Licence Appeal Tribunal (“Tribunal”) may confirm, modify, or set aside the decision or order of the Minister.

Preliminary ISSUE

7Following a second seizure in May 2022, in a letter December 1, 2022 the Minister approved the A licence of the appellant. The appellant resumed driving a commercial vehicle, but when MOT received a cyclical medical review in February 2024 the Minister downgraded the appellant’s A Licence to a G Licence. The registrar testified the A licence should not have been approved in December 2022 and the Ministry of Transportation (“MOT”) had made a mistake.

8The Tribunal is sympathetic to the stress and confusion this mistake has caused the appellant but has ruled that the Tribunal has no authority to remedy the initial error. The Tribunal’s mandate is to rule on the downgrade based on the medical evidence available at the time of the hearing.

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 commercial motor vehicle safely.

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

i. Does the appellant suffer from epilepsy?

ii. If so, is this likely to significantly interfere with their ability to drive a motor 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, 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 commercial motor vehicle safely and I confirm the Minister’s decision to downgrade the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from epilepsy?

13The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely epilepsy.

14The Minister’s position is supported by medical reports completed by Dr. Douglas Chow, Dr. Tyagi and Dr .W. Thai.

15Dr. Chow, a neurologist, reported a single seizure in his completion of a seizure and unconsciousness questionnaire dated September 17, 2017.

16Dr. Tayagi reported a second seizure in his medical condition report of May 22, 2022. Dr. Tayagi confirmed the diagnosis of epilepsy. Dr. Thai confirmed two seizures, one in 2017 and a further seizure in 2022 in his cyclical medical report requested for commercial drivers. Dr. Thai confirmed the diagnosis of epilepsy.

17The appellant confirmed they had seizures in both 2017 and 2022 in their testimony.

18Both Dr. Tayagi and Dr. Thai confirmed the diagnosis of epilepsy. There is no conflicting evidence to refute this diagnosis

19The Minister’s position is that two seizures confirm the diagnosis of epilepsy, as stated in the CCMTA.

20I find that the Minister has established on a balance of probabilities that the appellant suffers from epilepsy.

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

21I 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 commercial motor vehicle safely.

22The Minister argues that seizures associated with epilepsy interfere with the appellant’s ability to drive safely in that they could result in the sudden loss of consciousness, leading to a loss of control while driving a heavy commercial vehicle. This could have disastrous results for the appellant and other users of the roadway.

23The Minister relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) which confirms the dangers associated with epilepsy, both to the driver and other road users.

24Section 14(2)(a) of the Regulation allows the Minister 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.

25The CCMTA Standards 17.6.12 recommend that a commercial driver who has been diagnosed with epilepsy be considered eligible for a licence if they have not had a seizure with or without medication for a period of five years.

26The Minister points out the appellant has testified he has had two seizures, the last one in 2022, while still on the same anti-seizure medication that he was taking in 2017.

27The appellant argues that epilepsy does not impact their ability to drive safely. The appellant points out their lifetime driving record with no evidence of any accidents or violations.

28The appellant argues they have been driving commercially, with the Minister’s permission, for the last two years and two months with no untoward events.

29The appellant argues he has a follow up with his neurologist and he continues to take his medication regularly.

30While I am not bound by the CCMTA Standards, I find them reasonable and very relevant to the appellant’s case. The CCMTA Standards state that commercial drivers should be considered eligible only when seizure-free, with or without medication, for five years. In this case the appellant has had two seizures within the 5-year period between 2017 and 2022, and has stayed on the same medication. It has only been two years and two months since his last seizure. That is not enough time under the circumstances to be sure another seizure will occur while driving commercially. There is increased risk to the public due to the size and weight of a commercial vehicle and the frequency with which they are driven. I find that a longer period of stability is reasonable and prudent before the appellant should have their A licence reinstated.

31I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

32I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely epilepsy, that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

33For 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.