Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 16459 MED

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

Between:

Courtney M. Boughner Appellant

and

Minister of Transportation Respondent

DECISION

PANEL: Kailey Minnings, M.D., Member Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: Christine Iannucci, Paralegal For the Respondent: Sharon Nelson, Agent

HEARD: December 19, 2024

Overview

1Courtney M. Boughner, the appellant, appealed the decision of the Minister of Transportation (the “respondent”) set out in a letter dated March 19, 2024 to change her Class F commercial driver’s licence to a non-commercial Class G licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The respondent received a report dated March 17, 2024 from neurologist Dr. Michal Krawczyk diagnosing epilepsy with seizure only while asleep or upon awakening and reporting a total of four seizures starting in 2022 with the last seizure on September 12, 2023.

2Pursuant to s. 203(1) of the HTA, every prescribed person, which includes a physician such as Dr. Krawczyk, shall report to the respondent any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.

ISSUES

3The issue in this appeal is whether the appellant has a medical condition, specifically seizure, that is likely to significantly interfere with her ability to drive a commercial motor vehicle safely. In order to answer that question, we will address the following issues:

(i) Does the appellant suffer from a medical condition, specifically seizure?

(ii) Is the appellant’s medical condition, specifically seizure, likely to significantly interfere with her ability to drive a Class F commercial motor vehicle safely?

RESULT

4We confirm the respondent’s decision to change the class of the appellant’s driver’s licence from Class F to Class G.

LAW

5The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA which states:

The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,…

(b) in the case of a person who holds a driver’s licence,

(i) 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…

6The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.

7One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (the “Regulation”) which states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

8In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require the person to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.

9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

10Subsection 50(1) of the HTA and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal.

11The Minister has the burden of establishing the ground for changing the class of a driver’s licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

ANALYSIS

(i) The appellant suffers from a medical condition, specifically seizure

12As set out below, we find that the appellant suffers from a medical condition, specifically seizure, for the following reasons.

13The appellant was first diagnosed with seizure-like activity by Dr. Andrew Swartz, a hospital emergency room physician, who treated the appellant as the result of a medical episode for which she was brought to the hospital. Dr. Swartz indicated “seizure” on his September 12, 2023 Medical Condition Report.

14Neurologist Dr. Krawczyk’s March 17, 2024 report diagnosed epilepsy with “seizure only while asleep or upon awakening”. Dr. Krawczyk reported that the appellant had a total of four seizures starting in 2022 with the last seizure on September 12, 2023, and that the seizure pattern has been consistent for greater than 1 year.

15The appellant, a paramedic by training, testified that she was sleeping on September 12, 2023 when she underwent seizure-like activity. The appellant states that she suffered several seizure-like episodes between September, 2022 and September, 2023, which were not diagnosed, including an episode when she was out of the country and her travelling companion sought medical attention for her. The appellant said she cannot recall exactly what happened during these episodes but remembers feeling her body stiffening. The appellant testified that she was sleeping just prior to the September 12, 2023 episode. After the appellant went to the hospital, she remembers trying to speak but “couldn’t get the words out”. This is consistent with Dr. Krawczyk’s October 10, 2023 consultation note which also notes that “…she was only able to say a few words and was mumbling. Took her 20 minutes to get back to feeling completely normal.”

16The appellant said that she understands she was diagnosed by her neurologist with epilepsy with seizure only while asleep or upon awakening, has been prescribed and takes antiseizure medication. The appellant said she has not had a seizure since September 12, 2023.

17We find based on the reports of Drs. Krawczyk and Swartz that the appellant suffers from a medical condition, specifically seizure.

(ii) The appellant’s medical condition, specifically seizure, is likely to significantly interfere with her ability to drive a Class F commercial motor vehicle safely

18In summary, the appellant submitted that she is compliant with taking her antiseizure medication, sees her physicians regularly, has been seizure-free for over one year, her past seizures have been during sleep, and she is successfully able to drive with her G driver’s licence, and that as a result, return of her Class F commercial driver’s licence is warranted.

19The respondent submits that because seizure has been diagnosed, the appellant should not be permitted to drive a commercial vehicle until she submits a report from her treating physician that she has remained seizure free for five years with anti-seizure medication or one year without anti-seizure medication and relies on the guidelines contained in the CCMTA Standards with respect to seizures and epilepsy (chapter 17), and specifically Guideline 17.6.13 for commercial drivers.

20We find that the appellant’s medical condition, specifically seizure, is likely to significantly interfere with her ability to drive a Class F commercial motor vehicle for the following reasons.

21Guideline 17.6.13 applies to commercial drivers who have epilepsy with seizures only while asleep or upon awakening. It provides that commercial drivers are eligible for a licence if the driver is experiencing seizures but the seizure pattern has been consistent for at least 5 years and there is no prolonged postictal impairment in wakefulness. While not binding on us, we have considered this Guideline and found it persuasive.

22Based on the appellant’s testimony about seizure or seizure-like episodes before her diagnosis in 2023, which we found to be credible, and the medical records before us, and the Guideline, we are satisfied that a further waiting period is necessary before the appellant’s Class F licence is reinstated.

23Further, there is no support from the appellant’s treating physicians for her return to driving a commercial vehicle at this time.

24Dr. Daniel Ruel, the appellant’s family physician confirmed in writing on December 2, 2024 the three medications that the appellant is taking and that the appellant has not had a seizure since September 12, 2023. Dr. Ruel does not indicate in his note support that the appellant should return to driving a commercial vehicle.

25In an October 10, 2023 consultation note submitted by the appellant, Dr. Krawczyk recorded that he discussed with the appellant not driving for “at least 6 months”. This is not the same as saying that the appellant could drive after six months as suggested by the appellant in her submissions. Further, there is no indication in Dr. Krawczyk’s report that he was made aware that the appellant seeks to drive a commercial vehicle. This is an important distinction given that allowing the appellant to drive a commercial vehicle involves significant risk to other road users and to herself.

26Although the appellant submits in her Notice of Appeal that she requires her commercial driver’s licence for her employment as an emergency medical services attendant, the appellant testified that she is currently employed as a logistics technician and drives a passenger van. In any event, while we acknowledge that a commercial driver’s licence may be very important to an appellant, our decision must be based on safety.

Conclusion

27We find that the appellant suffers from a medical condition, specifically seizure, which is likely to significantly interfere with her ability to drive a Class F commercial motor vehicle safely.

ORDER

28For the reasons set out above, pursuant to subsection 50(2) of the HTA, we confirm the Minister’s decision to change the class of the appellant’s driver’s licence from Class F to Class G.

LICENCE APPEAL TRIBUNAL

Kailey Minnings, M.D., Member

Avril A. Farlam, Vice-Chair