Licence Appeal Tribunal File Number: 16501/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:

Zeljko Galijas

Appellant

and

Minister of Transportation

Respondent

DECISION

PANEL:

Jan Dymond, Vice Chair Erica Weinberg, M.D., Member

APPEARANCES:

For the Appellant:

Zeljko Galijas, Appellant Svijetlana Galijas, Appellant’s Daughter Adam Elkeeb, Counsel

For the Respondent:

Melissa Litrenta, Representative

HEARD by teleconference: January 14, 2025

OVERVIEW

1Zeljko Galijas (the “appellant”) appeals from the decision of the Minister of Transportation (the “Minister”, the “Ministry”) to change their Class A 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 October 24, 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 Section 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.

5The Registrar suspended the appellant’s driver’s licence, effective April 17, 2024, following the receipt of a Medical Condition Report (“MCR”) that the appellant suffers from a medical condition that may affect their ability to drive safely. Following the receipt and review of additional medical documentation, the appellant’s licence was reinstated as a Class G licence on October 24, 2024. By reinstatement of their licence as Class G rather than Class A, 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 A 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 condition interferes with their ability to drive a Class A 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.

9A hearing on this matter was scheduled to be held on December 17, 2024. On December 13, 2024, the appellant submitted an adjournment request to the Tribunal in order to gather additional medical reports relevant to the proceeding. The adjournment request was heard at the December 17, 2024 hearing and was granted.

ISSUES

10The 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 A motor vehicle safely.

11To resolve that issue, we will address the following questions:

(1) Does the appellant suffer from seizure?

(2) If so, is this likely to significantly interfere with their ability to drive a Class A vehicle safely?

12The Minister bears the burden of proving, on a balance of probabilities, that the answer to each of the above questions is ‘yes’.

RESULT

13Having considered all the evidence and submissions and for the reasons that follow, we find that the Minister has satisfied their burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a Class A 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?

14The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from seizure.

15The Minister’s position is supported by medical reports completed by Drs. Matthew Shaw and Michal Krawczyk.

16On April 13, 2024 Windsor Regional Hospital emergency department physician Dr. Shaw completed an MCR which stated that the appellant suffered from a nocturnal seizure with a workup pending.

17On October 16, 2024, neurologist Dr. Krawczyk completed a Seizures and Loss of Consciousness Report. The report noted that the appellant had experienced two nocturnal seizures, one on April 13, 2024 and one in March of 2024, and that the appellant’s primary medical condition is epilepsy with seizure only while asleep or upon awakening. In response to the question as to whether the driver has prolonged postictal impairment in wakefulness, Dr. Krawczyk responded ‘no’.

18In an amended appeal document filed January 10, 2025, the appellant acknowledged that, while at home on both of the mornings of March 3, 2024 and April 13, 2024, they had an episode of loss of consciousness which was witnessed by their wife and son. Furthermore, the appellant acknowledged that it was determined by Dr. Shaw and Dr. Krawczyk that these two episodes were likely seizures.

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 A 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 A vehicle safely.

21Section 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.

22The Minister relies on the CCMTA Standards, in particular Chapter 17.6.13 (Epilepsy with seizures only while asleep or upon awakening – Commercial drivers). 17.6.13 provides that commercial drivers are eligible for a licence if: it has been at least five years since the seizure occurred; there is no prolonged postictal impairment in wakefulness; the driver routinely follows a treatment regime and physician’s advice and reports any changes in their seizure pattern. The Minister’s representative also stated that commercial drivers who have the condition of epilepsy or seizure disorder 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.

23The Minister’s representative submits that the appellant has not met the CCMTA Standards that they be seizure free for a period of five years and requests that the Tribunal confirm the reclassification of the appellant’s driver’s licence.

24The appellant testified that: they are in good health, are taking their prescribed antiseizure medication (Keppra) rigorously and have made lifestyle changes intended to reduce seizure risk, namely adhering to a sleep regimen and taking regular walks. They testify that they understand the seriousness of their condition and the importance of adhering to their medication and lifestyle regimens. They believe that they feel they are safe to return to driving a Class A vehicle.

25The appellant testified that they: currently only drive a dump truck which requires only a Class D licence; do not currently drive a vehicle requiring a Class A licence; and do not drive in inclement weather because the sewer construction work they are employed for occurs only between the months of March and November. They further testified that they only work locally and do not drive long distances for commercial purposes. The appellant requested that the Tribunal consider ordering the Minister to modify their Class A licence to a Class D licence. They testified that a Class D licence is sufficient to drive a dump truck and would provide assurance that they would not be allowed to drive larger, heavier motor vehicles as permitted under Class A licencing. The appellant submitted an affidavit from Dragisa Karamarkovic, a friend and former trucking company owner, confirming the appellant’s statements with respect to the nature of their work as a dump truck driver. Mr. Karamarkovic did not provide oral testimony.

26The appellant submitted three affidavits – one each from the appellant’s wife Draga Galijas, daughter Svijetlana Galijas, son Alex Galiyash, as evidence supporting that the appellant is taking their medication regularly. We note that the purpose section of the affidavits of the appellant’s wife, daughter and son states that the affidavits are made as “to illustrate the fact that my (husband/father) does not suffer from a seizure disorder or the fact that what occurred on April 13, 2024 does not have any impact on his ability to drive his dump truck.” Counsel for the appellant stated that he had drafted all of the affidavits based on the original appeal and that the language reflected in the purpose sections is a mistake. Draga and Svijetlana Galijas did not provide oral testimony; therefore, we can only accept their affidavit evidence that they do not believe the appellant suffered seizures. Considering the contradictory evidence submitted we assign little weight to these affidavits.

27The appellant’s son, Alex Galiyash provided oral testimony. Mr. Galiyash testifies that he reviewed but did not thoroughly read the affidavit drafted by the appellant’s counsel before he signed it. Mr. Galiyash testifies that they do not disagree with the ultimate diagnosis of seizures/seizure disorder but believes that there was some inconsistency with the diagnosis of the appellant’s first event. We accept Mr. Galiyash’s oral testimony with respect to the events of March 3, 2024 and April 13, 2024 and confirmation of the appellant’s lifestyle changes and adherence to his medications; however, we place little weight on Mr. Galiyash’s affidavit evidence because he acknowledges that he did not read it thoroughly before signing it.

28The appellant submits that their treating healthcare professionals support the reinstatement of their Class A licence. The appellant relies on the medical reports of their family physician and neurologist; however, we find that the relied upon reports do not support reinstatement of the appellant’s Class A licence.

29The appellant relies on the following statement from a May 16, 2024 medical report of Dr. Krawczyk to support their position that they are at low risk for further seizures, “He has no apparent seizure risk factors.” We do not, on a balance of probabilities, agree that ‘no apparent seizure risk factors’ means that the appellant is at low risk for further seizures. Based on her medical experience and expertise, Dr. Weinberg, interprets this comment as referring to common factors that might place an individual at higher risk for seizures in general, e.g., family history of seizures. Dr. Weinberg takes notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.

30The appellant also relies on the most recent medical report of the appellant’s family physician, Dr. Vaso Globarevic, dated December 9, 2024; however, we find no such support in this report. Dr. Globarevic states that the appellant “is in generally good health, and since being on Keppra he has not experienced seizures.” Dr. Globarevic does not opine on the reinstatement of the appellant’s Class A licence or the likelihood of future seizures occurring.

31Similarly, the January 10, 2025 progress report of Dr. Krawczyk, completed in response to a request from Dr. Globarevic to provide an opinion as to whether the appellant is low risk to go back to driving a truck does not support the appellant’s claim. In their reply, Dr. Krawczyk states that the appellant had asked the same question, to which Dr. Krawczyk advised the appellant “I am unable to speak directly regarding his risk of driving a vehicle and that decision is ultimately that of the Ministry of Transportation. Dr. Krawczyk further states, “The fact that both seizures occurred during sleep, and he has had no further seizures while on a low dose of an antiseizure medication may suggest the risk is low, however once again, the decision to reinstate his license (sic) is that of the Ministry of Transportation.”

32We find that the appellant has not provided evidence that his healthcare providers support reinstatement of the appellant’s Class A licence.

33We are not bound by the CCMTA Standards; however, we find them reasonable. While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

34Given the evidence and submissions, we are persuaded to apply the CCMTA Standards in the circumstances of this case.

35The 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.

36Furthermore, 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 A 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 A vehicle.

37We accept that the appellant has been seizure free for nine months since the date of their last known seizure on April 13, 2024; that they have made lifestyle changes aimed at reducing seizure risk; and is compliant with their medication regimen. We accept the appellant’s oral testimony, and find on a balance of probabilities, that they have sufficient insight into their medical condition.

38However, for the following reasons we find on a balance of probabilities, that a nine-month seizure free period is an insufficient length of seizure-free time for the appellant to regain their Class A driving privileges or have their licence reclassified to a Class D licence:

i. the appellant does not have written support from any treating healthcare provider, including their neurologist and family physician, for reinstatement of their commercial licence at this time;

ii. There is no evidence before us that clearly states or indicates that the risk of future seizures is, on a balance of probabilities, low. As previously stated, Dr. Krawczyk, in their written letter of January 10, 2025, uses the words ‘may suggest’ that the risk (of seizure) is low; however, ‘may suggest’ does not mean on a balance of probabilities. In addition, a normal EEG (electroencephalograph) and normal MRI (magnetic resonance imaging) of the head singularly or combined, do not guarantee that another seizure will not occur in the future. Dr. Weinberg takes notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S. O. 1990, c.S.22;

iii. To date, the appellant’s two seizures have been nocturnal, occurring while the appellant was asleep at night or shortly upon wakening in the morning; however, Dr. Weinberg notes that the potential for nocturnal seizure with postictal impairment is not limited to nighttime sleeping. The appellant testifies that he has periods of inactivity of up to three hours while on the job. The appellant denies sleeping during these downtimes; however, should the appellant fall asleep during the day, it is possible that he could experience a nocturnal seizure with postictal impairment. In response to the question as to whether the driver has prolonged postictal impairment in wakefulness, Dr. Krawczyk responded ‘no;’ however, even a short period of postictal impairment can put an individual at risk for a crash with serious consequences;

iv. The appellant testifies that he works nine-to-ten hours daily when working. Although the appellant appears to be doing well on his current medication and lifestyle regimen and has a plan for ensuring he would continue to take his medication as prescribed if working, the appellant has not submitted medical evidence as to whether they could be expected to continue to do well under the stress of nine-to-ten-hour workdays;

v. although the appellant testifies that they would only drive a dump truck for limited distances, reinstatement of their Class A licence would entitle the appellant to drive with no limits as to vehicle weight/size/towed vehicle(s), road conditions, distances, or time of day travelled;

vi. 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 thus to result in more significant harmful consequences, than if they were driving a passenger car;

vii. with respect to the appellant’s request that the Tribunal modify their licence to a Class D licence, we note that a Class D licence would entitle the appellant to drive a truck or truck and towed vehicle combination with a gross weight of more than 11,000 kilograms - provided that the towed vehicle weight is not over 4,600 kilograms, without restriction as to time of day, distances travelled, type of road/highway, weather or road conditions;

viii. we further note that the CCMTA Standards do not discriminate between classes of commercial licences in their requirements. The CCMTA’s higher standard for all commercial licences recognizes the greater consequences of a crash involving a commercial vehicle. We acknowledge that the permissible gross weight of a Class A vehicle may be more than that of a Class D vehicle depending on the weight of a towed vehicle, if any; however, the potential consequences of a crash involving a vehicle of either class are far more serious than those involving a passenger vehicle; and

ix. we find the need for a greater certainty that future seizures will not occur for drivers of commercial vehicles is both reasonable and prudent.

39We acknowledge the burden - financial and otherwise - that the lack of a commercial licence is having on the appellant and their family. However, driving a commercial 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.

40We 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 A vehicle safely.

Conclusion

41We find that the Minister has discharged their 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 A vehicle safely.

ORDER

42For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Minister’s decision to change the appellant’s driver’s licence.