Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-01-21
FILE:
8531/ADLS
CASE NAME:
8531 v. Registrar of Motor Vehicles
Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from a Decision of the Registrar of Motor Vehicles Pursuant to Section 48.3(2) of that Act – to Impose a 90-Day Administrative Driver’s Licence Suspension
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant:
Olga Leyensen, Agent
Robert Crosbie, Agent
For the Respondent:
Kyle Biel, Agent
Heard in Toronto:
January 15, 2014
DECISION AND REASONS
A hearing was held on January 14, 2014, at Toronto, Ontario, to consider the Applicant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").
THE TRIBUNAL CONFIRMS the suspension imposed by the Registrar pursuant to section of the 48.3 of the HTA for the following reasons.
BACKGROUND
The Applicant appealed, by way of a Notice of Appeal under section 50.1 of the HTA, the order of the Registrar of Motor Vehicles (the "Registrar") dated November 30, 2013.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Applicant has a history of surgery in 2011 to improve his breathing but this did not help He has shortness of breath which is worse in cold weather, stress and anxiety and sometimes after using his puffers. He was unable to take a breath test because of his condition.
Preliminary Matters
At the onset of the hearing the Tribunal ordered that the witness for the Respondent be excluded during the testimony of other witnesses.
Ms. Leyensen introduced a letter by the family physician, Dr. S. dated December 13, 2013 which was not previously disclosed. It was filed as Exhibit #3 with agreement by Mr. Biel.
The Tribunal ruled that documents provided by the dispensing pharmacist listing possible side effects of the Applicant’s medications would not be admitted as evidence.
ISSUE
Did the Applicant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because he was unable to do so for a medical reason?
LAW
The legislation governing the Administrative Drivers Licence Suspension (ADLS) under subsection 50.1(1) and (2) of the HTA states:
50.1(1) “A person whose driver’s licence is suspended under Section 48.3 may appeal the suspension to the Tribunal.
(2) The grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) that the person whose licence was suspended is not the same individual to whom a demand was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or
(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason”.
The HTA states under Section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
Rule 15.3(b) and (c) of the Tribunal's Rules of Practice states:
15.3 In addition to the provisions of Rule 15.2, the following Rules apply to appeals pursuant to Section 50.1 of the Act:
(b) A report of a legally qualified medical practitioner that is to be submitted in evidence shall clearly state,
(i) the name, telephone number and address, with the postal code, of the medical practitioner;
(ii) the name, date of birth and address of the person who is the subject of the report;
(iii) That the medical practitioner has prepared the report, or is aware that the report may be used, in support of an appeal to the Tribunal from the suspension of a driver’s licence under section 50.1 of the Act;
(iv) the length of time and frequency with which the medical practitioner has attended upon the person who is the subject of the report, including the date of the most recent examination of the person that supports the findings set out in the report;
(v) whether the medical practitioner is the family physician of the person who is the subject of the report; and
(vi) whether the medical practitioner is a specialist and, if so, the field of specialty.
(c) The report referred to in subrule (b) shall
(i) provide the details of any present condition, diagnosis and history of the condition that precludes the person who is the subject of the report from providing a breath or blood sample including the results of any related tests, and
(ii) be signed by the medical practitioner.
Finally, Rule 15.3(a) the Tribunal's Rules of Practice states of states:
(a) The Applicant has the onus of establishing the merit of the appeal.
FACTS
The Applicant’s Evidence
On November 30, 2013 the Appellant was driving eastbound in Toronto shortly before 04:00 when a wheel came off his car and he collided with a concrete barrier. Constable Rousseau, an officer with Toronto Police Service Traffic was despatched at 03:54 and arrived at the scene shortly after. Emergency Services ambulance also arrived. The driver exited the vehicle and while waiting for EMS he was in and out of his vehicle. The airbag had activated in the collision and struck the driver on the left side of his head. and he detected a nauseating odour from the airbag. He was being attended in the ambulance when the police officer questioned him.
He told the Tribunal that he did not recall being checked by the EMS or being questioned by police about possible injuries. He did not recall being asked by police if he had consumed alcohol or being asked to submit to a demand for a breath sample or being informed of his choices to providing a breath sample. He stated that he did recall the police officer speaking to him, but did not recall being asked if he wished to be examined by EMS for injuries. He stated that while in the heated ambulance he felt cold and he had a burning sensation in his chest. He felt a panic attack but he was not given oxygen or a puffer. He stated that he did not see an alcohol analysing device.
He stated that he had puffers at home but not with him or in the vehicle. He last used a puffer on the morning of November 29, 2013. He stated that he had a past history of asthma which is worse in winter. He has seasonal allergies in Spring and Fall. He has sleep apnea.
Following a sleep study in 2009, he used a CPAP machine for a couple of years. This did not work well for him. He was then referred by his family doctor for surgical treatment and in 2012 he underwent excision of his uvula and adjacent soft palate. He has a past history of panic disorder for which he was hospitalised twice in 2009.
Since 2008, he has been a patient with Dr. S. who provided a medical report in support of the appeal. He is a non-smoker and plays soccer and basketball.
After he finished work at 10:00 p.m. on the evening before the collision, he went to a cousin’s house where he consumed a few beers.
He stated that he does not recall being arrested.
He was detained in the Emergency Room until the following day and when his wife went to pick him up she was advised to watch for symptoms of possible concussion. He was not informed if a diagnosis of concussion was made.
In compliance with Section 50.1(2) (b) of the Highway Traffic Act, (the Act), Dr. S., the family physician of 5 years, provided the following report on December 19, 2013:
DETAILS AND DIAGNOSIS OF PATIENT’S CONDITION RELATED TO THE APPEAL:
Shortness of breath, asthma, seasonal allergies-and anxiety all exacerbated by cold weather and anxiety.
Medications currently used: cyclobenzaprine, naproxen, zopiclone, Ativan, Advair and Zenhale.
Cold weather and throat condition exacerbates and hinders patient’s ability to breathe normally.
New medication commenced shortly after November 30, 2013 appears to be improving his condition.
Seasonal allergies, shortness of breath, asthma: 2011
Uvulopalatopharyngoplasty surgery done by ENT surgeon to remove uvula and to improve his breathing. Surgery did not accomplish the desired outcome. It did not improve his breathing.
Difficulty breathing.
TYPE OF MEASUREMENTS OR RECENT TESTS TAKEN INCLUDING DATES:
Adjusting medication
RELEVANT DETAILS OF LAST VISIT, INCLUDING DATE OF PATIENT’S LAST VISIT
December 12, 2013 – follow-up with respect to prescribed medication, post November 30, 2013
An earlier letter from Dr. S., (Exhibit 3) To Whom It May Concern, dated December 13, 2013 was similar to the above with the following additional information:
I have been treating this patient for injuries sustained in a recent Motor Vehicle Accident.
He has severe neck and upper back pain and stiffness combined with insomnia, headaches and poor appetite.
The Respondent’s Evidence
Constable Rousseau stated she arrived at the scene at 03:54. The weather was cold and dry and visibility was clear. She spoke to the driver about eight metres from the vehicle and asked if any injuries were sustained. He agreed to be examined by the paramedics on scene. She questioned him further in the back of the ambulance.
When she asked him if he had any alcohol that night he stated that he had a few beers.
She did not note slurred speech, abnormality of pupils, stagger, or difficulty describing events leading up to the collision.
She determined that she had reasonable grounds to make a demand for a breath sample, and requested that a breathalyser office attend. She read the demand from her notebook and asked him if he understood and he replied in the affirmative. He asked what his choices were and she informed him that if he agreed to the test and it showed under 50 he would pass. If the result was over 50, he would be issued a three day suspension and if over 80 he would be placed under arrest. She had the testing device in her vehicle but did not show it to the driver.
She stated that he refused to take the test. She placed him under arrest while he was in the ambulance but did not handcuff him as the EMS were still attending to him. She informed him that his licence to drive was suspended for 90 days. A breathalyser officer attended prior to the departure of the ambulance but was no longer required.
She stated that at no time did she observe him having a panic attack. He did not inform her that he had a medical condition and he did not complain of medical difficulties.
He asked for medical attention and was taken by ambulance to the Emergency Room at 04:45 after he signed the Promise to Appear (Form 9). She attended at the Emergency Room and observed that he was asleep in a treatment room without intravenous or oxygen mask. She woke him after completing the paper work.
Submissions
The Agent for the Applicant, in submissions, relied on the medical report by the family physician, Dr. S. that listed his medical conditions and medications prescribed, in particular his history of asthma and shortness of breath.
The Agent noted that a breathalyser officer did not appear at the scene when a demand was made and a second demand was not made following the arrival of a testing officer.
The Applicant’s breathing problem was aggravated by the cold weather in spite of being seated in a heated ambulance thereby aggravating his breathing problem.
He suffered from chronic anxiety and he had an anxiety attack following the collision. As well, he suffered from chronic shortness of breath requiring the use of puffers which he last used on the morning of November 29, 2013. His breathing was also affected by the odour of the activated airbag.
The Agent for the Respondent submitted that the Applicant has the onus to prove that he had a medical reason for failing to comply with the demand for a breath sample made by the police officer. No evidence of injuries, medical difficulties or panic attack was observed by the police officer who had no problem in obtaining a description of the collision from the Applicant. He was examined in the ambulance by EMS and he was not given oxygen or a puffer in the ambulance. He did not require oxygen or intravenous in the emergency room
The Applicant opted to refuse to be tested after his choices were explained to him by the police. Mr. Biel submitted that the report by the family physician of five years, Dr. S. did not show how the past history of anxiety, asthma, sleep apnea, or allergy would affect the ability to comply with the demand for a breath sample. No reports of any tests such as a pulmonary function test were provided by Dr. S.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the police officer had reasonable grounds for issuing a demand for a breath sample under section 254 of the Criminal Code (Canada) on November 30, 2013. The Applicant was properly informed of his choices after the demand was read to him and he opted to refuse to comply.
The medical report filed by the Applicant fails to link the medical history of asthma, sleep apnea, allergy or anxiety to his ability to comply with the demand, and fails to include reports of tests or measurements in support of the inability to comply.
Based on the evidence before it, the Tribunal finds that the Applicant did not have a medical reason for why he was unable to comply with the demand made under section 254 of the Criminal Code (Canada) by a police officer on November 30, 2013, as required under section 50.1(2)(b).
DECISION
Upon the application by the Applicant to appeal the suspension order of the Registrar dated November 30, 2013 pursuant to section 48.3 of the HTA and having considered the evidence filed with the Tribunal and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under Section 50(2) of the Act that the decision of the Respondent be confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: January 21, 2014