LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-05

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 driver’s licence under subsection 47(1) of the Act

Between:

10593

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Kevin Flynn

Appearances:

For the Appellant: Self Represented For the Respondent: Kyle Biel, agent for the Respondent

Place and date(s) of hearing: By teleconference April 21, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The Appellant appeals the suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). The Appellant is a 74-year old man who works in a factory. The Registrar suspended the Appellant’s driver’s licence after receiving a Medical Condition Report submitted by a specialist in Internal Medicine in compliance with section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). Section 203 of the HTA requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The condition reported was Alcohol Dependence and Seizure(s) – Alcohol related. The Appellant was admitted to the hospital on September 22, 2016 after having a seizure at work.

2The Appellant submits that his licence should be reinstated. He states that his seizure occurred as a result of a fall after he tripped while going up a set of stairs at work. He testified that he had been to a stag party a few days before the seizure and that he consumed more alcohol than usual. He testified that he has been abstinent from alcohol and seizure-free since the September 22, 2016 incident.

3The Registrar submits that the diagnosis of alcohol dependence combined with an alcohol-related seizure impairs the ability to operate a motor vehicle safely. The Registrar submits that the Appellant’s licence should remain under suspension until he has been alcohol- and seizure-free for 12 months, which may be reduced to 6 months if he successfully completes an alcohol treatment program and his physician is supportive of reinstatement.

4For the reasons that follow, I find that the Appellant does not have a medical condition or addiction likely to significantly interfere with his ability to drive safely. Accordingly, I set aside the suspension.

B. ISSUES

5The issue in this appeal is whether the Appellant suffers from a medical condition or addiction likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, I will address the following issues:

1. Did the Appellant have an alcohol-related seizure?
2. Does the Appellant have alcohol dependence?
3. Are the Appellant’s medical condition or addiction, if any, likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

Registrar’s evidence

6On September 22, 2016, the Registrar received a Medical Condition Report from Dr. S, specialist in internal medicine. The report indicated the Appellant’s conditions as “Alcohol Dependence” and “Seizure(s)-Alcohol related”. The report did not include any additional information.

7On September 27, 2016, the Registrar advised the Appellant by letter that the Registrar had decided to suspend his licence under s. 47(1) of the HTA based on the reported conditions. The letter stated that in order to have his licence reinstated, the Registrar required confirmation that he has remained seizure-free and abstinent from alcohol for one year, which may be reduced to six months if his physician confirms he has successfully completed an alcohol treatment program and is supportive of his driving privilege. The letter enclosed a Substance Use Assessment form to be completed by the Appellant’s treating physician, specialist or nurse practitioner.

8The Appellant had the Substance Use Assessment completed by his family physician, Dr. C, on December 6, 2016. Dr. C indicated on the form that the Appellant’s diagnosis with respect to alcohol was “alcohol use within low risk drinking guidelines.” The appendix to the Substance Use Assessment form states that the low-risk drinking guidelines for men are no more than 14 drinks per week, 2 standard drinks on any one day and at least one hour between drinks.

9Dr. C also indicated on the Substance Use Assessment that the Appellant had experienced a seizure less than three months before the date of the report and that the seizure was due to alcohol withdrawal, not epilepsy or another seizure disorder.

10The Substance Use Assessment further indicated that:

• the Appellant had abstained from alcohol for less than six months;
• it was unknown whether the Appellant had completed a formal addictions treatment program;
• one of four biochemical markers – MCV – was elevated due to alcohol use based on testing in the last 3 months; and
• the Appellant adheres to the recommended treatment regimen.

11On December 14, 2016, the Registrar advised the Appellant by letter that it had been determined that his driving privilege should remain under suspension.

12On January 17, 2017, Dr. C wrote a letter to the Tribunal as follows:

[The Appellant] has been my patient since January 7, 1978. He has never had any seizure disorder until September 28, 2016 at which time he was apparently over indulging on alcohol

The neurologist I referred him to agreed that he most likely suffered an alcoholic withdrawal seizure. He has not had any recurrence of seizure since September, 2016.

Impression

[The Appellant’s] seizure is most likely related to alcohol. He has had no further seizure since abstaining from alcohol. If he abstains from alcohol, the chance of getting another seizure is very small. I shall monitor him at random in the future from alcohol abuse. In the meantime, I feel he is safe to drive again.

13The Registrar reviewed the letter from Dr. C and advised the Appellant by letter dated February 9, 2016 that his licence would remain under suspension.

14The Registrar received three additional medical documents with respect to the Appellant:

• laboratory results showing the Appellant’s biochemical markers, all of which are in the normal range, taken March 2, 2017;
• the Appellant’s discharge summary dated September 29, 2016, showing a discharge diagnosis of “ETOH WITHDRAWAL”; and
• an electroencephalogram (“EEG”) report by Dr. L, a neurologist, dated November 14, 2016, which states that the Appellant had an alcohol withdrawal seizure on September 22, 2016. Dr. L noted on the report, “From the history, it would appear the patient did sustain an alcohol withdrawal seizure. The focal slowing is in of itself nonspecific.” The report also noted that no epileptiform changes were found.

15The Registrar advised the Appellant on April 19, 2017 that his case had been reviewed in light of laboratory tests dated March 3, 2017. The Registrar stated that the Ministry still required confirmation of one year seizure- and alcohol-free, which may be reduced to six months upon successful completion of an alcohol treatment program and support from his physician for reinstatement.

Appellant’s Evidence

16The Appellant states in his Notice of Appeal that his seizure will not affect his driving and that he is an excellent driver, which the records show

17The Appellant testified that on September 22, 2016, he tripped while going up a short flight of concrete stairs at work. He says he thinks there was water on the bottom step. He knocked his head on the top step and woke up in hospital. He thought he went into shock and fell down.

18The Appellant was treated by Dr. S in the hospital. While in hospital, the Appellant had a CT scan or similar test performed. He was told in hospital that he had an alcohol withdrawal seizure. He was released from the hospital on September 27, 2016.

19After being discharged from the hospital, the Appellant saw a neurologist, Dr. L, who sent him for an electroencephalograph (“EEG”). The Appellant spoke with Dr. L on the telephone about the results of the EEG. Dr. L said that the Appellant’s seizure was due to alcohol withdrawal, that the EEG results were normal, that he did not need to see Dr. L again, and that he could follow up with his family physician.

20The Appellant stated that there was no alcohol involved on September 22, 2016. However, he had been at a stag party two or three days before that, on the weekend. He drank extensively at the stag party, including whiskey, rum and beer. He ended up getting sick from alcohol and had to take a cab home. The Appellant stated that he was not used to drinking that much. Prior to the stag party, he often had 1-2 alcohol drinks per day, but would sometimes go for months without drinking alcohol. He stated that he does not drink during Lent.

21The Appellant testified that he has not had a drink since the incident on September 22, 2016.

22The Appellant was asked by the Registrar’s agent why he has abstained from alcohol if Dr. C says his drinking was within the low-risk guidelines. The Appellant responded that he is abstaining because the doctors say that he had a seizure due to alcohol and he doesn’t want that to happen again.

23The Appellant testified that his most recent lab results show that he has no alcohol in his system at all. The Registrar’s agent confirmed that the Registrar is not disputing that.

24The Appellant testified that Dr. C has not recommended a treatment program and does not think he is an alcoholic.

25The Registrar’s agent asked the Appellant if Dr. C provided any reason why his December lab results were elevated for alcohol if he had been abstinent since September. The Appellant respondent that no reason was given.

26The Registrar’s agent also asked the Appellant what Dr. C explained to him about what an alcohol withdrawal seizure is and why he had one. The Appellant testified in response that Dr. C asked if he had been drinking and the Appellant told him about the stag party.

D. LAW:

27The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

28One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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.

29Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

30Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

31The Registrar has the burden to establish the ground for suspending the 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 Registrar.

E. Submissions:

Respondent’s Submissions

32The Respondent submits that the Appellant’s licence should remain under suspension as he does not meet the criteria for reinstatement. The diagnosis of both alcohol dependence and an alcohol withdrawal seizure can impair the ability to operate a motor vehicle safely. The Respondent submits that the Appellant’s condition is not under control and that the risk remains active.

33The Registrar submits that the Tribunal should be cautious in accepting the diagnosis by Dr. C that the Appellant’s drinking falls within the low-risk drinking guidelines. Dr. C states that the Appellant has 1-2 drinks on a typical day and never more than five. However, the Appellant had an alcohol withdrawal seizure and an elevated MCV due to alcohol. The Respondent questions how 1-2 drinks per day can cause elevated lab results and an alcohol withdrawal seizure. The Respondent further submits that Dr. C changed his diagnosis in his letter dated January 17, 2017 in which he stated that he will monitor the Appellant in the future for alcohol abuse. The Registrar submits that Dr. S’s diagnosis of alcohol dependence is more accurate than that of Dr. C.

34Because there is a diagnosis of alcohol dependence and alcohol withdrawal seizure, the Registrar submits that the Appellant’s licence should not be reinstated until he has remained seizure-free and abstinent from alcohol for a period of one year, which may be reduced to six months upon successful completion of an alcohol treatment program if his physician is supportive of his driving privilege.

Appellant’s Submissions

35The Appellant requests that his licence be reinstated. He submits that he does not drink and that he has provided all of the documentation that he was asked to provide.

F. ANALYSIS:

Did the Appellant suffer an alcohol withdrawal seizure?

36I find that the Appellant had an alcohol withdrawal seizure on September 22, 2016, which was most likely caused by excessive use of alcohol several days previously at a stag party.

37The Appellant’s alcohol consumption on the night of the stag party was an episode of binge drinking, which is defined for men as drinking more than 7 alcoholic drinks in one session and is regarded as hazardous to health. I accept the Appellant’s evidence that his alcohol consumption on that night was far in excess of his regular drinking habit. A large quantity of alcohol in a short space of time may cause alcohol poisoning which can result in withdrawal seizures up to several days later as the alcohol is metabolised.

38The Appellant believes that his seizure occurred because he fell on the stairs and then his body went into shock. However, the medical evidence is sufficient to satisfy me that the Appellant’s seizure was alcohol-related. This evidence includes the diagnosis of alcohol withdrawal seizure by Dr. S, the opinion of the neurologist, Dr. L, that the Appellant had an alcohol withdrawal seizure, and the fact that the Appellant had drunk to excess a few days before the seizure. Other possible causes for the seizure were eliminated, such as epilepsy, closed head injury or tumour, by CT scan of the head, EEG, and neurological examination.

Does the Appellant have alcohol dependence?

39I find that the Appellant does not suffer from alcohol dependence. I accept the Appellant’s evidence that prior to September 22, 2016, he consumed approximately 1-2 alcoholic drinks every night, which is within the low-risk drinking guidelines for men. The Appellant’s testimony is supported by the Substance Use Assessment completed by Dr. C on December 6, 2016, which diagnoses the Appellant as using alcohol within the low-risk drinking guidelines.

40The Respondent submits that I should approach Dr. C’s diagnosis with caution, as it is not clear how drinking 1-2 drinks per day can result in elevated MCV and an alcohol withdrawal seizure. I note that Dr. C indicated on the form that the Appellant’s elevated MCV was due to his alcohol use. I have no reason to doubt Dr. C’s medical opinion that the Appellant’s MCV was elevated due to alcohol use, despite consuming 1-2 drinks per day. I note that the other biochemical markers were not marked as elevated. As set out above, I have found that the Appellant’s seizure was most likely caused by the episode of binge drinking 2-3 days prior.

41With respect to the Registrar’s concern raised in cross-examination that the Appellant’s MCV was elevated as of December 6, 2016 at the time that the Appellant claimed to be abstinent, I note that the date of the blood tests are stated to be “within the last 3 months”, which encompasses the date of the seizure. There is no evidence before me of the date of the blood tests referred to on the Alcohol Use Assessment form.

42Further, I am unable to find that Dr. C changed his diagnosis in his letter dated January 17, 2017. Dr. C stated in that letter that the Appellant’s seizure is most likely related to alcohol and that he was “apparently over indulging on alcohol” at the time of the seizure. Dr. C stated that he would “monitor [the Appellant] at random in the future from alcohol abuse.” Dr. C did not state in his letter that the Appellant was dependent on alcohol, and accordingly I do not find that he changed his diagnosis.

43On the issue of alcohol dependence, I prefer the opinion of Dr. C, who has been the Appellant’s family physician since 1978, over the opinion of Dr. S, who treated the Appellant in the hospital on September 22, 2016.

44Further, I accept the Appellant’s evidence that he has been abstinent from alcohol since September 22, 2016. The Appellant explained that he has abstained from alcohol because he was advised that his seizure was caused by alcohol withdrawal, and the Appellant wanted to avoid having another seizure. Although not determinative, I also note that the Appellant’s biochemical markers are currently in the normal range.

Is the Appellant’s alcohol-provoked seizure likely to significantly interfere with his ability to drive safely?

45I find that the Appellant’s alcohol-provoked seizure is not likely to significantly interfere with his ability to drive safely.

46The Appellant has been seizure-free for over seven months. He has also been abstinent from alcohol for over seven months. Dr. C’s opinion is that the Appellant is safe to drive and that if he abstains from alcohol, his chance of getting another seizure is very small. In the circumstances, I find that there is very little risk that he will have another seizure.

47Guildeline 17.6.3 of the CCMTA Medical Standards for Drivers applies to drivers with alcohol-related provoked seizures. I note that this is a guideline only and not binding on the Tribunal. Guideline 17.6.3 states that drivers who have had alcohol-related provoked seizures are eligible for a licence if:

• the treating physician has confirmed that the cause of the seizure was alcohol use
• they have undergone addiction treatment and have received a favourable report from an addiction counsellor,
• there is no diagnosis of alcohol abuse/dependency it has been at least 6 months since they have used alcohol and have not had a seizure
• earlier re-licensing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licencing authority, and
• the conditions for maintaining a licence are met.

48The Appellant has been seizure-free for seven months and has a favourable recommendation from his treating physician. Although he has not undergone addiction treatment, he has abstained from alcohol for over seven months.

49If a driver has a seizure while driving, there is a significant risk to road safety. However, as I have found that there is little risk that the Appellant will have another seizure, I find that the Appellant does not suffer from a physical or mental condition likely to significantly interfere with his ability to drive a motor vehicle safely.

G. order:

50Upon considering the evidence and submissions of both parties, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the Appellant’s licence.