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:
B.H. Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: David Borenstein, M.D., Member Avril A. Farlam, Vice-Chair
Appearances: For the Appellant: B.H. For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: March 7, 2018
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant sought treatment at a hospital after being involved in a motor vehicle accident on November 10, 2017. The Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence on November 26, 2017 after receiving a medical report from an emergency room physician at the hospital dated November 10, 2017 diagnosing the appellant with alcohol-related seizure.
2Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. After receiving the report that the appellant had been diagnosed as having alcohol dependence and drug dependence the Registrar suspended the appellant’s driver’s licence on November 26, 2017, under s. 47 (1) of the HTA due to the appellant’s medical condition.
3The appellant appealed the suspension on the grounds that he did not have an alcohol-related seizure.
4For the reasons that follow, we find that the respondent has not proven on a balance of probabilities that the appellant suffers from alcohol-related seizure, and has not proven that that this medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
B. ISSUES:
5The issue in this appeal is whether the appellant suffers from alcohol-related seizure which is likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:
Does the appellant suffer from alcohol-related seizure?
Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive safely?
C. CONCLUSION:
6We set aside the Registrar’s decision to suspend the appellant’s driver’s licence because we find that the respondent has not proven, on a balance of probabilities, that the appellant has a medical condition, namely alcohol-related seizure.
D. LAW AND ANALYSIS:
7The 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).”
8One 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,…
(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.
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.
10Under 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.
11The Registrar has the burden of establishing 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.
12The appellant voluntarily went to a hospital on November 10, 2017 to seek treatment following a motor vehicle accident. In a medical condition report dated November 10, 2017, the appellant was diagnosed by an emergency room physician with alcohol-related seizure. The respondent relies on the medical condition report and the emergency department record of the appellant’s treatment. The physician examined the appellant and recorded that the patient admitted drinking six beers a day. The appellant was not admitted to the hospital, was not prescribed medication or other treatment, and no tests were done other than an x-ray.
13The appellant testified that he did not have a seizure on November 10, 2017, has never had a seizure, was not treated or tested at the hospital for seizure.
Does the appellant have alcohol-related seizure?
14We find that the appellant does not have alcohol-related seizure. As a result, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
15With respect to the appellant’s diagnosis, we find that the medical condition report on which the respondent relies is not reliable for many reasons. There is no clinical evidence as to how much alcohol the appellant had consumed at the time of the examination because no blood test was done. There is no history of seizure recorded in the appellant’s chart, no record that the appellant was examined for seizure, no evidence of seizure recorded and no indication of seizure having occurred at all. None of the work-up one would expect following a seizure including glucose level, blood work or neurological imaging (including CT) were ordered. The emergency department record of treatment dated November 10, 2017 does confirm that the appellant’s neurological exam was normal. The appellant’s emergency department record of treatment is not consistent with the diagnosis in the medical condition report of seizure – alcohol related. As a result, the Medical Condition Report that was filed is unreliable.
16The Medical Condition Report of the emergency room physician cannot be given any weight because of the clinical deficiencies in the emergency room chart. The Tribunal is left with the evidence of the appellant that he did not have a seizure, has never had a seizure, was not treated or tested at the hospital for seizure. We prefer the evidence of the appellant over that the of emergency room physician.
17The Registrar submits that the appellant admits to consuming alcohol before the accident on November 10, 2017. This admission is insufficient to establish a medical diagnosis of alcohol-related seizure. The Registrar also submits that the appellant’s driving record is evidence of the diagnosis of alcohol-related seizure. We disagree. The driving record shows a speeding infraction and failing to report the accident on November 10, 2017 which are insufficient to establish a medical diagnosis of alcohol-related seizure.
18The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to substance abuse or dependence (chapter 15) and alcohol withdrawal seizures (chapter 17.6.3). The CCMTA Guidelines do not apply in this particular case given that we have found that the appellant does not have alcohol-related seizure.
Is the appellant’s medical condition likely to significantly interfere with his ability to drive safely?
19Given that we have found the appellant does not have the medical condition of alcohol-related seizure, there is no need to address this second issue.
Conclusion
20After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not suffer from the medical condition alcohol-related seizure that is likely to interfere with his ability to drive a motor vehicle safely.
E. ORDER:
For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is set aside.
LICENCE APPEAL TRIBUNAL
____________________________
David Borenstein, M.D., Member
____________________________
Avril A. Farlam, Vice-Chair
Released: March 20, 2018