Date: 2019-03-21

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 pursuant to section 47(1) of the Act to suspend a licence.

Between:

R.M.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D. Evelyn Spence, LL.B.

Appearances:

For the Appellant: R.M., Self-represented

For the Respondent: Sanjay Kapur, Agent

By Teleconference on: March 11, 2019

REASONS FOR DECISION AND ORDER

Overview

1While admitted to hospital on or around April 14, 2018, the appellant suffered an alcohol withdrawal-related seizure. In compliance with his obligations under s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), the attending physician submitted a Medical Condition Report to the Registrar of Motor Vehicles (the “Registrar”), and the appellant’s driver’s licence was subsequently suspended.

2The appellant appeals the Registrar’s decision to suspend his licence.

3The respondent submits that the appellant’s licence should remain under suspension until the appellant has remained seizure-free and abstinent from alcohol for a period of one year. That decision is informed, in part, by the fact that the appellant was admitted to hospital in April of 2018 for a serious cardiac condition following an evening of heavy alcohol consumption, after which he suffered an alcohol withdrawal seizure. It is further supported by the Registrar’s concerns over the discrepancies provided in the Substance Use Assessment (“SUA”) forms that were submitted to the Registrar by the appellant’s family physician.

4By contrast, the appellant holds that the only seizure he has ever experienced was when he was induced into a coma at the hospital and further, that he is not addicted to alcohol. The appellant and his wife both testified that the appellant has not consumed alcohol since the day he was admitted to hospital in April 2018. The appellant’s family physician does not support a diagnosis of alcohol abuse or dependence and the appellant’s current biochemical markers are all within normal limits, consistent with his statement that he has not recently consumed alcohol.

ISSUE

5The issue to be determined in this appeal is whether the appellant is addicted to the use of alcohol to such an extent that it is likely to interfere with his ability to drive a motor vehicle safely.

RESULT

6For the reasons set out below, we are not persuaded that the appellant is addicted to the use of alcohol, let alone that his use of alcohol is likely to interfere with his ability to drive a motor vehicle safely. We therefore order the Registrar to set aside its decision to suspend the appellant’s driver’s licence.

LAW

7The Registrar has the power under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for “any other sufficient reason not referred to [in subsections 47(1)(d)(e) or (f)]”. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act 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.

8The 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 Act, confirm, modify or set aside the decision or order of the Registrar.

EVIDENCE

9Both the appellant and his wife reported that, on a Saturday in mid-April, 2018, they had friends over to their home and were “partying and drinking heavily.” The appellant and his wife had difficulty recalling specific dates, but they remembered that the appellant was off work that week and they believed it was around April 14, 2018. At some point that evening, the appellant began to feel unwell and he asked his wife to call 911

10The appellant was taken to hospital by ambulance, and, in an attempt to decrease his heart rate, a defibrillator was used. According to the appellant’s wife, when they could not get his heart rate down in the hospital, the appellant was induced into a coma for a period of seven days. When the appellant’s wife arrived at the hospital on the day after he was admitted, she was informed that the appellant had suffered a seizure. Apparently after a full workup, including consultation with a neurologist, the seizure was diagnosed as an alcohol withdrawal seizure.

11The hospitalist, who was the appellant’s most responsible physician at the hospital, filed a Medical Condition Report (“Report”) with the Ministry of Transportation (“MTO”), dated June 5, 2018. On June 15, 2018, the MTO issued its decision to suspend the appellant’s licence, noting seizures – alcohol related, and heart disease with pre-syncope/syncope/arrhythmia as the areas of concern. Through its reviews of the medical information the appellant subsequently provided, the MTO later resolved the cardiac issue, so that only the alcohol withdrawal seizure has persisted as a concern for the Registrar.

12On or around July 20, 2018, the appellant visited his family physician and asked him to complete the SUA form on his behalf. Unfortunately, the appellant’s physician did not accurately or fully complete the form, and the MTO issued a further letter, on July 26, 2018, requesting that the SUA be completed again. In particular, the respondent noted a number of issues and discrepancies, including, most importantly, the physician’s notation that the appellant’s last drink was April 2018, with the alcohol withdrawal seizure having been experienced in June 2018.

13The appellant visited his physician again on or about August 3, 2018, and again had his physician submit the SUA form together with a cardiovascular assessment form. The MTO noted further discrepancies and missing information in the forms the appellant’s physician provided, which raised additional concerns about the information the appellant was providing. In reply, between September 6, 2018 and February 16, 2019, the appellant continued to provide forms and information to the Ministry, including requested biochemical markers (blood work). Apart from one very minor increase in the appellant’s GGT (a liver enzyme) on September 25, 2018, the levels were well within the normal range.

AnalysiS

14It bears repeating that the appellant and his wife had a very challenging time recalling and identifying relevant dates. In particular, they were unsure of the exact date the appellant was admitted to hospital or when he was discharged. The appellant’s wife was convinced that the appellant had been discharged from hospital before June, 2018, however the Report, which was prepared by the hospitalist, noted June 5, 2018 as both the date of examination and the date of the report. The appellant and his wife testified that the hospitalist told them about the licence suspension approximately 1 – 2 weeks before they left the hospital, further bringing the couple’s assertion that the appellant was discharged before June into question.

15The appellant and his wife were, mostly, certain that the last time the appellant drank alcohol was the day he was admitted to hospital. Although unclear of that specific date, the appellant and his wife believed this was mid-April. When meeting with the appellant’s family physician to complete the SUA form, however, the appellant must have reported that his last drink was May 1, 2018. At one point in the hearing, the appellant also gave May 1, 2018 as the date of his last drink, yet when asked, he denied having a drink while he was in the hospital.

16Notwithstanding the above, the Tribunal did not have concerns regarding the honesty of the appellant or his wife, and we believed that they were providing their evidence truthfully and to the best of their recollection. Further, the fact that the appellant and his wife were consistently imprecise in the provision and recollection of dates might help to explain the discrepancies in the forms that the appellant’s family physician completed, which complicated the Ministry’s review of the appellant’s case and necessitated that the SUA and cardiac assessment forms be resubmitted over and over again.

17Having considered and satisfied ourselves with respect to the appellant’s credibility, we must now weigh the evidence and find whether it compels the conclusion that there are grounds for suspending the appellant’s licence because he is addicted to the use of alcohol to the extent likely to significantly interfere with his ability to drive a motor vehicle safely.

18The Glossary of Substance Use Terms for the Purpose of Assessing Driver Fitness, which is included as an Appendix to the SUA, provides the following relevant definitions:

Alcohol abuse – The recurrent inappropriate use of alcohol. Someone who abuses alcohol is not necessarily addicted or dependent on alcohol. The goal of treatment for such individuals is not always abstinence. Moderation management is often the goal of alcohol abusers.

Alcohol dependence - The repetitive inappropriate use of alcohol associated with loss of control, an ability to abstain, a preoccupation with obtaining alcohol and withdrawal symptoms.

Alcoholism - A non-medical term which encompasses alcohol abuse and dependence.

Alcohol withdrawal seizure - Occurs 12-72 hours after cessation of drinking or significantly reduced alcohol consumption. The seizure may be delayed until the 7^th or 10^th day of withdrawal.

19The appellant and his wife both stated, unequivocally, that the night he was admitted to hospital was the last time the appellant consumed any alcohol. The appellant acknowledged that he was drinking heavily that evening, having imbibed around 6 or 7 beers in an approximately 3-hour period. He had not driven his vehicle that evening. He had never experienced a seizure before the one suffered in the hospital, and has not had one since.

20When asked, the appellant denied having an alcohol addiction or any history of alcohol dependence. The Tribunal notes that this is at odds with a notation on the appellant’s echocardiogram requisition on record, which states “ex alcoholic with SOB”, however the appellant now rejects this characterization. His wife, who does not drink at all, stated that they do not keep alcohol in the house anymore, and that she has not seen him consume alcohol since the night he was admitted to hospital. The appellant testified that, since he stopped drinking, he has attended gatherings where others drink, and this has not posed any issues for him. He drinks water and says he does not crave alcohol.

21The SUA forms filled out by the appellant’s family physician indicate that the appellant does not suffer from alcohol misuse, abuse or dependence, but has suffered from an alcohol withdrawal seizure. Additionally, his medical note of March 1, 2019 states that the appellant’s liver enzymes are within normal limits, further suggesting that the appellant was not, as of that date, abusing alcohol.

22Aside from its submission that the appellant was admitted to hospital and thereafter suffered a seizure because of alcohol withdrawal following an evening of heavy alcohol consumption, the Registrar did not tender any evidence to support its position that the appellant is addicted to alcohol.

23Applying the appellant’s evidence to the definitions provided above, it is difficult to find how the appellant could be understood to suffer from alcohol abuse, alcohol dependence, or alcoholism. The Registrar has not, therefore, successfully discharged its burden of proving that that the appellant is addicted to the use of alcohol, nevertheless that he is addicted to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.

24While the Registrar maintains that a one-year seizure-free and abstinence period is necessary, we feel that is overly cautious. The appellant has abstained from drinking for a period of almost 11 months, has not suffered a second or subsequent seizure, and there is nothing to indicate that the appellant is addicted to the use of alcohol. Based on the evidence, we are not concerned that the appellant poses a threat to the motoring public.

ORDER

25For the reasons set out above, and pursuant to subsection 50(2) of the HTA, the Tribunal hereby orders that the Registrar’s decision to suspend the appellant’s driver’s licence be set aside.