Date: 2019-03-20

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:

I.M.

Appellant

and

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member Barbara Hicks, Member

Appearances:

For the Appellant: I.M., self-represented

For the Respondent: Stella Velloci, Agent

Heard by Teleconference on: July 25, 2018

OVERVIEW

1The appellant is a 35-year-old man who appeals the suspension of his driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2Late on the evening of February 11, 2017, the appellant was investigated by police at the roadside, following a complaint. The investigating police officer subsequently filed a Request for Driver’s Licence Review with the Registrar of Motor Vehicles (the “Registrar”), citing “loss of consciousness/black out, erratic behaviour, fell asleep and other (specified as drug related).”

3On March 4, 2017, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the Act.

4While the appellant’s licence was suspended, the Registrar received two unsolicited Medical Condition Reports (“MCRs”). The first MCR, dated June 3, 2017 cited alcohol dependence; the second MCR, dated March 17, 2018 cited “seizures(s) - cerebral or drug related.”

5For the reasons set out below, we find that the appellant suffers from alcohol use disorder (“AUD”) to an extent that is likely to significantly interfere with his ability to drive safely. AUD is a disorder of the brain, like many other mental health disorders.

6For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

7The issue in this appeal is whether the appellant suffers from any mental, emotional, nervous or physical condition or disability that is likely to significantly interfere with his ability to drive safely.

8Taking the Registrar’s July 24, 2018 letter into consideration, the issue in this appeal is whether the appellant suffers from any of the following medical conditions: seizure; anxiety; erratic behaviour; sleep disorder; narcolepsy; substance use disorder (“SUD”), excluding alcohol; and alcohol use disorder (“AUD”), and if any or all of these medical conditions are likely to significantly interfere with his ability to drive safely.

9To answer these questions, we will address the following issues:

1. Does the appellant have one of the noted medical conditions?

a. Is the appellant suffering from a seizure disorder?

b. Is the appellant suffering from anxiety and/or erratic behaviour?

c. Is the appellant suffering from a sleep disorder or narcolepsy?

d. Is the appellant suffering from SUD, excluding alcohol?

e. Is the appellant suffering from AUD?

2. If the appellant has one or more of these medical conditions, is it likely to significantly interfere with his ability to drive safely?

LAW

10The Registrar has the power under s. 47(1) of the Act to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

11Subsection 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,

(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;

12According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). The Tribunal may also take the CCMTA Standards into consideration, although they are not binding requirements.

13The Registrar has the burden to establish the grounds 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 and ANALYSIS

14The appellant was involved in a number of alleged incidents relevant to this appeal, from 2016 to 2018. These incidents included: i) ingestion of gamma-hydroxybutyrate (“GHB”) in April 2016, which raised questions about whether he suffered a seizure; ii) suspicious roadside activity in February 2017, which raised questions about whether he was under the influence of drugs and/or alcohol, and whether he suffers from erratic behaviour, anxiety, a sleep disorder, or narcolepsy; iii) a motor vehicle collision with a bus in June 2017, which raised questions about whether he was under the influence of alcohol; iv) resting his head on the steering wheel of a vehicle which was stopped in January 2018, which raised questions about whether he was under the influence of alcohol; and v) a trip to the hospital following a day of drinking in March 2018, which raised questions about whether he suffered a seizure.

Issue 1: Does the appellant have one of the noted medical conditions?

a. Is the appellant suffering from a seizure disorder?

15We find that the evidence presented does not establish that the appellant suffers from a seizure disorder.

16On June 28, 2016, the appellant was assessed by neurologist, Dr. I. Dr. I.’s report stated that from the encounter, he did not get any convincing history of a seizure. He thought that the event in question was “more likely to be related to intoxication, overdose rather than a seizure” (i.e. alcohol and the inadvertent ingestion of GHB). Dr. I. did not prescribe an anti-seizure medication to the appellant after the consultation, nor did he send the appellant for further neurological tests.

17The appellant testified that on March 17, 2018 he had been drinking beer all day with friends. He eventually fell asleep on a couch. Apparently his friends observed that the appellant’s legs were twitching and because of the appellant’s previous episode of a potential seizure in 2016, they called 911. The appellant was seen by emergency room (ER) physician Dr. M., who filed a MCR with the respondent, citing “seizures(s) - cerebral or drug related”. No ER notes were submitted as evidence, and the appellant does not know if he had tests done or not. The appellant testified that he was not referred to a neurologist, nor was he prescribed any new medication following this event.

18As per the “Glossary of Substance Abuse Terms for the Purpose of Assessing Driver Fitness” found in the Appendix of the Ministry’s Substance Use Assessment form, “alcohol withdrawal seizures occur 12-72 hours after cessation of drinking or significantly reduced alcohol consumption. The seizure may be delayed until the seventh or 10^th day of withdrawal.”

19Thus, based on the absence of a referral to a neurologist from the ER, the lack of treatment with an anti-seizure medication and the Ministry’s timeline of a minimum of 12 hours after cessation of drinking for an alcohol withdrawal seizure, it is our opinion that the events of March 17, 2018 are not in keeping with an alcohol withdrawal seizure and/or any seizure.

b. Is the appellant suffering from anxiety and/or erratic behaviour?

20We find that the evidence presented establishes that the appellant suffers from anxiety, but not erratic behaviour.

21The appellant testified that he has suffered from anxiety since he was a teenager. He described his anxiety attacks as feeling panicked with butterflies in his stomach. Sometimes he feels a rush and has tingling in his arms. This diagnosis is verified by a June 25, 2018 note from his family doctor, Dr. H. who stated that the appellant suffers from anxiety and sometimes uses a prescribed benzodiazepine (relaxant).

22The appellant testified that on the night of February 11, 2017, when he was investigated by police at the roadside, he had travelled a fair distance to another city during a blizzard to visit a friend. He stated that he got lost, ran out of gas, used a taxi to get a gas can and ended up with a dead car battery. When approached by police, the appellant testified he was having an anxiety attack and could not comprehend what was happening. Although his behaviour may have looked erratic to the police officer, his behaviour was secondary to his situational anxiety attack.

23We accept the evidence of both the appellant and Dr. H., stating that the appellant suffers from anxiety and not erratic behaviour as deemed by the police and/or bystanders who called the police.

c. Is the appellant suffering from a sleep disorder or narcolepsy?

24We find that the evidence presented does not establish that the appellant suffers from a sleep disorder or narcolepsy.

25At the hearing, the appellant did not describe any medical symptoms consistent with either a sleep disorder or narcolepsy (a neurological disorder that affects the control of sleep and wakefulness).

26Furthermore, the appellant was seen by a neurologist in 2016. This specialist’s report did not indicate that the appellant was suffering from either a sleep disorder or narcolepsy.

27Thus, we find that the appellant does not suffer from either a sleep disorder or narcolepsy.

d. Is the appellant suffering from SUD, excluding alcohol?

28We find that the evidence presented does not establish that the appellant currently suffers from SUD, excluding alcohol.

29The appellant testified that he used cocaine for a period of time in his teenage years, but not for about 15 years. He also denied the use of cannabis and intravenous drugs. The appellant described the episode in 2016 as an accidental ingestion of GHB.

30The police report of the events of February 11 and 12, 2017 indicate that the investigating police officer spoke to the appellant’s father. According to the report, the appellant’s father stated that the appellant “has been a drug user for many years and it affects his normal state.” The respondent testified that he does not get along with his father.

31Despite the fact that the ER report from the early morning of February 12, 2017 indicates that the appellant’s “arrival means” was by the police, healthcare personnel did not order a urine drug screen (UDS) for drugs of abuse.

32A Substance Use Assessment form from September 2016, does not have illicit drug use checked off as a concern. In addition, a more recent UDS from July 16, 2018 was negative for drugs of abuse.

33After considering all of the evidence, we are not persuaded that the appellant currently suffers from SUD, excluding alcohol.

e. Is the appellant suffering from AUD?

34We find that the evidence presented establishes that the appellant suffers from mild-moderate AUD, a mental health disorder.

35The police report of the events of February 11 and 12, 2017 suggest that the appellant’s unusual behaviour at the roadside may have been the result of drugs and/or alcohol. As stated in paragraph 31, a UDS for drugs of abuse was not taken at the hospital. However, a blood sample was taken at the hospital for toxicology testing. This toxicology test specifically looked for the presence of alcohol, acetaminophen, and acetylsalicylic acid. As per the ER record submitted as evidence, all three substances came back negative in the appellant’s blood.

36Based on the evidence, we find that alcohol was not involved in the roadside events of February 11 and 12, 2017.

37On June 3, 2017 when his licence was under suspension and while driving his car back from a friend’s home, the appellant drove into the back of a bus. The appellant denied consuming alcohol that day. According to the appellant, the police officer investigating the collision stated that the appellant smelled from alcohol. However, the appellant testified he was not asked for a breath sample and he was never charged with impaired driving.

38ER physician, Dr. P. saw the appellant following the collision. According to the MCR filed by Dr. P. on June 3, 2017, the appellant suffers from alcohol dependence. In the optional portion of the MCR Dr. P. wrote, “intoxication leading to collision; unconscious; drove into bus.” Although the appellant stated that blood work was done at the hospital, none was submitted as evidence.

39Review of the appellant’s certified Extended Driver’s Record does not show an impaired driving charge for that time period in June 2017.

40Based on the balance of probabilities, we find that alcohol did not play a role in the appellant’s June 3, 2017 collision with a bus.

41Further review of the appellant’s certified Extended Driver’s Record shows that his driver’s licence was suspended from January 12, 2018 until April 12, 2018 due to an Administrative Driver’s Licence Suspension (“ADLS”) based on a Drug Recognition Expert’s (“DRE’s”) Evaluation.

42The appellant testified that starting at 5 or 6 p.m. on January 12, 2018, and over a 3-4 hour period, he consumed 3-4 beers with friends at a bar. He stated that when they left the bar, one of his friends was driving the appellant’s car. They eventually stopped the car in an area which impeded the flow of local vehicles, and his friend went to get something. The appellant stated he remained in the car, and needed to back the car up because it was blocking the passage of another vehicle. The appellant also stated that at some point, he was “resting his head” on the steering wheel. The appellant commented that someone must have called the police because they were concerned that he might be impaired. The appellant stated that he had a roadside Breathalyzer done, but thought that he did not “blow over”. The appellant indicated that he was arrested, went to the police station and was charged. The appellant stated that he has not yet been convicted and has hired a lawyer to defend the charge. As of the search date of June 12, 2018, the ADLS – DRE was still on the appellant’s Extended Driver’s Record.

43Events leading to the MCR of March 17, 2018, included drinking 4-5 beers with friends in someone’s home. At the hearing, the appellant candidly admitted that he does not “tolerate alcohol as well as most of his friends”, and frequently falls asleep after consuming larger quantities of alcohol.

44In a letter dated July 24, 2018, Dr. H. stated that “the appellant is following guidelines of alcohol usage, that he does not suffer dependency or misuse with alcohol, and that he has had no complications of alcohol usage.”

45The evidence suggests that the appellant does in fact have complications of alcohol usage. The appellant’s Extended Driver’s Record shows an ADLS – DRE in 2018. This driver’s licence suspension was, as he testified, precipitated by being found at the wheel after consuming alcohol. Moreover, his ER visit in March 2018, which resulted in another MCR being filed, was precipitated by significant alcohol consumption.

46Thus, by continuing to use alcohol in the above fashion, despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol, and/or the use of alcohol in situations in which it is physically hazardous, we find that the appellant suffers from AUD of mild-moderate severity.

47Now that we have found that that the appellant suffers from both anxiety and AUD, we must consider if one or both of these medical conditions are likely to significantly interfere with his ability to drive safely.

Issue 2: If the appellant has one or more of these medical conditions, is it likely to significantly interfere with his ability to drive safely?

a. Is the appellant’s anxiety likely to significantly interfere with his ability to drive safely?

48We find from the evidence presented that the appellant’s anxiety is not likely to significantly interfere with his ability to drive safely.

49Dr. H.’s June 25, 2018 note stated that “he suffers the odd bout of anxiety at night.”

50Furthermore, the appellant did not describe an anxiety attack while driving. Rather he described this attack occurring as the result of the stressful events of that evening while he was out of his car, on the side of the road.

51Thus, we find that the appellant’s anxiety did/does not occur while driving, and therefore is not likely to significantly interfere with his ability to drive safely.

b. Is the appellant’s AUD likely to significantly interfere with his ability to drive safely?

52We find from the evidence presented that the appellant’s mild-moderate AUD, a mental health disorder, is likely to significantly interfere with his ability to drive safely.

53Although we are not bound by the recommendations contained in the CCMTA Standards in making our decision, we note that s. 15.4 comments on the use of alcohol, a depressant drug, which slows down the brain and body. In particular, this section describes the effects that alcohol has on the function necessary for driving to include, but is not limited to: reduced reaction times, blurred or double vision, altered depth perception, reduced judgement and insight, blunted alertness and reduced motor co-ordination.

54As stated in paragraph 40, we have found, based on the balance of probabilities, that alcohol was not involved in the appellant’s motor vehicle collision with a bus on June 3, 2017.

55More importantly, however, the appellant testified that on the evening of January 12, 2018, after consuming alcohol, he was behind the steering wheel of his car, and that he did back his car up. This incident is recorded on the appellant’s extended driver’s record as a 90-day suspension due to an ADLS – DRE.

56In January 2018 under the Act, a person could receive a 90-day licence suspension under s. 48.3 for failing to provide a breath sample, or having a concentration of alcohol in their blood in excess of 0.08 mg/mL of blood, or under s. 48.3.1 where a police officer is satisfied that a person driving or having the care, charge or control of a motor vehicle…was impaired by a drug or by a combination of a drug and alcohol… Furthermore, s. 48.3.2 states that the person has been evaluated by an “evaluating officer” under s. 254(3.1) of the Criminal Code, in connection with the driving or the care, charge or control of a motor vehicle…

57Section 1 of SOR/2008-196, “Evaluation of Impaired Operations (Drugs and Alcohol) Regulations”, a regulation enacted under the Criminal Code, states that an “evaluating officer” must be a certified DRE accredited by the International Association of Chiefs of Police.

58Thus, we find from the evidence, that on January 12, 2018, the appellant was assessed by a DRE, who was satisfied from their assessment that the appellant’s ability to operate a vehicle was impaired by a drug or a combination of drugs and alcohol.

59Furthermore, the appellant testified that he does not: i) currently use illicit drugs or cannabis, ii) usually carry his anti-anxiety medication (benzodiazepine) with him, and iii) tolerate alcohol as well as most of his friends and frequently falls asleep after consuming larger quantities of alcohol.

60Thus, we are satisfied from the evidence, that on the evening of January 12, 2018, after consuming 3-4 beers, the appellant was behind the wheel of his car and his ability to operate a vehicle, as per the DRE’s evaluation, was impaired by alcohol.

61With no obvious insight into his past or current actions with respect to alcohol use, or sufficient lessons learned from his past experience, we find that the appellant’s choice to drive after consuming alcohol, with blunted alertness as indicated by the action of “resting his head” on the steering wheel, and with other functions necessary for driving impaired as deemed by the DRE, shows poor judgment, lack of insight and disregard for personal and public safety. Good judgment, insight and regard for personal and public safety are part of safe driving. With this in mind, we find that it is likely that the appellant will drive again in the future with his functions necessary for driving impaired.

62After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from AUD, a mental health disorder, to an extent that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

63For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.