Date: 2020-12-14

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:

David Lockstein

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: David Lockstein, self-represented

For the Respondent: Kyle Biel, agent

Heard by Teleconference: December 8, 2020

A. Overview:

1David Lockstein (the “appellant”) appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The issue in this appeal is whether the appellant’s medical condition of seizure due to alcohol withdrawal is likely to significantly interfere with his ability to drive safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar has not met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. Therefore, I set aside the decision of the Registrar of Motor Vehicles (the “Registrar”, the “respondent”) to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

4The issue in this appeal is whether the appellant suffers from a medical condition, specifically seizure due to alcohol withdrawal, which is likely to significantly interfere with his ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Does the appellant suffer from seizure due to alcohol withdrawal?

b. If the appellant suffers from seizure due to alcohol withdrawal, is it likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

6Under the HTA, the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 32(5)(ii) and s. 47(1)(g) of the HTA, and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

7Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

9On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from seizure due to alcohol withdrawal?

11I find on a balance of probabilities, that the appellant suffered a seizure due to alcohol withdrawal.

12On June 18, 2019 an emergency room physician submitted an unsolicited Medical Condition Report to the Registrar indicating that the appellant suffered a seizure due to alcohol withdrawal.

13On July 24, 2019 under s. 47(1) of the HTA, the Registrar suspended the appellant’s driver’s licence for medical reasons.

14The appellant does not deny that around 3:00 p.m. on June 18, 2019, during a break at work, he suffered a seizure. He stated that prior to June 18, 2019 he would typically consume 6-11 beers per day on most days, but probably had a little less beer on the evening prior to the seizure. The appellant had just started a new job the day prior to the seizure after being laid off for three months.

15As per the Glossary of Terms in the Appendix of the Ministry of Transportation’s Substance Use Assessment form (“SUA” form), alcohol withdrawal seizures occur 12-72 hours after cessation of drinking or significantly reduced alcohol consumption.

16In late 2019, the Registrar received a completed SUA form from the appellant’s family physician, Dr. H. In this form, Dr. H. indicated that the appellant had suffered a seizure related to alcohol 3-6 months prior and that the seizure was not due to a seizure disorder.

17On February 21, 2020 the appellant underwent an electroencephalogram (“EEG”) which was reported as normal. The EEG report stated that the appellant was “being assessed for an episode of generalized tonic-clonic seizure”.

18Based on the above, I find on a balance of probabilities that on June 18, 2019 the appellant suffered a seizure and that the seizure was due to alcohol withdrawal.

b. If the appellant suffers from seizure due to alcohol withdrawal, is it likely to significantly interfere with his ability to drive a vehicle safely?

19The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met that burden.

20In the completed SUA form from late 2019, Dr. H. indicated that the appellant:

(i) had no further seizures since June 2019;

(ii) had abstained from alcohol for less than six months;

(iii) did not complete an alcohol treatment program or counselling;

(iv) had biochemical markers within the last six months that were within normal laboratory range; and

(v) was doing well.

21By letter dated January 8, 2020, the Registrar requested confirmation that the appellant remained seizure free and abstinent from alcohol for a period of one year and that once this period had lapsed, the results of recent biochemical markers (MCV, GGT).

22On July 14, 2020, more than one year since the seizure, Dr. H. forwarded blood work, including the requested biochemical markers, to the Registrar. The biochemical markers were within normal laboratory range.

23By letter dated September 1, 2020, the Registrar once again requested confirmation that the appellant had remained seizure free and abstinent from alcohol for a period of one year.

24On September 3, 2020, Dr. H. wrote to the Registrar stating that the appellant “is not consuming alcohol on a regular basis or in significant amounts. He remains seizure free and his lab tests are within normal range”.

25On October 2, 2020, Dr. H. once again wrote to the Registrar confirming the appellant had been seizure free for over one year. Dr. H. stated that the appellant “is currently well. He has had no further seizures and to my knowledge is not consuming any alcohol”.

26According to the appellant, as per his November 2020 virtual medical appointment, Dr. H. is not willing to provide another note to the Registrar on this issue.

27The appellant testified that following his seizure, he was in denial for a while with respect to his problematic drinking. However, he now admits that he had a problem with alcohol. He stated that his wife had previously mentioned to him “on and off” to cut down on his drinking. As previously stated, the appellant admitted to drinking 6-11 beers per day on most days prior to his seizure. He described not drinking at work – that is he never drank until the workday was done, but he did drink while playing video games, being with his buddies and while watching sports such as hockey. He denied a family history of alcohol or other substance use issues.

28The appellant testified that following his seizure in June 2019, he stopped drinking regular beer and switched to drinking beer that contained less than 0.5% alcohol per volume. Only on one occasion, approximately one week after his seizure, the appellant drank one regular beer as he ran out of his less than 0.5% alcohol per volume beer and was with a friend. The appellant no longer has regular beer in his home, although there is some alcohol in his home which his wife consumes on occasion. The appellant stated that when he and his wife were out for dinner several months ago, he did not drink any beverage containing alcohol.

29The appellant testified that he chose not to attend a program or counselling for his problematic drinking. He stated that he knows individuals who have attended such programs and who have relapsed.

30Furthermore, the appellant stated that it has been almost 18 months since his one and only seizure, most days he does not have issues with urges to drink regular beer, and he wants to end “this chapter” of his life. He stated that his wife has been, and continues to be, extremely supportive and he can talk to her when needed. On his occasional more difficult days (e.g. due to stress, his children, financial reasons or seeing beer commercials on TV), he “grins and bears it”. He also expressed that keeping busy with indoor or outdoor work helps.

31When questioned about driving under the influence (“DUI”), the appellant admitted that when he was younger, he did so but he has not done so in at least eight years.

32A Certified Extended Driver Record Search, submitted as evidence, shows the appellant has no “convictions, discharges or other activities” related to alcohol.

33Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “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.

34At the hearing, the respondent referred to 17.6.3 of the CCMTA Standards (Alcohol Withdrawal Seizures). I note that this section indicates that one of the conditions for re-licencing is that all drivers have undergone addiction treatment and have received a favourable report from an addiction counsellor.

35However, as per its October 1, 2020 letter to the appellant, the Registrar is of the opinion that in order to reinstate the appellant’s licence in the absence of a formal treatment program or counselling, it requires confirmation that the appellant has remained seizure free and abstinent from alcohol for a period of one year.

36The Respondent stated that the Registrar is currently requesting clarification of Dr. H.’s comments regarding the appellant’s current use of alcohol as it appeared that Dr. H. changed his answers (September 3, 2020 – “not consuming alcohol on a regular basis or in significant amounts” versus October 2, 2020 – “to my knowledge is not consuming any alcohol”).

37Based on the evidence before me, I find that it has been nearly 18 months since the appellant’s one and only seizure. As previously stated, I find on a balance of probabilities that this seizure was due to alcohol withdrawal.

38In addition, the appellant has acknowledged that he had a drinking problem and was able, with support of his wife, to reduce his daily alcohol consumption to very low and consistent levels for nearly 18 months. He also candidly admitted that he had driven under the influence of alcohol when he was younger (despite having no such infractions on his driver’s record), but denied having done so for at least eight years. Furthermore, the appellant is aware that individuals with a history of problematic drinking are susceptible to relapse.

39Although technically, by drinking beer containing less than 0.5% alcohol per volume on a daily basis for nearly 18 months, the appellant has not abstained from alcohol, I find that such a low and consistent level of alcohol intake will not, on a balance of probabilities, lead to another seizure due to alcohol withdrawal.

40Thus, based on the above, I find that the appellant’s reported condition of seizure due to alcohol withdrawal is not likely to significantly interfere with his ability to drive safely.

41I commend the appellant for his efforts to date in acknowledging and dealing with his problematic drinking.

42However, though he acknowledged it during the hearing, I would like to remind the appellant that problematic drinking can be a relapsing condition. I strongly encourage him to reach out to a trained professional in the future should he find that his current support system is insufficient.

E. ORDER:

43For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.