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:
Mitchell David Braun
Applicant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL:
Dr. Dimitri Louvish and John Kromkamp
APPEARANCES:
For the Applicant:
Mitchell Braun, Appellant
For the Respondent:
Sanjay Kapur, Representative for Respondent
HEARD:
Teleconference on: January 20, 2020
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1On October 17, 2019 the Registrar of Motor Vehicles sent a letter to Mr. Brown notifying him that his licence was suspended. The reason for the suspension was identified as “alcohol abuse disorder”.
2Section 47(1) of the Highway Traffic Act indicates that the Registrar may suspend a driver’s licence for any “sufficient reason”.
3Section 14 (1)(b) of Ontario Regulation 340/94 made under the Highway Traffic Act states, in part, that the holder of a driver's licence must not 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. As a result, the Registrar was entitled to suspend the drivers licence of Mr. Braun on receiving evidence establishing that he suffered from alcohol abuse disorder, a medical condition that satisfies the prohibition mentioned in the regulation.
4The letter included conditions for reinstatement of his licence, which included proof of abstinence for a one-year period or for a shorter period on completion of a plan of treatment and the recommendation of his Physician. Reinstatement would involve providing the results of tests that would provide evidence of the recent levels of certain biochemical markers (MCV and GGT). These markers remain in the system for weeks or even months after alcohol use. Levels above normal ranges indicate that the patient likely suffers from Alcohol Abuse Disorder. If these levels are within the normal range, they would provide objective evidence to help establish an absence of alcohol abuse.
Section 14 (2) of the regulation authorises the Minister to require the holder of a driver’s licence to produce reports of examinations or other medical evidence to show that they are able to drive a motor vehicle safely. The Tribunal may consider whether a driver has complied with such a request.
On November 27, 2019, Mr. Braun filed an appeal from the suspension order. The basis of his appeal was that he did not suffer from alcohol abuse disorder and that the Registrar was therefore in error in suspending his licence.
The 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.
For the reasons given below we find that the evidence does not support a finding that Mr. Braun is 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. Accordingly, the tribunal sets 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 addition to alcohol likely to significantly interfere with his ability to drive a motor vehicle safely.
C. EVIDENCE:
6In coming to a decision to suspend the driver’s license of Mr. Braun, the Registrar relied upon the “substance use assessment” report prepared by Dr. Antoniadis, on August 25, 2019.
7Dr. Antoniadis was the appellant’s family doctor. In part two of that report, titled “Patient Medical History and Present Condition” Dr. Antoniadis checked two boxes indicating alcohol dependence and alcohol misuse in section 1. In section 10 of that part of the report he indicated the presence of an elevated biochemical marker (the ALT) and attributed that elevation to alcohol use. It is to be noted that he later corrected the report to indicate that the ALT biochemical marker was in fact not elevated but within the normal range.
8In part four of the report entitled “Additional Comments Or Information To Take Into Consideration” Dr. Antoniadis wrote:
“Pt has had two impaired driving occurrences has interlock on vehicle. Still drinks daily. Significant risk of driving impaired without interlock device”
9Mr. Braun has two prior convictions for impaired driving. The first occurred in 2008 and resulted in a one-year suspension of his driver’s license. The second occurred 2013 and resulted in a three-year suspension of his driver’s licence. When his licence was reinstated in November 2016, it was mandatory to have an ignition interlock device installed on his vehicle. The device was in place until his licence was suspended in October 2019.
10In a letter written to the Ministry after his current suspension, Mr. Braun stated that he had 2 drinks (beer) daily and up to 5 or 6 on weekends if not working. In his testimony the appellant agreed that he had two bottles of beer daily, 6 days a week, but suggested that on weekends, if not working, he might have 4 or 5 bottles of beer if he had friends over and they were watching a football game.
11Mr. Braun testified on his own behalf and produced documents to support his contention that he was not suffering from alcohol abuse disorder. He agreed that he had been drinking for many years but stated that it had always been under control. He stated that his two convictions arose in circumstances where he was undergoing difficult and stressful divorces. The incidents were isolated aberrations from his normal behaviour. He also testified that the second arrest and the prospect of jail had had a great influence on him and before sentencing he had participated in weekly counselling in London to deal with his problems. He advised that he honoured the three-year driving suspension. Additionally, he pointed out that for the last three years, he had driven with the ignition interlock device installed on his vehicle and had driven some 40000 kilometers without incident.
12Mr. Braun produced six letters from friends and coworkers who indicated that he is a responsible and well-regarded member of the community and workplace. One of the letters pointed out that Mr. Braun had suffered a devastating loss a few years ago but had not turned to alcohol abuse to cope as he had done leading to the 2008 and 2013 convictions.
13The appellant had been employed at the Bruce Nuclear facility as a contract worker for many years. In 2017 he became a full - time employee and is now in a supervisory position. He produced work records to show that he maintained essentially full attendance at work. Mr. Braun explained that because of the nature of the facility, his employer has a zero-tolerance policy for alcohol on the job, and that all workers, including him, are subject to random testing. This caused him to be especially vigilante about controlling his intake of alcohol.
14Mr. Braun testified that in the fall of 2019, he was informed that the Ministry proposed to remove the ignition interlock device from his vehicle. However, it required an updated substance use assessment form to be provided by his doctor. It was this assessment that resulted in the latest suspension of his licence. The appellant testified that he had only visited Dr Antoniadis once between 2012 and 2019. In 2019, he had visited him 3 times to deal with a high blood pressure problem before attending to obtain the substance use assessment in late august 2019. As part of that assessment, blood work was done. The results revealed ALT and AST levels that were normal. Similarly, the MCV and GGT levels were within the normal range.
15The appellant produced blood test results from further tests conducted in October 2019 and January 2020. In both cases the key biochemical markers for alcohol abuse were within the normal range.
D. ANALYSIS:
16The Registrar bears the onus of establishing on a balance of probabilities that the appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
17Counsel for the Registrar relied on this report, the driving record of the appellant, a previous statement made by Mr. Braun and his cross-examination of Mr. Braun at the hearing
18The Registrar relied on documentary evidence. The Tribunal had the advantage of hearing from Mr. Braun. He testified in a frank and forthright manner and gave testimony that was corroborated by other evidence.
19While the evidence shows that the appellant has driven while impaired in the past, these incidents took place some 11 and 7 years ago. The appellant explained these were isolated incidents arising out difficult times. There is no evidence that he has driven impaired since that time.
20Mr. Braun stated that he does drink beer and told the Tribunal about the amount of beer he drinks. These amounts are not far from the amounts set out in the low risk drinking guidelines reproduced in the substance use assessment form he was required to submit. He maintained that his drinking was strictly monitored. He pointed out that the risk of incarceration and of random alcohol testing at work helped him to maintain sobriety. Letters of support indicated he has been a responsible citizen and is well regarded by his coworkers. He has been promoted at work and is now a supervisor. These refences support his testimony that he is not abusing alcohol.
21In the substance use assessment, Dr Antoniadis simply made a conclusory statement about the appellant’s alcohol abuse, apparently on the basis that he drinks daily and had prior convictions. There was no further evidence included in the report to support a finding of abuse or the necessity of installing an ignition interlock device. While Dr. Antoniadis was the appellant’s family doctor, the evidence showed they had met rarely in the last 6 years, and only 3 times in 2019, for high blood pressure. Dr. Antoniadis made no reference to observations made during earlier appointments to support his conclusion regarding alcohol abuse.
22Additionally, the bloodwork done at the time of this report was included in the report and indicated that his biochemical markers were all within normal ranges. As a result, the conclusion drawn by Dr. Antoniadis is not supported by the objective evidence. The tribunal can give his conclusion little weight. Further testing done in October and January produced the same results. The objective evidence from these tests support Mr. Braun’s testimony that, while he does continue to consume alcoholic beverages, it is well controlled and within the acceptable guidelines as reviewed above.
E. CONCLUSION:
23The Tribunal prefers the evidence of Mr. Braun about his drinking. It was given in a frank and forthright manner, and his explanations were sensible and supported by other evidence. Further, objective medical tests provided results that supported his position. In contrast, the evidence available to the Registrar was not compelling, especially given that it was not supported by the objective scientific evidence contained in the substance use assessment form or in later testing.
24The Registrar has not met the onus to establish that the appellant is 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
ORDER:
25For 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
____________________________ John Kromkamp
____________________________ Dimitri Louvish
Released: January 31, 2020