Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-01-23

Tribunal File Number: 12330/MED

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:

Orval J. Dorscht Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Harriet Lewis, Member

Appearances: For the Appellant: Orville Dorscht For the Respondent: Steven Grootenboer

Heard in Toronto: December 12, 2019

OVERVIEW:

1. Orville Dorscht (Mr. Dorscht), appeals a decision by the Registrar, Motor Vehicles (the Registrar) made on March 13, 2019, to suspend his driving privileges pursuant to Section 47(1) of the Highway Traffic Act, (the Act). The suspension arises as a result of a Medical Condition Report from Mr. Dorscht’s family physician, Dr. Scott Wright, dated March 11, 2019. Dr. Wright’s report indicates that Mr. Dorscht suffers from a substance abuse disorder, specifically alcoholism.

2. Based on this Report, the Registrar determined that Mr. Dorscht has a condition which affects his ability to operate a motor vehicle safely. In his letter of March 13, 2019, notifying Mr. Dorscht of his suspension, the Registrar states that in order to have the suspension decision reconsidered, “the Ministry will require confirmation that you have remained abstinent from alcohol for a period of one year. This period may be reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege”.

3. Mr. Dorscht denies that he suffers from alcoholism. In his Notice of Appeal dated August 20, 2019, he admits that he fell in a hallway while attending an appointment with Dr. Wright. He says that the appointment was for the purpose of obtaining a medication refill for his diabetes, that he had not been drinking and that his fall was as a result of a later-diagnosed Charcot foot.

4. For many years Mr. Dorscht made a living as a professional truck driver but is now retired. He has a clean driving record.

5. For the reasons which follow, we uphold the decision of the Registrar and deny the appeal.

ISSUES:

6. The issue in this appeal is whether the appellant suffers from a medical condition, namely an addiction, which is likely to significantly interfere with his ability to drive a motor vehicle safely. Thus, we must address two questions:

a. Does the appellant suffer from a medical condition?

b. If so, is the condition likely to significantly affect his ability to operate a motor vehicle safely?

LAW:

7. The Registrar has the authority under s. 47(1) of the Act to suspend or cancel a driver’s licence on various grounds including 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) (a) 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 a 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.

8. Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the CCMTA Standards) when determining whether the requirement of 14(1) are met. The Tribunal may take those standards into consideration although it is not required to do so. The CCMTA Standards recommends proof of a year’s abstinence.

9. Any person whose licence is suspended under s. 47 of the Act may appeal that decision to this Tribunal.

10. On appeal the Registrar has the burden of establishing on the balance of probabilities that appropriate grounds for suspension exist.

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

EVIDENCE:

12. In evidence is the Geriatric Assessment of Mr. Dorscht by the Neurobehavioral Unit of the Grand River Hospital dated June 17, 2019, (the GRH Report). The GRH Report provides a summary of a family meeting attended by Mr. Dorscht, his wife, the unit physician, a resource nurse, a home care coordinator, a social worker, a physiotherapist and an occupational therapist. It provides a diagnosis of “mild alcohol-related dementia, Charcot foot, Fatty liver and possible cirrhosis of the liver, Diabetes” . It notes that “Orval has had frequent falls. He has neuropathy (nerve damage) possibly related to diabetes and/or alcohol. If he drinks, his balance is impaired further.” The report recommends among other things that “the only treatment for your brain condition is abstinence from alcohol. Your memory could improve. You cannot take some medications for alcohol dependence due to your liver disease.”

13. Mr. Dorscht testified on his own behalf. He strongly disagrees with the medical assessments of his alcoholism and its effects and feels that his doctor is being unreasonable and unfair. He attributes his physical instability solely to his Charcot foot. He testified that he follows the regime prescribed for the management of his diabetes.

14. His testimony about his drinking was inconsistent. He admits that over time he has enjoyed drinking beer, and at times, particularly before he retired, he drank a lot of it. He stated that since his licence has been suspended in March 2019, he has not had any alcohol, yet he also said that he had been having beer delivered to his home because he was unable to go out to buy it. He is angry that someone has arranged to have the home delivery of beer cut off. He feels that his doctor and his wife have “ganged up” on him. He said that without the ability to drive he is “just sitting at home cut off from everything.”

15. He thinks that he had blood work done at some point since the licence suspension but says that he was not provided with the results. Despite requests from the Registrar that he submit an updated medical report with blood test results, he has not done so, and he said that he has no intention of doing so. He provided no medical evidence other than that already referred to.

ANALYSIS:

Is the appellant’s medical condition and is he likely to significantly interfere with his ability to drive safely?

16. We have sympathy for Mr. Dorscht’s circumstances. However, there is strong medical evidence from his family doctor and the Grand River Hospital about his alcohol dependence and the mild alcohol – related dementia which has contributed to his physical instability. It was clear from his own evidence that Mr. Dorscht does not accept the results of his assessments, that he is in denial as to his physical and cognitive state and that his dementia is exacerbated by alcohol. He is not willing to seek treatment for alcohol abuse or to provide medical evidence of his abstinence. Absent any independent evidence of his abstinence or an updated medical report attesting to a change in his medical circumstances, we find on a balance of probabilities that Mr. Dorscht currently suffers from a medical condition, namely alcohol addiction and consequent cognitive impairment.

17. We find that Mr. Dorscht’s condition is likely to significantly affect his ability to operate a motor vehicle safely.

ORDER:

18. For the reasons set out above, pursuant to subsection 50(2) of the Act, we affirm the decision of the Registrar.

LICENCE APPEAL TRIBUNAL

Peter Savage, M.D. Member

Harriet Lewis, Member

Released: January 23, 2020