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:
Victor Follington
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Victor Follington, self-represented
For the Respondent: Sanjay Kapur, agent
Heard by Teleconference: June 4, 2020
A. Overview:
1The 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”).
2Pursuant to the Case Conference Report and Order issued June 1, 2020, the parties agreed at the May 14, 2020 case conference that the issue in this appeal is whether the appellant’s ability to drive is affected by alcohol use disorder (“AUD”).
3Having considered all of the evidence and for the reasons that follow, I set aside the Registrar’s decision 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 AUD, 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 AUD?
b. If the appellant suffers from AUD, 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 AUD?
11I find on a balance of probabilities, that the appellant does not suffer from AUD.
12The Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA following receipt of an unsolicited report that the appellant suffering a seizure on December 11, 2015. Following the receipt and review of a March 6, 2019 Epilepsy and Seizure form completed by the appellant’s family physician, Dr. A., the Registrar ended the appellant’s medical suspension for seizures.
13However, less than two weeks later, Dr. A. submitted an unsolicited letter to the Registrar stating, “in view of recent information, ethanol issues continue.”
14By letter dated April 1, 2019, the Registrar indicated that the appellant now had a reported medical condition of AUD and required the appellant to submit a completed Substance Use Assessment form by May 27, 2019 or his driver’s licence would be suspended. The required form was not submitted and as a result, on June 30, 2019 the Registrar suspended the appellant’s drivers licence for ‘fail to file medical’ under s. 47(1) of the HTA.
15The appellant has moved several times in the past seven or so years and never informed the Ministry of Transportation (“MTO”) regarding his change of address following these moves. I accept the appellant’s explanation that as a result of his failure to notify the MTO of his change of address, he was not aware until early 2020 after contacting the MTO by phone, that:
by letter dated March 16, 2019, Dr. A.’s completed Epilepsy and Seizure form dated March 6, 2019 had been approved by the Registrar;
by letter dated April 1, 2019 he was required to have a Substance Use Assessment form completed and submitted; and
his driver’s licence would be suspended should he fail to file this new medical form by May 27, 2019.
16The appellant testified that he did drink too much alcohol in the past. He stated that at that time in his life he consumed two to three ‘big drinks’ of whiskey after work at home in the evenings and had more of a partying lifestyle.
17The appellant acknowledged that he has a conviction for impaired driving (offence date September 28, 2013). He testified that he accepts responsibility for what happened in 2013 and has never driven under the influence (“DUI”) of alcohol since. The appellant had an interlock device installed in his vehicle upon reinstatement of his licence following the DUI and has completed the ‘Back on Track’ remedial program.
18In 2016 the appellant made a concerted effort to improve his health by significantly reducing his partying and alcohol intake. He stated that he did not have any issue doing this. Furthermore, he stated that at this time he drank only in social situations and no longer drank after work at home.
19The appellant testified that his fiancé, whom he met approximately two years ago, has a significant family history of alcohol problems and her father died not long ago from an alcohol-related illness. Seeing the appellant drink alcohol was upsetting to his fiancé and his last drink was December 2018. The appellant and his fiancé do not keep alcohol in their home.
20On August 29, 2019 the appellant consulted with neurologist Dr. S. regarding his seizures. The appellant testified that he asked Dr. A. for this referral as he thought, at that time, that his driver’s licence was still suspended for medical reasons related to his seizures.
21In her consultation note Dr. S. stated at the time of the appellant’s first seizure “he was drinking quite a bit of alcohol around that time in his life, about half of a 26er per night.” Dr. S. further stated “he no longer has any problems with drinking and is free of alcohol and drug use completely. I do not see any reason that he cannot drive.”
22The appellant testified that he only became aware of Dr. A.’s March 18, 2019 unsolicited letter to the Registrar which stated “in view of recent information, ethanol issues continue” at the case conference on May 14, 2020. The appellant stated that he spoke to Dr. A. following the case conference and claimed that Dr. A. denied writing or sending this letter to the Registrar. The appellant stated that he was unable to find out where or from whom Dr. A. received this information. I note that these assertions are hearsay and there is no direct evidence from Dr. A. on these points.
23The respondent’s view is: there is still outstanding medical information required including biochemical (blood) markers; that the information heard at the hearing does not replace information from Dr. A., a physician who has known the appellant since birth; that the request for further information is not unreasonable even if the appellant needs to take time off work and loses money in the process; and that the Registrar can only go by the medical information that they have on file.
24The respondent did not contest the fact that the Registrar has conflicting information on file regarding the appellant’s recent alcohol intake, i.e. Dr. A.’s March 6, 2019 completed Epilepsy and Seizure form (described below), Dr. A.’s letter of March 18, 2019 (ethanol issues continue) and Dr. S.’s consultation note of August 29, 2019 (he no longer has any problems with drinking).
25For the reasons set out below, I prefer the opinion of neurologist Dr. S. over that of Dr. A. with regards to the appellant’s recent alcohol intake.
26Dr. A. based his original (March 6, 2019) opinion of the appellant’s alcohol intake on his knowledge obtained as the appellant’s primary care treating physician since birth.
27In Section B (Alcohol and/or Drug Related) of the March 6, 2019 completed Epilepsy and Seizure form Dr. A. indicated:
“not applicable” to the cause of the appellant’s seizure being related to alcohol or drugs;
the appellant has not been assessed for substance dependence;
the appellant last consumed alcohol Christmas 2018;
that completion of a supervised addictions treatment program is “not applicable”; and
the appellant has not attended counselling for addiction or attended any relapse prevention programs.
28However, on March 18, 2019, Dr. A. then submitted an unsolicited letter to the Registrar stating, “in view of recent information, ethanol issues continue”.
29I find Dr. A.’s two March 2019 submissions to the Registrar, written less than two weeks apart, contradictory.
30In medical terms, the first submission described a person with no recent alcohol issues (“not applicable”, “not assessed for substance dependence”).
31In medical terms the second submission, which seems to be based on second-hand information, described a person with continuing, ongoing or chronic alcohol issues. There is no indication of the source of the information relied upon by Dr. A. to reach this conclusion and no means for me to determine if this second-hand information is credible or reliable.
32Furthermore, these two reports are so contradictory despite being issued less than two weeks apart that it calls into question their reliability as evidence with respect to the appellant’s recent alcohol consumption.
33Moreover, should the appellant be suffering from continuing, ongoing or chronic alcohol issues, Dr. A. would have likely recommended counselling, alcohol treatment or relapse prevention to the appellant, or mentioned the need for such treatment in his reports.
34The appellant testified that Dr. A. did not at any time recommend alcohol counselling, treatment or relapse prevention to him.
35Dr. S., a neurology specialist, would be well aware as per Section B of the Epilepsy and Seizure form and the Glossary of the Substance Use Assessment form, that seizures can be alcohol related, i.e. alcohol-induced or due to alcohol withdrawal.
36Dr. S.’s August 29, 2019 consultation note indicated that she performed a detailed evaluation of the appellant’s alcohol consumption patterns in an attempt to determine whether alcohol was or was not a provoking factor (cause) of either of the appellant’s seizures. From her report it is clear that she asked the appellant very specific questions regarding his alcohol consumption from 2015-2019.
37I find Dr. S.’s approach to evaluating the appellant’s recent alcohol consumption patterns through a detailed evaluation is on a balance of probabilities, more reliable than Dr. A.’s approach of relying on second-hand information. Therefore, I place greater weight on Dr. S.’s determinations than Dr. A.’s March 18, 2019, letter.
38From her detailed questions, Dr. S. was able to determine that the appellant’s seizure:
in 2015 was likely due to alcohol-withdrawal (approximately 24 hours since his typical evening drinking of “half of 26er per night”); and
in 2016 was likely not alcohol-related (“no alcohol use around the time at all…including the night before and the night before that”)
39In medical terms, ‘likely’ means on a balance of probablilities.
40In addition, Dr. S.’s note stated, “He no longer has any problems with drinking and is free of alchol and drug use completely. I do not see any reason that he cannot drive. I will copy my letters today to the MTO.”
41Furthermore, the facts expressed by Dr. S. regarding the appellant’s recent alcohol consumption are consistent with the appellant’s testimony. At the hearing I found the appellant to be forthcoming and credible and I accept his testimony of his recent alcohol consumption patterns.
42Moreover, I find Dr. S.’s medical evidence of the appellant’s recent alcohol consumption patterns to be sufficient in determining whether or not the appellant suffers from AUD and accept her opinion that she does not see any reason that the appellant cannot drive.
43Taking all the evidence into consideration and based on the above, I find on a balance of probabilities that the appellant does not suffer from AUD.
b. If the appellant suffers from AUD, is it likely to significantly interfere with his ability to drive a vehicle safely?
44Having established that the appellant does not suffer from AUD, then the appellant cannot and does not suffer from AUD that is likely to significantly interfere with his ability to drive a vehicle safely.
45By law it is the appellant’s responsibility to advise the MTO of any change of address on his driver’s licence and vehicle registration. I encourage him to rectify this oversight as soon as possible and, in the future, to notify the MTO within six days of any change of address.
E. ORDER:
46For 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.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Released: June 11, 2020