Date: 2020-07-03

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:

Guillermo Araya

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Guillermo Araya, self-represented

For the Respondent: Kyle Biel, agent, February 4 and June 23, 2020

Sonia De Santis, agent, March 23, 2020

Heard by Teleconference: February 4, March 23 and June 23, 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”).

2On November 14, 2019 the appellant consumed a considerable amount of alcohol at home, fell and was taken by ambulance to the emergency room (“ER”) of a hospital.

3The issue in this appeal is whether the appellant’s ability to drive is affected by head injury or by alcohol use disorder (“AUD”).

4Having considered all of the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from the medical conditions of head injury or AUD, and whether they individually or cumulatively are likely to significantly interfere with his ability to drive a vehicle safely.

6To answer that question, I will address the following issues:

a. Does the appellant suffer from head injury?

b. If the appellant suffers from head injury, is it likely to significantly interfere with his ability to drive a vehicle safely?

c. Does the appellant suffer from AUD?

d. If the appellant suffers from AUD, is it likely to significantly interfere with his ability to drive a vehicle safely?

e. If the appellant suffers from both head injury and AUD, are their cumulative effect likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

7Under 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. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

8Under 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.

9A person whose licence is suspended under these provisions may appeal the Tribunal under s. 50(1) of the HTA.

10On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

11Following 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 head injury?

12I find on a balance of probabilities, that the appellant does not suffer from head injury.

13The appellant testified that on the evening of November 14, 2019 he tripped or fell at home and hit his head. His mother heard the noise of his fall, found him on the floor and called an ambulance.

14According to the appellant, five staples were put in the area of his left forehead near his hair line in the ER. He stated that he also had some sort of imaging of his head done (CT or MRI). Furthermore, he stated that he was not admitted to the hospital, was given some sort of head injury instructions on discharge from the ER and that the ER physician, Dr. M., gave him a note to be off work for four or five days. In addition, the appellant testified that someone from the radiology department of the hospital he attended called him about one week later asking questions related to his neck. The appellant stated that he denied to this person having pain, weakness or blurred vision. The appellant was not contacted following this phone call by any physician in his circle of care regarding the imaging result or the need for any further imaging or specialist consultation. Furthermore, the appellant verified that he went back to work four or five days after his fall.

15The completed Medical Condition Report (“MCR”) submitted by Dr. M. on November 14, 2019 to the Registrar did not indicate in the discretionary section any concerns regarding a head injury.

16On December 13, 2019, walk-in physician, Dr. A., submitted a completed Substance Use Assessment (“SUA”) form to the Registrar. In the ‘Additional Comments or Information’ Section of the form, Dr. A. wrote that the appellant suffered a head injury at home and no vehicle was involved. It is not in dispute that the head injury Dr. A. is referring to is the injury sustained on November 14, 2019.

17The Registrar’s position, as stated in their January 13, 2020 letter to the appellant, is that they require a completed ‘Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Diseases’ (“TBI”) form in order to determine whether or not the appellant suffered a head injury and whether the head injury, should it exist, affects the appellant’s ability to drive safely. As of the completion of the hearing, the appellant has not yet had a completed TBI form sent to the Registrar.

18Having considered all the evidence before me, I find that although the appellant hit his head on November 14, 2019, necessitating staples, imaging and a follow-up call from someone in the radiology department at the hospital, he did not on a balance of probabilities, suffer any significant or long-lasting head or brain sequelae from his fall. No physician in the appellant’s circle of care, including his family doctor who should have received all the reports from the hospital including the final imaging result, told the appellant that he needed further imaging or a referral to a specialist.

19Thus, I find on a balance of probabilities that the appellant does not suffer from head injury.

b. If the appellant suffers from head injury, is it likely to significantly interfere with his ability to drive a vehicle safely?

20Having determined that the appellant does not suffer from head injury, then the appellant does not and cannot suffer from head injury that is likely to significantly interfere with his ability to drive a vehicle safely.

c. Does the appellant suffer from AUD?

21I find on a balance of probabilities that the appellant suffers from AUD.

22The appellant testified that on November 14, 2019 he was drinking alcohol at home. He thought, on that occasion, he was drinking hard alcohol as opposed to beer. The appellant stated that he does not use the calendar function of his phone and could not verify whether he worked that day or not and did not remember with certainty whether or not he was scheduled to work the following day. As previously described, the appellant either tripped or fell at home causing him to hit his head. His mother heard the noise of his fall, found him on the floor and called an ambulance.

23A copy of the laboratory investigations done in the ER and Dr. M.’s MCR were submitted as evidence.

24The appellant’s blood ethyl alcohol level in the ER was determined to be 71.4 mmol/L. As per the laboratory print out, a blood ethyl alcohol level (mmol/L) of: 11-22 suggests intoxication; >22 suggests a depressed central nervous system; and >87 can be fatal. Using the molar mass of ethyl alcohol (46.07 g/mol), a blood ethyl alcohol value of 71.4 mmol/L converts to a breath alcohol concentration of 0.33, or over four times the legal limit in Ontario for operating a motor vehicle.

25Other ER laboratory investigations of significance included an elevated red blood cell mean corpuscular volume (“MCV”) of 104.2 (normal 82-97) and the absence of a gamma-glutamyl transferase (“GGT”) level. As per the Registrar’s January 13, 2020 letter to the appellant, MCV and GGT are bio-chemical markers. These bio-chemical markers are usually requested by the Registrar to monitor alcohol use or abuse.

26On the MCR, Dr. M. wrote that he was unaware if the appellant uses alcohol while driving, but the appellant has significant AUD and suggested outpatient intensive treatment. Furthermore, the appellant testified that Dr. M. recommended the appellant consider drug (pill) therapy for his AUD.

27The appellant testified that he does not have a problem with alcohol, but that his father is an alcoholic, drinking 200 mL of vodka daily. The appellant stated that he made a mistake and drank too much one day (November 14, 2019).

28The appellant testified that following the incident in the ER and up to approximately one month ago, he continued to drink alcohol in his usual fashion of drinking beer after work several times per week plus on weekends.

29He further testified that approximately one month ago he began an ADAPT (Alcohol, Drug and Gambling Assessment Prevention and Treatment Services) program and has been entirely sober since then. Initially the appellant stated that he started the ADAPT program because he thought it “would look better” and show “he was trying.” However, later in the hearing he stated that his family doctor had recommended this program to him sometime in March 2020.

30No written submissions (e.g. forms, notes, laboratory tests, etc.) have been submitted by the appellant’s family doctor to the Registrar in the six months since the appellant submitted his Notice of Appeal to the Tribunal on December 24, 2019.

31As per the appellant’s testimony, he had the Registrar’s Substance Use Assessment (“SUA”) form completed on December 13, 2019 by Dr. A. at a walk-in clinic because his family doctor was on holidays at this time. This was the appellant’s first and only visit with Dr. A.

32In the completed SUA form, Dr. A. indicated that the appellant('s):

• alcohol use was within low risk drinking guidelines (“LRDG”);

• had abstained from alcohol, but for less than 6 months;

• GGT was normal;

• MCV was elevated (104.2) and that the elevation may be due to alcohol use;

• elevated MCV was not due to: disease affecting the liver, medication, B12 and/or folate deficiency, variance of normal, or other;

• was adherent to the recommended treatment regimen;

• does not demonstrate any pattern of non-adherence, such as a pattern of misuse of medication or missed appointments; and

• the patient has not been prescribed any medication/treatment for any condition.

33In the completed Alcohol Use Disorders Identification Test (“AUDIT”), included in the Appendix of the SUA form and submitted with the completed SUA form, Dr. A.:

• indicated that the appellant consumes alcohol monthly or less, drinks 1-2 drinks on a typical day when he drinks; never had five or more drinks on one occasion and never felt guilt or remorse after drinking; and

• did not answer the question whether the appellant or someone else had been injured as a result of his drinking.

34For the reasons set out below, I prefer the opinion of Dr. M. over the opinions of Dr. A. and the appellant with respect to the appellant’s alcohol use.

35Dr. A. based his opinion of the appellant’s alcohol use on the appellant’s self-reporting on direct questions he asked from the SUA form and AUDIT, plus the ER laboratory data presented to him.

36Some of the answers in the SUA form and AUDIT are significantly different from those stated by the appellant at the hearing. These include, but are not limited to:

• the appellant had not yet abstained from alcohol at this time;

• the appellant drank alcohol several times per week (not monthly or less); and

• the appellant had been prescribed asthma medication from his family doctor.

37Moreover, as a practicing physician in Ontario, Dr. A. should be aware that in order for the appellant’s blood ethyl alcohol level to have reached 71.4 mmol/L on November 14, 2019, he must have consumed much more than 1-2 standard size alcoholic drinks and, on a balance of probabilities, did not wait at least one hour between drinks. The Glossary in the Appendix of the SUA form defines LRDG in men as no more than: 14 drinks per week; 2 standard drinks on any one day; and at least one hour between drinks. In addition, the Glossary also defines mild AUD as the occasional inappropriate use of alcohol. Certainly, most physicians would on a balance of probabilities, consider a patient who was drinking alcohol alone and whose blood ethyl alcohol was measured as 71.4 mmol/L to be inappropriately using alcohol.

38Furthermore, it is not clear to me how Dr. A., who met the appellant only once, could adequately verify that the appellant was adherent to any recommended treatment regimen and does not demonstrate any pattern of non-adherence.

39I also find Dr. A.’s report on the appellant’s laboratory values of MCV and GGT (bio-chemical markers) perplexing.

40Dr. A. stated that the appellant’s GGT is “within normal laboratory range”, yet there is no evidence on the ER laboratory sheet that a GGT was measured.

41Furthermore, Dr. A. stated that the appellant’s MCV was elevated and that this elevation may be due to alcohol use and not due to: diseases affecting the liver, medication, B12 or folate deficiency, variance of normal or other.

42As verified at the hearing, the appellant considers himself healthy, is not aware of any previous blood problems and does not recall being prescribed or recommended to take any vitamin supplementation at any time (i.e. B12 or folate).

43Moreover, I find that Dr. A.’s statement that the appellant’s elevated MCV may be due to alcohol contradictory to his statement that the appellant’s drinking is within LRDG. Certainly, should a physician feel that a patient’s MCV may be elevated due to alcohol, then that individual is, on a balance of probabilities, drinking too much alcohol and is not likely drinking within a low risk range appropriate to them.

44Dr. M., who also only met the appellant on one occasion, submits, based on the ER laboratory data and any information obtained directly from the appellant in the ER, that the appellant has significant AUD.

45As practicing physicians, both Drs. M. and A. would know that one episode of binge drinking on November 14, 2019 could not on a balance of probabilities, cause an elevated MCV that same day. In general, an MCV elevation due to alcohol use occurs after a number of weeks of alcohol misuse (due to alcohol’s direct effect on the development of red blood cells and precursors) and may remain elevated for up to three months after a person has stopped drinking.

46I find Dr. A.’s determination regarding the appellant’s alcohol usage less reliable than that of Dr. M. Specifically, Dr. A.: appears to have disregarded the above known medical fact regarding the time-line of alcohol’s effect on the volume of red blood cells; inaccurately wrote that the appellant’s GGT was within normal laboratory range, (i.e. it was never measured in the ER); did not complete the AUDIT question regarding the appellant or someone else having been injured as a result of his drinking (i.e. the appellant fell and cut his head, necessitating staples and imaging); did not consider or realize that the appellant’s reported drinking habits within LRDG were not in keeping or consistent with an elevated MCV which Dr. A. suggested may be due to alcohol; disregarded the fact that a blood ethyl alcohol level of 71.4 mmol/L cannot, on a balance of probabilities, arise in someone who is drinking within LRDG (i.e. not more than two standard drinks on any one day, at least one hour between drinks); and disregarded that the Glossary of terms in the SUA form which defines mild AUD as the occasional inappropriate use of alcohol (i.e. the appellant’s usage of alcohol on November 14, 2019) .

47Therefore, I put greater weight on Dr. M.’s determination than Dr. A.’s determination regarding the appellant’s alcohol usage.

48Taking all the evidence into consideration and based on the above, I find on a balance of probabilities that the appellant suffers from AUD.

d. If the appellant suffers from AUD, is it likely to significantly interfere with his ability to drive a vehicle safely?

49The Registrar has the burden of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

50Section 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.

51I find chapters 3, 6 and 15 of the CCMTA Standards provide guidance in this matter.

52The CCMTA Standards describe important considerations when making a driver fitness evaluation. Information to consider in such a risk analysis includes but is not limited to the driver’s: insight into their medical condition, judgment, compliance with the treatment regimen, compliance with any conditions of licencing, driving record and other information relevant to driving privileges.

53Currently the appellant does not feel or believe that, on a balance of probabilities, he suffers from AUD. I find this demonstrates a lack acceptance and poor insight into his medical condition. Good insight and acceptance are important factors not only for recovery from or treatment of AUD, but also on its impact on the functions necessary for driving.

54The appellant testified that he knowingly continued to drive a vehicle after his driver’s licence was suspended for medical reasons, stating that there is no public transportation where he lives and that the cost to get to and from work using a taxi or Uber was too high. On December 31, 2019, he was stopped by a random R.I.D.E. program. On January 22, 2020 the appellant plead guilty in court and was charged with the HTA offence of Driving While Licence Is Suspended. Despite this latest charge, the appellant testified that he learned his lesson after his conviction for impaired driving (“DUI”) [offence date March 14, 2012] and has an “impeccable driving record since then.”

55The appellant claimed that with respect to his driving suspension for medical reasons he “gave up” or “lost motivation” after his conviction for driving under suspension (“DUS”) [conviction date January 22, 2020]. He also claimed that he did not know that he still had a suspension for medical reasons in addition to his DUS.

56At the commencement of the hearing of this appeal on February 4, 2020, neither the agent for the Registrar nor the Tribunal were aware of the appellant’s DUS. The run date of the certified driver’s licence submitted as evidence by the Registrar for the hearing was dated January 13, 2020, more than one week prior to his DUS conviction.

57However, at the commencement of the hearing on February 4, 2020, the appellant requested an adjournment of the hearing to submit further documentation from his family doctor, as was requested by the Registrar in a letter dated January 13, 2020. The appellant stated that his family doctor had been on holidays and he could not get an appointment with her until February 24, 2020. Furthermore, the appellant asserted that this information would be relevant in determining the issues and may affect the outcome of the hearing. An adjournment was granted, with an agreed upon return date of March 23, 2020, on the basis that his family doctor who knows him far longer and more comprehensively than either Dr. M. or Dr. A. would provide information that may affect the outcome of the hearing. I find that such a request for an adjournment on February 4, 2020 demonstrated that the appellant had not “given up” or “lost motivation” at that time and knew that he had two separate but overlapping or concomitant driving suspensions.

58Furthermore, the agents for the Registrar at both the March 23, 2020 hearing continuation (where the appellant did not appear) and the June 23, 2020 hearing continuation described email correspondence between the appellant and the agent clarifying the situation, asking if the appellant had additional medical information to submit and whether the appellant wished to continue with his appeal for his driver’s licence suspension for medical reasons.

59In addition, the Tribunal continued its correspondence with the appellant during this time period with Adjournment Orders, Hearing Reminders and phone calls or messages. At no time during this time period did the appellant withdraw his appeal for his driver’s licence suspension for medical reasons.

60Therefore, I give little weight to the appellant’s assertion that he was unaware that his driver’s licence suspension for medical reasons was still ongoing concomitantly with his DUS.

61At the hearing the appellant asserted that he “drove for one month after his accident” (November 14, 2019) and that this showed that he “is perfectly fine to drive.”

62I find that the above demonstrates the appellant’s poor insight, lack of judgment and lack of compliance with conditions of licencing.

63The appellant testified that: he did not attend the February 24, 2020 appointment with his family doctor to deal with the Registrar’s requested form and blood work; his family doctor did not make any submissions to the Registrar at any time during his driver’s licence suspension for medical reasons (now seven months); and his family doctor suggested around March 2020 the ADAPT program to him for his drinking. As previously stated, the appellant “did not do this for a while”, only starting this program about one month ago.

64Furthermore, the appellant testified that Dr. M. recommended pills for his AUD. However, the appellant stated that “he did not want to take pills”.

65I find that the above demonstrates the appellant’s poor compliance with recommended treatment regimens.

66In addition, the appellant’s family doctor has never submitted to the Registrar a favourable recommendation for his re-licensing.

67In summary, I find that the appellant’s medical condition of AUD is likely to significantly interfere with his ability to drive a vehicle safely. In arriving at this conclusion, I have relied on the following:

a. The appellant has yet to acknowledge or accept his diagnosis of AUD, and thus lacks insight into his diagnosis;

b. His actions such as not attending medical appointments or hearings, demonstrate poor judgment and poor compliance;

c. He did not comply with the conditions of his driver’s licence suspension for medical reasons, which subsequently led to a concomitant DUS conviction;

d. The appellant has only begun to comply with the treatment regimen recommended by his primary treating physician for his AUD;

e. His primary treating physician has not submitted any medical evidence to date on this matter, including a favourable recommendation for re-licencing;

f. He has a 2012 conviction for DUI; and

g. Insight, judgment, compliance and driving record are all important considerations when making a driver fitness evaluation.

e. If the appellant suffers from head injury and AUD, are their cumulative effect likely to significantly interfere with his ability to drive a vehicle safely?

68Having established that the appellant does not suffer from head injury then the appellant cannot suffer from the cumulative effect of head injury and AUD that can significantly interfere with his ability to drive a vehicle safely.

69I acknowledge the burden and stress that the lack of a driver’s licence is continuing to have on the appellant and his family, however driving is a privilege, not a right.

70While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

E. ORDER:

71For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.