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 pursuant to section 47(1) of that Act – to suspend a licence
Between:
Jake Ross
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Jake Ross, Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: June 24, 2020
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G drivers licence because the appellant suffers from alcohol use disorder of unknown severity. The appellant was notified of the suspension by a letter from the Registrar dated March 12, 2020.
2The issue of alcohol withdrawal seizure had been resolved and both parties agreed that the seizure was no longer an issue in contention in this appeal. The Registrar noted that the appellant was very close to the 6 months sobriety needed to regain his licence, and suggested the appellant may wish to abandon the appeal and wait until the six-month period was completed. The appellant chose to go ahead with the appeal without further delay.
B. ISSUE
3The legal issue to be determined is whether the appellant suffers from a medical condition, specifically, alcohol use disorder, which is likely to significantly interfere with his ability to drive safely.
C. CONCLUSION
4For the reasons that follow, I find that the appellant does not suffer from a medical condition, but if the appellant did have a medical condition, I find that the medical condition is not likely to significantly interfere with his ability to safely drive a motor vehicle. The Tribunal sets aside the decision by the Registrar to suspend the appellant’s class G driver’s licence.
D. LAW
5The Registrar has the authority under s.47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), to suspend or cancel a driver’s licence if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
6Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”
7Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.
8The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.
9Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. THE EVIDENCE and SUBMISSIONS
Registrar’s evidence
10The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant’s class G licence.
11The Registrar received an unsolicited medical report dated February 20, 2020 from Dr. Thomas Fung, the appellant’s family doctor. This report stated the appellant had had an alcohol withdrawal seizure. Dr. Fung also included a letter dated February 20, 2020, which indicated that since the seizure in February 2019 no further seizures had occurred. Dr. Fung noted the appellant was on no medications for seizures. Dr. Fung also noted the appellant had returned to alcohol consumption for about 8 months but had been completely abstinent from alcohol for at least two weeks at the time of writing the letter. He also noted that the appellant was following up with an addiction counsellor and alcohol program.
12The Registrar sent a letter to the appellant on March 10, 2020, informing him his licence remained suspended. The letter noted the reason for suspension at this time was alcohol use disorder. The letter outlined the conditions needed to regain his licence: “Confirmation you have remained seizure free and abstinent from alcohol for a period of one year. This period may be reduced to six months if your physician confirms that you have successfully completed a recent alcohol treatment program and is supportive of your driving privilege. Normal blood testing (MCV AND GGT) with clinical explanation for any levels outside the normal laboratory range.”
13The Registrar did not include a substance use questionnaire with this March 10, 2020 letter and at no other time made an effort to get more information on this suspected alcohol use disorder.
14The Registrar pointed out that the appellant provided further medical evidence from a number of sources. These included Dr. Fung, the RAAM clinic, as well as clinical notes from Dr. Chen (neurologist). While the Registrar touched on these reports, she indicated they would be relied on by the appellant.
15The Registrar responded to the appellant’s medical reports in a letter June 12, 2020. The letter stated the suspension was still in place and the conditions for removal of the suspension were the same as the letter of March 10, 2020.
16The Registrar reviewed the appellant’s driving record. She noted the record was perfect except for the suspension for medical reasons following the alcohol withdrawal seizure.
17The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding the effect of medical conditions on the ability to drive a motor vehicle safely. The agent noted that the recommendations of the CCMTA were recommendations and not the law.
18The Registrar pointed out the danger substance abuse could present while driving. The CCMTA document outlines the dangers of substance abuse. The Registrar drew our attention to section 15.6.3, a general recommendation pertaining to substance abuse. This section recommended a period of abstinence of one year for all drivers. This period could be reduced to 6 months in drivers completing an approved treatment program.
19With follow up questioning, the Registrar agreed she had not done any follow up questioning on their conclusion of alcohol use disorder. The Registrar did not have an opinion on the severity of this possible diagnosis. The unsolicited medical report dated February 20, 2020 from the family doctor did not make a diagnosis of alcohol use disorder. There was no medical diagnosis of alcohol use disorder in any of the doctor’s reports. One psychologist mentioned the diagnosis stating, “He voluntarily accesses our services for his alcohol use disorder.”
Appellant’s evidence
20The appellant testified that he consumed an occasional beer before going to university. He attended the University of Guelph and lived in residence and did not have access to a car. He suffered from anxiety while at university and began to drink with friends and then would drink on his own.
21The appellant stopped drinking for a few days in February 2019. This was just prior to a family Christening. At the Christening he had a seizure and was taken to hospital.
22The appellant testified Dr. Chen a neurologist made a diagnosis of alcohol withdrawal seizure. Dr. Chen did an EEG as well as imaging all of which were normal. He submitted Dr. Chen’s report to the Registrar.
23The appellant agreed with the one-year post seizure suspension and after that year asked his family doctor to submit evidence of being seizure free. Dr. Fung submitted the evidence of being seizure free but noted the appellant had resumed drinking for a period in that year although he noted the appellant had been totally abstinent for a number of weeks prior to the report he wrote in February 2020.
24The appellant admitted he had tried to go back to social drinking, but he had come to the decision prior to seeing Dr. Fung that he was best not to drink at all. He testified he had a maternal Grandfather and uncle with alcohol use disorder. He testified it is his decision to not go back to any form of alcohol use.
25The appellant voluntarily went to the RAMM clinic and later to the CAMH youth program for help and he is currently associated and working with both programs. He submitted documentation from both programs confirming his participation.
26The appellant read that the Registrar wanted appropriate blood testing and the appellant had these tests done and copies were sent to the Registrar. These tests were normal, and the Registrar agreed.
27The appellant testified that since COVID-19 he was living at home with his parents. He had changed some of his social circle to avoid some of the people who he was drinking with in the past. He testified there was alcohol in the residence, and he was not tempted in any way to drink it.
28The appellant testified he never had taken street drugs or smoked marijuana.
29The appellant called his father, Mr. Blake Ross, to testify. Mr. Blake Ross testified the appellant was following all the rules, was not drinking and was attending counselling at RAMM and CAMH. He was a responsible young man and he had never consumed alcohol and drove. To his knowledge the appellant had never taken any street drugs or smoked marijuana. It was his opinion that the appellant did not suffer from an alcohol use disorder.
F. ANALYSIS
30Based on the medical evidence presented, and on a balance of probabilities, I find that the appellant does not have a medical condition of alcohol use disorder. As well, I find on reviewing the evidence that if the appellant did have a medical condition this condition would not on a balance of probabilities significantly interfere with his ability to safely drive a motor vehicle.
31I accept the evidence submitted by the appellant’s family doctor setting out a diagnosis of alcohol withdrawal seizure. But I see no medical evidence from the Registrar confirming a diagnosis of alcohol use disorder. I accept the evidence of Mr. Ross Blake and his contention the appellant does not suffer from alcohol use disorder. I can see how the appellant’s decision to seek help with alcohol management may lead to an assumption of that diagnosis.
32I accept the evidence submitted by the appellant including the blood work, doctor’s reports, perfect driving record, and counsellor’s reports. These reports support my conclusion that this possible condition of alcohol use disorder would be unlikely to significantly interfere with his ability to safely drive a motor vehicle.
33The Registrar commends the appellant on the steps he has taken. However, the Registrar would like the appellant to wait a few more weeks until the full six months of abstinence is complete as recommended by the CCMTA (Section 15.6.3) The Registrar also noted that the CCMTA makes recommendations and these recommendations are not the law.
ORDER:
34Pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s class G driver’s licence.
LICENCE APPEAL TRIBUNAL
_________________________
Dr. Peter Savage
Member
Released: July 7, 2020