Date: 2021-10-20

Appeal under section 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:

Robert Munro

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Peter Savage, Member Colin Osterberg, Member

Appearances

For the Appellant: Robert Munro, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: October 12, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1On March 18, 2021, the Registrar suspended the appellant’s Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), after receiving a report from a treating physician that the appellant suffers from alcohol use disorder that is likely to significantly interfere with his ability to drive safely. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

2Having considered all the evidence and for the reasons which follow, we set aside the Registrar’s decision to suspend the appellant’s licence.

B. ISSUES

3The issue in this appeal is whether the appellant suffers from alcohol use disorder that is likely to significantly interfere with his ability to drive a motor vehicle safely.

4To resolve that issue, we will address the following questions:

a. Does the appellant suffer from alcohol use disorder?

b. If the appellant does suffer from alcohol use disorder, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

C. lAW

5Under the Act, the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on highways. In this case, the Registrar acted pursuant to s. 47(1) of the Act and s. 14(1)(b) of O. Reg. 340/94 under the Act (the “Regulation”). Section 47(1) of the Act allows the Registrar to suspend or cancel a driver’s licence for any sufficient reason.

6Under 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.

7Section 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. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on us.

8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the Act.

9On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by alcohol use disorder.

10Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify, or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS

a. Does the appellant suffer from alcohol use disorder?

11The appellant gave evidence at the hearing. He was emotional and frustrated while giving his evidence, but we found him to be forthright and credible. The appellant answered questions in a consistent way, readily admitted facts which were not favourable to him, did not avoid answering questions asked by the Registrar or the Tribunal, and appeared to be genuine and honest.

12The appellant states that he is 69 years old and works delivering paper products using his personal motor vehicle. He states that he has worked in the paper industry for many years. On Thursday, March 11, 2021, he was sent home from work because he was experiencing some confusion and was disoriented. His employer told him to stay home for the weekend. On his way home, the appellant purchased a 40-ounce bottle of gin which he planned to drink himself over the weekend. The appellant says that his usual habit, since the beginning of the COVID pandemic, has been to buy a 12-ounce bottle of gin after work and drink that over a period of 8-10 hours while watching television at home. He then would go to bed and get up the next day to go to work. Before the pandemic began, the appellant would do this a couple of times a week, but this had escalated to the point where he was drinking almost every day.

13The appellant says that March 11, 2021 was the first time he purchased a 40-ounce bottle. There was no evidence presented at the hearing as to how much of that bottle he had consumed before he fell on Sunday, March 14, but the appellant admitted that his consumption of alcohol was part of the reason that he fell.

14The evidence presented at the hearing was that, after the appellant fell, he was taken to Scarborough General Hospital. The attending internal medicine specialist, Dr. Pegah Shahriaree, queried whether the appellant might have had a seizure due to alcohol withdrawal but never confirmed that as a diagnosis. Dr. Shahriaree diagnosed a substance use disorder and reported that diagnosis to the Ministry of Transportation. The appellant was also diagnosed with COVID-19 and transferred to Cortellucci Hospital in Vaughan where he remained for 42 days. During that time, he was placed on a ventilator and underwent rehabilitation for the effects of the COVID-19 infection.

15The only basis presented at the hearing upon which Dr. Shahriaree may have diagnosed alcohol use disorder was that the appellant had possibly suffered an alcohol withdrawal seizure. As noted, the presence of a seizure was never confirmed and was only queried, not diagnosed, by Dr. Shahriaree. The appellant was diagnosed with COVID-19 and transferred to another hospital and it does not appear that the issue of alcohol use disorder was investigated further. According to the appellant, he was never advised that he had been diagnosed with alcohol use disorder while in hospital or that a report had been sent to the Ministry of Transportation.

16We find that the evidence presented shows that the appellant likely suffered a fall rather than a seizure. Prior to the fall, he was showing evidence of confusion and disorientation which was likely due to his COVID-19 infection. This, in addition to the consumption of alcohol, likely led to the fall the appellant experienced. The evidence contains no diagnosis of seizure and we find that the Registrar has not proven that the appellant experienced a seizure due to alcohol withdrawal.

17That being said, we are satisfied that the appellant does suffer from alcohol use disorder. His drinking escalated during the pandemic to a point where he was drinking 12 ounces of gin on almost a daily basis. The appellant acknowledged at the hearing that he was drinking too much before his hospitalization and expressed gratitude that his lengthy stay in hospital gave him the opportunity to break that habit.

18We find on a balance of probabilities that the appellant does suffer from alcohol use disorder.

b. Is the appellant’s alcohol use disorder likely to significantly interfere with his ability to drive a vehicle safely?

19The Registrar takes the position that, because the appellant has severe alcohol use disorder, his licence should remain suspended until he has been abstinent for at least 12 months, he has successfully completed an alcohol treatment program, and his health provider is supportive of the reinstatement of his licence. This is based in part on the recommendations contained in the CCMTA Standards, which the Registrar says it applies to persons who have been diagnosed with severe alcohol use disorder.

20According to the Registrar, where a driver has been diagnosed with mild or moderate alcohol use disorder, different criteria for reinstatement would apply and a driver in the appellant’s circumstances would likely have had his licence reinstated if that had been the diagnosis.

21In the March 15, 2021 unsolicited medical report of Dr. Shahriaree, the term “severe” alcohol use disorder is not used. The report does indicate that Dr. Shahriaree queried seizure due to alcohol withdrawal but never actually diagnosed that condition. We have found that the appellant did not have a seizure but did have a fall. Dr. Shahriaree also checked the available box for “substance use disorder” which describes “a diagnosis of an uncontrolled substance use disorder and patient is non-compliant with treatment recommendations”. However, this was the only substance use disorder box available on the form to be checked. We find it unlikely that Dr. Shahriaree intended to state that the appellant was non-compliant with treatment recommendations or that the appellant’s substance use disorder was “severe” by checking this box. There is no indication that there had been any treatment recommendations made with respect to the appellant and no indication that Dr. Shahriaree knew anything about the appellant’s drinking habits.

22We find it likely that Dr. Shahriaree simply checked the only substance use disorder box available to him when confronted with a patient who he suspected might have suffered an alcohol withdrawal seizure.

23On July 19, 2021, the appellant’s family doctor, Dr. Zlochower, completed a Substance Use Assessment Form (“SUA”) which is a standard form supplied by the Ministry of Transportation. The copy of the SUA presented in evidence is a poor copy and is largely illegible. Most notably, it is not possible to determine whether Dr. Zlochower provides a diagnosis of moderate substance use disorder or severe substance use disorder because the checkmark made by Dr. Zlochower appears to straddle the boxes available for the two possible diagnoses. Even this is difficult to determine with any certainty given the poor quality of the copy in evidence. The SUA does clearly indicate that the appellant had abstained from alcohol since his hospitalization and had not entered an alcohol treatment program. It also is clear that the SUA indicates that the appellant has not had a seizure in the previous 12 months, alcohol related or otherwise. This supports our conclusion that the appellant did not suffer an alcohol withdrawal seizure in March 2021.

24On October 5, 2021, Dr. Zlochower reported that the appellant was admitted to hospital on March 15, 2021 after a fall and was diagnosed with COVID-19. The report states that the appellant was diagnosed with severe alcohol use disorder because he was going through withdrawals. Based on the evidence presented at the hearing, this is not accurate. As noted above, the appellant was not diagnosed with severe alcohol use disorder at hospital and alcohol withdrawal seizure was never diagnosed, only queried. Again, we have found that the appellant did not suffer alcohol withdrawal seizure. Dr. Zlochower’s October 5, 2021 report goes on to state that the appellant has been sober since he got out of hospital, that his complete blood count (cbc) and liver function testing have been normal, and that his urine ethanol testing has been negative.

25The appellant states that he never drives while intoxicated, although he frankly admitted that in the past he might have driven after having had one or two beers after playing hockey with friends or after work on the occasional Friday afternoon. The appellant says that he has not even done this in many years.

26The appellant presented evidence that he has had a driver’s licence for 52 years and drives over 50,000 kms a year because of his career. He says he has never had a criminal conviction and the only driving offence that appears on his extended driver record abstract submitted by the Registrar is a conviction for failing to proceed as directed at a green light on August 12, 2019.

27The appellant states that he has been abstinent since his hospitalization over seven months ago. He says that his wife and daughter, with whom he lives, do not drink alcohol and there is no alcohol kept in the house. The appellant is supported in his abstinence by his wife and daughter as well as his family doctor.

28The appellant says that he has chosen not to go to an alcohol-dependence program for treatment for a number of reasons: he does not want to be exposed to COVID-19 at public meetings; he is not internet or computer literate such that he cannot connect to virtual meetings; and he does not believe he is an alcoholic or affected by severe substance use disorder. The appellant says that he feels better since his release from hospital and is motivated to continue a healthy lifestyle, which includes not drinking heavily.

29The appellant admits that he was drinking too much in the months leading up to his hospitalization, which he attributes to extended periods of time spent at home during the COVID-19 pandemic. He says that he is grateful that he has stopped doing that since his hospitalization. He states that he will probably have a beer or two on occasion in the future but will not go back to heavy drinking.

30We find that the appellant’s alcohol abuse disorder is mild to moderate and not severe as alleged by the Registrar. Although his drinking escalated during the COVID-19 pandemic, his history is not one of heavy drinking and he has now been abstinent for seven months without treatment. This finding is supported, among other things, by the appellant’s test results. The evidence does not show that the appellant had any withdrawal symptoms once he stopped drinking and the appellant is motivated to continue to drink responsibly in the future. He is employed full time and has a support system in his wife, daughter, and family doctor. There is no evidence that the appellant has ever driven while intoxicated and the appellant is adamant that he has never, and would never, do such a thing. We accept his evidence on this point. The evidence demonstrates that over many years of frequent and extensive driving, the appellant has an excellent driving record with no history of alcohol related offences.

31We find that the Registrar has not proven on a balance of probabilities that the appellant’s alcohol use disorder is likely to significantly interfere with his ability to drive a motor vehicle safely.

E. ORDER

32For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.