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:
Kelly Doupe
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: No one appeared
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: October 20, 2021
A. Overview:
1Kelly Doupe (the “appellant”) appeals the August 1, 2021 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”).
2The issue in this appeal is whether the appellant’s reported medical condition of substance use disorder – alcohol (Alcohol Use Disorder, “AUD”) is likely to significantly interfere with his ability to drive a vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a vehicle safely.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from AUD, a medical condition, 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. 47(1) of the HTA and s. 14(1)(b) 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, on a balance of probabilities, of establishing that the licence should remain suspended.
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.
11Section 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.
D. PRELIMINARY ISSUE:
12The hearing of this matter commenced on October 20, 2021 at 9:30 a.m. Kyle Biel appeared as agent for the Registrar. The appellant did not appear.
13I contacted the Tribunal’s Case Management Officer with carriage of the file, who left both email and voice messages for the appellant. The appellant’s Notice of Hearing was sent by email on September 29, 2021 confirming the date, time and call-in information for the hearing. As per the Case Conference Report and Order, October 20, 2021 at 9:30 a.m. was one of the three dates chosen for the hearing. The respondent indicated that he had sent the appellant and Tribunal an email on October 13, 2021 with additional information from the Medical Review department. The respondent indicated that this email did not “bounce back” from the appellant. I confirmed with the Case Management Officer that the appellant had not informed the Tribunal of a change in contact information.
14I find, based on the above, that the appellant received notice of this hearing.
15Pursuant to s. 7 (1) of the Statutory Powers Procedure Act1 (Effect of non-attendance at hearing after due notice), “where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding”.
16Furthermore, the Notice of Hearing issued to the appellant stated, “If you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding”.
17After waiting until 10:13 a.m. on October 20, 2021 to give the appellant the opportunity to attend or to notify that Tribunal that he could not, I began the hearing and heard the respondent’s evidence. The teleconference line remained open until the conclusion of the hearing. The appellant did not come on the line.
E. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from AUD?
18I find, on a balance of probabilities, that the appellant suffers from AUD.
19The respondent presented evidence dating back to 2006 from licenced health care professionals which indicated that the appellant suffers from AUD. This evidence included a 2006 letter and subsequent Alcohol Assessment form from the appellant’s long-standing family doctor, Dr. O., a February 6, 2021 Medical Condition Report (“MCR”) from Dr. N., and two 2021 Substance Use Assessment (“SUA”) forms completed by Dr. O.
20In his written Notice of Appeal (“NOA”), the appellant wrote that he “had a drinking problem” and also “having an AUD…”.
21Based on the above, I find on a balance of probabilities that the appellant suffers from AUD.
b. If the appellant suffers from AUD, is it likely to significantly interfere with his ability to drive a vehicle safely?
22The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden. A review of the appellant’s long history of AUD will highlight why I have reached that conclusion.
23On July 24, 2006, Dr. O. sent a letter to the Ministry of Transportation (the “Ministry”) stating, that he was writing to advise that the appellant’s “wife has given me information today to firmly believe that he should not be driving for reasons related to his abuse of alcohol.”
24The Ministry received a completed Alcohol Assessment form on October 3, 2006. On this extensive form, Dr. O. indicated that medical consequences related to the appellant’s alcohol use included: seizures; morning shakes; and delirium tremens. Dr. O. handwrote, “July 24/06 in hospital from detox re[garding] withdrawal seizures”. Dr. O. also indicated that the appellant: stopped drinking because “hospitalized re seizure”, underwent detox on July 24, 2006, had AA with detox, attended an outreach program, and “knows not to ever drink again”.
25In February 2020, a Medical Report was received by the Ministry indicating that that the appellant was requesting a change in class of his driver’s licence (from Class G to B). On this completed medical form Dr. O. typed “I can see no reason why he can’t drive”.
26When questioned, the respondent confirmed that the appellant never held a commercial class licence and no test results for a commercial licence were ever filed with the Ministry.
27On February 6, 2021 the Ministry received an unsolicited MCR from a hospital internist, Dr. N. Pursuant to the HTA, Dr. N. indicated on this form that the appellant was suffering from AUD which may make it dangerous for the appellant to operate a motor vehicle.
28Effective February 20, 2021, the Registrar suspended the appellant’s driver’s licence for medical reasons.
29On March 3, 2021, the Registrar received a completed SUA form from Dr. O. On this form Dr. O. indicated that the appellant: suffered from moderate AUD; had been abstinent since February 6, 2021; and that he had not yet completed (but had started) a supervised treatment program.
30By letter dated March 17, 2021, the Registrar reinstated the appellant’s driver’s licence, with the proviso that he would be required to file a further SUA form by September 3, 2021.
31By letter dated June 20, 2021 the Registrar sent the appellant the further SUA form to be completed.
32Between June 20, 2021 and July 22, 2021, the Ministry received an undated SUA form (“June/July SUA” form). This form indicated that it was completed by the appellant’s physician, but neither the physician’s name or stamp was included. However, I note that the physician signature appears to be the same as the physician signature on the SUA form submitted to the Ministry in March 2021. Therefore, I find on a balance of probabilities, that this SUA form was completed by Dr. O.
33On the June/July SUA form, Dr. O. indicated that the appellant: had severe AUD; had abstained from alcohol for less than six months; and that his supervised treatment program was both completed and ongoing.
34By letter dated July 22, 2021, the Registrar suspended the appellant’s driver’s licence for AUD, effective August 1, 2021.
35By letter dated August 30, 2021 the appellant’s Addiction Counsellor submitted a letter indicating that the appellant had: been connected with the Rapid Access Addiction Medicine clinic since February 17, 2021; attended brief 1:1 counselling support; worked with the nurse practitioner regarding anti-craving medication; completed the Relapse Prevention Group; and was wait-listed to attend the next round of the SMART Recovery group.
36As per its September 7, 2021 and September 28, 2021 letters to the appellant (the latter correcting the word drugs to alcohol), the Registrar is of the opinion that in order to reinstate the appellant’s driver’s licence it requires confirmation that the appellant has remained abstinent from alcohol for a period of one year, and indicated that this period may be reduced to six months if the appellant’s healthcare practitioner confirms that the appellant has successfully completed an alcohol treatment program and is supportive of the appellant’s driving privilege.
37At the hearing the respondent specifically referred to 15.6.3 (Substance Use Disorder – All drivers) of the CCMTA Standards. In addition the respondent commented on the facts that: Dr. O. upgraded the appellant’s AUD from moderate to severe AUD between March and June/July 2021; the look-back date or date when the appellant last became abstinent is in question (i.e. is it February or May 2021- to be discussed below) and may suggest a relapse; and that the appellant’s treating physician has not yet indicated that he is supportive of reinstating the appellant’s driving privilege.
38Although the respondent accepted that 15.6.3 of the CCMTA Standards does not specify a time frame of abstinence for consideration of earlier re-licensing following the completion of a rehabilitation program, he argued that the Ministry’s experts in this field have agreed that persons suffering from severe AUD require confirmation of a six-month period of abstinence following the successful completion of a rehabilitation program.
39In his NOA, the appellant wrote that:
i. he has never driven a vehicle while under the influence of alcohol;
ii. he has not been charged with a DUI;
iii. he had a drinking problem, not a drinking and driving issue;
iv. having AUD should not automatically infer a dangerous driver;
v. the last time he drank alcohol was back in May 2021; and
vi. he has completed a relapse prevention group and is waiting for the start date for the next group
40A review of the appellant’s Extended Driver Record Search for Criminal Code Convictions, submitted as evidence, confirms that the appellant has never been charged with an alcohol-related infraction.
41Although the appellant ought to be commended for this, I am also aware that not being charged with an alcohol-related infraction does not necessarily mean that the appellant has never driven a vehicle under the influence of alcohol. As previously mentioned, Dr. O’s 2006 note to the Ministry stated that the appellant’s wife gave Dr. O. information to firmly believe that the appellant should not be driving for reasons related to his abuse of alcohol.
42As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s AUD is likely to significantly interfere with his ability to drive a motor vehicle safely.
43The evidence before me indicates that in 2006 the appellant was hospitalized for an alcohol withdrawal seizure and in September 2006, Dr. O. stated that the appellant “knows not to ever drink again”. However, sometime prior to February 2021 the appellant began consuming alcohol again.
44Based on my knowledge as a licenced and duly qualified physician in the province of Ontario2, I am aware that alcohol withdrawal seizures can occur following a reduction in alcohol consumption or following complete cessation of alcohol consumption. As per the CCMTA Standards, seizures cause an episodic impairment of the functions necessary for driving, for which a driver cannot compensate.
45Although it is clear from the evidence that the appellant suffered a relapse in his AUD prior to February 2021, based on conflicting evidence, it is unclear whether or not the appellant suffered another relapse of his AUD between February and May 2021. Furthermore, although the appellant implied in his NOA signed on September 9, 2021 that he was still abstinent, I have no evidence before me, such as the results of biochemical markers, to confirm whether or not the appellant is still abstinent, nor any information regarding his supports, incentives and active participation in his own rehabilitation to help him continue his abstinence, particularly as they relate to driving.
46Therefore, based on the above, I find the Registrar’s insistence on the confirmation from a treating health care practitioner of both the successful completion of a full alcohol treatment program and recent continuous abstinence from alcohol for a period of six months is reasonable, even though the latter is not required by the CCMTA Standards.
47Furthermore, Dr. O., the appellant’s family physician for over 16 years, has not overtly provided the Registrar with a recommendation supportive of the appellant’s driver’s licence reinstatement. Based on my knowledge, I am aware that the act of a physician filling in a Ministry form is a means for the Ministry to collect the most up-to-date and pertinent medical information and does not necessarily imply that the physician filling out the form is supportive of the reinstatement of the driver’s licence in question. Moreover, on the 2020 Medical Report form submitted to the Ministry on behalf of the appellant (to change the class of his driver’s licence), Dr. O. wrote “I can see no reason why he can’t drive”. No such notation by Dr. O. appears on any correspondence with the Ministry in 2021.
48I find that the Registrar’s requirement that the appellant provide the Registrar with a recommendation by a treating health care practitioner supportive of the appellant’s driving privilege is both reasonable and is supported by the CCMTA Standards.
49Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged the onus of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a vehicle safely.
50Driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.
F. ORDER:
51For 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.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: October 27, 2021
Footnotes
- Statutory Powers Procedure Act, R.S.O. 1990, c S. 22
- Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.