Date: 2021-12-01

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:

Bharat Panwala

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Bharat Panwala, self Nandini Panwala, appellant’s wife

For the Respondent: Sanjay Kapur, agent

Heard by Teleconference: November 15, 2021

A. Overview:

1Bharat Panwala (the “appellant”) appeals the June 21, 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. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from AUD?

12I find, on a balance of probabilities, that the appellant suffers from AUD.

13On June 7, 2021, emergency room (“ER”) physician, Dr. H. sent an unsolicited Medical Condition Report to the Ministry of Transportation (the “Ministry”). On the report, Dr. H. indicated that he was of the opinion that the appellant was suffering from a seizure due to alcohol withdrawal and AUD which may affect his ability to drive safely.

14By letter dated June 11, 2021, the Ministry suspended that appellant’s driver’s licence and requested that his treating physician complete a Substance Use Assessment (“SUA”) form.

15On the September 27, 2021 completed SUA form, the appellant’s family physician, Dr. D., indicated that the appellant had:

• severe AUD;
• abstained from alcohol for less than six months;
• recently completed a supervised treatment program;
• a seizure due to alcohol withdrawal 3 to less than 6 months ago;
• a consultation with a neurologist; and
• an electroencephalogram (“EEG”) which was reported as normal.

16The appellant is of the opinion that he does not suffer from AUD and did not have an alcohol-withdrawal seizure on June 7, 2021.

17The appellant’s wife stated that her husband was not a heavy drinker, drinking only one to two days per week prior to June 7, 2021.

18The appellant testified that prior to June 7, 2021, he never experienced symptoms suggestive of alcohol withdrawal. He stated that he previously consumed two to three shots of 40mL of vodka a day, three days per week. When questioned, the appellant thought that he had one or two shots of vodka on June 6, 2021. The appellant stated that he has been abstinent from alcohol since then.

19On June 7, 2021, the appellant stated that he felt unwell with weakness in his body. He stated that the paramedics who attended, told him that his blood sugar and blood pressure were low. The appellant described feeling cold, sweaty and having “shivers” in the ambulance. According to the appellant, the paramedics took a video of him during the ambulance ride and they showed this video to the ER staff upon arrival. The appellant is not aware of what, if any, medications he was given in the ER. The appellant stated that he was released the same day from the ER with new prescriptions of Gabapentin, Lorazepam and Naltrexone. The appellant testified he never used these new prescriptions at home but stated that they were for alcohol withdrawal. No records from the ER visit or from the encounter with the paramedics were submitted as evidence.

20I prefer the opinions of Drs. H. and D., over that of the appellant that the appellant suffered an alcohol withdrawal seizure on June 7, 2021. Dr. H. would have had the chance to view the paramedics’ video of the appellant’s “shivers” in the ambulance, plus run appropriate tests in the ER to rule out a seizure, or other medical conditions. Furthermore, Dr. H. prescribed new medications to the appellant in keeping with him having suffered alcohol withdrawal. Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I am aware that Lorazepam is frequently prescribed to help reduce the impact of alcohol withdrawal symptoms and that Naltrexone and Gabapentin can both be prescribed off-label to reduce the desire to drink alcohol and to sustain abstinence. The appellant had a subsequent EEG which was reported as normal. However, I am aware that a normal EEG does not rule out that a seizure occurred on June 7, 2021. The neurology consultation note was not submitted as evidence. Although, I am aware that the drinking pattern reported by the appellant is within the current Canadian Low Risk Drinking Guidelines, I am also aware that an individual’s tolerance, metabolism, elimination and susceptibility to the withdrawal symptoms to/of alcohol is dependent on numerous factors. The appellant, other than stating that he is sure the June 7, 2021 episode was not an alcohol-withdrawal event, has not presented any medical evidence to substantiate his claim.

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.

23As per its September 30, 2021 letter to the appellant, the Registrar is currently of the opinion that it requires confirmation that the appellant has remained abstinent from alcohol for a period of six months.

24The Registrar is relying on 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from substance use disorder (AUD) may be eligible for a licence if they meet the criteria for remission or have abstained from alcohol for twelve months. The CCMTA Standards also states that earlier re-licensing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.

25Although the respondent acknowledged 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; in the appellant’s case this is reasonable as the appellant has been diagnosed with severe AUD and experienced an alcohol-withdrawal seizure; and by law, the Registrar may require or ask for specific requirements.

26As 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.

27By letter dated September 15, 2021, case worker, Mr. K, at the PCHS Addiction Program, indicated that the appellant had enrolled in their program on July 14, 2021 and had successfully completed six one-on-one sessions on substance use/abuse.

28When questioned why he completed a substance use/abuse program if he does not feel he was suffering from AUD, the appellant stated that he wanted to avoid problems.

29The appellant denied ever driving after drinking alcohol. His wife testified that when her husband doesn’t feel well, he doesn’t drive.

30The appellant’s “Extended Driver Record Search for Criminal Code Convictions” shows no infractions, alcohol-related or otherwise. I note that the earliest licence date available on this search is December 1994.

31The appellant stated that he has been abstinent from alcohol since June 7, 2021, there is currently no alcohol in their home, they have not been to the LCBO in over six months and he is unlikely to go back to drinking alcohol in the future. In addition, the appellant indicated that following his case conference on November 9, 2021, he reached out to Dr. N.’s office to have Dr. N. provide the Registrar with a narrative (letter) supportive of the appellant’s licence reinstatement. As of the hearing, Dr. N. had not set up an appointment to discuss this or provide such a narrative.

32Based on the evidence before me, despite not using the alcohol withdrawal or anti-craving medication prescribed by Dr. H. following his discharge from the ER on June 7, 2021, the appellant has currently remained abstinent for over five months, has strong family supports and is committed to remaining abstinent. However, the evidence before me also indicates that the appellant has been diagnosed with severe AUD, experienced an alcohol-withdrawal seizure and his treating health care provider has not yet indicated that he is supportive of the reinstatement of the appellant’s driving privilege.

33Both the Registrar and the appellant presented compelling evidence in support of their respective positions. In my view, the Registrar’s insistence on the six-month time frame following the successful completion of a rehabilitation program is arbitrary in the circumstances of this case, particularly given that the appellant’s driving record discloses no alcohol-related infractions in his nearly 27 years of holding a driver’s licence in Ontario. However, I find the CCMTA’s requirement to provide the Registrar with a recommendation from a treating health care provider supportive of his licence reinstatement is reasonable. I would have granted licensure if, prior to the hearing, the appellant’s treating health care provider had indicated support of the reinstatement of the appellant’s driving privilege. If the appellant is able to obtain such a letter from his treating health care provider, he is encouraged to reapply for a licence by sending this information to the Registrar. Of course, should the Registrar deny his licensure, the appellant could appeal again to the Licence Appeal Tribunal.

34I acknowledge the burden that the lack of a driver’s licence is having on the appellant and his family. However, driving 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.

35Based 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.

E. ORDER:

36For 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

Footnotes

1. 1Pursuant 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”.