Date: 2021-12-22

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:

David Cohoon

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Dimitri Louvish, Member Colin Osterberg, Member

Appearances

For the Appellant: David Cohoon, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: December 9, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1On February 23, 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 suffered a seizure. The Registrar alleges that the seizure was caused by alcohol withdrawal and 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 confirm 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 it.

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 Registrar presented evidence that the appellant has a significant history of alcohol use disorder as well as post traumatic stress disorder, anxiety, and depression. The appellant did not introduce any evidence to show that he does not suffer from alcohol use disorder. He says he has been abstinent since May 2021, a fact which the Registrar disputes.

12In September 2016, the appellant’s driver’s licence was suspended after he suffered what Dr. Kelley Wright, his family doctor at the time, later described as an alcohol-related seizure. Dr. Wright diagnosed substance dependence and abuse and reported that the appellant had successfully completed a supervised addictions treatment program at Bellwood Health Services.

13The appellant was admitted to Bellwood from December 6, 2016 to January 16, 2017 for substance abuse treatment. While there, he was diagnosed by Dr. Narges Nassirinejad with severe alcohol use disorder. On release from Bellwood, the appellant had recommendations for ongoing treatment included regular counselling, abstinence, and stress management.

14The appellant’s driver’s licence was reinstated in April 2017 based on the appellant’s successful completion of the treatment program at Bellwood and after Dr. Wright wrote a letter to the Ministry in support of reinstatement.

15In February 2019, the appellant’s driver’s licence was suspended after his treating physician, Dr. Thomas Muir, reported that he suffered from post-traumatic stress disorder which made it unsafe to operate a motor vehicle. On February 13, 2019, Dr. Kent Dunn, psychiatrist, reported that the appellant also suffers from depression, anxiety disorder, personality disorder, and substance use disorder. On July 5, 2019, Dr. Dunn reported that the appellant’s alcohol use disorder was in remission since February 2019. After a satisfactory functional driving assessment, and with the support of Dr. Dunn, the appellant’s licence was reinstated in November 2019.

16On February 13, 2021, an emergency room physician, Dr. Abdul Abdulhameed, submitted a Medical Condition Report (“MCR”) to the Ministry of Transportation stating that the appellant had suffered a seizure. As a result, the Registrar suspended the appellant’s driver’s licence and asked that he have his attending physician complete a Seizure and Loss of Consciousness Report (“SLCR”).

17The SLCR was completed by the appellant’s current family doctor, Dr. Matthew Pfaff, on September 30, 2021. Dr. Pfaff reported that the appellant had a substance use related seizure within the last 6-12 months and that it had been six months since the provoking factor had stabilized, resolved, or been corrected. Dr. Pfaff reported that the appellant suffers severe substance use disorder which is defined as the repetitive inappropriate use of alcohol or any psychoactive substance associated with loss of control, inability to abstain, a preoccupation with obtaining alcohol, and withdrawal symptoms.

18Dr. Pfaff stated in the SLCR that the appellant had not abstained from alcohol but had recently completed a supervised treatment program. He stated that the appellant’s seizure on February 13, 2021 was caused by alcohol withdrawal. Dr. Pfaff stated that the appellant was admitted to Windsor Regional Hospital from May 6 to May 31, 2021 because of suicidal ideation related to alcohol use. He stated that the appellant was admitted to Brentwood (an in-patient alcohol rehabilitation facility) from June until August 2021.

19A letter from Brentwood dated August 20, 2021 states that the appellant was admitted to its residential treatment program on May 31, 2021 and graduated on August 20, 2021. The letter states that the staff at Brentwood was pleased with the appellant’s progress and “feel that with his sincerity and willingness he is building a foundation for a successful recovery.”

20Dr. Pfaff reported that “on phone call Sept 3rd patient’s speech noted to be slurred. Unable to book him a follow-up appointment at that time as his condition was abnormal. On phone call Sept 29th speech normal cognition normal.” The appellant testified that Dr. Pfaff believes that his slurred speech on September 3, 2021 was due to alcohol use. The appellant also testified that Dr. Pfaff has referred him to a specialist in alcohol use disorder and that appointment is to take place in February 2022.

21The Registrar relies on this history as evidence that the appellant suffers from alcohol use disorder. He suffered an alcohol withdrawal seizure in September 2016 and was diagnosed with alcohol used disorder by Dr. Wright, Dr. Muir, Dr. Dunn, Dr. Nassirinejad, and Dr. Pfaff. He spent almost a month in hospital in May 2021 due to alcohol related suicidal ideation and almost three months at Brentwood from June 2021 to August 20, 2021 for treatment of severe alcohol use disorder.

22The appellant presented no medical evidence to suggest that he does not suffer from alcohol use disorder and we find that the Registrar has satisfied the onus on it to show that the appellant suffers from a relevant medical condition.

23We find on a balance of probabilities that the appellant suffers from alcohol use disorder.

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

24The Registrar asserts that the appellant’s alcohol use disorder significantly interferes with his ability to drive safely. The appellant argues that he has been abstinent from alcohol since May 2021 and should have his licence reinstated.

25The appellant says that the seizure he experienced on February 13, 2021 was not related to his alcohol use disorder. He says that he was in hospital for an infection in his foot and leg and was waiting to be seen, without food or water, and without access to the medications he takes for post-traumatic stress disorder and depression, for 14 hours. He says that he must have passed out because of some combination of factors including the effects of the infection, his failure to take his medications, and the fact that he had nothing to eat or drink the whole time he was waiting to be seen.

26We do not accept the appellant’s explanation. The only medical evidence with respect to the cause of the appellant’s seizure comes from his SCLR prepared by Dr. Pfaff on September 30, 2021. Dr. Pfaff would have had the appellant’s hospital records at that time and was aware of the appellant’s medical history including the medications he was taking, and he reported that the seizure was caused by alcohol abuse. There is no medical evidence which supports the appellant’s explanation for his seizure.

27The appellant admits that he began drinking heavily in March and was admitted to hospital for alcohol related reasons in May 2021. He had a previous alcohol withdrawal seizure and had regular cycles of abstinence and relapse since 2016. Dr. Pfaff’s diagnosis of alcohol withdrawal seizure is consistent with the appellant’s history and we accept Dr. Pfaff’s diagnosis.

28With respect to the report of slurred speech on September 3, 2021, the appellant admits that Dr. Pfaff thought that his slurred speech was caused by alcohol use. The appellant says that he has had a gastric bypass procedure and that, if he does not eat every 4 hours he can experience slurred speech. He alleges that this was the cause of his slurred speech when he spoke with Dr. Pfaff on September 3, 2021.

29We do not accept the appellant’s explanation. The appellant acknowledged that Dr. Pfaff was aware of his gastric bypass and still thought that his slurred speech was the result of alcohol use. The appellant presented no evidence to support his assertion that the slurred speech was related to the gastric bypass and we find that the likely cause was alcohol use. The fact that the appellant was using alcohol on September 3, 2021 is evidence that his alcohol use disorder is resistant to treatment given that he had just recently been released from Brentwood after having spent considerable time there, and in hospital before that, for treatment.

30The appellant testified at the hearing that since September 2021 he has asked Dr. Pfaff on at least four occasions to write a letter to the Registrar in support of the reinstatement of his driver’s licence. He says that Dr. Pfaff has refused to do so and has referred the appellant to be seen by an addiction specialist.

31The evidence presented at the hearing demonstrates that the appellant continues to struggle with his alcohol use disorder and has not abstained from alcohol use despite having undergone extensive treatment in 2021. In the past, the appellant has had treatment for his substance use disorder and has consistently returned to drinking heavily after the treatment has ended. It seems clear that Dr. Pfaff does not accept that this time is different, and he has referred the appellant for further treatment.

32The Registrar relies on the CCMTA Standards for the proposition that alcohol impairs a driver’s judgement, reflexes, control, and behaviour, and negatively impacts several necessary functions needed for safe driving. The CCMTA recommends that drivers who suffer from substance use disorder may be eligible for licensing if they meet the criteria for remission and/or have abstained from the substance for 12 months. Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician, and the successful completion of a drug rehabilitation program. These are the conditions for reinstatement requested by the Registrar with respect to the appellant.

33We find that the position of the Registrar is supported by the CCMTA Standards and is justified in the circumstances. The appellant’s abuse of alcohol is serious enough that he required admission to hospital for almost a month in May 2021, and at the Brentwood rehabilitation facility as an in-patient for almost three months. Even so, the appellant had a relapse and used alcohol within two weeks of his release from Brentwood. His family doctor has refused to support the return of the appellant’s licence. The appellant’s history, both past and recent, demonstrates that he is at significant risk of relapse and that his alcohol use disorder is not controlled at this time. We find that the appellant’s condition presents a significant risk to himself and others should his licence be reinstated.

34We find that the Registrar has 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

35For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.