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 licence pursuant to Section 47(1) of the Act
Between:
Pierre Mevissen Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: P. Savage, M.D., Member K. Livingstone, Member
Appearances:
For the Appellant: Jami Sanftleben, paralegal
For the Respondent: Kyle Biel, agent
Heard by teleconference:
April 9, 2021
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant appeals the January 16, 2020, decision of the Registrar of Motor Vehicles (the Registrar) to suspend his licence pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “HTA”).
2The decision to suspend the appellant’s licence was made by the Registrar following the receipt of an unsolicited Medical Condition Report from an emergency room physician indicating the appellant was suffering from an alcohol withdrawal seizure which may make it unsafe for him to drive. Section 203 (1) of the HTA requires the emergency room physician to report any person who has or appears to have a prescribed medical condition that may make it dangerous for a person to drive to the Registrar. The Registrar in turn suspended the appellant’s licence.
B. THE ISSUE
3The issue in this appeal is whether the appellant suffers from a physical condition, namely alcohol use disorder, to an extent likely to significantly interfere with his ability to safely operate a motor vehicle. In order to answer that question, we will address the following issues:
a. Did the appellant suffer an alcohol withdrawal seizure?
b. If the appellant did suffer an alcohol withdrawal seizure, is this medical condition in addition to other evidence indicative of a substance use disorder likely to significantly interfere with his ability to drive safely?
C. CONCLUSION
4For the reasons that follow we find, on the balance of probabilities, the appellant suffers from a substance use disorder that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
D. LAW:
5The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
6One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is found in ss.14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA which states:
- An applicant for or a holder of a driver’s licence must not….
a) suffer from a physical, nervous, mental or emotional condition to an extent likely to significantly interfere with his ability to drive a motor vehicle safely
b) be addicted to a drug or alcohol to such an extent to significantly interfere with his ability to drive a motor vehicle safely.
7Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although it is not bound by them.
8The Registrar has the burden of establishing the ground(s) for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
E. EVIDENCE AND ANALYSIS:
a) Did the appellant suffer an alcohol-withdrawal seizure?
9The medical records from the appellant’s hospital admission on January 2, 2020 were filed at the hearing. The records related the observations of the attending physician, nursing staff and paramedics, all of whom described the appellant as postictal, or in an altered state of consciousness. Nursing notes indicated the appellant had tremors, was diaphoretic on arrival and incontinent of stool. The tremors went from severe to moderate during his time in the hospital.
10The notes further recorded that his girlfriend found him on the couch experiencing seizure type symptoms including tonic and clonic seizure activity or stiffening and jerky movements. He was treated with diazepam and thiamine, which is the common treatment for an alcohol withdrawal seizure.
11A conversation with the appellant was recorded where he is quoted as saying he “drinks half a 26oz bottle of vodka” daily and that this has happened before.
12The noted diagnosis was alcohol withdrawal seizure.
13During his evidence the appellant took issue with both the diagnosis and the description of what had occurred. He said that he had been drinking heavily on New Years Eve and was simply asleep when his female friend found him on the couch. He said although the paramedics told him he was having a seizure, he believed he was only tired and needed some food. He stated he was “having some remorse” and “said some things I didn’t mean to say at the hospital”. He denied being incontinent. Further, he was insistent no one saw him have a seizure and there was no evidence he had a seizure. He said he was not told he had to stop drinking.
14The appellant did not provide any medical evidence to contradict the findings and observations of the emergency room physician.
15In the circumstances we are satisfied on a balance of probabilities the appellant suffered an alcohol withdrawal seizure on January 2, 2020.
b) Does the alcohol withdrawal seizure together with other evidence indicate a substance abuse disorder which is likely to significantly interfere with his ability to drive safely?
16The Registrar served a notice of suspension dated January 16, 2020 on the appellant. In the notice the Registrar noted that in order to be considered for reinstatement of his licence the appellant would require confirmation from a physician that he had abstained from alcohol for a period of one year, unless the physician confirmed the appellant’s attendance at an alcohol treatment program and the physician was supportive of the reinstatement of his driving privileges. Included in the notice was a Substance Use Form to be completed by a medically qualified physician.
17The form has not been completed. The appellant told the Tribunal he no longer has a family doctor and given the pandemic restrictions of the last year, it has been difficult for him to find one. The appellant did provide the Tribunal with a document which purports to be confirmation of a mandatory medical exam he completed on February 16, 2021, required in order for him to maintain his float plane licence. The appellant said he passed the exam “perfectly,” however did not provide particulars of the exam or a report from the examining physician. He also did not ask the physician to complete the Substance Use Form and said he “forgot” to tell the physician about his trip to the emergency department in January of 2020. In summary, aside from the medical notes on his admission to hospital on January 2, 2020, there is no independent information before the Tribunal about the alcohol withdrawal seizure nor the appellant’s use of alcohol.
18The appellant’s evidence in terms of both his hospital visit and his drinking habits was vague, inconsistent and concerning. On several occasions he was dismissive of the questions asked both by the respondent’s representative and the Tribunal, at one point saying, “this whole thing is ridiculous” and he didn’t feel the forms needed to be filled out.
19He disagreed with the stated observations of the paramedics, thought his female friend had overreacted and was emphatic he did not have a drinking problem. He says he continues to drink and has a "glass of wine with dinner every once in a while”. He said at the time he was admitted to hospital he was “drinking too much over the holidays and that was that”.
20Overall, his evidence as to his use of alcohol was confusing, contradictory and unreliable. The female friend who found the appellant on the couch and called the ambulance was not called as a witness at the hearing. The appellant did not put forward any medical evidence that he does not have an alcohol use disorder other than details of his plane-related examination, for which he did not provide any supporting documentation that ought to have been in his possession. The Tribunal does not accept the appellant’s evidence with respect to his use of alcohol. In the circumstances we find the appellant’s alcohol withdrawal seizure, taken with other evidence, is indicative of a substance use disorder; a disorder, which is, as of yet, unaddressed.
21The appellant has a minimal unrelated driving record for speeding. The absence of a drinking related driving offence on his record was considered by the Tribunal.
22The appellant’s representative argued that in the circumstances the appellant’s licence should be returned to him. He submitted the appellant “knows his own body” and that the doctor at the “ER did his diagnosis sight unseen”. He further submitted there was only the “one blip” in January 2020, that the appellant had attempted unsuccessfully to find a family doctor to fill out the form and we “should consider this and see fit to have his licence returned to him.”
23The Registrar submits the appellant’s medical condition is severe enough that he should not be permitted to drive at this time. The Registrar relies on the guidelines contained in the CCMTA with respect to substance abuse or dependence (Chapter 15).
24Chapter 15 of the CCMTA Standards states that individuals who are under the influence of alcohol and illicit drugs such as opioids, cocaine or amphetamines are at a higher risk for adverse driving outcomes. Guideline 15.6.3 states an individual under the influence of alcohol and illicit drugs such as opioids, cocaine or amphetamines is eligible for a licence if he or she:
Meets the criteria for remissions and/or has abstained from the substance for 12 months.
Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician and successful completion of a drug rehabilitation program
The functional abilities necessary for driving are not impaired
Where required, a road test or other functional assessment shows the functional abilities for driving are not impaired
25In this instance we adopt the CCMTA guidelines and find the appellant should not be eligible for a licence given the circumstances. The evidence before the Tribunal does not establish the appellant has abstained from alcohol for 12 months. It is our opinion, given the known relapsing nature of alcohol use disorder and the fact that there is no evidence of a favourable recommendation for re-licensing from the appellant’s treating physician, a further waiting period is warranted.
26Furthermore, although the Tribunal is not bound by CCMTA Standards, in this case it chooses to follow them given the appellant’s medical condition of substance use disorder.
27While recognizing the appellant does not have a driving record for alcohol related offences, we do note the potential for tragic consequences should an alcohol withdrawal seizure occur while a person is driving a motor vehicle.
28The appellant was clear in his evidence he does not feel his present habits with respect to the use of alcohol pose any concern. Given the occurrence of the alcohol withdrawal seizure, the reluctance of the appellant to accept this diagnosis heightens his risk.
29After considering the evidence and submissions of the parties, we find on a balance of probabilities the appellant suffers from a substance use disorder and that this medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.
F. ORDER:
30For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
.__________________________
Peter Savage M.D.
.__________________________
Katherine Livingstone, member
Released May 17, 2021