Date: 2021-05-27

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:

Gordon Baxter

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Gordon Baxter, Self-represented Denyse Baxter, Wife

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference: May 18, 2021

A. Overview:

1The appellant appeals the 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 suffers from a medical condition, specifically seizure due to alcohol withdrawal (“AW”), which is likely to significantly interfere with his ability to drive safely.

3Having considered all of the evidence before me and for the reasons set out below, I find on a balance of probabilities that the appellant suffers from the medical condition of seizure due to AW. Furthermore, I find on a balance of probabilities, that this medical condition of seizure due to AW is likely to significantly interfere with his ability to drive a vehicle safely.

4Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from a medical condition, specifically seizure due to AW, which is likely to significantly interfere with his ability to drive a vehicle safely.

6To answer that question, I will address the following issues:

a. Does the appellant suffer from the medical condition of seizure due to AW?

b. Is the appellant’s medical condition of seizure due to AW, if any, likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

7Under the HTA the Registrar of Motor Vehicles (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)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

8Under 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.

9A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

10On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from seizure due to AW?

12I find on a balance of probabilities that the appellant suffers from seizure due to AW.

13Under s. 203(1) of the HTA, prescribed persons such as physicians must report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle.

14On March 14, 2021, the Registrar received an unsolicited Medical Condition Report from emergency room (“ER”) physician, Dr. S., indicating that he was of the opinion that the appellant was suffering from a seizure due to AW which may make it dangerous for the appellant to operate a motor vehicle.

15By letter dated March 18, 2021 the appellant’s driver’s licence was suspended, effective March 28, 2021, with the reported medical condition of seizure due to AW.

16The appellant testified that for that last few months he consumed 3-5 glasses of a wine spritzer (6 ounces of 13% alcohol/volume wine mixed with 6 ounces Club soda) daily from around 1 p.m. until midnight.

17On March 13, 2021 the appellant stated that he consumed only two of such drinks between 2:30 p.m. and 7:30 p.m.

18The appellant’s wife testified that at around 6 a.m. on March 14, 2021 she was woken up by their bed “vibrating” or “shaking”. In the appellant’s Notice of Appeal (“NOA”) she wrote, “I looked over and Gord was lying on his back, shaking and choking”. She stated that she rolled her husband to his side and “every time I let him roll back he again would start to choke but no longer was vibrating…While waiting for the ambulance he finally spit out the phlegm and stopped choking. His eyes were open, and he did look at me but there was no response from him on any questions I asked, just a blank look.” When specifically asked whether the appellant’s arms or legs were moving while he was vibrating or shaking, the appellant’s wife explained that the appellant had the covers pulled up so she was unable to see his arms or legs, but that his “whole body was totally” vibrating or shaking. Although in the appellant’s NOA she wrote, “I do not believe the seizure was from AW. I believe it was due to choking on phlegm”, she testified at the hearing that she now is not certain that her husband suffered a seizure as she has never seen a seizure before.

19The appellant testified that he has no awareness of the episode and only regained awareness when the ambulance attendants were getting ready to transport him to hospital. The appellant denied ever having any loss of consciousness or seizure prior to the episode on the morning of March 14, 2021.

20The appellant stated that he was at the hospital until around 2:00 p.m. on March 14, 2021. Although somewhat vague at what transpired at the hospital, the appellant is aware that he: had an elevated heart rate; was assessed by a cardiologist prior to discharge from the ER; underwent brain imaging; was given one or two doses of Valium while at the hospital; and was given a prescription for Valium to be taken daily for three days following discharge. The appellant stated that Dr. S. told him that he had suffered a seizure due to AW and that Dr. S. recommended that he stop drinking alcohol and attend a treatment program. He stated that Dr. S. did not arrange any follow-up tests.

21The appellant testified that he has not consumed any alcohol since March 14, 2021.

22On April 22, 2021, the appellant’s physician, Dr. A., completed a Substance Use Assessment (“SUA”) form. The appellant explained that although Dr. A. works at a walk-in-clinic, he has been seeing Dr. A. for the past 2-3 years to get his blood pressure medication filled. When questioned if, at the March 2021 visit, Dr. A. inquired about the appellant’s alcohol intake, the appellant initially stated “No”, but then stated that he told Dr. A. that he typically consumes 3-5 glasses of wine spritzer per day. Furthermore, the appellant did not recall Dr. A. ever asking or discussing any substance use issues with him in the past. In the “Comments Section” of the SUA form, Dr. A. wrote “form completed based upon history from patient only”.

23In the SUA form, Dr. A. indicated that:

• substance use disorder (mild, moderate or severe) is not a diagnosis that applies to the appellant;
• the appellant has been abstinent from alcohol for less than 6 months;
• the appellant has not recently completed a supervised treatment program;
• the appellant experienced a seizure within the past 12 months, with the last seizure being less that 3 months ago;
• it is unknown whether the seizure was related to the use of alcohol or other substances; and
• it is unknown whether the seizure was: AW, drug withdrawal, due to epilepsy/seizure disorder or provoked (alcohol induced, or drug induced).

24The appellant further testified that since the SUA form was filled out, Dr. A. obtained the ER report from March 14, 2021 and that Dr. A. subsequently referred him to a neurologist for an opinion. The ER report was not submitted as evidence.

25The appellant is of the opinion that: he “doesn’t believe it was a seizure”; “no one saw him have a seizure” , including his wife; he “doesn’t understand what happened to him or what occurred”; he was “misdiagnosed”; he “probably drinks more than he should” but “doesn’t believe or feel he has any alcohol problems”; and he does “not consider his drinking as destructive”. The appellant adamantly denies the possibility of having an AW seizure on the morning of March 14, 2021, because he “had not stopped drinking” at that time.

26The appellant’s wife testified that: some days she thinks her husband drinks too much; she doesn’t think he has a problem with alcohol; he is never drunk; and that he doesn’t drink more than 1 bottle of wine per day.

27I prefer the opinions of Dr. S. and Dr. A. over that of the appellant and his wife on whether or not the episode on the morning of March 14, 2021 was a seizure. Based on my knowledge, I am aware that the appellant’s wife’s description of the bed and her husband’s whole body vibrating or shaking, his inability to swallow or expel saliva from his mouth during the episode and her description of him after the vibrating or shaking ended (i.e. staring, not responding, sleepy) are, on a balance of probabilities, consistent with a generalized tonic-clonic seizure or a generalized clonic seizure including its post-seizure state. In very general terms, clonic means repetitive jerking movements. In addition, I am aware that people who suffer such seizures, may have no memory or awareness of the seizure itself.

28Furthermore, I prefer the opinion of Dr. S. over that of the appellant, his wife and Dr. A. that the seizure on the morning of March 14, 2021, was, on a balance of probabilities due to AW. Based on my knowledge, I am aware that Canada’s Low-Risk Drinking Guidelines indicate that to reduce long-term health risks, adult males should not drink more that 15 drinks per week, with no more than three drinks a day most days, and that “a drink” of wine in the guidelines means 5 ounces of 12% alcohol/volume. The appellant candidly admitted that for the few months prior to the March 2021 episode, he chronically consumed 3-5 drinks daily, each drink containing 6 ounces of 13% alcohol/volume wine. The appellant’s consumption of alcohol exceeds Canada’s Low Risk Drinking Guidelines by a significant amount (1.8-3.0-fold). In addition, I am aware that seizures due to AW can occur after cessation of drinking or significantly reduced alcohol consumption. The appellant testified that on March 13, 2021 he only consumed two of his usual drinks, which is in keeping with a significantly reduced consumption compared to his chronic daily consumption. Furthermore, the appellant testified that he was given one or two doses of Valium in the ER, was prescribed Valium to take daily for three days upon discharge from the ER and Dr. S. recommended to the appellant to both abstain from alcohol and attend a treatment program. I am aware that Valium is a long-acting benzodiazepine that may be used to help reduce the impact of AW symptoms.

29I give more weight to the diagnosis of Dr. S. because Dr. A. stated in the completed SUA form that his opinion of an “unknown” relation of the appellant’s seizure to his use of alcohol was based upon the history from the appellant only. As discussed above, the appellant does not accept that he had a seizure due to AW. Dr. A. did not receive a copy of the ER report until after the SUA form was completed and sent to the Registrar. Moreover, the appellant has yet to have a consultation with a neurologist to determine whether there may have been an alternative cause for the appellant’s seizure on March 14, 2021.

30After a careful consideration of all the evidence available to me, I find on a balance of probabilities that the appellant suffers from seizure due to AW.

b. Is the appellant’s medical condition of seizure due to AW, if any, likely to significantly interfere with his ability to drive a vehicle safely?

31The Registrar has the burden of establishing that the appellant’s seizure due to AW is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

32As per its April 28, 2021 letter to the appellant, 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 seizure free and abstinent from alcohol for a period of one year and that this period may be reduced to six months if the appellant’s healthcare practitioner confirms successful completion of an alcohol treatment program and is supportive of his driving privilege if his seizure is due to alcohol; and
• a completed Seizures and Loss of Consciousness form if the seizure was not due to alcohol.

33According to the respondent, the Registrar is basing this opinion on 15.6.3 (Substance Use Disorder – All drivers) and 17.6.3 (AW Seizures) of the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “CCMTA Standards”).

34As previously stated, the appellant is of the opinion that he was misdiagnosed by Dr. S., did not suffer a seizure, does not feel that he has alcohol use issues and therefore does not need an alcohol treatment program. He stated that he is hoping that when he gets a consultation with a neurologist that s/he “could shed light on what happened”.

35When specifically asked if he has ever driven under the influence (“DUI”) of alcohol, the appellant admitted that 20 years ago or more, he was charged with a DUI but that these charges were dropped. The Extended Driver Record Search For Criminal Code Convictions submitted by the Registrar shows no indication of a conviction for a DUI.

36Section 14(2)(a) of the Regulation allows the Registrar to consider 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.

37Although I am not bound by the CCMTA Standards, they may be persuasive. I note that Chapters 15 and 17 indicate that:

• seizures can occur or be caused by transient factors with no structural brain abnormality (a provoked seizure);
• seizures due to AW can be considered to be a specific type of provoked seizure;
• seizures can cause an episodic impairment of the functions necessary for driving and a driver cannot compensate for this;
• the general approach of the guideline for drivers who experience seizures is that the seizures must be controlled as a prerequisite to driving;
• most guidelines include a requirement for a seizure-free period, the purpose being to allow time to assess (in the case of an unprovoked seizure) the cause or to establish (in the case of a provoked seizure) the likelihood that the provoking factor has been successfully treated or stabilized; and
• a licence should not be reinstated unless the treating physician indicates that further seizures are unlikely and supports a return to driving.

38It currently has been just over two months since the appellant’s episode on March 14, 2021, when he suffered his first generalized seizure. As previously stated, based on consideration of all the evidence available to me, I find on a balance of probabilities that this seizure was a seizure due to AW. The appellant currently denies that he had a seizure, does not consider his previous drinking pattern as being “destructive” or problematic and believes that Dr. S. misdiagnosed him. The appellant has been abstinent from alcohol for just over two months and is currently awaiting an appointment with a neurologist so that s/he could “shed light” on what happened.

39I acknowledge that the appellant feels that this is all “a gigantic mistake”, is “hoping for relief” and that he has been put in a difficult position.

40While 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.

41In summary, I find on a balance or probabilities, that the appellant’s medical condition of seizure due to AW is likely to significantly interfere with his ability to drive a vehicle safely. In arriving at this conclusion, I have relied on the following:

1. On March 14, 2021, the appellant suffered a generalized seizure while sleeping;
2. Provoked seizures can occur or be caused by transient factors with no structural brain abnormality;
3. Seizures due to AW can be considered to be a specific type of provoked seizure and they can occur after cessation of drinking or significantly reduced alcohol consumption;
4. I find that had the appellant’s seizure on March 14, 2021 occurred while he was awake, on a balance of probabilities, the seizure would have caused him to have a sudden loss of consciousness and impaired functioning of his body;
5. Seizures such as generalized tonic-clonic or generalized clonic seizures cause an episodic impairment of the functions necessary for driving (cognitive, motor or sensory) and a driver cannot compensate for such an impairment;
6. I accept as self-evident that had the appellant been driving when he suffered the generalized seizure with loss of consciousness and motor impairment (shaking, vibrating), that the consequences to the appellant or the public could have been devastating;
7. It has been just over two months since the appellant suffered the seizure. The appellant still denies that this episode was a seizure, feels that he has been misdiagnosed, this is a gigantic mistake and that his alcohol consumption pattern could not have played a role. I find that this implies that the appellant has a reduced level of insight into his medical condition of seizure due to AW and the impact that this medical condition may have on his ability to drive. An individual’s level of insight is an important consideration when assessing the risk of an episodic impairment of functional ability to drive;
8. The appellant has been abstinent from alcohol and seizure free for slightly more than two months. I find that this time frame is too short to ensure that any provoking factor has been successfully treated or stabilized and that further seizures are unlikely;
9. No treating physician has indicated that further seizures are unlikely; and
10. No treating physician has indicated that they are supportive of the appellant’s return to driving.

42Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged its onus of establishing that the appellant’s seizure due to AW is likely to significantly interfere with his ability to drive a vehicle safely.

43I encourage the appellant to continue to remain abstinent and to follow through with the consultation with a neurologist when it is scheduled.

E. ORDER:

44For 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.