Terry Clegg v. Registrar of Motor Vehicles, 2021 CanLII 64250

Original Date: 2021-07-19

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 pursuant to section 47(1) of that Act – to suspend a licence.

Between:

Terry Clegg

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

PANEL: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Terry Clegg, Self-represented

For the Respondent: Stella Velocci, Agent

Witnesses, appellant Mark Rogowski, Tammy Ellefsen & Tanner Clegg

Heard by Teleconference: July 7, 2021

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G driver's licence. The suspension took effect April 7, 2021 and the cause of the suspension was the appellant’s alleged alcohol use disorder.

B. ISSUE

2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically, alcohol use disorder, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.

C. CONCLUSION

3For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition however this condition is not likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, the decision by the Registrar to suspend the appellant’s class G driver’s licence is set aside.

D. LAW

4The Registrar has the authority under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (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 that a licence maybe suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”

5One ground to suspend a driver’s licence under s.47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

6Sections 203.1, 203.2 and 204 of the HTA state as follows:

Every prescribed person shall 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. 2015, c. 14, s. 55.

A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle. 2015, c. 14, s. 55.

A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,

(a) the name, address and date of birth of the reported person. (b) the condition or impairment diagnosed or identified by the person making the report,

7Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA states that a holder of a driver’s licence must not suffer from “any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”

8Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.

9The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.

10Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

E. EVIDENCE and PARTIES’ SUBMISSIONS

Registrar’s evidence

11The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant’s G-class licence, including section 14(2)(b)(ii), which empowers the Ministry to request information about a condition that may affect the appellant’s ability to drive and requires licence-holders to provide the requested information.

12The Registrar received an unsolicited medical report dated March 28, 2021 from an emergency physician at the Royal Victoria Hospital in Barrie. This report stated the appellant had an uncontrolled substance use disorder and specified alcohol.

13The Registrar sent a letter to the appellant on April 7, 2021 informing the appellant of the report and suspending their class G driver licence. The letter indicated the licence was suspended based on an alcohol use disorder. The letter included a substance use assessment questionnaire to be filled out by the appellant’s health care provider.

14The Registrar pointed out the substance use assessment filled out on April 20, 2021 by Dr. Marcus Yacoon. This verified the diagnosis of substance use disorder an informed the Registrar that the appellant was in residential treatment.

15The Registrar pointed out that a further period of time was needed along with proof of abstinence for a period of a year. The Registrar included another substance abuse questionnaire.

16The Registrar pointed out another substance abuse questionnaire was received dated June 3, 2021 and filled out by Dr. Nilay Somasundaram. This questionnaire confirmed the condition of alcohol abuse disorder no longer existed but confirmed the period of abstinence was less than six months. The questionnaire also confirmed the appellant had completed an inpatient alcohol treatment program.

17The Registrar responded to this report stating the licence remained under suspension and consideration or reinstatement would only occur after a year of proven abstinence or a shorter period of six months if the appellant provided proof of attendance at a recognized alcohol treatment program.

18The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding driving safety and the effect of medical conditions on the ability to drive a motor vehicle. The agent noted that the recommendations of the CCMTA were recommendations and not the law.

19The Registrar pointed out the dangers substance abuse could present while driving. The CCMTA Standards outline the dangers of substance abuse. The Registrar directed the Tribunal to section 15.6.3 of the CCMTA Standards. This section recommends a period of 12 months of abstinence or a lesser period of abstinence if a recognized treatment program has been completed.

20The Registrar noted the fact that the appellant’s testimony revealed he had been in treatment approximately 20 years ago and had remained sober for approximately one year but had started back drinking resulting in the current diagnosis of alcohol use disorder

21The Registrar drew attention to the appellant’s driving record. There were no reports of any alcohol infractions.

22The Registrar pointed out that the medical evidence confirms a diagnosis of alcohol use disorder. The Registrar also stated the appellant has taken very positive steps, however not enough time has passed to be sure the appellant will stay alcohol free and a longer period of suspension is needed.

Appellant’s evidence

23The appellant admitted he had a condition associated with alcohol. He testified that abdominal pain brought him to the emergency department of the Royal Victoria hospital where the emergency doctor made a diagnosis of jaundice and alcoholic cirrhosis.

24The appellant testified that the emergency doctor recommended immediate cessation of alcohol consumption and immediate admission to detox. The appellant testified the emergency doctor told him he would die in a few months if he continued to drink alcohol.

25The appellant testified the emergency doctor informed him that he should not drive as there was a real danger of an alcohol withdrawal seizure with the sudden cessation of alcohol. Such an event would be disastrous if the appellant was driving a motor vehicle. The emergency doctor also informed him he was sending a report to the MTO (Ministry of Transportation of Ontario).

26The appellant stated he stopped drinking immediately and has not drank since the visit to the Royal Victoria Hospital in Barrie on March 28, 2021.

27The appellant testified he tried to get into the detox in Barrie but no beds were available. The next day he made contact with Freedom from Addiction, a residential treatment Centre in Aurora and was admitted there March 30, 2021. He stayed in residential treatment for 40 days, completed the course, and continues in the follow up program.

28The appellant drew my attention to a letter dated May 3, 2021 from Dr. Lindsay Myles, a liver specialist in Barrie, Ontario who verified the diagnosis of alcoholic cirrhosis and provided complete blood work showing the improvement of the condition and verifying the appellant had stayed alcohol free. The letter confirms the need for the appellant to remain alcohol free for the rest of his life.

29The appellant testified he has joined Alcoholics Anonymous to help in follow-up and attends meetings twice a week. He finds the meeting helpful and has accepted the fact he is an alcoholic and needs to remain abstinent.

30The appellant testified he feels much better physically and emotionally since he has abstained from alcohol. He is happier and has more energy and is enjoying his family life much more since abstaining from alcohol.

31The appellant testified that his attention to business matters had declined due to his alcohol consumption. Since abstaining from alcohol, he was able to take a more active part in his business as well as his family life.

32On cross-examination by the Registrar, the appellant admitted he had attended an alcohol treatment centre 20 years ago and had returned to heavy drinking within a year. He testified at that time he was not committed to abstaining. Now being older, he understands the seriousness of the cirrhosis diagnosis. He is aware of the impact his drinking had on his business and family and for all these reasons he will not go back to alcohol consumption.

33Mark Rogowski appeared as a witness for the appellant. He testified he had years of experience in AA and had become the appellant’s sponsor while the appellant was in the Freedom from Addiction Rehabilitation Treatment Centre in Aurora. He noted the appellant was committed to the program and attended all meetings and calls. He was knowledgeable and understood the need to stay abstinent.

34Tammy Ellefsen, the appellant’s wife, appeared as a witness for the appellant. She testified the appellant was completely free of alcohol since the night she took him to the Royal Victoria Hospital in Barrie. She noted the emergency doctor told her that the reason for driving suspension was the risk of seizure with the sudden cessation of alcohol. She stated that her husband was a new man since abstaining from alcohol. He was happier and had more energy and was taking an active part in family and business life. She felt her husband was committed to remaining abstinent.

35Tanner Clegg, the appellant’s son, appeared as a witness for the appellant. He testified his father was no longer drinking alcohol, was taking part in the business, and was active in managing the company. He noted that both he and his brother found it time-consuming and awkward to drive their father from building site to building site but they were doing it. He also noted the appellant was happier and brighter and taking an active part in family as well as business activities. He felt his father was a changed man and would not go back to alcohol consumption.

F. ANALYSIS

Does the Appellant Suffer from Alcohol Use Disorder?

36The record contained several pieces of documented medical evidence. First, is the unsolicited medical condition report from the Royal Victoria Hospital emergency physician who indicates that the appellant suffers from severe alcohol use disorder. Second, there is the medical report and lab work from Dr. Lindsay Myles confirming the diagnosis of alcoholic cirrhosis and noting the improvement in the blood work since abstinence from alcohol.

37Further medical evidence is contained in the alcohol use questionnaires which initially confirm a diagnosis of severe alcohol use disorder but by time of the June 3, 2021 alcohol use questionnaire completed by Dr Nilay Somasundaram, the diagnosis of alcohol use disorder is no longer indicated.

38Testimony from the appellant and his wife suggests that the emergency physician’s main concern was alcohol withdrawal seizure associated with his treatment plan of immediate cessation of alcohol. There would be a high risk of alcohol withdrawal seizure and it was prudent to suspend the driving privilege in the withdrawal period and to urge immediate admission to detox. The emergency physician did not focus on the long-term risks to driving.

39Considering all of the above, I am satisfied that the appellant had a medical condition at the time of the suspension. I also believe the emergency physicians concerns regarding possible alcohol withdrawal seizure were valid and the suspension was necessary at that time.

Is the appellant’s alcohol use disorder likely to significantly affect the appellant’s ability to drive a motor vehicle safely?

40Having determined the appellant had a condition, namely alcohol use disorder, I must now determine whether the Registrar has discharged its burden of proving that this condition is likely to significantly interfere with the appellant’s ability to drive a motor vehicle safely.

41In my view, on the evidence before me I am not satisfied that the Registrar has discharged its burden of establishing that the appellant’s condition is likely to significantly interfere with his ability to drive safely. I am persuaded in making this determination by the appellant’s testimony and the testimony of the witnesses. I would also note that the appellant has a perfect driving record and has completed a 40-day inpatient detox and rehabilitation program at recognized residential treatment facility.

42The appellant is following up with the rehabilitation facility as well as with AA and this is verified by the testimony of his AA sponsor.

43The appellant’s wife and son verify the fact the appellant has abstained from alcohol and that it has improved the quality of his family as well as business life. Both family members express optimism that he will remain alcohol free.

44The appellant acknowledges the fact he has cirrhosis and resuming drinking will endanger his life and he testifies he will not resume drinking.

45The Registrar points out the CCMTA guidelines which outline the dangers of severe alcohol use disorder. The Registrar points out that not enough time has passed to be sure the appellant will be compliant. The Standards suggest a year of abstinence unless an accredited program has been taken. If an accredited program has been taken, then a shorter time is indicated. The MTO has decided that period should be six months but this is just their suggestion and is not the law.

46The Registrar pointed out that the appellant had been in rehabilitation 20 years ago but had returned to drinking within a year and this could happen again. The appellant argued that things were different at this time and his maturity and the threat of cirrhosis were going to make him follow through this time.

47The appellant’s position was that his licence was suspended mainly to prevent him from driving in the period he was at risk for an alcohol withdrawal seizure and that this period was long passed.

48The appellant’s position was that he had complied with all the steps his doctors had suggested and he was going to follow through with AA and outpatient therapy. Waiting a few more weeks was arbitrary and unnecessary.

49The CCMTA Standards are not binding on the Tribunal, though the Regulation refers to them specifically and gives the Ministry the authority to consider them in making medical suspension decisions. In my view, the CCMTA Standards should be accorded significant weight in medical suspension cases, including in the present case. However, as the appellant pointed out, each case has to be considered individually.

50The emergency room physician’s concern of an alcohol withdrawal seizure was a large factor in the licence suspension. There is no evidence that any seizure occurred and several months have passed since the withdrawal of alcohol. In my medical opinion the danger of alcohol withdrawal seizure is over at this point in time.

51The Registrar suggests the evidence from the unsolicited medical report is strong enough to establish that the medical condition confirmed by the emergency doctor at Royal Victoria Hospital would affect the appellant’s ability to drive safely.

52While I agree that the unsolicited medical report contains enough information to conclude that the appellant suffers from alcohol use disorder, I am not satisfied, on the evidence before me, that it is likely to significantly interfere with the appellant’s ability to drive safely.

53I am mindful that the burden of proof rests with the Registrar in these matters and the Registrar has not shown this condition is likely to significantly interfere with the appellant’s ability to drive safely.

ORDER

54Pursuant to subsection 50(2) of the HTA I set aside the Registrar’s decision to suspend the appellant’s class G driver’s licence.