Date: 2021-08-10

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:

Paolo Versolato

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Constantine Petrou, Member Colin Osterberg, Member

APPEARANCES

For the Appellant: Paolo Versolato, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: July 16, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1On May 13, 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 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 set aside 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 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 us.

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 has not proven on a balance of probabilities that the appellant suffers from alcohol use disorder.

12On May 10, 2021, the appellant’s family doctor, Dr. Jillian Bardsley, submitted a Medical Condition Report (“MCR”) to the Ministry of Transportation stating that the appellant was diagnosed with an uncontrolled substance use disorder and was non-compliant with treatment recommendations. Dr. Bardsley later reported that this was not true and that she would not have submitted the MCR to the Ministry of Transportation had she been aware of the true facts.

13Based on the May 10, 2021 MCR, the Registrar suspended the appellant’s driver’s licence and required that the appellant have his treating physician complete a Substance Use Disorder (“SUD”) form.

14According to the appellant, he had been drinking more than he thought was healthy during the COVID-19 pandemic and on April 16, 2021 he sought the assistance of his family doctor. The appellant was newly under the care of Dr. Bardsley, but as she was unavailable, he was seen by her associate, Dr, Wong. Dr. Wong informed Dr. Bardsley that the appellant was drinking 5-7 drinks per day and that he would start drinking in the morning to control withdrawal symptoms. Dr. Wong recommended that the appellant contact a rapid access addiction medicine (“RAAM”) clinic and start a medication, Naltrexone, to reduce his alcohol use. Dr. Wong reported to Dr. Bardsley that the appellant did not do those things.

15According to the appellant, the information reported to Dr. Bardsley by Dr. Wong is inaccurate. The appellant says that he never had withdrawal symptoms and had never consumed alcohol while working. The appellant testified that he commenced taking the medication prescribed by Dr. Wong soon after it was prescribed, and he produced a prescription receipt for Naltrexone dated April 17, 2021 into evidence. The appellant says that he had stopped drinking and started taking Naltrexone at that time. We find that the appellant’s testimony conflicts with other evidence and prefer the other evidence. Although the prescription receipt is dated April 17, 2021, the appellant advised Dr. Bardsley on May 3, 2021 that he was still drinking significant quantities of alcohol and that he was reluctant to start taking medication.

16Dr. Bardsley’s report dated June 8, 2021 states that the appellant first spoke to her by phone on May 3, 2021, at which time he reported drinking 6-8 shots of vodka per day, often starting in the morning. He tried to cut back the weekend prior to the appointment but was unable to do so because of withdrawal symptoms. The appellant was advised to start Naltrexone and contact a RAAM clinic. The appellant expressed a reluctance to start medication and declined to go to inpatient detoxification. Dr. Bardsley arranged to follow up with the appellant on May 7, 2021. We accept Dr. Bardsley’s version of the May 3, 2021 discussion. Her record is detailed and does not appear to have been simply a copy of the information passed along by Dr. Wong. The appellant denied Dr. Bardsley’s version of the conversation but did not seem to remember the events with clarity. His evidence was at times contradictory and was self-serving in this instance.

17Dr. Bardsley reported that, on May 7, 2021, she tried to call the appellant, but her call was not answered. Dr. Bardsley took this to mean that the appellant did not intend to follow her treatment recommendations or to remain abstinent. The appellant testified that on May 7, 2021 he was waiting for Dr. Bardsley to call but his phone did not ring and so he assumed that Dr. Bardsley did not have time to call him that day. The appellant says that his phone line operates through his computer and that he does experience missed calls from time to time. The appellant says that he had stopped drinking altogether by May 7, 2021 and was taking Naltrexone as prescribed by that time. He says that he was surprised when he received the notice of licence suspension that was sent May 13, 2021.

18According to Dr. Bardsley, had she been able to connect with the appellant on May 7, 2021, and he had reported the above, she “would not have reported his licence as he was engaging in treatment and had successfully abstained from alcohol”. Although Dr. Bardsley does not specifically say so in her report, we take this to mean that she would not have considered the appellant to be suffering from a reportable condition, ie. substance use disorder, because his substance use disorder was not “uncontrolled,” and the appellant was not “non-compliant with treatment recommendation” as outlined in the MCR form. We accept this evidence. Dr. Bardsley waited to file the MCR until after the appellant failed to answer her call on May 7, 2021. We find that this is evidence that Dr. Bardsley’s diagnosis of substance use disorder was dependant on whether she believed the appellant could abstain and whether he would follow her treatment recommendations.

19On June 8, 2021, Dr. Bardsley completed a SUD form which states that the “diagnosis that applies” is “severe substance use disorder” which was 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. The SUD form indicates that the appellant had abstained from alcohol for less than 6 months and had not completed a supervised treatment program.

20In addition to completing the SUD form, Dr. Bardsley completed a report on June 8, 2021, which provided a more complete history as is outlined above. Dr. Bardsley states that, if she had been able to connect with the appellant at his May 7 appointment and he had reported his participation in his rehabilitation and abstinence from alcohol, she would not have reported his condition to the Ministry of Transportation.

21We find Dr. Bardsley’s reports to be inconsistent. She appears to have indicated in the June 8, 2021 SUD form that the appellant has severe substance use disorder which is defined to include an inability to abstain and then indicates in her attached report that he had been able to abstain and was compliant with her treatment recommendations and she would not have reported the appellant to the Ministry of Transportation at all had she known that the appellant had abstained and was compliant with her treatment recommendations.

22We find it is probable that Dr. Bardsley interpreted the SUD form to mean that, by checking the box indicating severe substance use disorder, she is indicating the diagnosis which was previously made and not the diagnosis that she was presently attaching to the appellant’s condition. In other words, Dr. Bardsley is saying that the appellant’s diagnosis had been severe substance use disorder, and that diagnosis was based on incorrect information, not that he currently meets the criteria for the diagnosis.

23This is supported by Dr. Bardsley’s July 8, 2021 report in which she states that the appellant continued to abstain from alcohol and was continuing to take Naltrexone with excellent compliance. Dr. Bardsley reported that lab work confirmed his abstinence from alcohol. She no longer considered the appellant to have severe alcohol use disorder.

24At the hearing, the appellant testified that he has never driven a vehicle after drinking and does not drink while working. His family and friends have never suggested to him that his drinking was a problem. The appellant says that he has been abstinent from alcohol since at least May 3, 2021. He has been compliant with the doctor’s treatment recommendations and plans to continue abstaining from alcohol in the future. He has never had an alcohol related encounter with the police. The appellant’s driving record discloses no alcohol-related infractions.

25We find that the Registrar has not proven on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol use disorder. Dr. Bardsley’s reports are internally inconsistent, and the Tribunal is unable to conclude that the appellant suffers from substance use disorder on the basis of those reports. Dr. Bardsley states that she would not have reported the appellant’s condition to the Ministry of Transportation if she had been made aware of the appellant’s circumstances on May 7, 2021. We find this to mean that she would not have diagnosed the appellant with severe and uncontrolled substance use disorder at that time. That being the case, it does not make sense that the June 8, 2021 report can be taken to mean that Dr. Bardsley was diagnosing the appellant at that time with severe substance use disorder. The form does not specifically state that this is being diagnosed and Dr. Bardsley’s written report states that the appellant was abstinent and compliant with treatment recommendations at that time. It also states that the appellant would not have been reported to the Ministry of Transportation if Dr. Bardsley had been able to speak with the appellant earlier.

26Moreover, Dr. Bardsley later confirmed in July 2021 that the appellant does not suffer from alcohol use disorder. The appellant’s lab result supported this conclusion.

27Although the appellant’s evidence was not entirely consistent itself, and while we have some concerns about the level of the appellant’s reported alcohol consumption, the onus is on the Registrar to prove the presence of a medical condition and we find that it has not done so.

28We find that the Registrar has not established 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?

29Given that we have found that the Registrar has failed to establish on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol use disorder, we need not determine whether that is a medical condition which is likely to significantly interfere with his ability to drive a motor vehicle safely.

E. ORDER

30For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.