Brian A. Kotowicz v. Registrar of Motor Vehicles, 2022 CanLII 14961

Date: 2022-02-23

An 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:

Brian A. Kotowicz

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Dr. Dimitri Louvish, M.D., Member

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Brian Kotowicz

For the Respondent:

Kyle Biel, Agent

Heard by teleconference:

December 15, 2021

Background

1By letter dated November 16, 2015, the Registrar of Motor Vehicles (the “respondent”) advised Brian A. Kotowicz (the “appellant”) that his licence was being suspended for medical reasons. This decision was made after the respondent received an unsolicited letter, dated October 8, 2015, from the appellant’s physician. The medical condition was not specified at that time but was subsequently identified as alcohol use disorder. The respondent requested that the appellant submit information which can be sent to their Medical Review Team for further consideration. The information requested by the respondent included a diagnosis, treatment, current status, and confirmation that the condition is controlled.

2In the years that would follow, the appellant submitted information to the respondent for consideration of reinstatement of his driver’s licence. After review, the respondent continued to confirm the decision to suspend in letters dated November 26, 2019, January 23, 2020, and November 20, 2020. The reports submitted by the appellant confirmed a finding of a long-standing history with alcohol resulting in cerebellar ataxia. As such, the medical condition noted on subsequent letters from the respondent addressed alcohol use disorder. The appellant was requested to have his healthcare practitioner complete a Substance Use Assessment form.

3Currently, the respondent is requesting proof of a 1-year abstinence from alcohol. According to the respondent, this period may be reduced to six months if the appellant’s healthcare practitioner confirms that he has successfully completed an alcohol treatment program and is supportive of the appellant’s driving privilege.

Issue

4The issue to be determined is whether the appellant’s medical condition, if any, is likely to significantly interfere with his ability to drive a motor vehicle safely.

Result

5For the reasons set out below, we confirm the respondent’s decision.

Law

6The respondent 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 that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

7One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:

(1) An applicant for or a holder of a driver’s licence must not…

(a) suffer from any mental, emotional, nervous or 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 the Regulation allows the Minister of Transportation (“Minister”) 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 they are not binding requirements. In this matter, the Registrar is relying on the CCMTA standard relating to alcohol use disorder.

9Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

10The respondent has the burden of establishing the ground 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 respondent.

Evidence and Analysis

11The appellant acknowledges that he consumes alcohol, but feels it is no longer an issue for him. At the hearing, he was forthcoming with information and described a turbulent past where alcohol was used as a “morale booster” during his time at an air force base in Kingston, Ontario. He has attended treatment in the past but appears to continually relapse. His licence was suspended in the 1990s for impaired driving.

12In response to the respondent’s initial letter in 2015, the appellant’s doctor submitted a Medical Report on his behalf on November 1, 2019 confirming a diagnosis of alcohol use disorder and associated illnesses. The appellant also submitted an optometry report from an August 10, 2018 examination.

13By letter dated November 26, 2019, the respondent replied to the appellant advising that his licence would remain under suspension for alcohol use disorder. He was asked to have his healthcare practitioner complete a Substance Use Assessment form. He provided the same reports he previously submitted that were already on file with the respondent.

14By letter dated January 23, 2020, the respondent once again requested the outstanding information as well as confirmation that he remain abstinent from alcohol for a period of one year. According to the respondent, this period may be reduced to six months if the appellant’s healthcare practitioner confirms that he has successfully completed an alcohol treatment program and is supportive of the appellant’s driving privilege. The appellant was also asked to include the results from recent bio-chemical markers (MCV, GGT) with a clinical explanation for any level outside the normal laboratory range.

15The appellant’s doctor completed and submitted the Substance Use Assessment form on July 30, 2020. By letter dated November 20, 2021, the respondent advised that based on their review, his driving privilege would remain suspended.

16The respondent asserts that the appellant suffers from alcohol use disorder and this may make him a danger to other road users. On more than one occasion, the respondent requested information from the appellant and after consideration of the information, maintained the suspension. To date, the appellant has not been able to provide any compelling documentation to convince the respondent’s Medical Review Team to allow the reinstatement of his driver’s licence.

17The respondent submits that at this time, the appellant has not demonstrated a satisfactory period of alcohol abstinence for the respondent to provide further consideration. Nor has the appellant attended treatment to address his addiction.

18The appellant testified he has experienced some ups and downs in life. He admits to exercising poor judgement in the past and as a result has been unable to drive for several years. He testified that he has been using taxis to get around for the past 4 years. He also shared that he attended an alcohol treatment program from August 29, 2012 to March 6, 2013. He stated that his longest period of alcohol abstinence dates back several years and was for 21 days. The appellant is currently on disability pension and lives alone. He has other people picking up groceries for him.

19We find that the appellant suffers from a long-standing alcohol problem which remains unresolved. He minimized the severity of his addiction and did not appear motivated to seek treatment at this time. Nor has he been able to demonstrate a significant period of sobriety to give assurance that his addiction is under control.

20Along with the HTA, the respondent relied on section 15.6 of the CCMTA Standards which provides the guidelines for assessment. We agree that the medical standards are clearly established in this guideline and their application in this case are prudent. The appellant has failed in meeting the guideline and presents with a serious addiction that is neither resolved nor currently being addressed.

21We find that the appellant has alcohol use disorder. Furthermore, we find that the appellant’s past alcohol treatment and rehabilitation, while commendable, is dated and cannot be considered in the present circumstances. The dangers of the impact of alcohol use on highway safety are well known and we take adjudicative notice of it. We find that the appellant’s condition is likely to significantly interfere with his ability to operate a motor vehicle safely.

22Based on a careful consideration of all the evidence before us, we are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. Therefore, the respondent’s decision is confirmed.

WE ORDER AS FOLLOWS:

23For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver licence is confirmed.