Date: 2022-04-07

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:

John Bowes

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Erica Weinberg, Member Kevin Lundy, Member

APPEARANCES:

For the Appellant: No one appeared

For the Respondent: Kyle Biel, Agent

Observer: Declan Keogh

Heard by Teleconference: March 31, 2022

A. Overview:

1On October 7, 2021, the Registrar of Motor Vehicles (the ‘Registrar’) suspended the Class A driver’s licence held by John Bowes (the ‘Appellant’) pursuant to subsection 47(1) of the [Highway Traffic Act]¹. On December 7, 2021, the Appellant appealed that suspension to the Licence Appeal Tribunal (the ‘Tribunal’).

2The issue in this appeal is whether the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive a vehicle safely.

3Having considered all of the evidence and for the reasons that follow, we find that the Registrar has met its burden on the balance of probabilities that the Appellant’s addiction to alcohol is likely to significantly interfere with his ability to drive a vehicle safely.

B. ISSUES:

4The issue in this appeal is whether the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive a vehicle safely. To answer that question, we will address the following issues:

a. Does the Appellant suffer from a medical condition, specifically an alcohol use disorder (‘AUD’)?

b. If Registrar demonstrates the above AUD, is this condition likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

5Under the HTA, the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In the present case, the Registrar suspended the Appellant’s driver’s licence pursuant to subsection 47(1) of the HTA and subsection 14(1)(a) of O. Reg. 340/94 under the HTA (the ‘Regulation’). Subsection 14(1) of the Regulation provides as follows:

14. (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; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

6Under subsection 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.

7A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under subsection 50(1) of the HTA.

8On appeal, the Registrar bears the burden, on a balance of probabilities, of establishing that the licence should remain suspended.

9Following a hearing, the Tribunal may, under subsection 50(2) of the HTA, confirm, modify, or set aside the decision or order of the Registrar.

10Section 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 subsection 14(1) of the Regulation have been met. Although the Tribunal is not bound by these guidelines, it may consider them in its analysis.

D. PRELIMINARY ISSUE:

11The hearing of this matter commenced at 9:30 a.m. on March 31, 2022. Kyle Biel appeared as Agent for the Registrar. The appellant did not call into the hearing.

12Tribunal staff attempted to contact the Appellant, leaving both email and voice messages for him at a telephone number that he provided on his Notice of Appeal (‘NOA’) and at an email address provided at the case conference on December 22, 2021. All three telephone calls routed to an automated message indicating that the number was not in service.

13The Tribunal sent the Notice of Hearing to the Appellant by email on February 22, 2022 confirming the date, time and call-in information for the hearing. The Case Conference Report and Order listed 9:30 a.m. on March 31, 2022 as one of the three potential dates chosen for the hearing.

14On March 27, 2022, the Tribunal sent an email to both parties confirming the date and time of the present hearing. The Agent for the Registrar confirmed receipt of that reminder. The Agent also indicated that on March 28, 2022, he had also attempted without success to contact the Appellant at the email provided at the case conference. Rule 4.4 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure Version I (October 2, 2017) requires a party or a party’s representative to “notify the Tribunal and the other parties or their representatives, in writing, as soon as possible, of any change in their contact information.” As of the date of the hearing, the Appellant had not provided any change in contact information to either the Registrar or the Tribunal.

15Having regard to all the circumstances and noting that none of the Tribunal’s emails were returned as undeliverable, we are satisfied that the Appellant received adequate notice of this hearing.

16Subsection 7(3) of the Statutory Powers Procedure Act (‘SPPA’) permits a tribunal to proceed in the absence of a party so long as it has provided notice of the hearing. Furthermore, the Notice of Hearing issued to the Appellant included the caution that, “if you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding,” as required by subsection 6(5)(d) of the SPPA.

17After waiting until 10:05 a.m. to allow the Appellant a reasonable opportunity to call into the teleconference or to notify that Tribunal that he could not do so, we commenced the hearing and heard the Registrar’s evidence. The teleconference line remained open until the end of the hearing at 10:39 a.m. The Appellant did not call into the hearing before its conclusion.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from an AUD?

18We find, on a balance of probabilities, that the appellant suffers from an AUD.

19The Registrar’s interaction with the Appellant with respect to his medical history since early 2019 offers a useful context for the present suspension of the Appellant’s driver’s licence on October 7, 2021.

20Specifically, on February 4, 2019, the Appellant filed a medical report periodically required to maintain his commercial licence. This report, completed by Dr. M., the Appellant’s family physician since 2001, referenced no physical health issues, but instead included a notation of “alcohol abuse/binge drinking” under the section titled “Complete Health History.” Dr. M. also stated in the report that the Appellant was undergoing treatment for this issue at Community Addiction Services of Niagara (‘CASON’). At that time, the Registrar opted not to suspend the Appellant’s licence, but instead sent him a letter on March 25, 2019, requesting that he submit a completed Substance Use Assessment Form (‘SUA’) to clarify the issue flagged by his doctor.

21When the Registrar received the complete SUA, dated April 26, 2019, it did not include a diagnosis. Instead, Dr. M. checked “other” and again included a brief handwritten explanation of “alcohol abuse/binge drinking.” He also indicated that the Appellant had abstained from the consumption of alcohol since March 20, 2019 and had completed a residential treatment program from March 25 to April 11, 2019, both less than six months before the date of the SUA. Dr. M. further indicated that the analysis of the Appellant’s blood for biochemical markers indicated normal mean corpuscular volume (‘MCV’), but a significantly elevated level of gamma glutamyl transferase (‘GGT’). Dr. M. indicated that the elevated level of GGT may be due to alcohol use. On June 1, 2019, the Registrar requested repeat results of recent biochemical markers MCV and GGT.

22After subsequent laboratory results revealed normal levels of the biochemical markers, on July 10, 2019, the Registrar approved the Appellant’s commercial driver’s licence. However, in light of the earlier issues of concern in the prior report, on September 11, 2019, the Registrar requested that the Appellant submit a follow-up assessment by November 10, 2019. This assessment was required to include confirmation that his alcohol consumption remained within minimal risk drinking levels, supported by results of recent biochemical markers with a clinical explanation if the results exceeded the normal laboratory range. The letter cautioned the Appellant that a failure to provide the updated assessment by the due date could result in the suspension of his driving privileges.

23When Dr. M. responded to this request on November 6, 2019, he indicated that the Appellant’s GGT was again elevated and he could not confirm that the Appellant’s alcohol consumption remained with the minimal risk drinking levels. At that time, the Appellant had advised Dr. M. that he had been in detox from October 26 to November 1, 2019 and was scheduled for another period of residential treatment from November 26 to November 30, 2019.

24As a result, on December 3, 2019, the Registrar sent a letter to the Appellant to advise that his driver’s licence had again been suspended pursuant to subsection 47(1) of the HTA. This letter advised the Appellant that to reinstate his licence he must provide a complete SUA as follows:

Take this letter to your treating physician, specialist or nurse practitioner when your condition improves and have the following information sent to the Medical Review Section:

• The enclosed form(s) completed in full and all questions answered and must include:

• Confirmation that you have remained abstinent from alcohol for a period of one year. This period may be reduced to six months if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege. [Emphasis in original]

25On December 23, 2019, Dr. M. submitted a new SUA, again with the annotation “alcohol abuse disorder with binge drinking” across from the checked “other” diagnosis box. He also enclosed a letter from a ‘Recovery Home’ dated December 13, 2019 that confirmed the Appellant’s attendance at that facility since November 28, 2019. This letter also indicated that as part of their program, the Appellant was mandated to attend five meetings a week outside of the ‘Recovery Home,’ such as Alcoholics Anonymous (‘A.A.’) and that the Appellant had been looking for an A.A. sponsor. Laboratory results indicated levels of biochemical markers GGT and MCV “within normal laboratory ranges.” However, as page 2 of the SUA was missing, the Registrar asked him to provide this part of the form.

26A complete SUA, including page 2, was transmitted to the Registrar on January 27, 2020. In this completed report, Dr. M. confirmed both the Appellant’s completion of the residential treatment program as of November 28, 2019 and abstinence for six months. As a result, on February 21, 2020, the Registrar approved the Appellant’s driving licence. However, this same letter advised the Appellant that he would be required to complete a further medical report on June 23, 2020.

27On July 9, 2020, the Registrar sent a letter to the Appellant to remind him of the required follow-up assessment with a revised due date of September 7, 2020. This assessment was required to include confirmation that his alcohol consumption remained within minimal risk drinking levels, supported by results of recent biochemical markers with a clinical explanation if the results exceeded the normal laboratory range.

28The Appellant repeatedly telephoned the Registrar to request extensions to file the required information. As a result, on February 18, 2021, the Registrar ultimately provided the Appellant until March 20, 2021 to submit the outstanding information.

29On October 4, 2021, the Registrar received an updated SUA. In this assessment, Dr. M. provided a diagnosis of severe substance use disorder (i.e., severe AUD). He indicated that the Appellant had completed another residential treatment program from September 13 to 30, 2021 and had abstained from alcohol for less than six months.

30Given the Appellant’s return to alcohol abuse, on October 7, 2021, the Registrar suspended his driving privileges. The October 7, 2021 letter stated that reinstatement of his licence would require the following:

Take this letter to your treating physician, specialist or nurse practitioner when your condition improves and have the following information sent to the Medical Review Office:

• Confirmation that you have remained abstinent from alcohol for a period of one year. This period may be reduced to six months if your physician confirms that you have successfully completed an alcohol treatment program post your relapse and is supportive of your driving privilege [Emphasis in original]

31After receiving an update from the residential treatment facility, on December 17, 2021, the Registrar revised the above criteria to the following:

Take this letter to your treating physician, specialist or nurse practitioner when your condition improves and have the following information sent to the Medical Review Office:

• Confirmation that you have remained abstinent from alcohol for a period of six months and your healthcare practitioner is supportive of your driving privilege

32As of the date of the hearing, the Registrar had not received updated information consistent with the above requirements.

33The Registrar also submitted a certified copy of the Appellant’s driving record, which as the Appellant correctly noted in his NOA, lacks any convictions for impaired driving.

b. If the Appellant suffers from an AUD, is it likely to significantly interfere with his ability to drive a vehicle safely?

34The Registrar has the burden of establishing, on a balance of probabilities, that the Appellant’s AUD is likely to significantly interfere with his ability to drive a motor vehicle safely. In light of the Appellant’s history of revolving relapses described at paragraphs 21 to 33 above, we find that the Registrar has met that burden.

35Pursuant to subsection 16(b) of the SPPA, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.” Based on Dr. Weinberg’s knowledge as a licensed and duly qualified physician in the province of Ontario, we are aware that the reference to “alcohol addiction” in subsection 14(2) of the Regulation represents older terminology for a condition now described as AUD. On that point, the Registrar’s Agent agreed that he could have alternatively proceeded under paragraph (b) of subsection 14(1) of the Regulation on the basis that the Appellant suffers from a “mental, emotional, nervous or physical condition or disability likely to significantly interfere with [his] ability to drive a motor vehicle” based upon the same evidence submitted.

36At the hearing, the Registrar’s Agent specifically relied upon 15.6.3 (Substance Use Disorder – All Drivers) of the CCMTA Standards. The CCMTA Standards recommend that before licence reinstatement, individuals who are found to be abusing or dependent on drugs or alcohol should demonstrate a period of abstinence of twelve months or undergo a treatment program and obtain the support of their health care professionals to shorten the abstinence recommendation.

37In the present case, given the Appellant’s recent completion of a residential treatment program, the applicable outstanding requirements for reinstatement would necessitate abstinence for a specified number of months and a favourable recommendation from the Appellant’s treating health care physician.

38In his NOA, the Appellant wrote that:

i. he has “not driven a semi in 3 years” since his prior suspension;

ii. he has not been charged with a “DUI”; and

iii. he offered to voluntarily downgrade his commercial A class licence to a G class licence.

39As noted above, the Appellant’s Extended Driver Record includes no convictions for any alcohol-related offences. It is also worth noting that his driving record also includes no charges in relation to driving while lawfully suspended or any demerits.

40Although the Appellant should be commended for this, and this represents evidence in favour of licensure, we are also aware that not being charged with an alcohol-related offence does not necessarily mean that the Appellant has never driven a vehicle under the influence of alcohol, or that he would not do so in the future. Significantly, he did not assert any period of abstinence or even consumption at within minimal risk drinking levels in his NOA.

41With respect to the issue of downgrading from a commercial licence to a general licence, the Registrar’s Agent explained that such a voluntary transition would not resolve the Registrar’s concerns over the Appellant’s ability to drive safely regardless of the class of motor vehicle he operates.

42The present situation relates to an entirely different process. Here, the Registrar has requested the medical assessment in direct response to a specific issue identified as a risk to the Appellant’s ability to operate any motor vehicle in a safe manner. Section 15.6.3 of the CCMTA Standards is the same for all drivers regardless of the class of their licence. In other words, if a driver has been found to fall under any of the qualifications listed under subsection 14(1) of the Regulation, his or her driving licence would be suspended regardless of its class. In any event, as of the date of the hearing, the Agent for the Registrar confirmed that the Appellant still held a Class A commercial driver’s licence, albeit suspended.

43Pursuant to the CCMTA Standards, alcohol is a depressant drug that has both sedative and disinhibitory effects and impairs a driver’s judgment and insight, reflex control, alertness and motor coordination. All of these factors can affect safe driving. Furthermore, the CCMTA Standards state that for regular users of alcohol, withdrawal from alcohol may trigger seizures. Seizures cause an episodic impairment of the functions necessary for driving, for which a driver cannot compensate.

44As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s addiction is likely to significantly interfere with his ability to drive a motor vehicle safely.

45Although the Appellant has been able to reduce his consumption on an intermittent basis sufficient to satisfy the Registrar that his driving privilege may be reinstated, he has repeatedly fallen into relapses after a few months. Similarly, while he has repeatedly engaged in treatment, his history of cyclical relapses strongly suggests that the treatment process has so far failed to resolve his AUD on more long-term basis. We have no evidence before us, such as current levels of biochemical markers, to confirm whether or not the Appellant is currently abstinent, nor any information regarding his supports, incentives or active cooperation with the Registrar’s reinstatement procedure to help him continue his abstinence from alcohol, particularly as these factors relate to driving. Weighing these concerns against the Appellant’s clean driving record, which as noted above favours licensure, we conclude that the Registrar has met its burden.

46Therefore, based on the above, we find the Registrar’s insistence on the confirmation from a treating health care practitioner of the Appellant’s recent continuous abstinence from alcohol for a period of six months is both reasonable and prudent.

47Furthermore, we also find that the Registrar’s requirement that the appellant provide the Registrar with a recommendation by a treating health care practitioner supportive of the Appellant’s driving privilege is both reasonable and prudent.

48Based on the totality of the evidence before us and after careful consideration, we also find that the Registrar has discharged the onus of establishing that the Appellant’s AUD is likely to significantly interfere with his ability to drive a vehicle safely.

49Driving a motor vehicle is a privilege, not a right. While we understand the practical challenges that can result from a licence suspension, we must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

F. ORDER:

50For the reasons set out above, pursuant to subsection 50(2) of the HTA, we confirm the Registrar’s decision to suspend the Appellant’s driver’s licence for medical reasons.

Footnotes

1. 1R.S.O. 1990, c. H.8 (the ‘HTA’)