Date: 2022-06-09

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:

Kevin DeSousa

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

PANEL: Dr. Erica Weinberg, Member Jeffery Campbell, Vice-Chair

APPEARANCES

For the Appellant: Kevin DeSousa, Self-represented For the Respondent: Stella Velocci, Agent

Heard by Teleconference: May 20, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1By letter dated October 12, 2021, the Registrar of Motor Vehicles (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”) and requested that his treating physician complete a Substance Use Assessment (“SUA”) form. The Registrar takes the position that the appellant suffers from a medical condition, namely 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 that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. Issue

3The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

4To resolve that issue, we will address the following questions:

1. Does the appellant suffer from alcohol use disorder?

2. 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. The 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 ss. 14(1)(a) and 14(1)(b) of O. Reg. 340/94 (the “Regulation”) under the Act.

6Subsection 14(1)(a) of the Regulation 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 safely drive a motor vehicle of the applicable class. Under 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. Section 15(1.1) of the Regulation states that it is a condition of having a driver’s licence that the holder submit to certain medical and physical examinations and tests that the Registrar requires.

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.

8A person whose licence is suspended under these provisions may appeal 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 a medical condition.

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. Preliminary Issue

11During the course of the hearing, the appellant raised concerns with respect to the legality and legitimacy of the Medical Condition Report (MCR) dated October 8, 2021. It had been submitted by Nurse Practitioner Dunham (Ms. Dunham). The appellant noted that required fields on the MCR had not been completed. Upon questioning by the appellant, the agent for the Registrar agreed that three mandatory fields of the MCR had not been filled out as required. The three mandatory fields relate to the appellant’s address.

12We do not agree that the failure to fill out the three mandatory fields relating to the appellant’s address renders the report illegal or illegitimate: Kirkland v. Sue, 2018 ONSC 5896 (Div. Ct.). The appellant’s name and address are included in the report. There was no suggestion by the appellant that the report related to any other person other than themself. Ultimately, we admitted the report and relied upon it.

13Secondly, the Registrar’s correspondence to the appellant was clear that the basis for the licence suspension was alcohol use disorder. However, both the documentary and oral evidence provided by the parties made it apparent that the appellant was, and is, dealing with challenges involving the use of illicit substances such as crystal methamphetamine.

14The Respondent referred to this evidence in her closing submissions. We consider it appropriate to make several comments in this regard. Notwithstanding that the Registrar had medical information suggesting illicit substance use in its possession prior to its May 2022 letter to the appellant, it made no reference to it in the letter. There was no indication that the suspension was related at all to illicit substances. As a result, while the Registrar did not expressly submit in closing submissions that the Tribunal ought to maintain the suspension due to the illicit substance use, we would have declined had they done so as the lack of notice to the appellant would have resulted in significant unfairness to them.

15While evidence of illicit substance use could certainly be relevant to the ultimate issue of whether the appellant’s alcohol use disorder is likely to significantly interfere with their ability to drive safely, the Registrar would be expected to lead evidence and make submissions linking the two. There was no such evidence.

16So while we have considered the evidence of illicit substances as it relates to the appellant’s alcohol use, we have not considered whether the appellant’s use of illicit substances is itself likely to significantly interfere with the appellant’s ability to drive safely. Of course, if the Registrar is concerned about the appellant’s use of illicit substances it may take whatever action it considers necessary under the HTA.

E. Evidence and Analysis

a. Does the appellant suffer from alcohol use disorder?

17In support of its allegation that the appellant suffers from alcohol use disorder, the Registrar relies on the MCR of Ms. Dunham dated October 8, 2021, and on the SUA form of Ms. Dunham dated May 10, 2022.

18The appellant testified that in October 2021 he admitted himself to a Salvation Army Withdrawal Management Centre (WMC) in order to address his use of crystal methamphetamine, which he had begun to use after a break-up with his fiancé in August 2021. He testified that he did not believe that his use of crystal methamphetamine was a problem at that time but he entered the WMC in order to deal with it before it became problematic. At the intake at the WCM, Ms. Dunham queried the appellant regarding his alcohol use. This prompted Ms. Dunham to complete and submit the MCR to the Ministry of Transportation.

19On the completed MCR form Ms. Dunham noted that the appellant had alcohol use disorder, had started on Naltrexone for its treatment and she recommended follow-up with the local Rapid Access Addiction Medicine (RAAM) clinic.

20As per Dr. Weinberg’s knowledge as a licenced and duly qualified physician in the proving of Ontario¹, the Tribunal is aware that Naltrexone is indicated in the treatment of alcohol use disorder as a component of a comprehensive program to support abstinence and reduce the risk of relapse.

21On the May 2022 completed SUA form, Ms. Dunham diagnosed the appellant with severe substance use disorder with respect to both alcohol and illicit substances. Ms. Dunham indicated that the appellant had abstained from both alcohol and illicit substances for less than three months. She also indicated that the appellant had not completed a treatment program as a result of the reported conditions.

22The appellant testified that it is his belief that he does not have a problem with alcohol and that he has never taken Naltrexone. He stated that his preferred drink is beer, he occasionally drinks wine and, as of the date of the hearing, he has been abstinent from alcohol for 34 days. The appellant estimated that he previously averaged two regular sized bottles of beer per week, with at most 8-10 beers in one day in the past.

23The appellant failed to submit any medical documentation that would corroborate his testimony that he does not suffer from alcohol use disorder. While Ms. Dunham’s report constitutes hearsay, we consider it to be reliable given the context in which it was made – a mandatory report under the Act. We find that it establishes that the appellant suffers from alcohol use disorder, particularly given that the appellant presented no medical evidence rebutting Ms. Dunham’s report.

24Based on the above, we find on the balance of probabilities that the appellant suffers from alcohol use disorder.

b. If the appellant suffers from alcohol use disorder, is it likely to significantly interfere with his ability to drive a vehicle safely?

25The Registrar has the burden of establishing, 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. We find that the Registrar has met that burden.

26The Registrar requires confirmation from the appellant’s treating physician, specialist or nurse practitioner that the appellant has remained abstinent from alcohol for a period of one year. This time period could be reduced to six months if the healthcare practitioner confirms that the appellant has successfully completed an alcohol treatment program and is supportive of the reinstatement of his driving privilege.

27The Registrar is relying on 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from SUD may be eligible for a licence if they meet the criteria for remission and/or have abstained from the substance for 12 months. This CCMTA Standard also states that earlier re-licensing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program. The respondent also pointed out that Ms. Dunham, on the original MCR indicated that the appellant “reports of drinking and driving” and he “has been advised not to drink and drive going forward”.

28The appellant testified that the “exact words” Ms. Dunham asked of him in October 2021 during their “3-minute” conversation in her office were “have you ever had a drink and driven” [emphasis added]. He stated that he answered “Yes” to this question. The appellant admits to driving after 1-2 beers and possibly after three beers in the past but denies every being “intoxicated” while operating a motor vehicle. The appellant also pointed out that he has never had a “driving under the influence” (DUI) charge. We note this is verified in the “Extended Driver Record Search for Criminal Code Convictions” submitted as evidence.

29According to the appellant’s testimony, as of May 20, 2022, he had abstained from the use of alcohol for a period of 34 days. He testified that he admitted himself to the WMC a second time in March 2022 due to a reoccurrence of his use of illicit substances. He further testified that at the WMC he attended Alcoholics Anonymous meetings, as that is a requirement of the WMC program. He has not attended a RAAM clinic or an alcohol rehabilitation program. He testified that he feels he does not need an alcohol treatment program, nor would he attend such a program in order to have his driver’s license re-instated. The appellant stated that he currently has sufficient family support to manage his substance use issues. The appellant stated he could remain abstinent from alcohol as long as needed to get his driver’s license back. In addition, the appellant stated that he had an appointment with a psychologist in April 2022, mentioned his substance use to the psychologist at this visit, but the primary reason for seeing the psychologist had to do with reasons other than substance use.

30As 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 alcohol use disorder is likely to significantly interfere with his ability to drive a motor vehicle safely. We find that the Registrar has met its burden in this case.

31Both the MCR and the SUA form confirm alcohol use disorder, and the SUA form confirms severe alcohol use disorder. The MCR indicates that the appellant “reports a history of drinking and driving”, has been started on Naltrexone (for his alcohol use disorder) and follow-up with a local RAAM clinic was recommended. Ultimately, we prefer the opinion of Ms. Dunham, who is a nurse practitioner, over that of the appellant, who provided no supporting medical evidence in support of his position that he does not suffer from severe alcohol use disorder.

32As per 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. We acknowledge that the appellant’s driving record does not show any alcohol-related offenses. Although 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. Although the appellant testified he has been abstinent from alcohol for 34 days, we find this period is too short in the setting of severe alcohol use disorder, especially as he does not intend on attending any formal treatment program. Moreover, the appellant has not submitted a favourable recommendation from any healthcare practitioner for early re-licensing.

33Based on the totality of the evidence before us and after careful consideration, we find that the Registrar has established on a balance of probabilities that the appellant’s condition of alcohol use disorder is likely to significantly interfere with his ability to drive a motor vehicle.

F. Order

34For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s license for medical reasons.

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “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”.