Date: 2022-06-11

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:

Spencer Sloan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Spencer Sloan, Appellant

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: June 9, 2022

A. Overview:

1Spencer Sloan (the “appellant”) appeals the March 12, 2022 suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The issue in this appeal is whether the appellant’s reported medical condition of Alcohol Use Disorder (“AUD”) is likely to significantly interfere with his ability to drive a vehicle safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a vehicle safely.

4Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from AUD, a medical condition, which is likely to significantly interfere with his ability to drive a vehicle safely.

6To answer that question, I will address the following issues:

a. Does the appellant suffer from AUD?

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

C. LAW:

7Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1) of O. Reg. 340/94 under the HTA (the “Regulation”).

8Under 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.

9Section 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.

10A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

11On appeal, the Registrar has the burden, on a balance of probabilities, of establishing that the licence should remain suspended.

12Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

13Section 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. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

D. PRELIMINARY ISSUE:

14In the Case Conference (“CC”) Report and Order (“CCRO”) for this proceeding, released on April 28, 2022, the CC adjudicator ordered that the appellant had until end of day June 2, 2022 to provide to the Registrar and file with the Tribunal any documents upon which they intended to rely. The Registrar then had until end of day June 3, 2022 to provide to the appellant and file with the Tribunal any documents upon which it intended to rely.

15On May 30, 2022 the Tribunal received an email from the appellant, copied to the respondent, which had attached a document that the appellant wished to rely upon.

16The Tribunal did not receive any new documents from the respondent prior to end of day June 3, 2022.

17On June 7, 2022 the Tribunal received a number of new documents from the respondent. At the hearing, when questioned about the late disclosure, the respondent apologized for his ‘oversight’ in not submitting the documents on time.

18The hearing of this appeal began at approximately 9:00 a.m. on June 9, 2022. It became apparent that the respondent had emailed an additional new document to the appellant and Tribunal the night before at approximately 5:34 p.m., however the document had not yet been placed in the adjudicative file. Upon the receipt and review of this document from the Tribunal during the hearing, I noted that the contents of the respondent’s submissions were in response to a Substance Use Assessment (“SUA”) form, prepopulated with the appellant’s name and address, bearing a fax date of June 3, 2022. I noted that the SUA form was sent to the respondent after the appellant’s disclosure date set out in the CCRO and it was not copied to the Tribunal. When questioned, the appellant was adamant that at the CC he was ‘told’ that he had until end of day June 3, 2022 to submit any new evidence.

19Being aware that the Act and its regulations contemplate an exchange of information between the Registrar and a driver before the Registrar makes a decision and that this decision can then be appealed to the Tribunal, I considered whether or not the additional information was prejudicial to either party.

20Following a discussion with the parties during which neither party objected to the late disclosure, and because I was of the opinion that none of the additional information was prejudicial to either party, all late disclosure was accepted and entered into evidence.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from AUD?

21I find, on a balance of probabilities, that the appellant suffers from AUD.

22On February 27, 2022, emergency room physician, Dr. P., sent an unsolicited Medical Condition Report (“MCR”) to the Ministry of Transportation (the “Ministry”). On the report, Dr. P. indicated that he was of the opinion that the appellant was suffering from substance use disorder to alcohol (AUD), which may affect his ability to drive safely.

23By letter dated March 2, 2022, the Registrar suspended the appellant’s driver’s licence for AUD and requested that his treating physician, specialist or nurse practitioner (“NP”) complete a SUA form.

24On March 1, 2022, the Ministry received an additional unsolicited MCR from NP B., indicating that she was of the opinion that the appellant was suffering from AUD which may affect his ability to drive safely. As per the evidence, NP B. works in the inpatient Withdrawal Management Bedded Services the appellant attended for six days starting February 27, 2022.

25On June 3, 2022, the Registrar received by fax from the appellant’s family physician, Dr. T., the first page (i.e., page 1 of what should be two pages) of a completed SUA form. On the SUA form, Dr. T. indicated that the appellant had the diagnoses of both moderate and severe AUD.

26The appellant testified that for the past several years he started consuming alcohol in greater quantities. He stated that his preferred drink was beer, he drank beer with a regular alcohol-concentration for a period of time and progressed to a higher alcohol-concentration beer more recently. He related his increased alcohol consumption to stresses at work and at home. The appellant stated that he would consistently consume 6-8 beers between the hours of 5:30 p.m. and 11:30 p.m. He testified that in late 2020 he: realized that he was not feeling well each morning; decided to abstain from alcohol in January 2021; and abstained for three months before he “relapsed”. In April 2021, his alcohol consumption gradually increased and by the beginning of 2022 the appellant was consistently drinking an “8-pack” of higher alcohol-concentration beer nightly. He also continued to feel unwell each morning with decreased clarity, decreased appetite and dry heaves. The appellant candidly admitted that during January and February 2022, when his wife and 18-year-old daughter were away on an extended vacation, he devoted a lot of time to being intoxicated on a regular basis and was not eating well.

27On February 27, 2022, the appellant testified that sometime in the afternoon he woke up on the floor in his home. He does not recall the events of the previous evening, nor anything from that morning. Upon awakening, the appellant stated he had no strength to get up from the floor, called out for help, his tenant (who lives in the basement) assisted him and called the emergency services. After being examined in the emergency room of the hospital, the appellant was transferred to the inpatient Withdrawal Management Bedded Services.

28Based on the above, I find on a balance of probabilities that the appellant suffers from AUD.

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

29The 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. I find that the Registrar has met that burden.

30As per its June 8, 2022 letter to the appellant, the Registrar is currently of the opinion that prior to considering reinstatement of the appellant’s driver’s licence, it requires confirmation that the appellant has remained abstinent from alcohol for a minimum period of six months, confirmation that his health care practitioner is supportive of his driving privilege and the resubmission of both pages of the completed SUA form.

31The respondent indicated that the Registrar is relying on 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from substance use disorder (AUD) may be eligible for a licence if they meet the criteria for remission or have abstained from alcohol for twelve months. The CCMTA Standards also state 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 indicated that from information contained on page 1 of the SUA form, the Registrar has now received sufficient information to satisfy the requirement of the successful completion of a rehabilitation program.

32The respondent pointed to the appellant’s “Extended Driver Record Search For Criminal Code Convictions”, submitted as evidence, which revealed no alcohol-related offences.

33Furthermore, the respondent pointed to NP B.’s MCR. In the discretionary section, NP B. wrote that the appellant’s brother reported that the appellant had been driving while intoxicated with his 18-year-old daughter. I acknowledge that NP B.’s statement constitutes hearsay evidence.

34The appellant testified that the above driving incident (“the incident”) occurred in the late morning in mid-February 2022. He stated that he was backing his truck out of his snow-covered driveway, backed up too far and ended up on a neighbour’s lawn. He stated that there are no curbs on his street. According to the appellant, his daughter, who was present in the vehicle, made some comment to him about the situation and assumed he was impaired. The appellant stated that he then proceeded to let his daughter (who has her G2 driver’s licence) drive the vehicle. The appellant denied being intoxicated at the time of the incident. The appellant stated that he only became aware later, that his daughter had spoken to his brother (her uncle) about the incident. Furthermore, the appellant stated he was surprised that his licence was suspended as a result of the incident as there was no police involvement, no arrest and no Breathalyzer test done.

35Although the appellant’s daughter was not called as a witness, the evidence before me indicates that the appellant’s daughter was quite concerned with her father’s safety to drive that morning in mid-February 2022 and that she attributed the incident to his drinking. Not only did she bring up her concerns with her father at that time, but she chose, at a later date, to discuss the incident with her uncle, who by the appellant’s testimony is a retired physician who previously practiced medicine in the province of Ontario.

36As previously stated, the appellant testified that in 2022 he felt unwell each morning with decreased clarity, decreased appetite and dry heaves. Although I cannot determine whether the appellant’s morning symptoms were a ‘hangover’ from his previous evening’s substantial alcohol consumption or symptoms of alcohol withdrawal, I find, on a balance of probabilities, that the appellant’s morning symptoms were a result of his AUD.

37The appellant stated that he regrets his troubles with alcohol in the past, realizes now that alcohol is poison to his body, and he cannot consume alcohol anymore. The appellant has been abstinent from alcohol since his admission to hospital on February 27, 2022, now over three months. This is consistent with information on page 1 of the SUA form, which indicated that the appellant had been abstinent from alcohol for less than six months. Since discharge from hospital, the appellant has successfully completed a 5-week/10-session out-patient addictions treatment program, has attended both individual appointments and group sessions, continues to see a counsellor every two weeks, and regularly attends Alcoholics Anonymous (“AA”) meetings. The appellant stated that he is grateful for having sobriety in his life, faces each day with more clarity, is pleased with the progress he has made, and wants to be successful at maintaining this progress, including the improved relations with his family. The appellant resigned from his previous very stressful job, is planning to take some time before beginning a job search and is keeping busy with home renovations. I find the above indicates that, on a balance of probabilities, the appellant has gained adequate insight into his medical condition of AUD.

38The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s AUD is likely to significantly interfere with his ability to drive a motor vehicle safely.

39Although not bound by the CCMTA Standards, they may be considered and applied by this Tribunal.

40The CCMTA Standards state that the effects of alcohol on the function necessary for driving may include, but are not limited to, reduced reaction times, altered depth perception, blunted alertness and reduced motor coordination.

41I acknowledge that the appellant’s driving record does not show any alcohol-related offences. Furthermore, I acknowledge that the appellant denies ever driving while intoxicated.

42In absence of page 2 of 2 of the completed SUA form (which specifically asks about alcohol-related seizures) or any other medical evidence from the appellant’s hospitalization, I cannot conclude whether the reason for the appellant finding himself on the floor on the afternoon February 27, 2022 was due to a blackout from alcohol, an alcohol-related seizure or another cause.

43I note that the CCMTA Standards state that for people who are regular users of alcohol, withdrawal from alcohol may trigger seizures. Seizures can cause an episodic impairment in the functions necessary for driving for which a driver cannot compensate.

44NP B.’s statement on the MCR regarding the incident constitutes double hearsay because it was a statement allegedly made by the appellant’s daughter to her uncle, who then relayed it to NP B. While I accept that the Tribunal can admit hearsay, and indeed it often bases its decisions in these appeals largely on hearsay medical evidence, in the circumstances I give little weight to prejudicial hearsay evidence of this nature in the face of sworn evidence from the appellant. Ultimately the appellant testified that he was not intoxicated. The Registrar chose not to call any witnesses to dispute this and I accept the appellant’s evidence on this point.

45As previously stated, I find that the decreased clarity the appellant experienced every morning during that time period was, on a balance of probabilities, a result of his AUD. Moreover, having decreased (mental) clarity or not being able to think clearly can affect the safety to drive.

46The appellant has currently been abstinent from alcohol for just over three months. As is evident from the appellant’s testimony, AUD is frequently a relapsing medical condition. In 2021, the appellant relapsed after three months of sobriety. I acknowledge that currently the appellant has gained insight into his AUD, and has many ongoing positive supports, including a counsellor and his AA meetings. The appellant did not have these supports in 2021 when he relapsed.

47Furthermore, I am aware, that 15.6.3 of the CCMTA Standards does not specify a specific time period for earlier re-licensing following the successful completion of a rehabilitation program, and that the Registrar requires six months of abstinence following the successful completion of a rehabilitation program based on advice of experts in the field. However, in either scenario earlier relicensing, at least according to the Standard, may only be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority.

48I am persuaded by the fact that the appellant has yet to provide or submit a favourable recommendation for early re-licencing from Dr. T. or another treating healthcare provider.

49I acknowledge the burden that the lack of a driver’s licence is having on the appellant and his family. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

50Based on the totality of the evidence before me and after careful consideration, I 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.

51I commend the appellant for the considerable effort he has made to maintain his sobriety and I encourage him to continue to do so. At an appropriate time, I encourage him to reach out to Dr. T. to determine if she would submit a favourable recommendation for early re-licencing to the Registrar.

F. ORDER:

52For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.