Date: 2022-07-13

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 pursuant to s. 47(1) of the Act to Suspend a Licence

Between:

Rachael Hensen

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Dimitri Louvish, M.D., Member Jennifer Friedland, Member

APPEARANCES:

For the Appellant: Self-Represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: June 1, 2022

A. OVERVIEW

1This is an appeal of a decision of the Registrar of Motor Vehicles to suspend the appellant’s driver’s licence pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or “Act”).

2The appellant’s licence was suspended on January 24, 2022 after a medical practitioner sent a medical report to the Ministry of Transportation (MTO) indicating that the appellant had experienced a seizure likely due to alcohol withdrawal. The appellant’s family doctor subsequently filled out a substance use assessment form in which the doctor stated that the appellant had a moderate alcohol use disorder.

3The Registrar has informed the appellant that her licence can be reinstated once she can show she has been abstinent from alcohol and seizure free for one year. In the alternative, if her healthcare practitioner confirms that she has successfully completed an alcohol treatment program and is supportive of her driving again, then the period can be reduced to six months.

4The appellant appeals, seeking to have her licence reinstated now.

B. ISSUES

5There are two issues on this appeal:

i) whether the appellant suffers from a medical condition – namely, seizures related to alcohol withdrawal – likely to significantly interfere with her ability to drive a motor vehicle safely; and

ii) whether the appellant is addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.

C. Result

6For the reasons given below, we find that there is insufficient evidence to conclude that the appellant suffers from a medical condition likely to significantly interfere with her ability to drive a motor vehicle safely.

7We find that she also does not suffer from an addiction to alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.

8We therefore set aside the Registrar’s decision and direct the Registrar to reinstate the appellant’s licence.

D. Law & STATUTORY CONTEXT

9The purpose of the licence provisions of the HTA is to “protect the public.” Section 31 (a) describes that one of the ways this is done is by ensuring that:

31(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely.

10Ontario Regulation 340/94 is a regulation made under the HTA that deals specifically with drivers’ licences. At section 14(1)(b) it specifies that:

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.

11The provision goes on to state that:

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information. O. Reg. 453/10, s. 1.

12The Registrar has the power under s. 47(1) of the HTA to suspend a licence for “any sufficient reason.” This includes where the person does not meet the requirements of s.14 of the Regulation.

13A person who is aggrieved by a decision of the Registrar or the Minister may bring an appeal to this Tribunal under s. 50 (1) of the HTA.

14Following a hearing, under s. 50 (2) the Tribunal may confirm, modify or set aside the decision.

FACTS

15The facts relevant to this appeal are largely not in dispute and may be summarized as follows:

16In or around January 22, 2022, the appellant decided to stop drinking. She describes making that decision as part of a series of decisions aimed at taking better care of herself. She had been working in a bar for three years in a job that caused her stress. She drank mainly on her days off and in a social context. She and her boyfriend both stopped drinking. A few days later, while she was walking her dog, she fell. She went to the hospital and an internist diagnosed her as “most likely” having had a seizure due to alcohol withdrawal. There was no more definitive diagnosis than this somewhat speculative note by the internist. The internist then sent a medical report to the MTO pursuant to s. 203 alerting the Registrar to this incident.

17Upon receipt of the medical report, the Registrar suspended the appellant’s licence and informed her of the steps she had to take to be reinstated. One of these was to have a substance use assessment form filled out by her doctor. On that assessment, dated March 11, 2022, the appellant’s doctor ticked the box indicating that the appellant had a “moderate” substance use disorder – the substance being alcohol.

18Since the initial incident, the appellant has been followed by the Internal Medicine Rapid Assessment Clinic at St. Josephs. She has also been attending AA meetings regularly. She has not had another seizure or seizure-like incident. She has also maintained her sobriety. She has a new job and is able to walk to work. She wants her licence back so she can drive for groceries and to take her children here and there.

19The appellant testified that her family doctor did not think it was necessary for her to attend a formal treatment program. This has been confirmed by letter. Her doctor is also supportive of her driving again after 6 months of sobriety instead of a year.

20The appellant’s report from her team at St. Joseph’s dated April 13, 2022, states “we feel she is cleared to resume driving.”

The positions of the parties

21The appellant seeks to have her licence reinstated on the basis that she has stopped drinking, she has been attending AA, she has no history of drinking and driving and the context of the incident favours the return of her licence.

22The Registrar objects to the early return of the appellant’s licence and asks the Tribunal to rely on the medical standards for drivers established by the Canadian Council of Motor Transport Administrators (CCMTA) in upholding the appellant’s licence suspension. Under these standards, as applied to the appellant, she would have to abstain from alcohol for 12 months before being considered for a reinstatement of her licence. However, that period of sobriety could be reduced to 6 months if she were to successfully complete a structured treatment program and have the support of her doctor for reinstatement.

23The Registrar’s position is that Alcoholics Anonymous is not the same as a structured treatment program and should not be considered sufficient to reduce the period of sobriety to 6 months.

E. ANALYSIS

24We found the appellant credible with good insight into her behaviour and her triggers. Her choice to end her employment at the bar which caused her stress was a smart choice. Her decision to quit drinking when she realized her drinking had increased due to her stress was also a sensible choice. She has attended regularly at St. Joseph’s for follow up appointments. She has been attending AA. She has made a series of smart and sensible choices that are to her credit.

25The appellant’s licence was suspended due to the appellant having had an incident of “sudden incapacitation” due to alcohol withdrawal.

26Sudden incapacitation is defined in s. 14.1(3) of the Regulation as a disorder that has a moderate or high risk of sudden incapacitation or that has resulted in sudden incapacitation and that has a moderate or high risk of recurrence.

27There was no specific evidence that the appellant’s seizure due to alcohol withdrawal has a moderate or high risk of recurrence. Rather we are invited to reach that conclusion based on the appellant also having been diagnosed as having a moderate substance use disorder.

28Assuming a moderate alcohol use disorder equates to an addiction to alcohol, the question we must ask from a licensing perspective is whether the appellant’s addiction is to an extent “likely to significantly interfere with her ability to drive a motor vehicle safely.” We cannot reach that conclusion on a balance of probabilities based on the evidence presented in this case.

29The CCMTA Standards are not mandatory for the Tribunal to apply (nor, we note, are they mandatory for the Registrar), but they can be persuasive. In this case, however, we find that the appellant’s personal circumstances should prevail over the standards. We find that the steps taken by the appellant so far and the insight she has shown with respect to her disorder are sufficient to quell any concern that her substance use disorder or addiction would significantly interfere with her ability to drive a motor vehicle safely.

30We recognize that the appellant had previously been drinking enough to trigger a seizure when she stopped. However, even taking into consideration the amount the appellant was previously drinking, there was no evidence that she had ever driven impaired or over the legal limit. Further there is evidence that she is able to not drink once she has made that choice. By the time this decision is released, she will have been sober for six months and she already has the support of her team at St. Joseph’s who said as early as April that they were supportive of her resuming driving. Her family doctor is also supportive of her resuming driving after six months.

31Even if she does not remain sober, we are satisfied that the appellant will not return to drinking as before. She has made a number of changes to render that unlikely, including by having the support of AA, having changed her job, and recognizing the context which led her to over-indulge previously. We therefore consider there to be little risk that another alcohol withdrawal related seizure would recur. We are also mindful of the fact that the appellant did not ever receive a definitive diagnosis that this is what happened to her in the first place.

F. Conclusion

32We find that although the appellant “likely” had a seizure due to alcohol withdrawal on January 24, 2022, we do not find there is sufficient evidence to conclude that she has a moderate or high risk of having a further seizure due to alcohol withdrawal and therefore we cannot conclude that that this is a medical condition likely to significantly interfere with her ability to drive safely.

33For the reasons given above we also are not persuaded that the appellant has an addiction to alcohol likely to significantly interfere with her ability to drive safely.

34We therefore set aside the decision of the Registrar to continue the appellant’s suspension and direct that her licence be reinstated.

ORDER

35Pursuant to the powers of this Tribunal under s. 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is set aside.