Licence Appeal Tribunal File Number: 15211/MED

In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.

Between:

Edward Berube

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Edward Berube, Appellant

For the Respondent:

Stephen Grootenboer, Representative

HEARD by teleconference: October 11, 2023

OVERVIEW

1Edward Berube (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend their Class GM licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating healthcare provider that the appellant suffers from a medical condition that may affect their safety to drive.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states that a holder of a driver’s licence must not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar takes the position that the appellant suffers from the medical conditions, namely alcohol use disorder and cognitive impairment, and at least one of these conditions is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from alcohol use disorder or cognitive impairment and deny that they suffer from a medical condition which interferes with their ability to drive safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

ISSUES

6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from alcohol use disorder?

ii. Does the appellant suffer from cognitive impairment?

iii. If so, are either or both likely to significantly interfere with their ability to drive a motor vehicle safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Events leading to the appellant’s hospitalizations in May/June 2023

10On April 19, 2023, the appellant fell and hurt their hip. Despite pain, difficulty standing and suggestions from family, the appellant did not go to the hospital until May 26, 2023. On May 29, 2023, the appellant had surgery for a fractured hip and, on June 2, 2023, the appellant was transferred to a different hospital for rehabilitation from their hip surgery. On June 9, 2023, the appellant signed themselves out of the rehabilitation hospital against medical advice.

Does the appellant suffer from alcohol use disorder?

11I find that the evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely alcohol use disorder.

12The Registrar’s position is supported by the medical report completed by Dr. A.

13In the June 6, 2023 Medical Condition Report, hospital psychiatrist, Dr. A., indicated that the appellant suffers from alcohol dependence (alcohol use disorder).

14By letter dated June 15, 2023, the Registrar requested that the appellant’s healthcare provider complete a Substance Use Assessment form. The Registrar’s representative indicated that to date, no medical information regarding this medical condition, has been submitted by the appellant.

15The appellant acknowledged that in 2018, for about one month, they drank excessively. The appellant attended counselling for their alcohol use, followed by treatment for one month at an alcohol rehabilitation centre, a further month of treatment at a different treatment centre and “AA” meetings following this. The appellant has not been able to recently attend AA meetings due the presence of stairs at the meeting location and issues with their hip, but prior to that attended AA meetings about once per month.

16The appellant indicated that they have been without a family doctor since sometime in 2022, when their family doctor wrote stating they were closing their practice at the Family Health Team (“FHT”). The appellant made one or more attempts to have the Ministry form completed at a walk-in clinic but was unsuccessful. On October 27, 2023 the appellant has an appointment with a new family physician at the FHT.

17The appellant denies consuming any alcohol since July 2018. They argue that there is no proof of any current alcohol use disorder.

18Furthermore, the appellant argues that they believe their “GGT” level (an inducible liver enzyme) was used by Dr. A. against them and that the painkillers they were taking at the time could have raised their GGT level.

19The appellant admits that Dr. A. came to talk to them in the rehabilitation hospital after their hip surgery several times starting June 5, 2023. However, the appellant stated that Dr. A.: did not properly introduce themselves; lied about speaking to their ex-wife or the nurses about their drinking; singled them out; picked on them; and tried to control/threaten them by discussing driving/their driver’s licence. The appellant indicated that they never talked to Dr. A. as they were taught never to talk to persons who lie and instructed Dr. A. to leave their room each time.

20I prefer the evidence of Dr. A. over that of the appellant and find, on a balance of probabilities, that the appellant suffers from alcohol use disorder. Dr. A. is qualified to make such a diagnosis and determine whether the appellant suffers from that condition. Dr. A was in a position to determine that the appellant suffers from alcohol use disorder and I accept the diagnosis.

21I assign less weight to the appellant’s evidence. I agree with the appellant that there can be other causes/reasons for elevated GGT levels besides alcohol consumption, including the pain medication acetaminophen. I take notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. However, when questioned, the appellant denied requesting or asking to see any GGT level measured at either hospital to determine whether their GGT level was elevated or not. In addition, at their recent visit(s) to a walk-in clinic, the appellant had the opportunity to request a GGT blood test to corroborate their claim of abstinence from alcohol, but they did not. Furthermore, the appellant did not submit as evidence the records from their recent hospitalizations nor any medical evidence to dispute Dr. A.’s diagnosis of alcohol use disorder. There is no evidence, written or oral, corroborating the appellant’s testimony. At the case conference, the appellant was notified of the opportunity to have witnesses, family or otherwise, appear at the hearing, but the appellant chose not to call any witness to give evidence. When questioned by the Respondent’s representative why they did not have their ex-wife appear as a witness, the appellant indicated that their ex-wife left earlier that morning to visit one of their sons. I note that the appellant’s Notice of Hearing was issued on September 15, 2023 and at the case conference, the parties indicated that they were prepared to proceed to hearing on October 11, 2023. I prefer the objective, medically supported assessment of Dr. A. over the appellant’s subjective self-assessment.

22I find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

Does the appellant suffer from cognitive impairment?

23I find that the evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely cognitive impairment.

24The Registrar’s position is supported by the medical report completed by Dr. A.

25In the June 6, 2023 Medical Condition Report, Dr. A., also indicated that the appellant suffers from dementia or Alzheimer’s (cognitive impairment).

26By letter dated June 15, 2023, the Registrar requested that the appellant’s healthcare provider complete a Cognitive Disorder form. The Registrar’s representative indicated that to date, no medical information regarding this medical condition has been submitted by the appellant.

27The appellant argues that they do not have cognitive impairment. The appellant denies any period of confusion around the time of their surgery nor taking any type of memory test during their recent hospitalizations.

28As previously stated, the appellant admits that Dr. A. came to talk to them in the rehabilitation hospital several times starting June 5, 2023, they refused to talk to Dr. A. and instructed Dr. A. to leave their room each time.

29I prefer the evidence of Dr. A. over that of the appellant and find, on a balance of probabilities, that the appellant suffers from cognitive impairment. Dr. A. would have had access to the appellant’s May/June 2023 hospital records and is qualified to determine whether the appellant suffers from that condition.

30I assign less weight to the appellant’s evidence. The appellant did not submit as evidence the records from their recent hospitalizations nor any medical evidence to dispute Dr. A.’s diagnosis of cognitive impairment. Furthermore, there is no evidence, written or oral, corroborating the appellant’s testimony. As previously stated, at the case conference, the appellant would have been notified of the opportunity to have witnesses, family or otherwise, appear at the hearing, but they chose not to call any witness to give evidence. I prefer the objective, medically supported assessment of Dr. A. over the appellant’s subjective self-assessment.

31I find that the Registrar has established on a balance of probabilities that the appellant suffers from cognitive impairment.

Is the appellant’s alcohol use disorder likely to significantly interfere with their ability to drive a motor vehicle safely?

32I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition, namely alcohol use disorder, is likely to significantly interfere with their ability to drive a motor vehicle safely.

33The Registrar’s representative argues that alcohol use disorder can and will significantly interfere with the safe operation of a motor vehicle. They further argue that they require further medical information and should the appellant’s healthcare provider confirm a diagnosis of severe alcohol use disorder, the Registrar requires confirmation that the appellant has remained abstinent from alcohol for a period of one year, and that this period may be reduced to six months if the appellant’s healthcare provider confirms successful completion of an alcohol treatment program and is supportive of their driving privilege.

34Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (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 on the Tribunal.

35The Registrar relies on the CCMTA Standards, in particular Chapter 15.6.3 (Substance Use Disorder) and internal policies at the Ministry of Transportation. Chapter 15.6.3 provides that all drivers suffering from Alcohol Use Disorder may be eligible for a licence if they meet the criteria for remission and/or have abstained for twelve months. It also states that earlier re-licencing 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.

36The appellant argues that they do not suffer from alcohol use disorder and do not suffer from any medical condition that affects safety to drive. When specifically questioned whether they have ever driven under the influence of alcohol, the appellant stated that they have no “DUI” on record.

37While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

38Although I am not bound by the CCMTA Standards, I find them to be reasonable. The use of alcohol affects the functions necessary for driving including reaction times, visual acuity, judgement and insight, alertness and motor co-ordination. The use of alcohol impairs a driver’s judgement and behaviour towards others, including in determining whether they are fit to drive or not. Although a person may, when not under the influence of alcohol, determine never to drive when intoxicated, their assessment of their ability to drive will likely be affected by having consumed alcohol.

39I acknowledge that the appellant’s “Extended Driver Record Search For Criminal Code Convictions” is absent of any alcohol-related offences.

40However, in the circumstance of this case, I am persuaded to apply the CCMTA Standards. Dr. A. would have been acting under their duty under s. 203 of the HTA to report a patient (the appellant) who has a medical condition that, in their opinion, may make it dangerous for the patient to operate a motor vehicle. The appellant has not submitted any medical evidence to the contrary, nor any evidence, written or oral, corroborating their testimony. I accept the respondent’s submission that further medical information should be submitted is reasonable keeping in mind public road safety.

41I am satisfied on a balance of probabilities that the appellant’s medical condition of alcohol use disorder is likely to significantly interfere with their ability to drive safely.

Is the appellant’s cognitive impairment likely to significantly interfere with their ability to drive a motor vehicle safely?

42I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with their ability to drive a motor vehicle safely.

43The Registrar’s representative argues that cognitive impairment can and will significantly interfere with the safe operation of a motor vehicle. They further argue that they require further medical information to consider reinstatement of the appellant’s driver’s licence for this medical condition.

44The Registrar relies on Chapter 6.6.1 of the CCMTA Standards (Cognitive Impairment or Dementia) which states that drivers are eligible for a licence if: complete medical assessment indicates cognitive functions necessary for driving are not impaired, or where required, functional driving assessment shows condition does not affect ability to drive.

45The appellant argues that they do not suffer from cognitive impairment and they do not suffer from any medical condition that affects safety to drive.

46As previously stated, while the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

47In addition, as previously stated, although I am not bound by the CCMTA Standards, I find them to be reasonable. I accept the safety concerns set out in Chapter 6 of the CCMTA Standards which state:

• good cognitive ability is the foundation of competent driving;

• cognitive problems often have a direct effect upon fitness to drive and any indications of possible cognitive compromises of fitness to drive must not be neglected by clinicians;

• mild cognitive impairment can have a direct effect upon fitness to drive; and

• cognitive impairment may cause a persistent impairment in driving and drivers are not able to compensate for this functional impairment.

48In the circumstances of this case, I am persuaded to apply the CCMTA Standards. As previously stated, Dr. A. would have been acting under their duty under s. 203 of the HTA to report a patient (the appellant) who, in their opinion, has a medical condition that may make it dangerous for the patient to operate a motor vehicle. The appellant has not submitted any medical evidence to the contrary, nor any evidence, written or oral, corroborating their testimony. I accept the respondent’s submission that further medical information should be submitted is reasonable keeping in mind public road safety.

49I am satisfied on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with their ability to drive safely.

Conclusions

50I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol use disorder, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

51In addition, I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely cognitive impairment, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

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