Ivan Hajsan v. Registrar of Motor Vehicles, 2023 CanLII 116623

Licence Appeal Tribunal File Number: 15210/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:

Ivan Hajsan Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg

APPEARANCES:

For the Appellant: Ivan Hajsan, Self-represented

For the Respondent: Stephen Grootenboer, Representative

HEARD by teleconference: November 28, 2023

OVERVIEW

1Ivan Hajsan (the "appellant") appeals from the decision of the Registrar of Motor Vehicles ("Registrar", "respondent") to suspend their Class G 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 health care 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 a medical condition, namely alcohol use disorder, that 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 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.

PRELIMINARY ISSUE

6At the outset of the hearing, the appellant orally requested an adjournment of the hearing, stating that they needed more time to obtain medical information and to secure a representative.

7Although Rule 16.2 of the Licence Appeal Tribunal Rules, 2023 ("Rules") allows oral requests for adjournments at adjudicative events, such requests will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.

8Having taken oral submissions from the parties on this matter, I found that the appellant did know the circumstances giving rise to the adjournment request prior to the hearing date and their request for an adjournment was therefore denied.

9In accordance with Rule 16.3 of the Rules, I considered the following factors when coming to my decision to deny the appellant's request for an adjournment:

i. An adjournment would further delay the proceedings. The appellant's file at the tribunal is at least eight weeks old. According to Rule 23.2 of the Rules, appeals such as the appellant's appeal are to be heard within 30 days of having received a complete appeal;

ii. The appellant has had sufficient time to obtain the documents they require for the hearing and no further adjournments are reasonable for that purpose. The appellant had two case conferences prior to the hearing. At the first case conference (October 12, 2023), the appellant advised that they had not yet attended with a medical professional to complete the requested Ministry of Transportation ("Ministry") form and it was their intention to do so. At the second case conference (October 26, 2023), the appellant again requested additional time to submit the same Ministry form;

iii. The appellant has had sufficient time to secure a representative for the hearing and no further adjournments are reasonable for that purpose. On October 3, 2023, the tribunal sent the appellant a blank 'Declaration of Representative' form to both emails on record for them. At the first case conference, the appellant indicated that they had recent contact with a paralegal who was unavailable for the case conference due to a family emergency. At the second case conference the appellant was not represented and the case conference report and order makes no reference the appellant requesting additional time to secure a representative;

iv. The appellant was aware of both the new hearing date and new disclosure date. The appellant was present at the second case conference when these dates were determined.

v. The appellant will suffer minimal prejudice should the hearing proceed. Should the appellant obtain evidence in support of their submission following the hearing, the appellant may submit this evidence to the Registrar to reconsider the suspension of their driver's licence;

vi. The appellant did know of the circumstances giving rise to the oral adjournment request prior to the event. The appellant's reasons for their request for an adjournment are the same reasons as those stated at their first case conference; and

vii. The respondent did not consent to the appellant's request for an adjournment.

ISSUES

10The 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.

11To resolve that issue, I will address the following questions:

i. Does the appellant suffer from alcohol use disorder?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle safely?

12The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is "yes."

RESULT

13Having 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 I confirm the Registrar's decision to suspend the appellant's driver's licence.

ANALYSIS

Does the appellant suffer from alcohol use disorder?

14The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely alcohol use disorder.

15The Registrar's position is supported by the medical report completed by the appellant's family physician, Dr. S.

16In the July 30, 2021 Medical Condition Report, Dr. S. indicated that the appellant suffers from substance use disorder to alcohol (alcohol use disorder) and also handwrote "alcohol dependence".

17The Registrar's representative indicated that no new medical information from a healthcare provider, including the requested substance use assessment form, had been received by the Ministry since the Ministry's August 5, 2021 letter indicating that the appellant's driver's licence was suspended.

18The appellant argues that they do not suffer from alcohol use disorder and do not have a drinking problem. They testified that they: do not consume alcohol excessively now or in the past; can go several days without alcohol; deny cravings for or withdrawal symptoms from alcohol; previously drank alcohol at weddings or social gatherings only; last consumed alcohol at a Thanksgiving lunch in 2023; and now only consume non-alcoholic beer.

19When questioned what their wife or son who lives with them might say about their alcohol consumption if these family members were present at the hearing, the appellant stated that their family would say their alcohol consumption was controlled and that the appellant was happy only consuming non-alcoholic beer.

20When questioned whether Dr. S. had ever told them that they have or had issues with their liver because of alcohol consumption, the appellant answered affirmatively. The appellant stated that in the spring of 2023, Dr. S. indicated that their liver enzymes were a little high, they should not drink alcohol every day and/or they should reduce the amount they drink per day.

21Furthermore, when questioned why they had not asked Dr. S. at any recent appointment (including an appointment the appellant attended after submitting their Notice of Appeal to the Tribunal) to complete the substance use assessment form, the appellant's testimony was inconsistent. The appellant's responses included: they did not think to ask Dr. S; they did not go to the appointment(s) to discuss this; and Dr. S. may have refused filling out the form. However, they indicated that one week prior to the hearing they went to a walk-in clinic to inquire if a physician there would complete the Ministry form. The appellant stated they were given a blood work requisition form by the walk-in clinic physician and they plan to get the blood work done next week.

22I prefer the evidence of Dr. S. over that of the appellant and find, on a balance of probabilities, that the appellant suffers from alcohol use disorder. Dr. S. is qualified to make such a diagnosis and determine whether the appellant suffers from that condition. Dr. S. was in a position to determine that the appellant suffers from alcohol use disorder and I accept the diagnosis.

23I assign less weight to the appellant's self-assessment that they do not suffer from alcohol use disorder. The appellant's testimony was inconsistent and they did not submit any medical evidence to dispute Dr. S.'s diagnosis. I prefer Dr. S.'s objective, medically supported assessment over the appellant's subjective self-assessment.

24I find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

Is the appellant's medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

25I find that the Registrar has proven 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 a motor vehicle safely.

26The Registrar's representative argues that alcohol use disorder can and will interfere with a driver's ability to drive safely and presents a safety risk to other road users. As previously stated, the Registrar has received no medical information from a healthcare provider since the suspension of the appellant's driver's licence in 2021.

27In addition, the Registrar's representative referred to two letters received by the Ministry, one from the appellant's wife (October 19, 2023) and the other from the appellant's son (October 22, 2023). The Registrar's representative indicated both letters expressed deep concerns regarding the appellant's use of alcohol and urged the Registrar to not reinstate the appellant's driver's licence.

28Section 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.

29The 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.

30The appellant argues that they do not suffer from alcohol use disorder and do not suffer from any medical condition that affects safety to drive. The appellant stated that they have never driven after consuming alcohol and that they are against that. The appellant also denied ever having an offence related alcohol and driving.

31I indicated to the appellant that within their 'Extended Driver Record Search For Criminal Code Convictions,' an entry dated June 25, 1987, shows: 'Fail or refuse to provide breath or blood sample – CCC (Criminal Code of Canada)'; an offence date of October 10, 1986; and a driver's licence suspension until June 25, 1988. In response to my request for an explanation, the appellant stated that: they had been driving home after visiting people to drop off a baby gift; stated that they did not drink alcohol while out; there was a police car parked on the street near their home; that they parked their car on their driveway; a police officer approached them; and they refused to take a breathalyzer test. The appellant denies knowing or does not recall that their driver's licence was suspended and that they had a Criminal Code conviction. The appellant denied changing mailing addresses around the time of the incident.

32The appellant's testimony was inconsistent regarding whether they were aware of or had read their family's letters sent to the Ministry. The appellant's testimony was also inconsistent with respect to their family's response when they were questioned by the appellant why the letters were written and sent to the Ministry.

33While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

34Although 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.

35I agree with the Registrar's representative that both of the recent letters submitted by the appellant's family urge the Registrar to not reinstate the appellant's driver's licence. I take note of some comments in the appellant's son's letter, specifically: "this letter is not meant to be accusatory or vengeful, but rather a plea for the safety and well-being of everyone involved"; "…ongoing struggle with alcoholism, which, I believe, poses a significant risk to both him and the community at large"; "Despite our collective efforts to support him in seeking help and treatment…lapses in judgment putting himself and others at risk."; "…alcoholism has resulted in numerous incidents and has even led to legal consequences in the past."; "my firm belief that restoring his driver's licence would not only be against his best interest but also jeopardize the safety of other road users and pedestrians."; and "I kindly request that, considering the severity of his condition, his driving privileges not be reinstated until he demonstrates sustained progress in his recovery, as verified by medical and psychological professions. This extra measure of precaution will not only protect my father but also the greater community."

36I acknowledge that the contents of the letters written by the appellant's family members with whom they live is hearsay evidence and I recognize that despite having the discretion to admit hearsay evidence tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence. The information is potentially hurtful to the appellant, something most family members would try not to do.

37Given the evidence and submissions, I am persuaded to apply the CCMTA Standards in the circumstances of this case. I acknowledge that the appellant testified that they have been abstinent from alcohol since early October 2023 and I commend them for this first step. However, I find the appellant falls short of the criteria set out in the CCMTA Standards for earlier re-licencing. The appellant has neither attended nor completed an alcohol rehabilitation program and they do not have a favourable recommendation from a treating physician. Dr. S. has been the appellant's physician for over 20 years. In addition, there were inconsistencies in the appellant's testimony and discrepancies between the appellant's testimony and other evidence before me. Moreover, the appellant denies or cannot accept that, on a balance of probabilities, they suffer from alcohol use disorder. Insight is an important consideration when considering safety to drive. Insight means that a driver: is aware of their medical condition; understands how the condition may impair their functional ability to drive; and has the judgment and willingness to comply with a suggestive treatment regime. I accept the respondent's submission that further time and medical information should be submitted is reasonable keeping in mind public road safety.

38I 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.

Conclusion

39I 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.

ORDER

40For 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.