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:
Ermal Pani
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Ermal Pani, Appellant
Jami Sanftleben, Representative
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: January 6, 2023
A. Overview:
1Ermal Pani (the “appellant”) appeals the 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”), effective November 19, 2022.
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 has met 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 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 whether the Registrar has established on a balance of probabilities the following two 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)(a) 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 Report and Order for this proceeding, the case conference adjudicator indicated that the appellant planned to have his medical practitioner complete a Ministry of Transportation (“Ministry”) form in the next few days and to have letters of support available to the Tribunal if the matter goes to hearing. Furthermore, the adjudicator gave the parties until end of day January 3, 2023 to exchange documents to be relied upon at the hearing and file them with the Tribunal.
15On the morning of January 5, 2023, I sent an email to the Tribunal Office to check whether any additional documents were in the adjudicative file. Their response was that the Tribunal had not received anything further from the parties since the case conference.
16Prior to 5:00 p.m. on January 5, 2023, the Tribunal Office notified me that the appellant’s representative had been in touch, that the appellant was unable to obtain the medical document originally planned on; however, they would likely send in some evidence prior to the hearing.
17The hearing of this appeal began at approximately 10:00 a.m. on January 6, 2023. It became apparent when marking the Exhibits that the appellant’s representative had emailed three additional documents to the Registrar and Tribunal at 9:19 a.m. that morning. These documents included a December 7, 2022 payment authorization form for out-patient counselling; a January 4, 2023 invoice for the purchase of a portable breathalyzer; and a January 1, 2022 through December 31, 2022 profit and loss graph for the appellant’s company. Following a discussion with the parties, the respondent’s representative advised that it did not object to the late disclosure or to the Tribunal admitting the documents for the purposes of the appeal. As I was of the opinion that the late disclosure was relevant to the subject-matter of the proceeding and its admission would not be prejudicial to the respondent, I exercised my discretion under Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure to admit all late disclosure into evidence for this hearing.
E. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from AUD?
18I find, on a balance of probabilities, that the Registrar has established that the appellant suffers from AUD.
19On November 9, 2022, the Registrar received an unsolicited Medical Condition Report from Dr. S.
20In the Medical Condition Report, Dr. S. indicated he was of the opinion that the appellant had “a diagnosis of an uncontrolled substance use disorder” to alcohol [AUD]. Dr. S. handwrote, “Just diagnosed and referred. I cannot comment if he is going to be compliant or not yet”. In the “Discretionary Report of Medical Condition or Impairment” section, Dr. S. wrote, “Drinking 4-6 shots of vodka in the evening for the last year. He is referred to [hospital] for treatment and he agreed to be referred.”
21By letter dated November 9, 2022, the Registrar suspended the appellant’s driver’s licence for the reported condition of AUD. The letter indicated that in order to consider reinstatement of the appellant’s driver’s licence the Ministry required a healthcare practitioner to complete a Substance Use Assessment form.
22The Registrar’s representative indicated to me that the Registrar has not yet received a completed Substance Use Assessment form or any new written information about the appellant from a healthcare professional.
23The appellant candidly admitted that his alcohol consumption increased during the COVID-19 pandemic. He attributed this to not being able to work as a general contractor, stress and feeling bored. However, he acknowledged that despite returning to work in 2022, he continued to drink 4-6 shots (30 mL) of vodka nightly (6-11 p.m.), felt that alcohol was having a negative effect on his health and more than one family member had suggested that he cut down on his drinking.
24The appellant stated that his family practitioner retired a few years ago and that he had been attending a walk-in clinic for his medical care since then. He stated that originally there were a number of doctors at this clinic, but as of late Dr. S. was the only doctor. The appellant acknowledged that prior to November 2022, he had seen Dr. S. one or two times.
25On November 9, 2022 the appellant had an appointment with Dr. S to address the negative impact alcohol was having on his health. It was at this appointment that Dr. S. diagnosed the appellant with AUD, made a referral to a hospital for treatment and submitted the Medical Condition Report to the Ministry. The appellant testified that at that appointment he agreed to fulfill what Dr. S. suggested.
26However, following the November 9, 2022 appointment, the appellant decided not to call the hospital clinic but to address his drinking in a “self-help” fashion or “his way”. The appellant candidly admitted to having cravings for alcohol when he began cutting down on his alcohol consumption on his own.
27On December 7, 2022, the appellant registered for on-line counselling. The appellant testified that he has currently attended four weekly one-on-one counselling sessions and has four more remaining. He stated that he has gained tools and strategies from these sessions, including how to reduce his drinking slowly and properly; the importance of eating regularly; eating chocolate or drinking water if he has cravings for alcohol; keeping a calendar of his drinking; and the importance of regular exercise. The appellant stated that he did not ask his counsellor to write a letter to submit for the hearing.
28The appellant is of the opinion that he currently does not have AUD. When specifically asked whether he felt he had AUD in the past, he stated that he did not exactly have a problem with alcohol in the past, rather he had a “health issue”.
29I prefer the opinion of Dr. S. over that of the appellant, that the appellant suffers from AUD. Dr. S. is a trained healthcare professional who would be trained on how to diagnose AUD according to the DSM-5 Standards. The appellant is not trained on how to diagnose AUD, nor did he submit any evidence from another healthcare professional disputing Dr. S.’s medical opinion. Furthermore, based on my knowledge as a licenced and duly qualified physician in the Province of Ontario, I am aware that the appellant’s alcohol consumption prior to November 9, 2022 was far above Canada’s Low-Risk Alcohol Drinking Guidelines. Moreover, based on the appellant’s testimony and my professional knowledge of the DSM-5 Standards, I am satisfied that the appellant fulfills sufficient criteria in the DSM-5 Standards to be diagnosed with AUD.
30Based on a careful consideration of the evidence before me, 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?
31The 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.
32The respondent’s representative argued that the appellant was diagnosed with uncontrolled AUD and that no further medical information from a trained healthcare professional has been received. She pointed to the fact that, by law, the Registrar can require the holder of a driver’s licence to submit to certain medical and physical examinations, tests and procedures.
33Furthermore, the respondent’s representative argued that uncontrolled AUD can affect safe driving. She referred to Chapter 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from substance use disorder, including AUD, may be eligible for a licence if they meet the criteria for remission or have abstained from alcohol for twelve 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.
34The appellant spoke to the success he is having in reducing his alcohol intake plus the significant burden the lack of a driver’s licence is having on his family and his business.
35The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s reported condition of AUD is likely to significantly interfere with his ability to drive a motor vehicle safely.
36The only medical indication of the effect the appellant’s use of alcohol has on his ability to drive safely is the fact that Dr. S. completed the Medical Condition Report according to s. 203 of the HTA. I am of the opinion that prescribed persons, such as Dr. S., take their duty to report medical conditions to the Ministry very seriously. Furthermore, the appellant testified that at a medical appointment in late December 2022, Dr. S. was not yet willing to complete the Substance Use Assessment form.
37I acknowledge that the appellant’s driving record shows no alcohol-related offences. In addition, I acknowledge that the appellant denies ever driving under the influence of alcohol. However, the appellant stated that he is now aware that a person who drinks a substantial amount of alcohol during evening hours (as he previously did) can still have detectable levels of alcohol the following morning. The appellant stated that he would be willing to install an Interlock device on his vehicle if needed and indicated that he ordered a portable breathalyzer.
38I commend the appellant for the substantial positive corrective changes he has made in less than two months regarding his alcohol consumption. He testified that he is no longer drinking vodka; last week he had four glasses of wine; and so far this week he has only had two glasses of wine with dinner. He acknowledged that he feels better, has more energy, is less tired and no longer feels the need to drink alcohol when he is stressed.
39Although the Tribunal is 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 functions necessary for driving may include, but are not limited to, reduced reaction times, altered depth perception, blunted alertness and reduced motor coordination.
41While the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts. After a careful consideration, I feel that the CCMTA Standards should apply in this particular case.
42I acknowledge that the appellant feels that he is on the path to recovery and has a sustainable plan going forward. However, when considering the facts of this case, I find that a two-month period of reduced alcohol intake is insufficient to ensure that the appellant’s AUD will not significantly interfere with his ability to drive a motor vehicle safely. The appellant has not yet acknowledged or accepted that he has ever suffered from AUD. According to the CCMTA Standards, self-awareness, which includes being aware of a medical condition, is an important consideration when determining fitness to drive. Furthermore, with respect to persons suffering from AUD, I am of the opinion that acceptance of the diagnosis is an important factor when considering the likelihood of a sustained recovery. In addition, the appellant is only half-way through his counselling program, he has neither told Dr. S. that he registered for a counselling program nor about his success in substantially reducing his alcohol intake, and he does not have a favourable recommendation from any treating physician regarding re-licencing.
43I acknowledge the burden, financial or otherwise, 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.
44Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged its onus on a balance of probabilities of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a vehicle safely.
45I commend the appellant for his hard work to date to reduce his alcohol consumption and improve his overall health. I encourage him to complete his counselling sessions, to obtain his certificate of completion and to make appointment(s) with Dr. S. I am hopeful that when the appellant shows Dr. S. his certificate of completion of counselling and the calendar where he records his alcohol consumption that Dr. S. will complete the Ministry form and support the reinstatement of the appellant’s driver’s licence.
F. ORDER:
46For 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.
LICENCE APPEAL TRIBUNAL
_______________________
Erica Weinberg, Member
Released: January 13th, 2023