Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 14933/MED
In the matter of an 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 licence pursuant to Section 47(1) of the Act.
Between:
Mohamed Zahran
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Dr. Erica Weinberg, Member
APPEARANCES:
For the Appellant: Mohamed Zahran, Self-represented
For the Respondent: Stephen Grootenboer, Representative
HEARD by Teleconference: June 14, 2023
OVERVIEW
1Mohamed Zahran (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), effective October 16, 2022.
2Following the receipt of an unsolicited Medical Condition Report (“MCR”) dated October 4, 2022, the Registrar suspended the appellant’s driver’s licence for the medical condition of Alcohol Use Disorder. The MCR was sent to the Ministry of Transportation (the “Ministry”) as required under s. 203 of the Act.
3Under the Act 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 Act and s. 14(1) of O. Reg. 340/94 under the Act (the “Regulation”). Section 14(1)(a) of 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 his or her ability to drive a motor vehicle of the applicable class safely. Under 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.
4Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.
5The Registrar takes the position that the appellant suffers from Alcohol Use Disorder that is likely to significantly interfere with his ability to drive safely.
6The appellant appeals the suspension under s. 50(1) of the Act. He denies that his Alcohol Use Disorder interferes with his ability to drive safely.
7Having considered all of the evidence, and for the reasons which follow, I find that the Registrar has not met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.
PRELIMINARY ISSUE
8The Case Conference Report and Order for this file indicated that the exchange date and time for documents to be relied upon for the hearing was end of day June 9, 2023. The appellant does not deny he was aware of this.
9On the afternoon of June 12, 2023, the Tribunal received an email from the appellant, copied to the respondent, with an attached document that he wished to rely upon for the hearing.
10The appellant stated that, despite his best efforts, he was unable to obtain an online copy of the laboratory data in question prior to the chosen disclosure date. The respondent’s representative advised that it was aware of and 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, was not unduly repetitious 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 the late disclosure into evidence for this hearing.
ISSUES
11The issue in dispute is whether the appellant suffers from a medical condition, namely Alcohol Use Disorder, that is likely to significantly interfere with his ability to drive a motor vehicle safely.
12To resolve that issue, I will address the following questions:
i. Does the appellant suffer from Alcohol Use Disorder?
ii. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a motor vehicle safely?
ANALYSIS
Does the appellant suffer from Alcohol Use Disorder?
13I find that the evidence presented at the hearing supports that the appellant suffers from Alcohol Use Disorder.
14The Registrar’s position that the appellant suffers from Alcohol Use Disorder is supported by two MCRs (2021 and 2022) and a 2021 Ministry form completed by the appellant’s previous primary care physician, Dr. P.
15On April 30, 2021, Dr. R.-B., an emergency room physician at the Centre for Addiction and Mental Health (“CAMH”) completed a MCR indicating that he was of the opinion that the appellant was suffering from uncontrolled Alcohol Use Disorder and was non-compliant with treatment recommendations.
16Blood testing done on April 7, 2021 showed elevated GGT, AST and ALT (liver function) test levels. As a licenced and duly qualified physician in the province of Ontario, I am aware that tests results such as these are commonly associated with persons drinking large amounts of alcohol. I take notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
17On July 16, 2021, Dr. P. indicated on a completed Ministry form that the appellant suffers from Alcohol Use Disorder. This completed form led to the reinstatement of the appellant’s driver’s licence on July 21, 2021.
18On the October 4, 2022 MCR, Dr. Z, an emergency room psychiatrist at CAMH, indicated that she was of the opinion that the appellant had uncontrolled Alcohol Use Disorder and was non-compliant with treatment recommendations.
19The appellant does not deny that in the past he has had issues with his use of alcohol. He candidly admitted to “severe drinking” towards the end of 2022, drinking two bottles of vodka (about 1.5 L total) per week, and 375 mL of vodka on October 4, 2022 prior to calling 911 and being taken to CAMH. At times during the hearing, he identified this issue as Alcohol Use Disorder and/or an addiction to alcohol.
20I find that the Registrar has established on a balance of probabilities that the appellant suffers from a medical condition, namely Alcohol Use Disorder.
Is the appellant’s Alcohol Use Disorder likely to significantly interfere with his ability to drive a motor vehicle safely?
21On appeal, the 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 not met that burden.
22The Registrar argues that in the past two years, the Ministry has received two unsolicited MCRs indicating that the appellant suffers from uncontrolled Alcohol Use Disorder for which he was unwilling to comply with treatment recommendations. Furthermore, the respondent argues that it has not received a completed Substance Use Assessment form since its request on October 6, 2022 nor any written information from a qualified healthcare professional regarding the status of the appellant’s Alcohol Use Disorder. The respondent argues that this request is reasonable, prudent and is supported by the law.
23The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) and argues that the licence suspension should be confirmed by the Tribunal. Section 14(2)(a) of the Regulation allows the Registrar to consider 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 requirements.
24The Registrar relies on Chapter 15.6.3 of the CCMTA Standards (Substance Use Disorder – All Drivers), which recommends that a driver who has been diagnosed with Alcohol Use Disorder be considered eligible for a licence if they meet the criteria for remission and/or have abstained from the use of alcohol for 12 months. Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.
25While the CCMTA Standards are well-reasoned and provide assistance, I am of the opinion that every case should be considered on its own facts.
26The CCMTA Standards provide useful information regarding how the use of alcohol negatively effects the functions necessary for driving including: reaction times; visual acuity; judgement and insight; alertness; and motor co-ordination. I also accept that 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.
27The appellant testified that in early January 2023 he came to the realization that his life was not productive and needed change. Accordingly, he made the conscious decision to “take his addiction seriously”, put his name on a waitlist for a residential treatment program and began reducing his alcohol consumption. He testified that he has been abstinent from alcohol since January 31, 2023. The appellant acknowledged that he now understands that he used to drink on “auto-pilot” in response to symptoms or negative emotions from other mental health conditions he suffers. With continuous self-reflection since early 2023 and help from 80 hours of counselling (group, one-on-one and psychotherapy) at a residential treatment centre since May 4, 2023, he has been able to maintain abstinence even when he occasionally gets the urge to drink. He confirmed that he completed the 30-day program but elected to extend his stay a further 30 days in an effort to continue working on all aspects of his mental health.
28I found the appellant’s testimony both credible and reliable and accept that he has been unable to get a qualified healthcare professional to complete the Substance Use Assessment form. The appellant no longer has an ongoing or long-standing patient-physician relationship. Dr. P. is no longer at the medical practice he attended from 2016-2021. Over the past six weeks or so, he attempted to have the Ministry form completed by at least four different physicians, including a physician who is practicing at the clinic where Dr. P. previously practiced and a physician whom he saw one or two times at his treatment program.
29I am of the opinion that the purpose of the completion of the Substance Use Assessment form is to gather medical information regarding a person’s substance use. I am satisfied, based on the appellant’s testimony, recent laboratory test results plus written evidence from lay persons, that most if not all the required medical information to be included in the Ministry form has been gathered. The appellant admits to having Alcohol Use Disorder, he testified he has been abstinent from alcohol for nearly five months, Ms. L., the case manager at the treatment program, verifies in her letters dated May 11, 2023 and June 6, 2023, the appellant’s attendance at the program and indicates that the appellant’s weekly urine samples for drugs of abuse have been negative, plus recent laboratory tests ordered by community physicians indicate that his liver function tests are all within normal limits. In addition, the appellant testified that he is not on any prescription medications and did not experience a seizure when abusing alcohol or when reducing his alcohol intake. Furthermore, the appellant’s brother’s June 2023 witness statement says, “I can attest that Mohamed has not had an alcoholic drink since January 31, 2023” and that he has “not observed any signs of intoxication” over the past few months but rather has observed that Mohamed “has been more productive and happier than ever”.
30The Registrar has the onus of establishing on a balance of probabilities that a person’s medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely. The mere fact that a person suffers from Alcohol Use Disorder does not automatically mean in and of itself that their Alcohol Use Disorder makes them unsafe to drive.
31I agree with the appellant that the respondent has “no concrete evidence” that his Alcohol Use Disorder is likely to significantly interfere with his ability to drive a motor vehicle safely. There are no alcohol related offenses on the appellant’s “Extended Driver Record Search For Criminal Code Convictions”. The appellant testified that he has never driven under the influence of alcohol and his brother’s witness statement says, “I have never witnessed Mohamed drive while intoxicated in the past, even at the height of his problems with alcohol misuse last year”. The appellant testified that previously he drank primarily at home and if he were to go out on a Saturday night with friends, he would not drive.
32The CCMTA Standards speak to an individual’s level of insight as a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health disorder. Based on the evidence before me, I find that since early 2023, the appellant has gained substantial insight into his mental health conditions, including his Alcohol Use Disorder. The appellant has acknowledged his Alcohol Use Disorder, curtailed and then stopped his use of alcohol, gained knowledge of his triggers for inappropriate alcohol usage, has connected with a reliable treatment program, plans to continue with its “after program” (including psychotherapy), has accepted and continues to learn new effective coping skills and is future oriented. Although the appellant feels confident that because he has “tackled his underlying mental health conditions” he will not be faced with alcohol use issues in the future, I am aware that Alcohol Use Disorder can relapse. The appellant stated that should, in the future, his underlying mental health conditions intensify he is aware to reach out to the safety net of his family and/or a qualified healthcare professional.
33I am satisfied that the appellant’s testimony and his evidence speak to his ability to drive safely despite his Alcohol Use Disorder. I find on a balance of probabilities, that the evidence presented at the hearing supports that the appellant’s medical condition is not likely to significantly interfere with his ability to drive safely.
Conclusion
34After a careful consideration of the totality of the evidence before me, and based on the above, I find that the Registrar has not discharged the onus 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.
ORDER
35For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
__________________________
Erica Weinberg
Adjudicator
Released: June 20, 2023