Licence Appeal Tribunal File Number: 14587/MED

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:

William Korol

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Peter Savage, M.D., Member

Bruce Stanton, Member

APPEARANCES:

For the Appellant:

William Korol, Appellant

Margita Sucha, Witness for the Appellant

For the Respondent:

Stephen Grootenboer, Agent

Heard by Teleconference:

July 5, 2023

OVERVIEW

1William Korol, the appellant, appeals from a decision of the Registrar of Motor Vehicles, the respondent, to suspend his driver’s licence for medical reasons on January 26, 2023.

2The respondent claims that the appellant suffers from a medical condition, namely alcohol use disorder, that is likely to significantly interfere with his ability to drive safely.

3The appellant denies that he suffers from alcohol dependence or alcohol use disorder and therefore submits there is no basis for his licence suspension.

4It is the respondent’s burden to prove, on a balance of probabilities, that the appellant’s licence should remain suspended.

5In reaching a determination on his appeal, we must decide if the appellant suffers from a medical condition, and if he does, whether that condition is likely to significantly interfere with his ability to drive safely.

ISSUES

6The issue in dispute is:

1. Does the appellant suffer a medical condition, and if so, is it likely to significantly interfere with his ability to drive a motor vehicle safely?

RESULT

7We find that the appellant suffers from a medical condition, alcohol use disorder, and it is likely to significantly interfere with his ability to drive a motor vehicle safely. We therefore confirm the respondent’s decision to suspend the appellant’s licence.

ANALYSIS

The circumstances leading to the licence suspension and appeal

8On January 23, 2023, the appellant attended the Emergency Department of a Woodbridge ON area hospital for symptoms of anxiety, vomiting and diarrhea. The emergency room physician, Dr. Lap Kei Connie Tung, attended to the appellant, and subsequently submitted a Medical Condition Report to the Ministry of Transportation (the “MTO”) Medical Review Section pursuant to s. 203 of the Highway Traffic Act (the “HTA”) noting that the appellant suffered from an uncontrolled substance use disorder. Her report noted that he drove to the hospital that day, presented in an intoxicated state, had dealt with alcoholism for 15 years, and consumed an average of 12 beers per day.

9Subsection 47(1)(g) of the HTA allows the respondent to suspend or cancel a driver’s licence for any sufficient reason. One such reason under s. 47(1)(g) is if the driver suffers from a medical condition that is likely to significantly interfere with his or her ability to drive safely. The criteria for that medical condition ground are set out in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”) which provides that the holder of a driver’s licence must not suffer from any mental, emotional, nervous or physical condition or disability that is likely to significantly interfere with his or her ability to drive a motor vehicle safely. Under s. 14(1)(b), the same applies to the holder of a driver’s licence who suffers from an addiction to alcohol or drugs to an extent that it interferes with their ability to drive safely.

10Based on Dr. Tung’s Medical Condition Report, the MTO suspended the appellant’s licence and advised him by mail, dated January 26, 2023, that his licence was being suspended due to an alcohol use disorder.

11On March 7, 2023, the appellant submitted a Notice of Appeal to the Licence Appeal Tribunal (the “Tribunal”) to appeal the suspension of his driving privileges.

The appellant suffers from an alcohol use disorder

12We find it is more likely than not, that the appellant suffers from a medical condition, specifically alcohol use disorder.

13The respondent presented medical evidence to support the licence suspension of the appellant, in the form of the Medical Condition Report of Dr. Tung. It submits that the appellant offered no medical evidence to counter or refute Dr. Tung’s conclusions, and that the suspension should be confirmed. We agree.

14The only documentary medical evidence before us is Dr. Tung’s report and it is the basis of the appellant’s licence suspension. The course for the appellant to get his licence reinstated was provided to him by the MTO in their letter of suspension, which is to have a Substance Use Assessment report completed by a physician, specialist, or nurse practitioner, and have it reviewed by their Medical Review Section.

Claims of no access to medical care or practitioner are unconvincing

15In his Notice of Appeal, the appellant discounts Dr. Tung’s report claiming she, “… is not my family doctor and does not know my history and therefore cannot make that diagnosis [alcohol use disorder] based on a single time she has seen me.” Yet, in the more than five months since the licence suspension, the appellant has not produced his own physician’s report that would help explain the appellant’s relationship with alcohol, especially if it is, as the appellant contends, not problematic.

16The appellant testified that he drinks up to six, tall cans of beer per week and usually no more than 2 or 3 in any one day, and that this level of drinking does not affect his daily activities. He is currently unemployed and has been off work for the last year for medical reasons unrelated to alcohol consumption. He testified that he suffers from long-COVID, occasional spikes in heart rate, and spells which prevent him from meeting the physically demanding nature of his work duties.

17The appellant claims he could not visit his family physician in Woodbridge because he had no transportation. An earlier hearing in this matter was adjourned, on consent, to allow the appellant to attend a medical appointment in mid-June for the purpose of gathering medical evidence for this hearing. Yet, that appointment was cancelled, the appellant claims, due to lack of transportation.

18The appellant claims that his parents help with some of his driving needs. His former spouse drives, has a vehicle, and is currently unemployed. Failing help from other sources for driving needs and transportation, public transit is available from Hamilton to the Woodbridge area. We find the appellant’s claim of no access to his family physician is not credible.

19The appellant testified that he inquired into an urgent care clinic in Hamilton in May, but they would not complete the Substance Use Assessment report for lack of medical history. In the five months since the suspension, the appellant reported only one other attempt to get assessed and have the form completed; the mid-June appointment discussed above. We believe the appellant has had sufficient time and means to secure a suitable health care practitioner that would assist him in completing the form for the MTO.

20The appellant is taking prescribed medication and when questioned by the respondent on how he is maintaining prescriptions without accessing his physician or other clinics, he submitted that prescription renewals were all completed by, in one case a clinic in Ottawa, and in others, by renewing over the phone.

21The appellant has been on leave from his work for medical reasons for the last year, he visited a hospital for symptoms of extreme anxiety in January of this year, and he is on prescribed medication. The appellant’s claim of no access to medical services as a reason for not getting the Substance Use Assessment completed, is simply not credible. We are not convinced that a lack of access to medical care stands in the way of the appellant getting the Substance Use Assessment completed.

Dr. Tung’s report unrefuted by oral testimony

22As discussed above, Dr. Tung’s report is the basis of the appellant’s licence suspension and the appellant has not produced a completed Substance Use Assessment, or submitted any other medical evidence, that would question or challenge her conclusions. The appellant relies only on his and a witness’s oral evidence to convince us Dr. Tung was incorrect in her finding. We are not persuaded by their oral evidence and therefore find, on a balance of probabilities, that the appellant suffers from an alcohol use disorder.

23The appellant described Dr. Tung’s conclusions as being a complete misunderstanding. For example, he suspects that Dr. Tung’s report of him living with alcoholism for 15 years was a misunderstanding arising from him stating that he started drinking at the age of 15. He claims he was disoriented and anxious during the ER visit and that he may not have explained himself properly.

24However, in his Notice of Appeal, the appellant describes informing Dr. Tung of “some past struggles with alcohol”, struggles that, at today’s hearing, he denies having had. His oral testimony today was not consistent with the comments in his Notice of Appeal.

25The appellant admitted in his Notice of Appeal, that he consumed three, tall cans of beer while waiting at the ER that day. Dr. Tung reported him as being intoxicated when she assessed him.

26Owing to his intoxication at the time of the ER visit, and the inconsistencies between the appellant’s oral testimony and his statements in the Notice of Appeal, we assign little weight to the appellant’s oral testimony regarding recollections and explanations of his attendance with Dr. Tung.

27Margita Sucha, the former spouse of the appellant, testified that the appellant’s drinking did not interfere with his ability to care for their 11-year-old son during his several visits each week. She testified that he consumed alcohol but not to excess, did not drive after drinking, and that she trusted him, without hesitation, with the care of their son. For the appellant to visit their son, Ms. Sucha does the driving back and forth between their respective residences in Hamilton, ON. Ms. Sucha is currently off work due to a disability.

28Ms. Sucha did not accompany the appellant to the hospital when he was attended to by Dr. Tung, so she could not refute or support Dr. Tung’s conclusions.

29We find that Ms. Sucha was attempting in good faith to provide meaningful assistance to the Tribunal on the issue that must be decided. However, we assign less weight to Ms. Sucha’s testimony about the appellant’s alcohol habits because she was not present when the appellant attended hospital and Dr. Lung’s examination, her comments about the appellant not drinking before driving are contradicted by his impaired driving conviction of March 18, 2019, and as a lay witness, she is less qualified to render an opinion on his alcohol habit than Dr. Lung.

Appellant may be in denial of his alcoholism

30The appellant presents as an individual who may not see the significance of his alcohol use. He downplayed his conviction for impaired driving noting that his completion of the On Track program and compliance with nine months of an ignition interlock device condition was sufficient penalty for what he considers to have been a mistake that “everybody makes from time to time”.

31The appellant denies any alcohol dependence and dismisses any need to seek help for his condition. He was unable to provide a credible explanation of why he had three beers in the emergency room waiting area and has given no indication of changing or wanting to change his drinking pattern. He continues to consume alcohol on a regular basis despite its obvious negative impacts on his health, driving privileges and daily activities.

32In summary, the respondent submitted independent, persuasive medical evidence of the appellant’s medical condition. The appellant presented oral evidence in an attempt to refute the Medical Condition Report of Dr. Tung, but it was unconvincing. Witness, Margita Sucha, gave helpful insights into the appellant’s relationship with alcohol, but we found it to be less persuasive than report of Dr Lung.

33In the absence of any independent medical evidence to the contrary, we find that the appellant suffers from a medical condition, namely alcohol use disorder.

The appellant’s medical condition is likely to significantly interfere with his ability to drive safely

34Having found that the appellant suffers from a medical condition, alcohol use disorder, we must now consider if his condition meets the threshold defined in s. 14(1)(a) or (b) of the Regulation. We must consider if his medical condition or alcohol addiction reaches an extent to which it will significantly interfere with his ability to drive a motor vehicle safely.

35The respondent directed us to the National Safety Code Standard 6: Determining Driver Fitness in Canada of the Canadian Council of Motor Transport Administrators (“CCMTA Standard”) in support of its submission that the appellant’s medical condition meets the test set out in s. 14(1).

36Subsection 14(2) of the Regulation identifies that the CCMTA Standard may be taken into consideration in determining whether the medical condition of a licence holder reaches the extent of being likely to significantly interfere with their ability to drive safely.

37Section 15.3 of the CCMTA Standard explains that alcohol’s effects on the ability of a person to drive safely are dependant on the quantity consumed, and s. 15.3 reminds us that impaired driving is the leading cause of criminal death in Canada and the cause of one quarter of all motor vehicle accident fatalities.

38The appellant has one impaired driving conviction from March 18, 2019 and presented himself to the ER of a hospital earlier this year in an intoxicated state. The appellant reported consuming three beers while waiting in the ER for a physician because, “he was not going anywhere and planned to stay in Woodbridge that evening”, i.e. not drive after he was drinking. We find the appellant’s consumption of beer while waiting in a hospital ER to be highly unusual, and his reasons for doing so are suspicious. We find that his reports of drinking at the ER visit corroborate his casual and dismissive attitude about drinking. It leaves us to conclude that the appellant’s habits with alcohol continue to be uncontrolled and as discussed above, he dismisses the significance alcohol consumption has on his health and safety.

39Section 15.6.3 of the CCMTA Standard defines the criteria for eligibility to hold a licence if a driver suffers from a substance use disorder, including from alcoholism. At the centre of this standard is that the driver’s functional abilities are not impaired. In these cases, a driver is eligible for a licence if they have abstained from the substance for 12 months. They may be eligible for re-licensing earlier than 12 months if they get a favourable recommendation from an addictions specialist or treating physician, and successfully complete a rehabilitation program.

40We find that the appellant’s history of alcohol use and his dismissive attitude toward the personal and public safety risks of his alcohol habit make it likely that his medical condition, alcohol use disorder, will significantly interfere with his ability to drive safely.

CONCLUSION

41We find the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

42For the reasons give above, pursuant to subsection 50(2) of the Highway Traffic Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.