Licence Appeal Tribunal File Number: 15082/MED

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:

Michel Power

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Constantine Petrou, M.D., Member

Bruce Stanton, Member

APPEARANCES:

For the Appellant:

Michel Power, Appellant

For the Respondent:

Stephen Grootenboer, Agent

Heard by Teleconference:

September 8, 2023

OVERVIEW

1MCpl Michel Power, the appellant, appeals from a decision of the Registrar of Motor Vehicles, the respondent, to suspend his driver’s licence for medical reasons on April 12, 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 admits that he suffered an episode of severe substance abuse using alcohol, that was brought on by depression, earlier this year, but since March 18, 2023 he has abstained from alcohol and has taken steps to avoid a reoccurrence.

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

5In reaching that determination, we must decide if the appellant suffers from a medical condition that 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 on a balance of probabilities that the appellant does not suffer from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely. We therefore set aside the respondent’s decision to suspend the appellant’s licence.

ANALYSIS

The circumstances leading to the licence suspension and appeal

8The appellant has served in the Canadian Armed Forces (“CAF”) since his late 20’s. He was deployed in Afghanistan for 6.5 months in 2008 where he sustained physical and psychological injuries. He testified to the circumstances that led to his licence suspension. After his deployment, he continued employment with the Royal Canadian Air Force as a technician assisting in maintaining and monitoring secure IT and aerospace communications.

9Canada ended its participation in the NATO mission in Afghanistan in 2014. In mid to late 2021, all NATO forces in Afghanistan withdrew. The withdrawal resulted in the Taliban almost immediately retaking control of the country. Over the ensuing time, the realization of Afghanistan reverting to Taliban control, coupled with the experience of seeing 22 of his Canadian comrades die during his deployment, including escorting their coffins to air transports during ramp ceremonies, left him depressed and searching for meaning in the deaths of his colleagues and those of allied forces. The depression turned him toward alcohol abuse. For several weeks leading up to March 2023, he was consuming 375 ml to 750 ml of liquor, chased with several beer, every day. This excessive alcohol use resulted in him admitting himself to hospital.

10On March 19, 2023, the appellant attended Civic Hospital in Ottawa for what he describes as pain in his upper thorax and abdomen. Following the hospital visit, the attending physician, Dr. Gianni D’Egdio 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 cognitive impairment, brought on by alcohol, and a substance use disorder, alcohol.

11Section 47(1)(g) of the HTA allows the respondent to suspend or cancel a driver’s licence for any sufficient reason beyond those set out in sections 47(1)(d) through 47(1)(f). 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. That medical condition ground is set out in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”) in which the 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 safely.

12Based on Dr. D’Egdio’s Medical Condition Report, the MTO suspended the appellant’s licence and advised him by mail, dated April 12, 2023, that the licence was being suspended due to an alcohol use disorder, and cognitive impairment.

13On July 26, 2023, the appellant filed a Notice of Appeal to the Licence Appeal Tribunal (the “Tribunal”) to appeal the suspension of his driving privileges.

The appellant does not suffer from a medical condition

14We find the appellant does not suffer from a medical condition, neither alcohol use disorder, nor cognitive impairment.

Cognitive Impairment

15Following the notice of suspension on April 12, 2023, the respondent provided the appellant with two forms to have completed by a physician, specialist or nurse practitioner; a) Cognitive Disorder, and b) Substance Use Assessment.

16The appellant filed the Cognitive Disorder assessment, completed by Ashley Gerber, a Canadian Forces Medical Officer, with the respondent on May 18, 2023. The assessment reports the appellant had “no impairment” and a MOCA score of 28/30.

17On June 14, 2023 the respondent wrote to the appellant advising that his licence remains under suspension, but it revised his reported medical condition to include only alcohol use disorder.

18Accordingly, cognitive impairment is no longer at issue as a medical condition relating to his licence suspension.

Alcohol use disorder

19The appellant testified that prior to the period of excessive drinking in early 2023 that led to his hospital visit, he did not abuse alcohol. After his 2008 deployment he drank slightly more often than before, up to an average of 6 to 12 small (375 ml) cans of beer per week. He did not indulge in other alcoholic beverages, cannabis or other drug use.

20The appellant’s driving record is free of any infraction for impaired driving.

21The binge drinking the appellant engaged in, in early 2023, resulted in his hospitalization where he reports being diagnosed with pancreatitis, and damage to his esophagus and liver. Following the hospital visit, the appellant chose to abstain from alcohol completely.

22He testified that he turned his attentions to healthier ways to divert his anxiety and depression including work, music (guitar and playing in a band), and exercise. He refers to the heavy drinking period as a “wake-up call” that convinced him to change his ways. With the support of his family, he has maintained his sobriety.

23The appellant submitted blood chemistry, toxicology, and lab reports, as well as a report from his physician, Dr. Caroline Brownlee, that supports the conclusion that he has abstained from alcohol since earlier this year. Moreover, he is taking steps to avoid reoccurrence.

24During his treatment for PTSD, post-deployment, the appellant undertook regular therapy sessions from which he described the tools he had learned. These included directing the anxiety he was feeling from external sources into positive, constructive activities. He admitted that he erred in turning to alcohol during his anxiety over the Afghanistan withdrawal. By contrast, he now turns to music, exercise, and work to direct his energy and attention, and is deliberately abstaining from alcohol. He testified that he is in contact with this family and friends on a weekly basis and he expressed a resolve to seek psychological counselling, that is readily available to him as a member of the CAF, as needed.

25Throughout the hearing we found the appellant to be thoughtfully detailed in his testimony. His explanations were coherent and forthright. He expressed accountability for his actions and understanding of the basis of the suspension and the process of the appeal.

26The respondent relies on the Canadian Council of Motor Transport Administrator’s National Safety Code, Standard 6: Determining Driver Fitness in Canada (the “CCMTA Standard”) in establishing the standard for drivers to achieve, after experiencing or living with an alcohol use disorder, to have their licence reinstated. Section 15.6.3 of the CCMTA Standard sets out that a driver with alcohol use disorder would be eligible for a licence if they abstained from alcohol for 12 months, and it suggests the possibility of earlier re-licensing with a favourable recommendation of a physician or addictions specialist, and the successful completion of an alcohol treatment program.

27The Tribunal is not bound by the CCMTA Standard but routinely considers it in reaching decisions on medical licence suspensions.

28The CCMTA Standard is echoed in the MTO’s notices of suspension to the appellant which note that he could get his licence reinstated after 6 months of abstaining from alcohol if the required health practitioner supported his driving privileges being reinstated, and he successfully completed an alcohol treatment program.

29The appellant has abstained from alcohol for almost six months. Although he did not submit any documentation to indicate his physician supports his driving privileges being reinstated, and has not completed an alcohol treatment program, we note the appellant is determined in his abstinence from alcohol, has medical services readily available to him that he is predisposed to using if needed, and has the support of family and friends.

30The evidence before us leads us to conclude that the period of severe alcohol use disorder that led to the appellant’s suspension was episodic, limited to several weeks earlier this year, and that the appellant has successfully recovered from it. The documentary evidence he submitted confirms his oral evidence that he continues to abstain. He is being proactive to avoid reoccurrence and has supports in place to help sustain his recovery.

31We find, on a balance of probabilities, that the appellant does not have a medical condition pursuant to s. 47(1)(g), and therefore there is no longer any basis for his licence suspension. The respondent has not met its burden to prove that the licence suspension should be confirmed.

CONCLUSION

32We find the appellant does not suffer from a medical condition. Therefore, the respondent’s decision to suspend the appellant’s licence is set aside.

ORDER

33For 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 set aside.