Licence Appeal Tribunal File Number: 15028/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:

Patrick Nairne

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dimitri Louvish, M.D., Adjudicator

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Patrick Nairne, Self-represented

For the Respondent:

Ian Sookram, Representative

HEARD: August 14, 2023

OVERVIEW

1Patrick Nairne (the “appellant”) appeals the decision of the Registrar to suspend his 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 physician that the appellant suffers from alcohol use disorder.

2Section 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 physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class. Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

3Although the Registrar originally suspended the appellant’s driver’s licence effective June 10, 2023 because of alcohol use disorder and mental health condition, the Registrar confirmed at the hearing that the mental health issue is no longer an issue in dispute.

4The Registrar takes the position that the appellant suffers from a medical condition, namely alcohol use disorder, that is likely to significantly interfere with his ability to drive safely.

5The appellant appeals the suspension under s. 50(1) of the Act. The appellant in his Notice of Appeal confirmed that he is now abstaining from alcohol use, has actively been receiving treatment and denies that his use of alcohol interferes with his ability to drive safely.

6Having considered all the evidence, and for the reasons which follow, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

7The issue in dispute is whether the Registrar has satisfied the onus on it to prove, on a balance of probabilities, that 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.

8Resolution of that issue requires us to address the following questions:

i. Does the appellant suffer from alcohol use disorder?

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

RESULT

9For the reasons set out below, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from alcohol use disorder

10We find that the appellant suffers from a medical condition, namely alcohol use disorder.

11The Registrar’s position is supported by a December 17, 2022 hospital emergency department report which diagnosed the appellant with a head injury but noted that the appellant drank a 750 ml bottle of wine the night before and has 30-40 alcoholic drinks per week. The appellant was counselled to follow up with his family physician.

12Dr. Martin Sommerfeld, the appellant’s physician psychotherapist completed a medical report dated January 6, 2023 in which Dr. Sommerfeld diagnosed

moderate substance use disorder (alcohol). In his May 19, 2023 report Dr. Sommerfeld diagnosed severe substance use disorder (alcohol) “in remission”

and reported the appellant has less than ten drinks per week, is being treated with ongoing weekly psychotherapy, mood is normal on anti-depressant medication, work and relationships stable and consistent.

13The appellant does not deny that he suffers from alcohol use disorder. In his testimony the appellant confirmed that he now abstains from alcohol use and has actively been receiving treatment from Dr. Sommerfeld.

14We find that the Registrar has established on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol use disorder.

The appellant’s medical condition is not likely to significantly interfere with his ability to drive safely

15We are satisfied that the appellant’s medical condition is not likely to significantly interfere with his ability to drive safely.

16The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) and submits 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 on us.

17The CCMTA Standards recommend that a driver who has been diagnosed with alcohol use disorder be considered eligible for a licence if they have abstained from the use of alcohol for 12 months. It is recommended that earlier re-licensing may be considered upon favourable recommendation from an addictions

specialist or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.

18We are not bound by the CCMTA Standards and here, we decline to follow them because of the June 16, 2023 report from Dr. Sommerfeld on which we place great weight. The appellant testified that Dr. Sommerfeld is his treating physician psychotherapist, that they typically meet weekly by videoconference and every few months in person, and that the appellant takes the medication prescribed by Dr. Sommerfeld. The appellant also testified that he has committed to abstinence since June 3, 2023. The appellant’s testimony is corroborated by Dr. Sommerfeld’s June 16, 2023 report.

19Although Dr. Sommerfeld in his June 16, 2023 report diagnoses the appellant with substance use and anxiety disorder, Dr. Sommerfeld opines that: the appellant’s condition has been stable; his symptoms resolved since December 2022; the appellant has no current symptoms; he has been prescribed medication; he adheres to the recommended treatment plan; and he is under Dr. Sommerfeld’s weekly medical supervision. Dr. Sommerfeld also opines that the appellant has the appropriate insight and sufficient understanding of his medical condition and the impacts on his functional ability to drive.

20Dr. Sommerfeld attached a letter to his June 16, 2023 report which is addressed to the Ministry of Transportation and contains his opinion on the appellant’s ability to drive safely. Dr. Sommerfeld confirmed that he has known the appellant for the past five and one-half years and the appellant was referred to him by his family doctor. Dr. Sommerfeld confirms that the appellant has made a commitment to life-long abstinence from alcohol on June 3, 2023. Dr. Sommerfeld opines that alcohol use is very unlikely to significantly interfere with the appellant’s ability to drive safely. Dr. Sommerfeld gives five reasons for his

opinion which, in summary, are: 1) that the primary motive for the appellant’s use of alcohol has been removed by ongoing medication since December, 2022; 2) the appellant has adhered to daily medication treatment and weekly monitoring for adherence and psychotherapy treatment for underlying emotional triggers of alcohol use; 3) the appellant has ongoing and consistent work and social relationships: 4) he has improvement of healthy lifestyle habits including diet, exercise and sleep; and 5) the appellant has the motivation and discipline to commit to life-long abstinence from alcohol. Dr. Sommerfeld also explains that the appellant’s severe anxiety, which he treated with alcohol, has already significantly improved.

21In our view, the appellant has insight into the nature and severity of his alcohol use disorder, has sought medical treatment, has adhered to the regime of medical treatment and results have been shown according to his treating physician Dr. Sommerfeld. Dr. Sommerfeld is clearly supportive of the appellant’s return to driving as set out in his June 16, 2023 report.

22For the above reasons, we find that the Registrar has not proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

23We find that the appellant suffers from a medical condition, namely alcohol use disorder, but we are not satisfied that it is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

24For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: September 12, 2023

__________________________

Dr. Dimitri Louvish

Adjudicator

__________________________

Avril A. Farlam

Vice-Chair