Licence Appeal Tribunal File Number: 15054/MED

In the matter of 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:

Jason Cuthbert

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

Jason Cuthbert, Self-Represented

For the Respondent:

Andrew Sookram, Representative

Heard by teleconference:

August 14, 2023

OVERVIEW

1Jason Cuthbert (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend their Class G driver’s 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 health care provider that the appellant suffers from a medical condition that may affect their safety to drive.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 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 mental, emotional, nervous, or physical condition or disability likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely Seizure due to Alcohol withdrawal, that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from Seizure due to Alcohol withdrawal and deny that they suffer from a medical condition which interferes with their ability to drive safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

ISSUES

6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from Seizure due to Alcohol withdrawal?

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

RESULT

8Having considered all the evidence and for the reasons that follow, I find that the Registrar has satisfied its burden to establish on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from Seizure due to Alcohol withdrawal?

9The evidence presented at the hearing establishes, on a balance of probabilities, the Registrar’s allegation that the appellant suffers from a medical condition, namely Seizure due to Alcohol withdrawal.

10The Registrar’s position is supported by medical reports completed by Drs. S. and M.

11On March 25, 2023, Emergency Room (“ER”) physician, Dr. S., completed a Medical Condition Report indicating that the appellant was suffering from Seizure due to Alcohol withdrawal.

12On a June 2023 completed Substance Use Assessment form, Dr. M., the appellant’s family physician, checked off that the appellant suffers from Seizure due to Alcohol withdrawal and severe substance use disorder to alcohol (Alcohol Use Disorder, “AUD”) and hand-wrote, “Admitted to hospital for alcohol withdrawal seizures”. Furthermore, in an August 3, 2023 narrative letter, Dr. M. wrote that the appellant “never had seizures prior to March 2023” and “has not had seizures since he was discharged in March 26, 2023”.

13The appellant does not deny that he suffered a number of “fainting spells” (“episodes”) on March 25, 2023, and that he went to the hospital out of concern for his health. Two of the episodes were witnessed by his wife at home and more episodes were witnessed by the “intake” staff at the hospital. The appellant admits to drinking a “6-pack of beer” and a “couple of shots of whiskey” between 5:00 pm and 11:00 p.m. on March 24, 2023, and to telling the ER staff on March 25, 2023 that he was “hungover” from drinking the night before. The appellant argues that these episodes were due to a nutritional/vitamin deficiency or to lack of sleep or to diverticulitis. The appellant also relies on the facts that both the Magnetic Resonance Imaging (“MRI”) of his head and the electroencephalograph (“EEG”) were reported as normal (“no seizure present”) and the neurologist he was referred to neither gave him a follow-up appointment nor prescribed any medications.

14I prefer the evidence of Dr. S. and Dr. M. over that of the appellant and find, on a balance of probabilities, that the appellant suffers from Seizure due to Alcohol withdrawal. The named doctors are all qualified to make such a diagnosis and determine whether the appellant suffers from that condition.

15I assign limited weight to the appellant’s evidence that his episodes were due to a nutritional/vitamin deficiency or lack of sleep or diverticulitis. The appellant brought forward no medical evidence to support this allegation. The appellant did not submit any evidence from his out-patient neurology consultation, nor any other written evidence from his March 2023 hospitalization. The appellant testified that: Dr. M. was in possession of hospital notes or records from their March 2023 hospitalization; Dr. M. completed the Substance Use Assessment form using information from the hospital notes or records; and they disagreed with some of the information contained in the hospital notes or records. Neither Dr. S. nor Dr. M. in their evidence refer to a nutritional/vitamin deficiency or lack of sleep or diverticulitis as being the cause of the appellant’s episodes/seizures.

16Furthermore, as a licenced and duly qualified physician practicing in Ontario, I am aware based on my knowledge that a normal MRI (head) or a normal EEG do not rule out the diagnosis of seizure and that anti-seizure medications are not routinely prescribed on an on-going basis for the condition of Seizure due to Alcohol withdrawal. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Thus, a normal MRI (head) or normal EEG or the absence of a prescription for anti-seizure medication does not mean the Drs. S. and M. were incorrect about the diagnosis of Seizure due to Alcohol withdrawal.

17I acknowledge that the appellant does not feel they have issues or problems with alcohol consumption (“I have grown up around people with alcohol issues – I am not like them; only alcoholics keep track of their alcohol consumption”). However, Dr. M.’s evidence indicates that the appellant suffers from the mental health condition of AUD. I prefer Dr. M.’s objective, medically supported assessment over the appellant’s subjective self-assessment.

18I find that the Registrar has established on a balance of probabilities that the appellant suffers from Seizure due to Alcohol withdrawal.

Is the appellant’s medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

19I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely.

20The Registrar argues that Seizure due to Alcohol withdrawal interferes with a driver’s ability to drive safely and presents a safety risk to other road users. They further argue that the appellant denies he has AUD, has not participated in any form of an alcohol treatment program, has currently been abstinent from alcohol for only two weeks and does not have support from any treating health care provider for reinstatement of their driver’s licence. The Registrar’s representative also emphasized that the appellant’s “Extended Driver Record Search For Criminal Code Convictions” shows that in August 2022 the appellant had a three-day Administrative Suspension for a BAC (blood alcohol concentration) of 0.5 which is in the warning range.

21Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (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 the Tribunal.

22The Registrar relies on the CCMTA Standards, in particular Chapter 17.6.3 (Alcohol Withdrawal Seizures) which states that all drivers are eligible for a licence if: the treating physician has confirmed that the cause of the seizure was alcohol withdrawal; they have undergone addiction treatment and have received a favourable report from an addiction counsellor; and the criteria for licence reinstatement are met in accordance with Chapter 15.6.3 (Substance Use Disorder). Chapter 15.6.3 provides that all drivers suffering from AUD may be eligible for a licence if they meet the criteria for remission and/or have abstained for twelve months. It also states that earlier re-licencing 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.

23The appellant argues that he is a responsible drinker, does not suffer from Seizure due to Alcohol withdrawal, does not have AUD and has been wrongfully “labelled” as an “alcoholic”. Although Dr. M. indicated on the June 2023 Substance Use Assessment form that the appellant had been abstinent from alcohol for less than six months, the appellant candidly admitted that he has been “back and forth” with abstinence and drinking because he “likes beer”. The appellant stated that they have currently been abstinent for two weeks in an effort to regain their driver’s licence. Furthermore, the appellant stated that they primarily drink alcohol at home and they have never and would never drive after drinking. The appellant stated that they are currently taking vitamin supplements as recommended and feels well.

24When questioned about the three-day Administrative Suspension for a BAC of 0.5 in August 2022, the appellant testified that: they had consumed alcohol the night prior; did not feel any effects from the previous night’s alcohol consumption when they decided to drive to pick up more alcohol the following day; there was a breathalyzer “blitz” in the parking lot; they told the police officer that they had not consumed alcohol that day; and they blew in the BAC warning range. The appellant admitted that there was “booze in [their] system” from being “intoxicated from the night before”.

25At the hearing, the appellant questioned that although they understand the law regarding drinking and driving, “do they not have the right to drink or not?” The appellant's right to drink is not in issue. The issue I must determine is whether the appellant suffers from a medical condition which is likely to significantly interfere with their ability to drive a motor vehicle safely.

26While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

27Although I am not bound by the CCMTA Standards, I find them to be reasonable. The use of alcohol affects the functions necessary for driving including reaction times, visual acuity, judgement and insight, alertness and motor co-ordination. The use of alcohol impairs a driver’s judgment and behaviour towards others, including in determining whether they are fit to drive or not. 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. Moreover, as seizures cause an episodic impairment of the functions necessary for driving, a driver cannot compensate.

28Given the medical evidence, I am persuaded to apply the CCMTA Standards. I acknowledge that it has now been nearly five months since the appellant’s Seizures due to Alcohol withdrawal. However, there is no evidence to suggest the appellant has gained insight into his medical condition of Seizure due to Alcohol withdrawal or his AUD during this period. Insight is an important consideration when considering safety to drive. Insight means that a driver: is aware of their medical condition; understands how the condition may impair their functional ability to drive; and has the judgment and willingness to comply with a suggested treatment regime. Despite a warning BAC in August 2022 after being intoxicated the previous evening and Seizures due to Alcohol withdrawal in March 2023, the appellant continues to drink alcohol “on and off”. Furthermore, there is no evidence to suggest that the appellant is currently addressing his AUD through treatment of any kind, nor has the appellant successfully completed an alcohol drug rehabilitation program. There is also no favourable recommendation from a treating healthcare professional for reinstatement of the appellant’s driver’s licence. I find that the appellant falls short of the criteria set out in the CCMTA Standards for earlier re-licensing. I accept the respondent’s submission that further medical information should be submitted is reasonable keeping in mind public road safety.

29I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely Seizure due to Alcohol withdrawal, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

30For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.