Licence Appeal Tribunal File Number: 15160/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:

Abram Giesbrecht

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Abram Giesbrecht, Self-Represented

For the Respondent: Stephen Grootenboer, Representative

HEARD by teleconference: September 21, 2023

OVERVIEW

1Abram Giesbrecht (the "appellant") appeals from the decision of the Registrar of Motor Vehicles ("Registrar") to suspend their Class AC 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 alcohol use disorder, 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 alcohol use disorder 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 alcohol use disorder?

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

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is "yes."

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish 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 alcohol use disorder?

10The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely alcohol use disorder.

11On June 11, 2023, the appellant was involved in an altercation, which, as described below, appears to have occurred subsequent to the appellant having consumed alcohol. The appellant was transported to hospital following the altercation.

12The Registrar's position is supported by medical reports completed by Dr. A.

13On June 11, 2023, emergency room ("ER") physician, Dr. A., completed a Medical Condition Report indicating that the appellant was suffering from substance use disorder to alcohol (alcohol use disorder).

14In the ER documentation, the appellant's alcohol (ethanol) level was reported as "critical" at 42.4 mmol/L. As a licenced and duly qualified physician in the province of Ontario, I am aware that an ethanol level of 42.4 mmol/L is approximately equivalent to a blood alcohol concentration ("BAC") of 0.18%, more than twice the legal limit for driving in Ontario (maximum BAC = 0.08%). I take notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. In addition, Dr. A. indicated that the appellant's mother, whom she called during the appellant's stay in the ER to clarify the events of that day, stated that the appellant drinks every day and their alcohol drinking is very problematic for them. Dr. A.'s "Final Impression and Plan" states, "...I think that his drinking is becoming extremely problematic". Dr. A.'s final diagnoses were: rhabdomyolysis (caused by injured skeletal muscle from the altercation); intoxication; and alcoholism.

15I acknowledge that Dr. A.'s evidence is hearsay evidence and the information Dr. A. received from the appellant's mother is double hearsay evidence. I recognize that despite having the discretion to admit hearsay or double hearsay evidence, tribunals must be cautious in doing so given that hearsay and double hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay and double hearsay evidence of Dr. A. Dr. A. was acting under their duty as an ER physician and would have taken contemporaneous notes of their observations or conversations with the appellant and the appellant's mother, with whom the appellant lives. Furthermore, the information the appellant's mother gave to Dr. A. was potential hurtful to the appellant, something that most parents try not to do.

16Although the appellant commented that Dr. A. was not present on June 11, 2023 at their mother's residence/address when any of the events occurred and questioned how Dr. A. gained some of the information presented by the Registrar's representative, as stated in paragraph [14], Dr. A. called the appellant's mother during their stay in the ER. Furthermore, I note that it was the appellant who submitted the ER documentation as evidence.

17The appellant denies they suffer from alcohol use disorder. Initially, the appellant testified that since they started truck driving in March 2023, they do not drink alcohol six out of seven days per week. They candidly admitted to drinking beer on their day off, while doing chores for the week, typically drinking 8-20 beers starting after lunch. The appellant admits to a strong family history of alcohol use disorder, but denies any family member, including their mother, expressing concerns regarding their alcohol consumption. Later in the hearing, when specifically questioned if their mother might say that they drink alcohol during the week, the appellant answered affirmatively and stated that they might drink up to two beers on workday evenings.

18In addition, the appellant stated that 3-4 years ago, around the time of their divorce, their ex-wife accused them of abusing alcohol. I acknowledge that this evidence is hearsay evidence. However, in this case I accept the hearsay evidence because most people do not say things that work against their self-interest. The appellant stated that at this time they abstained from alcohol and attended AA meetings twice weekly for six months to placate the situation. They admitted to beginning drinking again following this 6-month period.

19The appellant indicated that they have been unable to get the requested substance use assessment form completed by their family physician, their treating specialist (for an unrelated condition) or a walk-in clinic physician. The appellant stated that their family physician had received medical information from the appellant's June 11, 2023 hospital visit, refused to "do the paperwork", encouraged them to abstain from alcohol and to come back in six months.

20On June 11, 2023, a day off from trucking, the appellant testified that he began drinking beer after lunch (1-2 p.m.) and continued drinking beer "a large portion of the day" until around 9 p.m. when the altercation occurred. The appellant could not quantify the number of beers they drank. The appellant described themselves as being "fully functioning" doing their chores that day which included cutting wood using a chain saw. Later in the hearing, the appellant testified that another family member who was present later in the day was "also intoxicated". When questioned what that meant, the appellant clarified that they were "a bit intoxicated" at that time.

21The appellant further argues that they now only drink non-alcoholic beer and did not suffer alcohol withdrawal symptoms when they stopped drinking regular beer after June 11, 2023.

22I prefer the evidence of Dr. A. over that of the appellant, and find on a balance of probabilities, that the appellant suffers from alcohol use disorder. Dr. A. is qualified to make such a diagnosis, had corroborating evidence from the appellant's mother that the appellant's "alcohol drinking is very problematic for him", the appellant's ex-wife allegedly accused the appellant in the past of abusing alcohol and the appellant's ethanol level at the hospital was reported to be at a "critical" level.

23I assign less weight to the appellant's self-assessment that they do not suffer from alcohol use disorder and they are "100 per cent positive" of this. I acknowledge the September 12, 2023 letter from Mr. B., the manager who oversaw the appellant's trucking work from March to June 2023, which indicates that there were "no signs of alcohol use or intoxication of any kind or missed days due to that nature". However, the appellant's testimony with respect to their alcohol consumption/habits was inconsistent and they did not submit any medical evidence to dispute Dr. A.'s diagnosis. I prefer the objective, medically supported assessment of Dr. A. over the appellant's subjective self-assessment.

24I find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

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

25I 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.

26The Registrar's representative argues that alcohol use disorder can and will significantly interfere with a driver's ability to drive safely and presents a safety risk to other road users. Furthermore, they emphasized that: the appellant has not submitted any medical information from a treating health care provider regarding their reported medical condition; they have not submitted any medical information in support of reinstatement of their driver's licence; the suspension of the appellant's driver's licence is reasonable, prudent and supported by the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the "CCMTA Standards") and the law; and according to Dr. A.'s ER documentation, the appellant "tried to get into his truck. This was while he was under the influence of alcohol".

27Section 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 the Tribunal.

28The Registrar relies on the CCMTA Standards, in particular Chapter 15.6.3 (Substance Use Disorder) and internal policies at the Ministry of Transportation. Chapter 15.6.3 provides that all drivers suffering from alcohol use disorder 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.

29The appellant argues that: they have no medical condition that interferes with their ability to drive a motor vehicle safely; there is "no evidence besides the one incident on one particular day"; the incident/issue is really about a family argument; Dr. A.'s evidence is really an "opinion and not evidence"; they were drinking on property owned by their mother; and they have a clean driving record.

30The appellant described the family issues, arguments and dynamics on June 11, 2023. They candidly admitted that, around 9 p.m., during or following an argument with a family member, they "got into their truck to get away from" the family member as there was "no other place for privacy". The appellant indicated that this family member pulled them out of their truck, allegedly beat them up, they were "knocked unconscious" and they woke up in an ambulance. The appellant testified that they had their truck keys with them during this time period.

31While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

32Although 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 judgement 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.

33Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

34I accept the appellant's argument that he was drinking alcohol on his mother's property on June 11, 2023. However, the right to drink alcohol is not at issue. The issue I have to determine is whether the appellant has a medical condition which is likely to significantly interfere with their ability to drive a motor vehicle safely.

35I acknowledge that the appellant testified that since June 11, 2023 (approximately three months), they only drink non-alcoholic beer.

36In addition, I acknowledge, that the appellant's "Extended Driver Record Search For Criminal Code Convictions" indicates that the appellant has never been charged with operating a motor vehicle while impaired or with a BAC "over 80".

37I am aware that there are two key elements to convict a person of a DUI for alcohol in Ontario. First, there must alcohol in a person's system beyond certain defined limits (BAC ≥ 0.08%) and the person must be operating a motor vehicle. According to s. 320.11 of the Criminal Code, R.S.C. 1985, c. C-46, to "operate" a vehicle means "to have care or control" of that vehicle. The Crown does not need to prove that the person was driving, only that the person was in a position where the person could have driven while impaired. In its 2012 decision of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, the Supreme Court of Canada said there must be circumstances that create a "realistic risk of danger". The Court agreed that a realistic risk of danger exists even when someone who is intoxicated does not intend to drive because that person may change their mind later or they might accidentally put the car into motion.

38I acknowledge that in the circumstances of this case, there is no indication that the appellant was charged with an alcohol-related driving offence. The appellant testified that the police and EMS were called after the altercation with the family member, at which time the appellant would not have been in their truck.

39However, I find on a balance of probabilities, that on the evening of June 11, 2023, the appellant had alcohol in their system at a BAC ≥ 0.08% and was in care and control of their vehicle when they were in their truck for "privacy". The appellant provided no evidence indicating that their truck was inoperable or positioned to make it impossible to pose a risk of danger. The appellant provided no credible and reliable evidence that there was no "realistic risk of danger," and based on the evidence before me, I am persuaded that there existed such a risk. Furthermore, the evidence indicates that the appellant drank beer from approximately 1 p.m. to 9 p.m. on June 11, 2023, the altercation occurred around 9 p.m. that evening, the appellant was transported to hospital following the altercation and the appellant's ethanol level at the hospital on the evening of June 11, 2023 was measured as 42.4 mmol/L, which as previously stated equates approximately to a BAC = 0.18%.

40To be clear, I do not have jurisdiction to decide whether the appellant is guilty or not-guilty of an alcohol-related driving offence, nor have I made any such determination. Instead, I have considered the evidence solely on the question of whether the appellant's driver's licence should be suspended for the reasons set out by the Registrar.

41Based on the above, I find that appellant's medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely. I accept the respondent's submission that further medical information and time should be submitted is reasonable keeping in mind public road safety.

42I am satisfied on a balance of probabilities that the appellant's medical condition of alcohol use disorder is likely to significantly interfere with their ability to drive safely.

Conclusion

43I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol use disorder, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

44For 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.

LICENCE APPEAL TRIBUNAL

__________________________

Erica Weinberg

Adjudicator