Anthony Kola-Olusanya v. Registrar of Motor Vehicles, 2024 CanLII 102131

Licence Appeal Tribunal File Number: 16232/ADLS

In the matter of an appeal from a suspension under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between:

Anthony Kola-Olusanya Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

PANEL: Dr. Peter Savage Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: Anthony Kola-Olusanya, Self-represented For the Respondent: Leila Pereira, Agent

Heard by teleconference: October 10, 202

DECISION

Overview

1Pursuant to s. 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA"), Anthony Kola-Olusanya, the appellant, appeals from a 90-day suspension of his driver's licence under s. 48.3 of the HTA imposed on August 10, 2024 following roadside driver sobriety tests conducted by a police officer.

2The appellant seeks to set aside the 90-day suspension. The appellant's ground of appeal as set out in his Notice of Appeal is that he failed or refused to comply with a demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

3In summary, the appellant states that he made four sincere attempts to comply with the roadside test, striving to the best of his ability but "circumstances beyond his control" prevented him from completing the test successfully. The appellant states that he experiences shortness of breath, which happened to be the case on the day of the test and may have affected his ability to perform the breathalyzer test effectively.

4The appellant further states that he had not had any issues with alcohol misuse disorder or alcohol abuse, maintains a healthy and responsible lifestyle, has a clean driving record and needs his driver's licence to care for his family and re-enter the workforce.

ISSUES

5Relevant to this appeal, the only issue is

a. Whether the appellant failed or refused to comply with a demand made under section 320.27 or 320.28 of the Criminal Code because he was unable to do so for a medical reason

RESULT

6We confirm the Registrar's decision to suspend the appellant's driver's licence. For the reasons that follow, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

LAW:

7A person whose driver's licence has been suspended under s. 48.3 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

8Section 50.1(2)(a) of the HTA sets out the two grounds on which on a person may appeal a s. 48.3 suspension of their driver's licence:

i. that the person whose licence was suspended is not the same individual who submitted to an evaluation under section 320.28 of the Criminal Code (Canada), or

ii. that the person failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.

9Following a hearing, the Tribunal may, under s. 50.1(4) of the HTA, confirm the suspension or may order that the suspension be set aside.

10The appellant does not rely on ground (i), above. The appellant has the burden or proving ground (ii) in this appeal.

A. EVIDENCE AND ANALYSIS:

a. Did the appellant fail or refuse to comply with a demand under s. 320.27 or 320.28 of the Criminal Code because he was unable to do so for a medical reason?

11After considering the totality of the evidence, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason. Our reasons are as follows.

12In his Notice of Appeal, the appellant submitted that he experiences shortness of breath, which happened to be the case on the day of the test and may have affected his ability to perform the breathalyzer test effectively. At the hearing, the appellant testified that he was diagnosed with hypertension in 2015 and, since then, regularly takes prescribed medication for high blood pressure including Amlodipine and Cardizem, and headaches for which he takes Amitriptyline (which is also used as a sleep aid).

13The appellant's evidence does not support a finding that at the time he was required to take the breathalyzer test, he was unable to do so for a medical reason. Although the appellant testified that although he told the police officer he is hypertensive, there is no documentation which supports this information exchange. To the contrary, the appellant admitted at the hearing that he blew into the breathalyzer four times in rapid succession, which he described as "bang, bang, bang," and that he blew to the best of his ability. The appellant says he did not ask for a break between breath samples.

14Further, the appellant admitted at the hearing that he had no respiratory issues at the time of the breathalyzer test, only that he "didn't feel good after" and had to take his medication and go to sleep when he got home. This evidence does not support the appellant's position that he was unable to comply with the demand due to his hypertension or any other medical condition. The licence suspension was at approximately 5:00 a.m. on August 10, 2024 and it is not unreasonable to expect that the appellant would need to go to sleep afterward given that he was on his way home after socializing with others in the evening before.

15We also find that the reports from the appellant's physician are not sufficient to support a finding that the appellant was unable to complete the breathalyzer test satisfactorily on August 10, 2024 for a medical reason.

16Dr. Felix Asekomhe, whom the appellant identified as his only physician since 2015, made two reports. The first report is dated August 27, 2024, more than two weeks after the appellant's breathalyzer test. This report states that the appellant presented to the clinic for "assessment for possible alcohol use disorder having had an encounter with the police." In this report, Dr. Asekomhe opines that the chance of any alcohol misuse disorder is improbable. We give this report little weight, not only because it is hearsay, but more importantly, contains no information relevant to the issue in this appeal, specifically, whether the appellant he failed or refused to comply with a demand for breathalyzer for a medical reason.

17Dr. Asekomhe's second report is dated September 27, 2024. In this brief report, Dr. Asekomhe diagnoses hypertension, gastroesophageal reflux disease and confirms that the appellant has a history of hypertension "...which may have potentially resulted in his inability to have a satisfactory breath analyzer test". This report is not specific. It does not refer to the date of the breathalyzer test that is at issue in this appeal. This report gives no detail as to how or why the appellant's medical condition may have impacted his ability to satisfactorily complete the breathalyzer test. This report gives a qualified conclusion only that the appellant's medical condition "may" have "potentially resulted" in his inability to have a satisfactory breathalyzer test. This does not satisfy the appellant's onus of proving, on a balance of probabilities, that a medical condition did, in fact, cause his inability to complete the breathalyzer test.

18There is no medical evidence before us that the appellant's prescribed medications would have prevented him from providing a breath sample. Neither of the reports provided by Dr. Asekomhe mention the appellant's prescribed medication at all.

19Although the appellant testified that he was nervous during the breathalyzer, this does not constitute a medical reason for failing or refusing the breathalyzer in this case because there is no medical evidence to establish nervousness, without more, qualifies as a medical condition. Crucially, Dr. Asekomhe does not refer to nervousness or any condition for which nervousness is a symptom in either of his reports.

20The onus is on the appellant to prove that his medical condition was a reason for failing or refusing the breathalyzer test. The appellant's testimony and his medical evidence fall short of establishing this.

21As a result, we find that the appellant failed to provide sufficient evidence to establish on a balance of probabilities that he failed or refused to comply with the breathalyzer demand for a medical reason.

Conclusion

22For the reasons above, we find that the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

B. ORDER:

23We confirm the Registrar's decision to suspend the appellant's driver's licence.

Peter Savage, M.D.

Avril A. Farlam, Vice-Chair