Robert Pinker v. Registrar of Motor Vehicles, 2024 CanLII 10517

Licence Appeal Tribunal File Number: 15328/MED

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:

Robert Pinker

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Isla McPherson, Member Rebecca Hines, Member

APPEARANCES:

For the Appellant:

Robert Pinker, Appellant

For the Respondent:

Ian Sookram, Agent for the Registrar

Heard by Teleconference:

January 8, 2024

OVERVIEW

1Robert Pinker (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his 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 healthcare provider that the appellant suffers from a medical condition that may affect his ability to drive safely.

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. 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 has been diagnosed with alcohol use disorder, that is likely to significantly interfere with his 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. He acknowledges that he suffers from alcohol use disorder, however, he denies that it interferes with his 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:

6Since the appellant agrees that he suffers from alcohol use disorder, the question we must decide is:

1. Whether the appellant’s alcohol use disorder is likely to significantly interfere with his ability to safely drive a motor vehicle?

7The Registrar bears the burden of proving on a balance of probabilities that the answer to the above question is “yes.”

RESULT

8Having considered all the evidence and submissions and for the reasons that follow, we find that the Registrar has satisfied its burden to establish that the appellant suffers from alcohol use disorder, that is likely to significantly interfere with his ability to safely drive a motor vehicle. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant’s medical condition is likely to significantly interfere with his ability to safely drive a motor vehicle.

9The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely alcohol use disorder. As highlighted above, the appellant acknowledges that he has this condition.

10The Registrar argues that this medical condition is likely to significantly interfere with the appellant’s ability to safely drive a motor vehicle. The Registrar relies on the Medical Condition Report (“MCR”) dated October 3, 2023, submitted to the Ministry of Transportation (“MTO”), completed by Dr. Arora, emergency room physician. The doctor checked off a box on the form indicating that the appellant suffers from an uncontrolled substance use disorder due to alcohol use and is non-compliant with treatment recommendations. Further, the doctor notes that the appellant has been admitted to the hospital on multiple occasions for alcohol withdrawal. MTO then sent the appellant a letter dated October 10, 2023, confirming that his licence had been suspended due to his diagnosis of alcohol use disorder. The letter advised him to take the letter to either his physician, specialist, or a nurse practitioner when his condition improves and have them complete and submit the attached Substance Use Assessment form to the Driver Medical Review Office. To date, the appellant has not submitted the requested information to MTO.

11The appellant submits that his diagnosis of alcohol use disorder does not impact his ability to drive safely. Further, it is impossible for him to have the Substance Use Assessment form completed because his family doctor retired in December 2021, and it would be unethical for a doctor at a walk-in-clinic to fill out this form because they are not familiar with him or his condition. He submits that he never drives while impaired and relies on the testimony of his ex-wife and two adult sons to corroborate this fact. We agree with the Registrar for the following reasons.

12The appellant testified that his form of alcohol use disorder is atypical in that he has had one episode of binging per year as a poor coping mechanism to stressful life events over the past four years. During these episodes he will binge drink variable amounts of alcohol for up to ten days, where he self-isolates, retreats to his room and does not leave his house. He never drives while impaired. The appellant’s two sons corroborated the fact that their father does not drive while impaired, however, their evidence about his drinking habits were inconsistent as from their perspective his binges are more frequent and are for longer durations. Further, his ex-wife testified that he has not driven while impaired in the recent past, however, there was an episode of driving while impaired eight years ago.

13We find the appellant’s testimony about how much he drinks and the frequency to be vague and inconsistent with both of his son’s testimony that his binges are longer and more frequent. Although we do not believe that the appellant was deliberately trying to mislead the Tribunal about his drinking habits, we find these inconsistencies make his testimony unreliable. We find based on his long history of alcohol use disorder, the extent of his binges and alcohol consumption, as well as his withdrawal symptoms that have resulted in multiple hospital visits that a medical opinion is required from a treating practitioner supporting that his licence be reinstated. We find that he lacks insight into the seriousness of his condition by classifying it as atypical despite the fact that he has been to the hospital six times over a six-year period of time for alcohol withdrawal.

14The appellant testified that the hospital visit in October 2023 was unrelated to alcohol and he attended because he was experiencing severe abdominal pain and gastrointestinal issues. He submits that the ER doctor made assumptions based on his previous history which was unfair. He also acknowledged that he has been to the hospital for alcohol withdrawal six times over the past six years. However, he asserts that in five out of six of these visits the hospital conducted tests and he was discharged. He contends that his withdrawal symptoms range from a racing heartbeat, perspiration, and dizziness. On one occasion over three years ago, he experienced severe withdrawal symptoms in which his equilibrium was completely off balance, and he could not move his head without spinning. As a result, he was admitted to the hospital for a couple of days and was being monitored for seizures. No hospital records were submitted for our consideration regarding this incident or any of the prior hospital visits.

15We find the appellant’s testimony about the fact that he has only been admitted to hospital on one occasion for withdrawal symptoms inconsistent with his acknowledgment that he was admitted to the Ottawa Civic hospital a second time two years ago where he discharged himself from treatment prematurely because he was uncomfortable. In addition, he was also admitted on another occasion when he stayed overnight in the ER due to electrolyte abnormalities and required IV fluids.

16During cross-examination, the appellant conceded that he has tried numerous programs throughout the years to treat his condition, which have been unsuccessful. He has tried residential treatment programs, counselling, alcoholics anonymous and has tried medications which did not work because of the side effects. He believes that these programs have not worked because of the atypical sporadic nature of his condition in that he is not a regular drinker. He attended a treatment program at the Royal Ottawa Hospital three to four years ago and he has kept in touch and still sees a doctor or nurse from time to time by either teleconference or in-person. The appellant was asked why he did not bring the Substance Use Assessment Form to a treating practitioner at the Royal Ottawa Hospital to complete and he advised that they would not know enough about his condition to complete the form. The appellant was also asked about what steps he has taken to prevent future episodes and he indicated that he does not keep alcohol in the house, he avoids social gatherings, and he has been trying to exercise regularly. We find it concerning that despite attending inpatient and outpatient treatment programs (including private residential treatments) he still has an ongoing alcohol use disorder, and he has little control over his drinking behaviour.

17The respondent directed us to Chapter 15.6.3 of the National Safety Code Standard 6: Determining Driver Fitness in Canada of the Canadian Council of Motor Transport Administrators (“CCMTA Standard”) in support of its submission that the appellant’s current alcohol use disorder does not meet the test for reinstatement of his licence. This Chapter addresses the standard which must be met for drivers with alcohol use disorders. We note that this CCMTA Standard states that all drivers are eligible for a licence if they:

• Meet the criteria for remission and/or have abstained from the substance for 12 months.
• Earlier re-licencing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licencing authority, and the successful completion of a program.
• The functional abilities necessary for driving are not impaired.
• Where required, a road test or other functional abilities for driving are not impaired.

18As highlighted above, the CCMTA Standards provide certain conditions to consider in determining whether a person with alcohol use disorder’s licence should be reinstated such as proof that they have abstained from alcohol for a 12-month period of time, or the importance of the opinion of an addiction specialist and/or treating physician in supporting an individual’s fitness to drive. We note that the Tribunal is not bound by the CCMTA Standards; however, they are regularly considered in determining whether a person’s licence should be reinstated because they are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses. Based on the evidence before us we conclude that none of the conditions recommended for relicensing outlined in the CCMTA Standards have been met.

19Further, the only medical evidence submitted for our consideration at the hearing was submitted by the Registrar which supports that there were concerns from an emergency room physician about the appellant’s ability to drive a motor vehicle safely. What we find lacking in this case was any medical evidence submitted on behalf of the appellant. In our view, since the appellant had such a longstanding history of attending therapy for his alcohol use disorder at the Royal Ottawa Hospital, we find that they would likely be in the best position to provide an opinion on his condition and fitness to drive. We find the applicant’s inaction in procuring an opinion perplexing.

20Although the appellant and his sons have testified that he does not drive while he is impaired, we find his ex-wife’s testimony that he has a history of driving while impaired concerning. In addition, his ex-wife also testified that over the past two years she believes he has been admitted to hospital on 4 occasions for alcohol withdrawal and treated aggressively to protect him from seizures which we find credible as she is a physician herself.

21In our view, this supports that the appellant has an entrenched pattern of behaviour which has had serious medical implications. Moreover, it should be acknowledged that the appellant’s ex-wife and two sons are not always around to monitor him. Therefore, although we accept that it was difficult for the appellant to ask them to testify, their testimony had limited value from a medical perspective.

22Based on the evidence before us, we find on a balance of probabilities that the appellant has reduced insight into his condition. Although we acknowledge that he has taken steps in the past to treat his alcohol use disorder these efforts have been unsuccessful, and he has no further plans to seek or receive treatment for this condition.

23Additionally, as stated earlier, we are not bound by the CCMTA Guidelines; however, we do acknowledge that they require a treating physician to support a return to driving for individuals with an alcohol use disorder or abstain from alcohol for 12 months. We find that there is no letter of support from a physician on file.

24Based on the totality of evidence before us and after careful consideration, we are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

25We find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely an alcohol use disorder, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

26For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.