Licence Appeal Tribunal File Number: 16236/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:

Shawn Tomby

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dr. David To, Member

Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant:

Shawn Tomby, Self-represented

For the Respondent:

Steve Grootenboer, Agent

HEARD: November 8, 2024

OVERVIEW

1Shawn Tomby (the "appellant") appeals the 90-day suspension of his driver's licence under section 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act") after refusing to provide a breath sample in response to a demand under the Criminal Code (Canada).

2The appellant's ground of appeal is under s. 50.1(2)(a)(ii) of the Act, on the grounds that he was unable to comply with the demand because of a medical reason.

PRELIMINARY ISSUE

3The respondent advised that its witness, Officer W, was unable to attend the hearing due to an unexpected work emergency. As a result, the respondent sought an adjournment.

4The appellant opposed the adjournment request because the respondent had already adjourned the matter twice, and because the appellant would be prejudiced by it as his driver's licence was still suspended.

5Rule 16.2 allows for oral adjournment requests to be made orally during an adjudicative event in compelling circumstances. We are satisfied that the reason for the request was compelling as the respondent could not have known prior to the hearing that the witness, who is a police officer not scheduled to work that day, would be called away to a work-related emergency.

6However, after considering the factors in Rule 16.3, we did not grant an adjournment. The respondent made two previous requests for an adjournment, to which the appellant had consented. Further, the appellant is the party that is most prejudiced by a further adjournment, as his driver's licence is under suspension. There is limited prejudice to the respondent, as the respondent was still able to introduce the witness' notes as evidence, despite the witness not being able to provide oral testimony.

ISSUE

7The only issue in this appeal is whether the appellant failed or refused to comply with a demand made under section 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

8The Appellant bears the burden of proving on a balance of probabilities that he was unable to comply with the demand because of a medical reason.

RESULT

9Having considered all the evidence and submissions, we find that the Appellant has not established on a balance of probabilities that he failed or refused to comply with the demand for a breath sample because he was unable to do so for a medical reason.

10We confirm the Registrar's decision to suspend the appellant's driver's licence.

ANALYSIS

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?

11A person whose driver's licence has been suspended under section 48.3 of the Act may appeal the suspension to the Tribunal under section 50.1.

12Paragraph 50.1(2)(a) of the Act sets out grounds on which a person may appeal a suspension under section 48.3. The appellant appeals on the ground that he failed or refused to comply with a demand made under section 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

13In the Notice of Appeal, the appellant explains that on August 31, 2024, he was in shock after being cut off by another vehicle on the highway. His vehicle ended up in the ditch. In his testimony, he explained that he was waiting for automobile assistance (CAA) when he advised two individuals passing by that he was fine. Police arrived prior to CAA. He adds that he did not understand why the breathalyzer test was necessary, as he had not been drinking alcohol, so he refused. He testified he has not had alcohol since he was 19 due to his medical conditions.

14In his testimony, he explained that his hypertension (high blood pressure) is exacerbated when he is stressed, despite adherence to his blood pressure medications. When his blood pressure is high, he experiences headaches and has some blurry vision, but is still able to see. He experienced those symptoms that day and explained he was not able to think clearly when the police officer, Officer W, made his breathalyzer demand. We note that he did not have any amnesia of this event – he explained he remembers the situation clearly.

15We do recognize that the appellant has the medical condition of hypertension. As a licensed physician in Ontario, and as authorized by section 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, Dr. To understands that the headaches and blurry vision which the appellant experienced were likely because of elevated blood pressure, which was worsened by a stressful situation. This conforms with the home blood pressure readings shared by the appellant, which he stated around that month could spike up to 200/140 when he was stressed – Dr. To recognizes that a blood pressure greater than 180/120 is considered a hypertensive urgency, where there are no signs of acute organ damage.

16From Dr. To's knowledge, when blood pressure is extremely high, it can also lead to a hypertensive emergency, where there are signs of acute organ damage. In addition to symptoms which can include chest pain and difficulty breathing, there can also be neurologic complications, such as a stroke or hypertensive encephalopathy, which includes confusion, trouble with balance, and loss of consciousness. However, the evidence does not support that this is what the appellant was experiencing on the day in question. Although the appellant testified that he was not thinking clearly, we prefer the evidence in Officer W's August 31, 2024 notes, which stated that the appellant had "no immediate signs of impairment, no slurred speech, steady on feet", and no motor issues. Nor did the appellant advise the bystanders or Officer W that he needed any medical attention, either at the roadside or subsequently at the police station.

17Therefore, although the appellant likely had high blood pressure at the time the breathalyzer demand was made, the evidence does not show that his symptoms were severe enough to render him unable to comply with the demand.

18Although we do recognize that the appellant had significant stress after being cut off by another vehicle, we find that this stress did not cause the appellant to be medically unable to comply with the breathalyzer demand. The appellant states that he was very stressed in the August 31, 2024 incident, as it felt similar to a previous accident in 2016 for which he provided medical documentation. He added that he did not believe he had persistent symptoms or impairment in the recent years related to this prior incident. There was no recent medical documentation related to the stress from either the 2016 or 2024 incident.

19Further, the appellant testified that if he had known about the consequences of not performing the breathalyzer test, he would have complied with performing the breathalyzer test. He stated that the officer did not explain to him that his driver's licence would be suspended if he did not comply. He testified that the officer only asked him to do the breathalyzer test on one occasion, not multiple times.

20In his report, Officer W notes that skid marks on the scene were discrepant from the appellant's reported speed, that the appellant's shirt was inside out, and that there was a smell of alcohol when the officer was close to the appellant's face. The officer noted that he explained the consequences of refusing the approved screening device (breathalyzer) to the appellant "five plus times", but the appellant had declined.

21Despite the discrepancy in the evidence on the number of times Officer W demanded the appellant do the breathalyzer test, the evidence nevertheless demonstrates that Officer W did make a demand for the breathalyzer test, as this is noted in several sections of his report, which was made immediately after the incident based on the timestamp.

22The fact that the appellant testified that he would have done the breathalyzer test if he knew of the consequences implies that he was physically and cognitively able to do the breathalyzer test – but decided not to do so. This is evidence that he had sufficient logical reasoning abilities at the time of the incident, rather than not having the ability to follow instructions from a police officer for medical reasons. Even if the appellant was not aware of the consequences, the Act does not permit the Tribunal to consider this ground of appeal. What is material to this appeal is that the evidence enables us to conclude that the appellant made a conscious choice, unimpeded by medical reasons, not to comply with the demand.

23Similarly, we recognize that the appellant has testified about significant efforts to care for his health and the importance of his driver's licence to him and his family. However, the Act does not permit the Tribunal to consider these factors in the appeal.

24This onus is on the appellant to prove that his medical condition was the reason for failing or refusing to do the breathalyzer test. The appellant's medical documentation and testimony does not establish this on a balance of probabilities.

ORDER

25For the reasons set out above, we confirm the Registrar's decision to suspend the appellant's driver's licence.