Licence Appeal Tribunal File Number: 15389/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:

Keri Robinson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Keri Robinson, Self-represented

For the Respondent:

Ian Sookram, Representative

HEARD by teleconference: December 14, 2023

OVERVIEW

1Keri Robinson (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend their Class G 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. Section 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.

3The Registrar takes the position that the appellant suffers from two medical conditions, namely alcohol use disorder and seizure due to alcohol withdrawal, that are 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 acknowledge that they had a seizure and acknowledge that they suffer from alcohol use disorder but deny that they suffer from any 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.

PRELIMINARY ISSUES

6At the outset of the hearing, I noted two preliminary issues to be addressed, those being: i) late disclosure of one of the appellant’s submissions that they wished to rely on as evidence at the hearing and ii) the fact that the appellant’s witness, Ms. Pe., was with the appellant on the same telephone line.

7In accordance with Rule 9.3 of the Licence Appeal Rules, 2023, the appellant and the respondent had the opportunity to make submissions on whether to allow the appellant’s late submission into evidence.

8In making my determination to allow the appellant’s late submission into evidence, I took into consideration that: the information in the submission was dated December 11, 2023, the date of document exchange specified at the case conference; the appellant indicated they had technical issues downloading the medical information on December 11, 2023; there was no assistance available to the appellant to download the medical information until the following day; the appellant submitted the medical information on December 12, 2023; the appellant may be prejudiced by excluding this new information; and the respondent did not oppose the admission of the submission into evidence.

9In making my determination to allow the appellant’s witness to be present throughout the hearing, I took into consideration that: the appellant submitted a signed witness statement from Ms. Pe. for the hearing; neither party recalled that the case conference adjudicator informed the appellant of the possibility that a witness may need to be excluded from part of the hearing; the witness understood that they were not present to coach the appellant and would only speak when addressed by the Tribunal; and the respondent did not oppose the presence of the appellant’s witness throughout the hearing.

ISSUES

10The 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.

11To resolve that issue, I will address the following questions:

i. Does the appellant suffer from seizure due to alcohol withdrawal?

ii. Does the appellant suffer from alcohol use disorder?

iii. If so, are either or both likely to significantly interfere with their ability to drive a motor vehicle safely?

12The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

13Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has not 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 set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

PROCEDURAL ISSUE

14Part way through the hearing, I asked the respondent’s representative to clarify the condition or conditions of concern to the Registrar. In posing this question, I had taken note of the facts that: the case conference report and order did not specify the exact condition of concern and referred to the condition in the singular; the Registrar’s letter dated September 12, 2023 listed the single condition of alcohol use disorder; the Registrar’s letter of November 27, 2023 listed the single condition of seizure due to alcohol withdrawal; both letters from the Registrar plus the case conference report and order referred to, ‘confirmation that you have remained seizure free and abstinent from alcohol for a period of one year…’; and the respondent’s representative had not included Chapter 17 of the CCMTA Standards (Seizures and epilepsy) in their submissions.

15Following a break to allow the respondent’s representative to refer to the appellant’s complete file at Driver Medical Review, the respondent’s representative indicated that there was no mention of the appellant’s condition of alcohol use disorder changing, that the two conditions in this case are related and that it was an oversight on their part not include Chapter 17 of the CCMTA in their submissions.

16Based on the above, I found that the appellant had Notice prior to the hearing regarding two conditions of concern. However, as the appellant had not received a copy of Chapter 17 of the CCMTA Standards prior to the start of the hearing, they were asked whether they wished to continue with the hearing or to adjourn the hearing to a later date. The appellant chose to continue with the hearing. In addition, in allowing the respondent’s late submission of Chapter 17 of the CCMTA Standards into evidence, I took into consideration that: the document was relevant to the issue in dispute; the respondent may be prejudiced by excluding the document; the appellant chose to continue with the hearing; and the appellant did not oppose the admission of the document into evidence. The respondent’s representative emailed a copy of Chapter 17 of the CCMTA Standards to the appellant and Tribunal, and the hearing continued once the appellant confirmed receipt of the new CCMTA Chapter and it was entered into evidence.

ANALYSIS

Does the appellant suffer from seizure due to alcohol withdrawal (alcohol withdrawal seizure)?

17The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely seizure due to alcohol withdrawal.

18The Registrar’s position is supported by medical reports completed by Drs. Ch., Cl., and R.

19In the March 15, 2023 “After Visit Summary”, emergency room (“ER”) physician, Dr. Ch., indicated that: the reason for the appellant’s visit on March 14, 2023 was seizure; the seizure was likely alcohol related; and the final diagnoses were listed as seizure and alcohol withdrawal.

20In the September 13, 2023 discharge summary, hospital physician, Dr. Cl., indicated that the appellant had a history of withdrawal seizure in March 2023.

21In the October 18, 2023 completed substance use assessment form, the appellant’s family physician, Dr. R., indicated that the appellant suffered an alcohol withdrawal seizure on March 14, 2023.

22The appellant: acknowledges that they: suffered a witnessed episode on March 14, 2023; had not consumed alcohol for approximately three days prior to the episode; and the ER records indicate that the episode was a seizure, likely related to alcohol. Although the appellant accepts that this episode was a seizure, they emphasized that they were not prescribed any anti-seizure medication following the episode and the ER record only stated that the seizure was likely related to alcohol.

23I prefer the evidence of Drs. Ch., Cl. and R. over that of the appellant, and find on a balance of probabilities that on March 14, 2023, the appellant suffered a seizure due to alcohol withdrawal. Drs. Ch., Cl. and R. are all qualified to make such a diagnosis and determine whether the appellant suffers from that condition. In addition, as a licenced and duly qualified physician practicing in Ontario, I know that anti-seizure medication is not routinely prescribed following an alcohol withdrawal seizure and that the timing of the appellant’s episode post-cessation of alcohol intake is in keeping with a 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. Furthermore, medicine is not an exact science and in medical terms, ‘likely’ means on a balance of probabilities. Drs. Ch., Cl., and R. were all in a position to determine that the appellant suffers from seizure due to alcohol withdrawal and I accept the diagnosis.

24I find that the Registrar has established on a balance of probabilities that the appellant suffers from seizure due to alcohol withdrawal.

Does the appellant suffer from alcohol use disorder?

25The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely alcohol use disorder.

26The Registrar’s position is supported by medical reports completed by Drs. Cl. and R., plus physician assistant Ms. Ph. for Dr. H.

27In the September 13, 2023 hospital discharge summary, Dr. Cl. indicated that alcohol use disorder was an issue addressed during the admission.

28In the October 18, 2023 completed substance use assessment form, Dr. R. indicated that the appellant suffers from severe substance use disorder to alcohol (alcohol use disorder).

29In a December 11, 2023 letter from a Rapid Access Addiction Medicine (“RAAM”) clinic, Ms. Ph. indicated that the appellant is being followed for treatment of alcohol use disorder.

30The appellant does not deny that they suffer from alcohol use disorder.

31I find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

Are either or both of the appellant’s medical conditions likely to significantly interfere with their ability to drive a motor vehicle safely?

32I find that the Registrar has not proven on a balance of probabilities that the appellant’s medical condition of seizure due to alcohol withdrawal nor their medical condition of alcohol use disorder individually or combined is/are likely to significantly interfere with their ability to drive a motor vehicle safely.

33The Registrar’s representative argues that sudden incapacitation due to seizure due to alcohol withdrawal and/or alcohol use disorder can significantly interfere with a driver’s ability to drive safely and presents a safety risk to other road users. They further argue that in order to consider reinstatement of the appellant’s driver’s licence they require confirmation that the appellant has remained seizure free and abstinent from alcohol for a period of one year. This period may be reduced to six months if the appellant’s healthcare practitioner confirms they have successfully completed an alcohol treatment program and is supportive of their driving privilege. The Registrar’s representative emphasized that the appellant has not yet completed an alcohol treatment program and has been abstinent from alcohol for just over three months.

34The Registrar relies on the CCMTA Standards, in particular Chapters 17.6.3 (Alcohol Withdrawal Seizures) and 15.6.3 (Substance Use Disorder) plus internal policies at the Ministry of Transportation (the “Ministry”). Chapter 17.6.3 provides that all drivers are eligible for a licence if: the treating physician has confirmed that the cause of the seizure was alcohol withdrawal (i.e., the driver is not epileptic); 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 the Substance Use Disorder Standard (see 15.6.3). 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-licensing 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. The Registrar’s representative indicated that the internal policy at the Ministry is that persons suffering from severe alcohol use disorder must be abstinent from alcohol for a minimum of six months in order to be considered for earlier re-licensing.

35The appellant argues that they do not suffer from a medical condition that significantly affects their ability to drive safely.

36The appellant candidly spoke about their struggles with alcohol in the past. In 2022, Dr. R. prescribed an anti-craving medication; however, the appellant admitted that they did not take it regularly. Following their seizure in March 2023, which scared them, the appellant reduced their alcohol consumption in half. However, in the summer of 2023 the appellant’s alcohol consumption increased again, secondary to the death of a very close relative and appellant’s struggles with the feeling of disappointing people around them.

37In early September 2023, the appellant indicated that they finally admitted and agreed they needed and wanted help for their alcohol use disorder. This is when their long-time friend, Ms. Pe. drove them to hospital. The appellant testified that they have been abstinent from alcohol since September 4, 2023.

38Since discharge from hospital on September 13, 2023, the appellant indicated the many steps they have taken on their road to recovery, including: being followed weekly at RAAM since September 21, 2023; point of care urine drug screens, supporting their claim of abstinence; blood work confirming significant decreases in liver enzymes since hospitalization, in line with reported abstinence; attendance at an intensive 4-week, five half-days per week, out-patient Addiction and Concurrent Disorders Centre (“ICDP”) program since October 18, 2023, consisting of group and individual sessions; transfer to the Peel Addiction Assessment and Referral Centre (“PAARC”) program for ongoing after-care support following completion of the ICDP program on December 15, 2023; monthly visits to Dr. R.; and on-line attendance at a Self Management and Recovery Training (“SMART”) recovery program.

39The appellant emphasized the many positive changes they have made in their life since September 2023, including: taking advantage of their second chance; not wanting to go backwards; their will power, current clear headedness, happiness and self-awareness; being mindful to take every day slowly, limiting events, remaining in the situation and removing themselves from bad situations; knowing when and whom to reach out to for help (e.g., family, friends, medical professionals); increased exercise; and a new job which gives them the structure they need.

40Furthermore, the appellant testified that they: have a clean driving record; have never driven under the influence of alcohol; previously used taxis or Ubers after consuming alcohol; and, if necessary, would ask a friend to pick up their car the day following alcohol consumption. I take note of the fact that the appellant’s Extended Driver Record Search for Criminal Code Convictions shows no evidence of any alcohol-related infractions.

41In support of the appellant, their friend of over 25 years, Ms. Pe., elaborated on their December 6, 2023 written character reference entered into evidence and testified that they: had previously given up on the appellant; were the person who drove the appellant to the hospital on September 4, 2023 when they were ready to accept help for their alcohol use disorder; know that the appellant has sufficient internal strength, is able to and can put in the work needed for their recovery; know that the appellant has always been very conscientious regarding drinking and driving; have witnessed the appellant taking taxis/Ubers home following drinking; have picked up the appellant’s car the day following drinking; and continue to support the appellant by phone every day.

42While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

43Although 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. Furthermore, as in the appellant’s case, the use of alcohol can also lead to other health issues or concerns, such as alcohol withdrawal seizures. Seizures due to alcohol withdrawal cause a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness. As these seizures cause an episodic impairment of the functions necessary for driving, a driver cannot compensate.

44I take note of what Dr. R. wrote in their November 13, 2023 letter. Dr. R. confirms that the appellant has: demonstrated commitment to their recovery journey; maintained abstinence from alcohol since September 4, 2023; not had a reported seizure during this period; consistently adhered to their prescribed plan; diligently attended all scheduled appointments and is actively participating in an outpatient alcohol treatment program; and a positive downward trend of their liver enzymes, attributed to their sustained alcohol abstinence. Furthermore, Dr. R. wrote, “I am in support of her appeal for an early reinstatement of her licence…”.

45Taking into consideration the evidence and submissions regarding the appellant’s medical condition of alcohol use disorder, I acknowledge that they fall short of earlier re-licensing requirements according to the CCMTA Standards by not having completed their alcohol treatment program by the day of the hearing and the fact that they are still attending the RAAM program. However, the appellant is due to complete the ICDP program on December 15, 2023, one day following the hearing, they signed a ‘patient declaration’ committing to participation in the program and Dr. R. is supportive of earlier re-licensing.

46In addition, taking into consideration the evidence and submissions regarding the appellant’s medical condition of seizure due to alcohol withdrawal, I accept that the appellant has not had a seizure due to alcohol withdrawal in nine months but as stated above, I acknowledge they fall short for earlier re-licensing according to Chapter 15.6.3 of CCMTA Standards.

47However, based on the totality of the evidence before me, I find on a balance of probabilities, that despite the appellant being abstinent from alcohol for a little more than three months, neither the appellant’s condition of seizure due to alcohol withdrawal, nor their condition of alcohol use disorder are likely to significantly interfere with their ability to drive safely. I find on a balance of probabilities that the appellant has good insight into their conditions, is committed to continuing forward on their path to recovery with the support of friends, family and the programs RAAM, PAARC and SMART outlined above, has a good safety plan for both the upcoming holiday season and onwards and is committed towards a healthier and happier life without alcohol. I commend the appellant for the tremendous effort and progress they have already put into their journey to recovery. I do not accept the respondent’s submission that further time and medical information should be submitted is reasonable keeping in mind public road safety.

48I am satisfied on a balance of probabilities that neither of the appellant’s medical conditions individually or combined are likely to significantly interfere with their ability to drive safely.

Conclusion

49I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from the medical conditions of seizure due to alcohol withdrawal or alcohol use disorder, that are likely, individually or combined, to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

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