Licence Appeal Tribunal File Number: 15378/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:

Brier Lovegrove

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Erica Weinberg, Member Colin Osterberg, Vice Chair

APPEARANCES:

For the Appellant:

Jami Sanftlben, Paralegal

For the Respondent:

Stephen Grootenbooer, Representative

HEARD by teleconference: February 20, 2024

OVERVIEW

1Brier Lovegrove (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) 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 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 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 withdrawal seizure, 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 withdrawal seizure 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.

PRELIMINARY ISSUES

6At the commencement of the hearing, the Registrar requested an adjournment. The reason for the request was that the appellant had produced new documents they intended to rely on, including a Sleep Disorders and Narcolepsy form, completed in response to the Registrar’s request for more information. These documents were served after February 15, 2024, which was the date the Tribunal ordered the parties to serve documents they intended to rely on in its Adjournment Order dated January 22, 2024. The Registrar advised that it needed time to have the new documents reviewed by its Medical Review team.

7The appellant objected to the adjournment and asked that the hearing proceed as scheduled. The new material does not relate to the medical condition which the Registrar based the suspension of the appellant’s driver’s licence on but was obtained as the result of a request made by the Registrar for more information relating to a motor vehicle accident which the appellant was involved in.

8Rule 16.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) sets out factors the Tribunal may consider when an adjournment is requested, and we have considered those factors in making our decision to deny the adjournment request. In particular:

i. The matter is dated, the appeal having been perfected on November 15, 2023.

ii. There have been two adjournments of the hearing. The first adjournment was marked peremptory on the appellant to proceed and, despite that, a second adjournment was granted because of a request by the respondent for further information including confirmation that the underlying condition had been successfully treated.

iii. The appellant is without a driver’s licence and says that they are losing income as a result. The Rules provide that a hearing is to be held within 30 days of an appeal being filed and it has now been more than 95 days. We find that the appellant will be prejudiced by a further delay.

iv. The reason given for the adjournment is that the respondent wishes to review documents submitted by the appellant related to whether they have a sleep disorder or not. That is not the reason the Registrar has given for the suspension of the appellant’s licence and is not an issue that is before the Tribunal. While we recognize that the Registrar’s position may be impacted by a review of the documents that have now been produced, that consideration does not outweigh the interest the appellant has in the timely determination of the issue that is currently before the Tribunal.

v. The Registrar is not prejudiced by proceeding with the hearing. The Registrar may make licensing determinations relating to the new information that has been produced by the appellant since that relates to medical conditions which are not before the Tribunal.

9We determined that the hearing should proceed and denied the adjournment request.

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, we will address the following questions:

i. Does the appellant suffer from alcohol withdrawal seizure?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle of the applicable class 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, we 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 of the applicable class safely and we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from alcohol withdrawal seizure?

14The evidence presented at the hearing establishes on a balance of probabilities that the appellant suffers from a medical condition, namely alcohol withdrawal seizure.

15The Registrar’s position is supported by a Medical Condition Report dated October 21, 2023 (“MCR”). The MCR, which was completed by the appellant’s then family doctor, Dr. Xu, states that the appellant fell asleep during driving, that they had an episode of seizure-like activities, and that they were diagnosed with alcohol withdrawal by an emergency room doctor.

16The appellant relies on a Substance Use Assessment Form (“SUAF”) completed by their current family doctor, Dr. Ayoob, on January 9, 2024, which states that the appellant has not experienced a seizure in the past 12 months and “does not fit the DSM 5 criteria for the diagnosis of substance use disorder”.

17The parties agree that the appellant was involved in a motor vehicle accident on October 14, 2023 as the result of falling asleep while driving. The parties agree that: the accident happened in the morning; the appellant was taken to a police station where they refused to comply with an officer’s demand for a breath sample; later that day they attended hospital; they were administered a sedative at the hospital; they remained in hospital until the following morning; Dr. Xu received a medical report from the hospital regarding the appellant’s emergency room visit; and Dr. Xu showed the appellant the report when they attended Dr. Xu’s office on October 21, 2023.

18The appellant says that they fell asleep while driving because they had recently broken up with their partner and had not been sleeping well. This caused them to be exhausted which ultimately resulted in the motor vehicle accident.

19We find that the evidence demonstrates, on a balance of probabilities, that the appellant suffered an alcohol withdrawal seizure during their hospital visit in mid-October 2023.

20The appellant agrees that they were drinking beer with their uncle the evening before their attendance at hospital where seizure-like activity and alcohol withdrawal were recorded.

21The fact that the appellant refused to comply with a demand for a breath sample following the accident, while not in itself determinative, is evidence that the appellant had some concern at that time about their recent use of alcohol, and that it may have impacted their driving at the time the accident occurred.

22The appellant argues that they did not have an alcohol withdrawal seizure. They rely on the facts that: they do not have a history of seizure plus the results of their November 17, 2023 EEG (electroencephalogram) and MRI brain (magnetic resonance imaging) following the accident which were reported as normal. They further argue that the symptoms they were experiencing prior to arrival at hospital (feeling shaky and/or nervous) were the result of being stressed or shaken up by the motor vehicle accident, that the ‘sedative’ they were given at the hospital was to ease their feeling of being stressed or shaken up and that they were misdiagnosed by the emergency room physician as having seizure-like activity and alcohol withdrawal.

23We do not accept the appellant’s explanation that they were misdiagnosed by the emergency room physician. Doctors in emergency rooms see victims of trauma regularly and are able to differentiate between symptoms and signs of anxiety or stress caused by trauma and symptoms and signs associated with seizure activity or alcohol withdrawal.

24Furthermore, as a licenced and duly qualified physician practicing in Ontario, Dr. Weinberg knows that a normal MRI brain or a normal EEG does not rule out the diagnosis of seizure. In addition, Dr. Weinberg knows that ‘sedatives’, such as benzodiazepines, are used to help treat symptoms of alcohol withdrawal and that the time interval from the appellant’s last reported consumption of alcohol and their symptoms of shakiness/nervousness plus the emergency room physician’s diagnosis of alcohol withdrawal and observation of seizure-like activity is consistent with alcohol withdrawal and alcohol withdrawal seizure. Dr. Weinberg takes notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S. O. 1990, c.S.22. Thus, a normal MRI brain or normal EEG does not mean that the emergency room physician was incorrect about their recording or observation of seizure-like activity.

25Moreover, the appellant’s family doctor, Dr. Xu, having read the emergency room report, reported the appellant to the Ministry of Transportation in an MCR and indicated in the MCR that the appellant suffered from the medical condition of alcohol withdrawal related to the October 14, 2023 events. Doctors are required by the Act to report a person who has or appears to have a medical condition that may make it dangerous for the person to operate a motor vehicle. The allegation that the appellant’s presentation at hospital was the result of anxiety related to the trauma of the accident is inconsistent with the submission of the MCR, and the statements made in the MCR, by Dr. Xu.

26We do not find Dr. Ayoob’s SUAF persuasive. According to the appellant, Dr. Ayoob has been their family doctor for only the last four months. There was no evidence submitted regarding the documents available for review by Dr. Ayoob or what documents Dr. Ayoob actually reviewed. Dr. Ayoob does not explain how they came to the conclusion that the appellant did not have an alcohol withdrawal seizure and does not explain why their conclusion is different than the emergency room doctor’s. In addition, the appellant testified that they consulted with a neurologist some time following their hospital visit and prior to the hearing, yet Dr. Ayoob made no notation of this in the Comments Section of the SUAF. The appellant did not send in the neurologist’s consultation note as evidence, so we do not know what it said, but the fact that Dr. Ayoob did not refer to it is consistent with our overall conclusion that Dr. Ayoob’s opinion was not sufficiently well-informed for us to rely on it. Dr. Ayoob, being new to the appellant’s care, and not being the appellant’s doctor at the time they attended hospital in mid-October 2023, was not in the best position to assess their condition at that time.

27In our view, the emergency room doctor and Dr. Xu were in better positions to assess whether the appellant was suffering from alcohol withdrawal or alcohol withdrawal seizure than was Dr. Ayoob.

28We find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol withdrawal seizure.

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

29We 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.

30The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) which states that seizures, including provoked seizures such as alcohol withdrawal seizures, result in episodic impairment in the ability to drive. The episodic impairment may be variable and sudden, for which a driver cannot compensate. This is reasonable, and we accept that the occurrence of an alcohol withdrawal seizure has a significant impact on a person’s ability to drive a motor vehicle safely.

31The general approach taken by the CCMTA is that seizures must be controlled as a prerequisite to driving. Most of the guidelines with respect to a provoked seizure include a requirement for a seizure-free period in order to establish the likelihood that the provoking factor has been successfully treated or stabilized. We find this to be a reasonable approach.

32Section 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 but is not bound by them.

33The CCMTA Standards recommend that a driver who has been diagnosed with alcohol withdrawal seizures be considered eligible for a licence if:

i. The treating physician has confirmed that the cause of the seizure was alcohol withdrawal rather than epilepsy;

ii. The person has undergone addiction treatment and have received a favourable report from an addiction counsellor;

iii. The person meets the criteria for remission and/or has abstained from the substance for 12 months;

iv. The functional abilities necessary for driving are not impaired; and

v. Where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.

34We find the CCMTA Standards in this regard to be reasonable. Seizure, including alcohol withdrawal seizure, can cause a sudden, significant, impairment of a person’s ability to drive a motor vehicle for which a driver may not be able to compensate. In order to establish that the condition is no longer impacting the driver’s ability to drive safely, the standards for reinstatement require assurance from a driver’s treating health care provider, who has knowledge of the person’s condition and recovery, by recommending reinstatement. The standards also require assurance based on the driver’s actions such as participation in treatment and abstaining from the substance in issue.

35The appellant argues that they have abstained from alcohol since the accident on October 14, 2023, which is a little more than four months before this hearing. They say they have submitted to urine testing every two weeks since the accident and have never tested positive for the presence of alcohol. In our view, this is insufficient to warrant reinstatement.

36We find that the appellant does not have sufficient insight into their condition of alcohol withdrawal seizure. The appellant still denies or cannot accept that, on a balance of probabilities, they suffered an alcohol withdrawal seizure. Insight is an important consideration when considering ability to drive safely. This lack of insight makes the appellant’s continued abstinence unreliable and increases the likelihood of further alcohol withdrawal seizures.

37Moreover, there is no information before us that any treating health care provider overtly supports the reinstatement of appellant’s driving privilege.

38We are satisfied on a balance of probabilities that the appellant’s medical condition of alcohol withdrawal seizure is likely to significantly interfere with their ability to drive safely.

Conclusion

39We 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 withdrawal seizure, that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

40For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: March 7, 2024

__________________________

Dr. Erica Weinberg, Member

__________________________

Colin Osterberg, Vice Chair