Licence Appeal Tribunal File Number: 15712/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:

Jeremy Kojlak

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Peter Savage M. D.

APPEARANCES:

For the Appellant:

Jeremy Kojlak, Appellant

For the Respondent:

Ian Sookram, Representative

HEARD: April 5, 2024

OVERVIEW

1Jeremy Kojlak (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 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 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 medical conditions, namely alcohol withdrawal seizure and substance use disorder (alcohol), that are likely to significantly interfere with his ability to drive safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. He denies that he suffers from the medical conditions alleged and deny that he suffers from a medical condition which 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.

PRELIMINARY ISSUES

6Initially, the grounds for suspending the appellant’s driver’s licence were unclear. In three different letters to the appellant, the condition was described as either alcohol withdrawal seizure or substance use disorder (alcohol) or both. The Registrar indicated that the conditions were linked and there had been an error in the communications. The Registrar’s position is that the licence is under suspension based on both conditions. The appellant stated he had been confused and unclear which condition the Registrar was alleging and were extremely confused by the different conditions demanded by the Registrar for relicensing. The Registrar apologized for the confusion. The appellant agreed to address both conditions and accepted the Registrar’s position that both alcohol withdrawal seizure and substance use disorder (alcohol) were the alleged conditions resulting in licence suspension. The hearing proceeded with both conditions being involved.

ISSUES

7The issue in this appeal is whether the appellant suffers from one or more medical conditions that are likely to significantly interfere with his ability to drive a motor vehicle safely.

8To resolve that issue, I will address the following questions:

i. Does the appellant suffer from alcohol withdrawal seizures and/or substance use disorder (alcohol)?

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

9The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

10Having 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 his ability to drive a motor vehicle safely and set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIs

Does the appellant suffer from alcohol withdrawal seizure?

11The evidence presented at the hearing does not establish that the appellant suffers from alcohol withdrawal seizure.

12The Registrar’s position is supported by medical reports completed by Dr. Alix Carter and Dr. Tripp.

13Dr. Carter, an emergency physician, submitted an unsolicited medical report February 9, 2024 indicating the appellant suffered from an alcohol withdrawal seizure. No observations or notes were provided.

14Dr. Tripp, the appellant’s medical doctor, states in the substance use questionnaire dated February 21, 2024 that the appellant possibly had an alcohol withdrawal seizure. In her letter of support for the appellant dated March 5 2024, Dr. Tripp notes that the hospital observations of urinary incontinence (a symptom that often occurs when a person experiences a seizure) were made in error based on Dr. Tripp’s own interview with the appellant’s wife. Dr. Tripp’s letter further states the appellant has never had a seizure to her knowledge.

15The appellant denies that he suffers from alcohol withdrawal seizure.

16The appellant points to his wife’s testimony. Ms. Andrea Kojlak testified that while her husband was unwell on February 9, 2024, he never lost consciousness and at no time did he have symptoms that made her think he was having a seizure. She further testifies no doctor told her that her husband had had a seizure and that she was not told by any healthcare provider that her husband should not drive.

17The appellant points to the hospital discharge summary in which a diagnosis of alcohol withdrawal syndrome was made and not a diagnosis of seizure. This summary was written by Dr. Faisal Rehman, the attending physician who spent the most time with the appellant.

18The appellant testified he was not told not to drive, was given no medication, and was advised follow up with Dr. Tripp and to take steps to reduce use of alcohol. The appellant testified Dr. Rehman told him that he may have had an alcohol withdrawal seizure, but he did not make that diagnosis.

19The appellant testified he did not lose consciousness at any time on February 9 2024 and, in his opinion, they did not have a seizure.

20There is conflicting evidence. Dr. Carter, the emergency physician, indicates there was a seizure but does not describe how that diagnosis was made. This relative thinness of Dr. Carter’s evidence is detrimental to my ability to assign it much weight.

21By contrast, both the appellant and his wife testified there was no loss of consciousness or seizure. Dr. Tripp says there was a possible seizure but points out that some of the evidence that pointed to seizure was incorrect (specifically the urinary incontinence), a point that was verified by the testimony of the appellant’s wife. The final note of Dr. Rehman diagnoses alcohol withdrawal syndrome and not seizure and I believe this is the most likely diagnosis.

22I am not satisfied that the Registrar has proven on a balance of probabilities that the appellant suffers from alcohol withdrawal seizure.

Does the appellant suffer from substance use disorder?

23The evidence presented at the hearing does establish that the appellant suffers from substance use disorder (alcohol).

24As with the allegation of alcohol withdrawal seizure, the Registrar depends on the reports of Dr. Carter and Dr. Tripp. The allegation is supported by the testimony of the appellant.

25Dr. Carter diagnosed substance use disorder on the unsolicited medical condition report of February 9, 2024. No details are provided.

26Dr. Tripp diagnosed moderate substance use disorder in the substance use questionnaire filled out February 21, 2024.

27The appellant testified that he suffers from moderate substance use disorder (alcohol).

28There is no conflicting evidence and I find on a balance of probabilities the appellant does suffer from the condition, substance use disorder (alcohol).

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

29I find that the Registrar has not proven on a balance of probabilities that the appellant’s substance use disorder (alcohol) is likely to significantly interfere with their ability to drive a motor vehicle safely.

30The Registrar argues that substance use disorder (alcohol) interferes with the appellant’s ability to drive safely in that alcohol may reduce reaction time, cause blurred or double vision, alter depth perception, blunt alertness, reduce motor coordination, and reduce judgement and insight.

31The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), which confirms the dangers that alcohol presents to an operator of a motor vehicle.

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 are not bound by them.

33The CCMTA Standards do not differentiate between mild, moderate and severe alcohol use disorder.

34The Registrar states that mild or moderate substance use disorder (alcohol) would not normally result in a licence suspension; however, submits that each case has to be considered individually.

35The appellant argues that his substance use disorder (alcohol) does not impact his ability to drive safely.

36The appellant testifie that he never drank alcohol and driven a motor vehicle. The appellant’s wife’s testimony confirms his testimony.

37The appellant testified he has two to three bouts of heavy drinking a year. During bouts of heavy drinking, he drinks alone in his basement and orders the alcohol online. The wife’s testimony, as well as the alcohol home receipts are consisten with this testimony.,

38The appellant testified he doesn’t go to bars and, on occasions when he is golfing or out socializing where alcohol is involved, he always arranges a designated driver or takes an Uber.

39I find the appellant shows insight into his moderate alcohol use disorder, admits it is a health problem and is taking steps to deal with this condition. The , appellant has talked to his family doctor and has begun a course of counselling with a therapist.

40The appellant points to his excellent driving record with no alcohol charges over many years of driving.

41The appellant draws attention to the confusion caused by the Registrar’s conflicting alleged conditions for suspending his licence. The appellant points out that initially his licence was suspended for an alleged alcohol withdrawal seizure, which in his opinion, he did not have a seizure. The issue of substance use disorder (alcohol) was brought up later by the Registrar. The appellant notes the Registrar’s position that if substance use disorder was the only alleged condition, then moderate substance use disorder (alcohol) would not result in a licence suspension.

42The appellant draws the Tribunal’s attention to Dr. Tripp’s substance use assessment where she diagnosed a moderate substance use disorder. The appellant admits he has a moderate substance use disorder.

43I accept the CCMTA concerns with substance use disorder (alcohol). The CCMTA does not seem to differentiate between mild, moderate and severe substance use disorder. The Registrar states that the MTO makes a distinction between mild or moderate substance use disorder and severe substance use disorder and although mild and moderate disorders do not normally lead to a licence suspension, each case must be decided on its own merits. On that last point, I certainly agree.

44I find the appellant has insight into his substance use disorder and he is taking steps to address the condition. The appellant has the support of his wife and family doctor as well as a therapist in addressing this condition. I find the condition is moderate and not severe and see no evidence that it has affected his driving in the past. I am empathetic to the confusion caused to the appellant by the changing alleged conditions. I found the appellant accepted the position of the Registrar that the conditions were linked and stated emphatically he would address both conditions. I find that the appellant does not have the condition of alcohol withdrawal seizure. I find the appellant has the condition of substance use disorder (alcohol) but only to a moderate degree and it does not affect his ability to drive a motor vehicle safely.

45I am not satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

46I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

47For the reasons set out above and pursuant to subsection 50 (2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s licence.

Peter Savage M. D.