Licence Appeal Tribunal File Number: 15730/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:

Cindy McKinnon

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Peter Savage M.D.

APPEARANCES:

For the Appellant:

Cindy McKinnon, appellant

For the Respondent:

Ian Sookram, Representative

HEARD: April 9, 2024

OVERVIEW

1Cindy McKinnon (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend her 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 her 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 substance use disorder, that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend her licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. She denies that she suffers from substance use disorder and denies that she suffers from a medical condition which interferes with her 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

6The issue in this appeal is whether the appellant suffers from substance use disorder (alcohol) that is likely to significantly interfere with her ability to drive a motor vehicle safely.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from substance use disorder (alcohol)?

ii. If so, is this likely to significantly interfere with her ability to drive a motor vehicle safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having 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 her ability to drive a motor vehicle safely and I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from substance use disorder?

10The evidence presented at the hearing does not establish that the appellant suffers from a medical condition, namely substance use disorder (alcohol).

11The Registrar’s position is supported by medical reports by Dr. Razvi, a family doctor who treated the appellant, and by Dr. Andrew Micieli, a neurologist who assessed the appellant February 7, 2024.

12Dr. Razvi submitted an unsolicited medical report to the Ministry of Transportation based on an appointment he had with the appellant October 7, 2024. Dr. Razvi made the diagnosis of substance use disorder (alcohol). Dr. Razvi did not give any information on how that diagnosis was made in this report.

13Dr. Razvi further submitted a substance use questionnaire and a medical letter both dated January 27, 2024. He confirmed his diagnosis of severe substance use disorder in the substance use questionnaire but indicated the appellant had not used alcohol for six to twelve months. In his letter, he states his diagnosis was based on physical findings and laboratory findings as well as his understanding that the appellant had a past history of an impaired driving conviction and a recent careless driving conviction. His letter finishes by saying an assessment of her driving may be prudent.

14Dr. Razvi’s January 27, 2024 letter states that, on January 27, 2024, the appellant had physical signs of tremulousness and tachycardia but no evidence of ataxia. He noted that although her cognition was normal, he felt these signs indicated she was drinking alcohol and stated it was partially on these physical signs that he based his diagnosis of substance use disorder (alcohol).

15Dr. Razvi indicates in his letter the appellant’s abnormal blood work (increased liver enzymes, GGT, MCV, mild anemia, and thrombocytopenia) suggested substance use disorder (alcohol) and this, combined with the physical findings, allowed him to make the diagnosis of substance use disorder (alcohol) and send in his unsolicited medical condition report. Dr. Razvi noted the appellant’s blood work was improved when he saw her in January 2024; however, he does not share the results of the laboratory testing. Dr. Razvi noted that these abnormalities may be related to subacute acetaminophen (an over-the-counter analgesic) toxicity. Dr. Razvi notes he has organized for the appellant to see a liver specialist.

16Dr. Micieli reports in a consultation note dated February 7, 2024, that the appellant has been abstinent from alcohol for one year and her gait unsteadiness is likely multifactorial with contributions from her multiple sedative medications (amitriptyline, gabapentin, Seroquel, and duloxetine), past history of alcohol use resulting in a mild peripheral neuropathy, fibromyalgia and arthritic pain. Dr. Micieli recommends reduction/optimization of the appellant’s sedative medications, specifically reducing her dose of gabapentin as well as general supportive measures.

17The appellant denies that she suffers from substance use disorder (alcohol).

18The appellant testified that she has not had a drink since her impaired driving charge from October 17, 2021. Prior to the impaired driving charge, the appellant testified she was only an occasional social drinker.

19The appellant testified that she complied with all procedures following her impaired driving charge. This included counselling as well as having an ignition lock device on her car. She found the counselling helpful and was able to abstain from alcohol.

20The appellant’s son and her son’s wife verify the appellant’s abstinence in their letter of support from February 2024.

21The appellant denies her gait unsteadiness is due to alcohol use and believes that she has been over-medicated by Dr. Razvi. Further, since she stopped the medication that Dr. Razvi prescribed, her gait has improved and she has had no falls. She testified that she is stronger and back to doing almost all of her duties at her job in an Amazon distribution centre.

22The appellant admits to the impaired driving conviction. She maintains she was set up by the landlord, who was unhappy about her leaving his apartment. She maintains she had driven her furniture to the new residence and returned home and drank alcohol. The police arrived having been called by the landlord and charged her as she had possession of the keys, even though she was not in the vehicle.

23The appellant admits to the careless driving conviction and states she was on her way to work and followed a car making a left turn when the light turned yellow. She thought the car was going through on the yellow but suddenly stopped and she rear-ended the car. She admits that the accident was her fault but points out alcohol was not a factor.

24The appellant’s position is that neither the careless driving conviction nor the impaired driving conviction are proof she suffers from substance use disorder (alcohol).

25The appellant testified she was not advised to refrain from driving by Dr. Razvi and was surprised when her licence was suspended.

26The appellant pointed out that Dr. Razvi stated her abnormal blood work may be due to liver disease associated with medications prescribed. Dr. Razvi had recommended a consult with a liver specialist and that appointment has not taken place yet.

27The appellant also submits that Dr. Micieli does not make a diagnosis of substance use disorder (alcohol) but diagnoses excessive prescribing of medication and recommends reducing or ceasing prescribed medications.

28The appellant testified she is now not on any medications and has not used alcohol since her impaired charge.

29I find that there is conflicting evidence in this case. The medical condition report itself supports the possibility of substance use disorder as does the substance use questionnaire. The appellant has another explanation for the findings that led Dr. Razvi to diagnose substance use disorder (alcohol). Dr. Razvi’s letter of January 27 clarifies his criteria for diagnosing substance use disorder (alcohol). Dr. Razvi felt the physical symptoms of tremor ataxia and tachycardia, abnormal blood tests, her history of an impaired driving conviction and careless driving conviction led him to diagnose substance abuse (alcohol). The appellant argues the abnormal physical findings are the result of sedative medications prescribed by Dr. Razvi. The appellant argues the abnormal blood tests are likely related to medication overuse. The appellant argues that the previous impaired driving conviction and the careless driving conviction are not related to a substance use disorder (alcohol). The appellant argues she has not used alcohol for over a year, and this is supported in the letter from the appellant’s son and the letter from Dr. Micieli. I found the appellant’s evidence forthright and credible. I find Dr. Micieli’s report to be compelling and explains the appellant’s situation. I find the Registrar’s evidence to fall short of meeting its burden of proving that the appellant has substance use disorder (alcohol). After considering both parties’ evidence and positions, I am not satisfied with the Registrar’s evidence and prefer that of the appellant.

30I find that the Registrar has not established on a balance of probabilities that the appellant suffers from substance use disorder (alcohol). As the Registrar has failed to show the appellant suffers from a medical condition, I do not need to decide the second issue. The appeal is successful.

Conclusion

31I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely substance use disorder (alcohol), that is likely to significantly interfere with her ability to drive a motor vehicle safely.

ORDER

32For 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.