Licence Appeal Tribunal File Number: 15649/MED

An appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.

Between:

John Devine

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. David To, Member Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: John Devine, Appellant Jami Sanftleben, Appellant’s Paralegal Representative

For the Respondent: Sharon Nelson, Agent

Held by teleconference: April 25, 2024

OVERVIEW

1John Devine (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his 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 an unsolicited medical condition report stating that the appellant suffers from a medical condition that may affect his 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.

3The Registrar takes the position that the appellant suffers from two medical conditions, namely alcohol use disorder and cognitive impairment, 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 alcohol use disorder and cognitive impairment and denies 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.

ISSUES

6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

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

i. Does the appellant suffer from a medical condition?

a. Does the appellant suffer from alcohol use disorder?

b. Does the appellant suffer from cognitive impairment?

ii. If so, are either of these medical conditions likely to significantly interfere with his 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, we find that the Registrar has satisfied its burden to establish that the appellant suffers from both alcohol use disorder and cognitive impairment and that they are both likely to significantly interfere with his ability to drive a motor vehicle safely. We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from alcohol use disorder?

10The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely alcohol use disorder.

11The Registrar’s position is supported by an unsolicited Medical Condition Report (MCR) completed by Dr. D. dated July 28, 2023. Dr. D. has identified themselves as a hospitalist and reported that the appellant suffers from alcohol use disorder.

12Following the submission of the MCR, the Registrar suspended the appellant’s driver’s licence effective August 12, 2023 and requested the completion of a Substance Use Assessment Form.

13The Registrar has not received the completed requested Substance Use Assessment Form nor any documentation with the exception of one lab report. The Registrar described that the appellant would have had access to hospital discharge papers that could have been submitted if the Substance Use Assessment Form could not be completed.

14The Registrar notes that the appellant has a prior licence suspension due to alcohol use disorder. This suspension occurred in 2019 - 2020 for 9 months after the submission of an MCR dated January 10, 2019. It is noted in this documentation that the appellant’s family physician had recommended treatment with counseling.

15The appellant denies that he suffers from alcohol use disorder. He describes that his admission to hospital in July 2023 occurred after suffering a significant fall that resulted in substantial shoulder pain. He describes treating the pain by self-medicating with alcohol and ibuprofen. He reports that after several days without relief of the pain his sibling convinced him to go to hospital where he was admitted for 3-4 weeks with a shoulder injury that required surgical repair. The appellant admits that, at the time of the fall, he had consumed several drinks of vodka in the early afternoon prior to slipping on a plastic bag which resulted in the fall. He also reports being intoxicated on presentation to the hospital a few days later.

16The appellant described that throughout his adult life he primarily drank socially but also drank on his own. He struggled to provide an exact estimate of his consumption of alcohol. He described drinking roughly a couple of times of week where he enjoyed wine and vodka, consuming a couple of drinks at a time, but also abstaining from alcohol for extended periods. He normalized this behaviour, indicating it was not unusual for his age group. He reports that he has not drunk alcohol for 9 months since the hospitalization in July 2023.

17The appellant described working throughout his life and never having had alcohol interfere with his employment or performance. He described the hardship associated with transitioning into retirement that resulted in an increase in his consumption of alcohol in 2016 - 2017.

18The appellant reports he completed an alcohol treatment program 3-4 years ago through the Ministry of Transportation entitled Back on Track where he learned about the risks associated with alcohol use. Under cross-examination, it was shared that this program was completed to assist him in expediting his licence reinstatement following an impaired driving charge.

19The appellant testified he has completed no further treatment program or counseling regarding alcohol use since his latest suspension, nor following his 2019-2020 suspension. He reports he is taking naltrexone to assist with cravings, which was prescribed during his July 2023 hospital admission, and currently he reports having no cravings for alcohol. The appellant reports keeping himself busy with day-to-day tasks and socializing, and states he is able to stay active through use of taxis and Uber.

20In the appellant’s Notice of Appeal dated February 13, 2024, the appellant has written, “I have abstained from alcohol since [his admission to hospital] but find myself in a situation where my doctor is unwilling to fulfill the required forms as he cannot confirm my abstinence”. The appellant describes difficulty in having the requested medical forms completed. He attributes this difficulty to living in an assisted living facility for several months after his hospitalization. During this time, he had an appointment with his family doctor who reportedly advised him that the doctor affiliated with the facility could complete the requested forms, but this doctor suggested his family doctor was better positioned to do so. The appellant indicated that his family doctor has now returned after several weeks leave and the appellant has an upcoming appointment. The Tribunal notes that there were two prior adjournments granted to allow the appellant further time to obtain relevant medical documentation.

21The appellant reports going to several walk-in clinics requesting the Substance Use Assessment Form be completed but was unable to have a physician complete the form. He did have bloodwork completed at his request and relies on this bloodwork as evidence of his abstinence. As licensed physicians in Ontario, and as authorized by s.16 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22, we note the bloodwork submitted demonstrates an elevation of the biochemical marker GGT, a marker that can be elevated for several reasons, including alcohol consumption. The appellant reports that he had not consumed alcohol for several months leading up to this bloodwork and does not have an alternative explanation for why the GGT marker would be elevated.

22The medical evidence before the Tribunal is an MCR completed by a treating physician during a lengthy hospital admission, who has documented a diagnosis of alcohol use disorder. Although the appellant testifies that he has not consumed any alcohol since this hospitalization, there has been no written medical opinion that supports this position. This is despite the appellant asking several physicians to complete the requested medical documentation and two adjournments being granted to allow the appellant to obtain this documentation. The only submission from the appellant is the biochemical testing, which is not clearly supportive of abstinence from alcohol. Furthermore, the Registrar’s evidence of a prior medical suspension in 2019 due to alcohol use disorder and an impaired driving charge in 2021 is concerning and suggestive of a relapsing course of alcohol use disorder. Lastly, it is noted that the appellant has not sought out or engaged with any counseling, rehabilitation program or service to assist in maintaining his sobriety since this latest suspension or at the recommendation of his physician following the 2019-2020 suspension.

23We find the medical evidence in this case relevant and persuasive. Based on the information available, we find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

Does the appellant suffer from Cognitive Impairment?

24The evidence presented at the hearing also establishes that the appellant suffers from a medical condition, namely cognitive impairment.

25The Registrar’s position is supported by the unsolicited Medical Condition Report (“MCR”) noted above, completed by Dr. D. dated July 28, 2023. Dr. D. has checked a second box on the MCR identifying that the appellant suffers from alcohol related cognitive impairment.

26Following the submission of the Medical Condition Report, the Registrar suspended the appellant’s driver’s licence effective August 12, 2023 and requested the completion of a Cognitive Disorder Form.

27The Registrar has not received the completion of the requested Cognitive Disorder Form nor any documentation regarding cognitive functioning. Again, the Registrar described at the hearing that the appellant would have had access to hospital discharge papers that could have been submitted if the Cognitive Disorder Form could not be completed.

28The appellant submits that he does not suffer from cognitive impairment. He testifies that he did not undergo any cognitive testing to arrive at this diagnosis. He reports he was intoxicated when he was admitted to hospital in July 2023 suggesting the concern regarding cognitive impairment was identified when he was under the influence of alcohol. He reports having no difficulty with independent living and managing his own affairs. He reports his prior employer contacts him on occasion to assist.

29In the appellant’s NOA he identified that while in hospital, “I was asked several times for the date and time as well as my name and address, as I believe in an attempt to assess my awareness and cognitive function”. He testified that he was asked these questions several times during his 3-4 week stay in hospital. During cross-examination, the appellant shared that there was concern from his healthcare providers during this hospitalization regarding his ability to manage at home independently. It was arranged that he would be transferred to an assisted living facility following hospital discharge. He reports residing in this facility for approximately four months and receiving assistance with meals and all housekeeping tasks but managing his own medications. He testifies he has been home now for six weeks on his own and managing his affairs independently with the exception of assistance with snow removal and landscaping services. He testifies that has not been prescribed medication for cognitive concerns.

30Under cross-examination the timeline since the hospitalization in July 2023 was reviewed, drawing attention to the appellant having provided conflicting information. The appellant described being in hospital for 3-4 weeks and the assisted living facility for 4 months yet returning home 6 weeks ago, leaving 3 months unaccounted for. Upon questioning, he was unable to provide any further explanation as to the timeframe.

31The appellant submits that he has never experienced difficulty with memory or concentration. He also states, however, that at times he has difficulty with recall, such as with names of actors, and shares that he has techniques that he uses to assist with recall, such as going through the alphabet until he remembers the name.

32While the appellant disagrees with a diagnosis of cognitive impairment, there is no medical evidence to dispute the diagnosis.

33The medical evidence before the Tribunal is an MCR documenting Cognitive Impairment. With the appellant’s 3-4 week admission to hospital, we believe there would have been enough time to appropriately assess cognition, and by the appellant’s own testimony there was orientation testing completed several times during his stay, and importantly, when he would not have been intoxicated.

34We find the medical evidence in this case relevant and persuasive. Based on the information available, we find that the Registrar has established on a balance of probabilities that the appellant suffers from cognitive impairment.

Is the appellant’s medical condition of alcohol use disorder likely to significantly interfere with his ability to drive a motor vehicle safely?

35We find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition of alcohol use disorder is likely to significantly interfere with his ability to drive a motor vehicle safely.

36The Registrar argues that the appellant’s alcohol use disorder interferes with his ability to drive safely and relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”). Chapter 15 describes substance use disorders in general and the concerns with driving safely with respect to those conditions. Specifically Standard 15.6.3 states that drivers who are under the influence alcohol would be eligible for a licence if they:

i. Meet the criteria for remission and/or have abstained from the substance for 12 months.

ii. Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.

iii. The functional abilities necessary for driving are not impaired.

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

37The CCMTA Standards further outline the effects of alcohol on the functions necessary for driving including: reduced reaction times, blurred or double vision, altered depth perception, reduced judgement and insight, blunted alertness and reduced motor co-ordination. The use of alcohol impairs a driver’s judgment and behaviour towards others, including 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.

38Section 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.

39At the hearing, the appellant was questioned about the events that led to suspension of his driver’s licence on March 3, 2021. The appellant describes causing an accident when he drove into a parked car after his boot slipped off the brake and onto the gas pedal. Witnesses phoned the police, who subsequently administered a breathalyzer test and charged the appellant with driving under the influence of alcohol. The appellant testified that he had not been drinking the morning of the accident but had been drinking the night before and did not feel like he was intoxicated at the time he was driving. This incident is relevant to the consideration of the impact of the appellant’s alcohol use disorder on road safety and supports the Registrar’s position.

40The appellant’s position is that he does not have a medical condition that will interfere with his ability to drive. He describes that since the impaired driving charge, he now understands that alcohol could “stay in his system” for three days after drinking and he fully intends to abstain completely from alcohol.

41Insight is an important consideration when considering safety to drive. Insight means that a driver is aware of their medical condition, understands how the condition may impair their functional ability to drive and has the judgment and willingness to comply with a suggested treatment regime.

42The evidence before the Tribunal is that the appellant has suffered a relapsing course of problematic alcohol consumption that has brought him to the attention of authorities three times in the past five years. The Tribunal notes that the appellant completed an education program addressing the risks of alcohol use from the Ministry of Transportation several years ago that he found useful. Despite this, he has continued to consume alcohol to an extent that resulted in a significant injury and a recurrent diagnosis of alcohol use disorder. This relapsing pattern of alcohol consumption despite repeated negative outcomes when drinking demonstrates limited insight into the risks associated with alcohol use and its impact on the ability to safely operate a motor vehicle.

43The appellant’s position that he does not have alcohol use disorder and that it will not impact his ability to drive safely has been considered. No medical evidence has been submitted to support his position.

44Although not bound by the CCMTA Standards, we have considered them when making our decision because these Standards are the result of a lengthy and intensive process based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses.

45We find the CCMTA Standards relevant and are persuaded to apply them given the circumstances of this case. Our review of the evidence shows that none of the conditions recommended for relicensing outlined in the CCMTA Standards have been met.

46As such, for the reasons cited, we are satisfied on a balance of probabilities that the appellant’s medical condition of alcohol use disorder is likely to significantly interfere with his ability to drive safely.

Is the appellant’s medical condition of cognitive impairment likely to significantly interfere with his ability to drive a motor vehicle safely?

47We find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle safely.

48The Registrar again relies on the CCMTA Standards. Chapter 6 describes cognitive impairment in general and the concerns that result regarding driving safety. The chapter reports that the significance of cognitive impairment in relation to driving was the subject of a panel of experts in the context of the revision of the Canadian Medical Association medical guide. Following an extensive review of the scientific literature one of the study’s principal conclusions is that cognitive problems often have a direct effect upon fitness to drive and any indications of possible cognitive compromises of fitness to drive must not be neglected by clinicians. Furthermore, the chapter states that drivers with cognitive impairment are not able to compensate for their functional impairment.

49Specifically, Standard 6.6.1 states that drivers who are diagnosed with cognitive impairment would be eligible for a licence if:

i. Complete medical assessment indicates cognitive functions necessary for driving are not impaired;

ii. Where required, functional driving assessment shows condition does not affect ability to drive; and

iii. Conditions for maintaining a licence are met.

50The appellant testified that he is a safe driver and has no limitations on his ability to drive safely. He describes living independently for six weeks and managing his own affairs aside from landscaping.

51While we have considered the appellant’s testimony that he does not have a medical condition that will affect his ability to drive safely, it is not supported by any submitted medical evidence. We weigh this testimony against the only medical evidence on file which is that the appellant suffers from cognitive impairment and the scientific research that cognitive problems often have a direct effect upon fitness to drive.

52As such, for the reasons cited, we are satisfied on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with his ability to drive safely.

Conclusion

53We find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from both cognitive impairment and alcohol use disorder, and that these conditions are both likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

54For 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.