David Mikula v. Registrar of Motor Vehicles, 2024 CanLII 46892

Licence Appeal Tribunal File Number: 15820/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:

David Mikula

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Peter Savage, Member Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant:

David Mikula, Appellant

For the Respondent:

Sharon Nelson, Representative

Heard by teleconference:

May 14, 2024

BACKGROUND AND OVERVIEW

1David Mikula (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend his driver’s licence for medical reasons effective April 9, 2024.

2The Registrar takes the position that the appellant is suffering from medical conditions, namely, alcohol use disorder and a mental health condition, that are likely to significantly interfere with his ability to drive a motor vehicle safely.

3The Registrar has the authority under s. 47(1) of the Act to suspend a person’s driver’s licence. 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 physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class. Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

4The appellant appeals the suspension under s. 50(1) of the Act.

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.

ISSUE IN DISPUTE:

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 of the applicable class safely.

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

a. Does the appellant suffer from medical conditions, namely alcohol use disorder and/or a mental health condition?

b. If the appellant does suffer from one or both of the above conditions, is it or are they likely to significantly interfere with his ability to drive a motor vehicle of applicable class safely?

RESULT

7For the reasons set out below, pursuant to subsection 50(2) of the Act, we confirm the Registrar decision to suspend the appellant’s driver’s licence.

PRELIMINARY ISSUES

8The appellant raised two preliminary issues prior to the commencement of the hearing.

9The first preliminary issue is the respondent’s late filing of additional submissions on May 13, 2024. The appellant noted that, as ordered at the case conference on April 30, 2024, all documents were to be exchanged by 3:00 p.m. May 6, 2024.

10After discussion, and after I granted the appellant time to review the late documents before the hearing proceeded further, the appellant agreed to the admission of the documents.

11The second preliminary issue raised by the appellant was a request for an adjournment in order to allow the appellant the opportunity to observe a medical suspension hearing prior to the hearing of his appeal. The appellant submitted that, as the Registrar has taken part in many hearings, and he has not, he would be prejudiced without the opportunity to observe a hearing.

12The appellant submitted that on May 7, 2024 he had requested the Tribunal, via email, to forward a list of cases with access code information. For reasons unknown, the Tribunal failed to provide that information to the appellant.

13The respondent did not object to the request for an adjournment.

14After discussion with respect to Rule 16 of the Licence Appeal Tribunal Rules, possible dates for observing hearings and possible dates to reschedule the hearing, the appellant decided that, as his driver’s licence would not be reinstated during the adjournment period and as he had witnesses in attendance at this hearing, he agreed to continue with the hearing on today’s date.

ANALYSIS

The appellant does suffer from medical conditions

15The evidence presented at the hearing establishes that the appellant suffers from both medical conditions alleged, namely substance use disorder and a mental health condition.

16In support of its allegation that the appellant suffers from these medical conditions, the respondent relies on a Medical Condition Report (“MCR”) dated April 2, 2024 by family physician, Dr. Sarwat Kamran (“Dr. Kamran”). In that report, under the heading of Substance Use Disorder, Dr. Kamran advised that the appellant suffers from alcoholism and is non-compliant.

17Also on the MCR, Dr. Kamran noted, “Ongoing issue with alcohol abuse, use to take Naltrexon, lately more depressed and drinking more. Unable to assess driving safety. He is otherwise compliant with attending his counselling appointment and taking his meds as prescribed.”

18The respondent produced evidence which shows that they had requested that the applicant have a medical professional complete a Mental Health Disorder form and a Substance Use Assessment form. However, the respondent has not received either of those completed forms from the appellant or his doctors

Family Physician

19Dr. Kamran testified on behalf of the appellant. She testified that she has been the appellant’s family physician from 2017 to the present. She testified that her first medical note regarding the appellant is with respect to the appellant’s severe anxiety, panic attack and alcohol use. She referred him to CAMH in July, 2017 due to his alcohol use.

20Upon questioning from the appellant, Dr. Kamran agreed that she could not definitively state that the appellant had a severe alcohol use disorder. However, she testified that she submitted the MCR on April 8, 2024 due to her concern that his depression and subsequently his drinking had been getting worse since December 2023 when he went on medical leave from work due to stress.

21Dr. Kamran testified that her concern about his drinking, and his driving, is not only for the sake of others, but also for the appellant’s own safety. It was out of this concern that Dr. Kamran referred the appellant for psychological assistance due to her concern for his depression and increase in alcohol consumption.

22Dr. Kamran testified that, with respect to the appellant’s ability to abstain from alcohol “he has his ups and downs”. She testified that it is her understanding that the applicant reported that he has drank up to 12 drinks per day. Dr. Kamran further testified that she had indicated (on the MCR) that the appellant was non-compliant with treatment due to his aversion to taking the medication, Naltrexone.

23Upon questioning, Dr. Kamran testified that, due to her concerns, it was her legal obligation to submit the MCR to the Ministry of Transportation (“MTO”). It was her intention in doing so that the MTO order a Functional Driving Assessment for the appellant and not a suspension of his licence. However, Dr. Kamran noted that the decision as to how to respond to the MCR is up to the MTO and not herself.

24I a fax to the MTO dated April 24, 2024, Dr. Kamran expanded that the appellant “was Compliant in following his treatment plans and taking medications as prescribed but I cannot assess the safety so the form was completed”. She went on to state, “I would like to request if he can get his driving Licence back with in 4-6 months if he get[s] successful in abstinent from alcohol.”

Psychotherapist

25Registered psychotherapist, Feyza Kilic (“Ms. Kilic”), testified on behalf of the appellant. Ms. Feyza testified that she had been treating the appellant from February 26 to April 8, 2024. She testified that the appellant was compliant with the counseling sessions and that he discontinued the counseling due to a lack of transportation due to his licence suspension.

26Ms. Kilic testified that during the counseling, the appellant’s depression started as severe depression and significantly improved. However, Ms. Kilic believes that the appellant should continue the counselling.

27In a fax to the appellant dated April 19, 2024, Ms. Kilic wrote “I believe you need the counselling sessions more now as you’re having a current stressor [the suspension of his licence] but also more reason to get better to obtain your licence back sooner.”

The appellant

28The appellant testified that he does not believe that he has, or has had, a problem with alcohol. He testified that he was enrolled in the CAMH clinic with respect to treatment of alcohol use in 2017 and the Rapid Access Addiction Medicine (RAAM) Clinic in Oakville, Ontario in 2021. He testified that he attended those treatments because his doctors advised that he should.

29The appellant also testified that he is currently scheduled to attend at the one-Link program at the Oakville/Trafalgar Memorial Hospital, although he declined to specify for what issue.

30With respect to the Mental Health Disorder and Substance Use Assessment forms, the appellant testified that he did not believe that those were necessary.

Conclusion regarding Alcohol Use Disorder

31We cannot accept the appellant’s position that he does not have and has not had a problem with drinking. The evidence and testimony of his family physician of seven years is that she has been concerned with his alcohol consumption from her first meeting with him until the present. It is that alcohol consumption which prompted her to refer the appellant to CAMH, the RAAM and the one-Link Program. It was also her concern which prompted the submission of the MCR. Based on that evidence, we conclude that the appellant has a medical condition of Alcohol Use Disorder.

Conclusion regarding Mental Health Condition

32It was the evidence of Dr. Kamran that the appellant has had severe anxiety, panic attacks and alcohol use disorder. She advised in the MCR that the appellant is “lately more depressed.” Psychotherapist Ms. Kilic has been treating the appellant since February 2024 for depression. Also, the appellant himself testified that he is on a medical leave from his work due to stress. Based on that evidence, we conclude that the appellant has a Mental Health Condition.

b. Are either or both of the Appellant’s Alcohol Use Disorder and Mental Health Condition likely to significantly interfere with his ability to drive a motor vehicle of applicable class safely?

Mental Health Condition

33In support of their decision to suspend the appellant’s Class G licence due to his mental health condition, the Minister relies on the Canadian Council of Motor Transport Administrators (“CCMTA”) Standard 14.6.1, which states that a driver with a psychiatric disorder is eligible for a licence if his condition is stable, he has sufficient insight to stop driving if condition becomes acute, his functional abilities necessary for driving are not impaired, a treating physician supports a return to driving and the conditions for maintaining a licence are met.

34The respondent relies upon the comment on the MCR that the appellant is lately more depressed and drinking more. Although the appellant does have a mental health condition, we find that the evidence establishes that the condition is acknowledged by the applicant who is receiving treatment for the same from his family doctor and his psychotherapist. We do not find sufficient evidence to establish that this medical condition is likely to significantly interfere with his ability to drive a motor vehicle of applicable class safely.

Alcohol Use Disorder

35As noted, the appellant does not believe that he has a “problem with alcohol”. In support of his ability to drive safely, the appellant refers to the driver record, submitted by the respondent, which shows that he has a clear driver abstract.

36In support of their decision to suspend the appellant’s Class G licence due to alcohol, the Minister relies on the Canadian Council of Motor Transport Administrators (“CCMTA”) Standard 15.6.3, which states that a driver with substance use disorder, including in relation to alcohol, is eligible for a licence if he meets the criteria for remission and/or has abstained from the substance for 12 months. It further states that earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licencing authority and the successful completion of a drug rehabilitation program.

37Standard 15.4 describes that the effects of alcohol include but are not limited to reduced reaction times, blurred or double vision, altered depth perception, reduced judgement and insight, blunted alertness and reduced motor co-ordination.

38The Tribunal is entitled to take the Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Minister has proven, on a balance of probabilities, that the appellant’s condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. While the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts.

39The appellant testified that he is able to abstain from the use of alcohol. He has, at one time abstained for 40 days and, currently, has abstained since April 8, 2024.

Conclusion

40While we appreciate the appellant has a clean driving record, and he is currently abstaining from the use of alcohol, we are concerned with the appellant’s lack of insight into the magnitude of that use. He denies having had or currently having an alcohol use disorder when the medical evidence proves otherwise. We are also concerned with the failure to have the Mental Health Disorder and Substance Use Assessment forms completed and submitted to the MTO. These forms, particularly the Substance Use Assessment form, could possibly have provided an objective insight into the appellant’s ability to drive safely. However, with no such objective medical evidence with respect to the appellant’s ability to drive safely, we find the recommendations of the CCMTA to be reasonable and accept them. Based upon that, we find, on a balance of probabilities, the appellant’s condition is likely to interfere with his ability to drive a motor vehicle of applicable class safely.

41The appellant is to be commended for abstaining from the use of alcohol since April 8th. However, that is far too short of a time period necessary to establish that the appellant’s use of alcohol is under control. A period of 12 months of abstinence is recommended by CCMTA chapter 15.6.3 and is required by the respondent. However, 15.6.3 also permits that an earlier re-licencing may be considered upon a favourable recommendation from an addictions specialist and/or treating physician. We note that, in this case, the individual who is most aware of the appellant’s alcohol use is Dr. Kamran, is recommending a period of 4 to 6 months of abstinence before having his driver’s licence reinstated.

42Under section 50(2) of the Act, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar. We confirm the order of the Registrar to suspend the driver’s licence of the appellant as his alcohol use disorder is likely to interfere with his ability to drive a motor vehicle safely. We anticipate that if he seeks reinstatement of his driver’s licence after a period of abstinence, the Registrar will consider whether doing so is justified in light of Dr. Kamran’s recommendation for 4-6 months of abstinence, together with any other relevant medical evidence at the time.

ORDER

43For 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.

Dr. Peter Savage, Member

Jeffery Campbell, Vice Chair