Stephen Yurkiw v. Registrar of Motor Vehicles, 2024 CanLII 54040

Licence Appeal Tribunal File Number: 15864/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:

Stephen Yurkiw

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Stephen Yurkiw, Self-represented

For the Respondent:

Leila Pereira, Representative

Sharon Nelson, Representative

HEARD by teleconference:

May 30, 2024

OVERVIEW

1Stephen Yurkiw (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend their Class ABM 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 a vehicle of the applicable class safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely seizure due to alcohol withdrawal, that is likely to significantly interfere with their ability to drive a vehicle of the appropriate class 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 acknowledge that they suffered a seizure, deny that the seizure was due to alcohol withdrawal and deny the seizure significantly interferes with their ability to drive a motor vehicle 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 onset of the hearing, it became apparent that neither I nor the respondent had received the appellant’s witness statement which the appellant thought they had sent to the Tribunal. Following a discussion, and on consent, I allowed the witness to testify at the hearing.

7In addition, at the onset of the hearing, a discussion ensued whether to allow the respondent’s late submissions into evidence. On consent, I allowed the respondent’s late submissions into evidence.

ISSUES

8The 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 of the applicable class safely.

9To resolve that issue, I will address the following questions:

i. Does the appellant suffer from a medical condition, namely seizure due to alcohol withdrawal?

ii. If so, is it likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?

10The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

11Having 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 their ability to drive a motor vehicle of the applicable class safely and I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from seizure due to alcohol withdrawal?

12The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from seizure due to alcohol withdrawal.

13The Registrar’s position is supported by the medical reports submitted by hospital physician, Dr. Patenaude, the appellant’s family physician, Dr. Murdoch, and the locum physician covering Dr. Murdoch’s practice, Dr. Zuccaro.

14In the March 4, 2024 unsolicited Medical Condition Report (“MCR”), Dr. Patenaude checked off that the appellant suffered sudden incapacitation due to seizure due to alcohol/drug withdrawal and substance use disorder to alcohol. In the Discretionary Report section of the MCR, Dr. Patenaude wrote, “… seizure x2 following an admission to the intensive care unit … in the context of alcohol withdrawal”.

15In the April 4, 2024 and April 22, 2024 completed Substance Use Assessment forms (“SUA form”), Dr. Murdoch checked off that: the appellant experienced a seizure in the past 12 months, specifically less than three months ago; and the seizure was due to alcohol withdrawal.

16In the May 17, 2024 completed SUA form, Dr. Zuccaro checked off that: the appellant experienced a seizure in the past 12 months, specifically three to less than six months ago; and the seizure was due to alcohol withdrawal.

17The appellant testified that on the evening of February 12, 2024 they had an accident at home where they: stepped on their dog’s bone; rolled or fell backward; hit their head on the television stand; and bit their tongue. The appellant denied losing consciousness at any time during this event. The appellant further testified that: they spent a significant amount of time applying gauze/first aid to their tongue; went to bed in the early morning hours of February 13, 2024; woke up on February 13, 2024 with laboured breathing and a significantly swollen tongue; went to the local hospital; was sedated quickly; and was transferred to a larger hospital where they were placed in a medically-induced coma and on life support in the intensive care unit (“ICU”) for a number of days.

18The appellant’s witness, Laura Bartlett, testified that on February 14, 2024, when they visited the appellant in the ICU, a nurse told them that the appellant had suffered a seizure earlier that day.

19The appellant acknowledges and accepts that they suffered a seizure on February 14, 2024 while in the ICU. However, the appellant does not accept that the seizure was due to alcohol withdrawal.

20The appellant testified that: their last alcoholic drink was on February 11, 2024; they have never suffered alcohol withdrawal symptoms in the past; in 2023 they took part in ‘dry February’ and abstained from alcohol for four months without issue; they were told that there was ‘no alcohol in their system’ when measured in the ICU; they were not assessed by a neurologist following the seizure; and Dr. Zuccaro, after reviewing the hospital reports, told them that other factors, including the withdrawal from some of their routine medications for a few days while in the ICU may have caused the seizure.

21The appellant admitted that their alcohol consumption had increased for a few weeks prior to their accident at home but testified that: this was in response to the re-emergence of their PTSD (post traumatic stress disorder) following two events they witnessed in January 2024; they were acutely aware of the situation; and they had already reached out to Homewood to get a place in their in-patient PTSD program prior to their accident at home.

22I agree with the appellant that there may have been other factors which may have caused or contributed to their seizure while in the ICU. However, ‘may’ does not mean on a balance of probabilities.

23I prefer the evidence and submissions of the above-named physicians over that of the appellant and find that the appellant’s seizure on February 14, 2024 was, on a balance of probabilities, due to alcohol withdrawal. There is no written medical evidence before me stating a different medical reason for the appellant’s seizure. Most notably, despite the appellant’s hearsay evidence regarding their conversation with Dr. Zuccaro, Dr. Zuccaro checked off in the SUA form that the appellant’s seizure was due to alcohol withdrawal. Furthermore, as a licenced and duly qualified physician in the province of Ontario, I know that the absence of alcohol ‘in a person’s system’ does not rule out the diagnosis of seizure due to alcohol withdrawal and that the timing between the appellant’s last alcoholic drink and their seizure is in keeping with a seizure due to alcohol withdrawal. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

24Based on the above, I find that the Registrar has established on a balance of probabilities that the appellant suffers from seizure due to alcohol withdrawal.

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

25I find that the Registrar has not proven on a balance of probabilities that the appellant’s condition of seizure due to alcohol withdrawal is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

26The Registrar’s representatives argue that alcohol is known to potentially impair the ability to operate a motor vehicle safely by impairing a driver’s judgement, reflex control and behaviour towards others.

27Furthermore, the Registrar’s representatives argue, as stated in the Registrar’s letters of April 26, 2024 and May 24, 2024, that in order to consider reinstatement of the appellant’s driver’s licence, the Registrar requires: confirmation that the appellant has remained seizure-free and abstinent from alcohol for a period of one year; and that this period may be reduced to six months if the appellant’s healthcare practitioner confirms that the appellant has successfully completed an alcohol treatment program and is supportive of the appellant’s driving privilege.

28Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.

29The Registrar relies on the CCMTA Standards, in particular Chapters 17.6.3 (Alcohol Withdrawal Seizures) and 15.6.3 (Substance Use Disorder) plus internal policies at the Ministry of Transportation.

30The appellant argues that their seizure does not significantly interfere with their ability to drive a motor vehicle safely.

31The appellant testified that: they have had no further seizures since February 14, 2024; they have been abstinent from alcohol since February 11, 2024; their PTSD is significantly better and they are on fewer medications for their PTSD; they missed their in-patient spot at Homewood due to their hospitalization and further month of out-patient dialysis; they plan to attend the Homewood program for PTSD when a spot opens up again; and that both Dr. Murdoch and Dr. Zucarro feel they are safe to drive again.

32Furthermore, the appellant testified that they take safety with respect to drinking and driving extremely seriously and have never driven a motor vehicle or operated a boat under the influence of alcohol. I take note of the fact that the appellant’s Extended Driver Record Search for Criminal Code Convictions shows no evidence of any alcohol-related infractions.

33While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

34Although I am not bound by the CCMTA Standards, I find them reasonable.

35I agree with the respondent that alcohol is known to potentially impair the ability to operate a motor vehicle safely. However, the issue I must determine is whether the appellant’s seizure due to alcohol withdrawal is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

36I prefer the evidence and submissions of the appellant over that of the respondent, and find on a balance of probabilities, that the appellant’s seizure due to alcohol withdrawal is not likely to significantly interfere with their ability to drive a motor vehicle safely.

37I acknowledge that in 2015 or 2016, the appellant ‘turned to alcohol’ for a few months as the result of significant depression and/or PTSD. However, I accept the appellant’s testimony that in early 2024, prior to their accident at home, they quickly reached out to Homewood to attend an in-patient program for PTSD to address their symptoms of PTSD and increased alcohol consumption. I find that this shows the appellant has sufficient insight and understanding of their PTSD. Insight is an important consideration when considering safety to drive. Unfortunately, the appellant’s accident at home resulted in a near death experience, a prolonged ICU stay followed by approximately one month of out-patient dialysis and the appellant was unable to attend the Homewood PTSD program when a spot opened up for them.

38I accept the appellant’s testimony that they are abstinent from alcohol, currently have no alcohol or beer in their home and have no plans in the near future to begin drinking alcohol socially again. I accept Dr. Murdoch’s and Dr. Zucarro’s written opinions that the appellant suffers from mild substance use disorder and that they both feel the appellant is “safe to drive again”. Furthermore, I accept the appellant’s testimony that they plan to attend the Homewood program for PTSD when a spot for them is once again available and that they have never driven a motor vehicle, including a boat, under the influence of alcohol.

39Based on the above, I am not satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

40I 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 seizure due to alcohol withdrawal, that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

41For 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.