Licence Appeal Tribunal File Number: 16009/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:

Jo-Anne Rainville

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Jo-Anne Rainville, Appellant

Jessica Tremblay, Counsel

For the Respondent:

Leila Pereira, Representative

HEARD by teleconference: August 15, 2024

OVERVIEW

1Jo-Anne Rainville (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) 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 their 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 a medical condition, namely alcohol use disorder, 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 deny they suffer from alcohol use disorder and deny they suffer from a medical condition which interferes with their 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

Issue 1:

6At the commencement of the hearing, I noted that the appellant’s representative was not the representative on file with the Tribunal and they had not filed a Declaration of Representative (“DOR”) form with the Tribunal, nor served a copy of the form on the respondent.

7Rule 24.2 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) states that:

i. The Tribunal will not recognize a representative unless a completed DOR form as been filed and served; and

ii. If a party wants to change their representative, the new representative must file a DOR form with the Tribunal and serve a copy on all other parties.

8The appellant’s new representative then proceeded to file a DOR form with the Tribunal and serve a copy of the form on the respondent.

Issue 2:

9While marking the Exhibits, the appellant stated that they had uploaded a new document to the Tribunal portal the previous day. Prior to the commencement of the hearing, I had not received this document from the Tribunal. Furthermore, I determined that the appellant had not served this document on the respondent.

10In compliance with Rule 9.3 of the Rules, I gave the parties an opportunity to make submissions on their position regarding whether or not the appellant’s late submission should be admitted into written evidence.

11For the following reasons, I denied admitting the appellant’s late submission into the written evidence:

i. It is clear from the Case Conference Report and Order, that the parties were ordered ‘to exchange documents to be relied upon at the hearing and file them with the Tribunal’. The appellant did not serve this document on the respondent prior to the hearing;

ii. As the appellant requested and was granted a four-week adjournment of their hearing following the conclusion of the case conference, the original ‘Exchange of Document’ date of July 15, 2024 ordered by the case conference facilitator was no longer valid. I reminded the appellant that Rule 23.3 of the Rules states that disclosure for appeals under the Act respecting the suspension or cancellation of a driver’s licence, shall be made by the appellant at least 10 days prior to the hearing;

iii. The document was 21 pages long and both the respondent and I would need sufficient time to review the contents;

iv. The respondent did not consent to admitting the document into the written evidence. They stated that: not only was the appellant’s submission late, it arrived after the start of the hearing; and they would be unable to have the submission reviewed by the Driver Medical Review Office; and

v. The appellant stated that the written submission was intended to shorten the hearing, and they would be able to communicate the contents of the written submission in their oral testimony. Given that the information contained in the written document would be presented orally, there is no prejudice to the appellant if the written document is not admitted. Furthermore, the respondent did not object to the information contained in the written document being presented orally.

ISSUES

12The 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.

13To resolve that issue, I will address the following questions:

i. Does the appellant suffer from alcohol use disorder?

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

14The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

15Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has 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 confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from alcohol use disorder?

16The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely alcohol use disorder.

17The Registrar’s position is supported by the medical reports completed by Dr. Stacey, the appellant’s general practitioner.

18In an April 26, 2024 Medical Condition Report, Dr. Stacey checked off that the appellant had a diagnosis of substance use disorder to alcohol (“alcohol use disorder”) and also wrote, “[the appellant] was admitted voluntarily for withdrawal management…”

19In a May 24, 2024 Substance Use Assessment form, Dr. Stacey checked off that the appellant had: severe substance use disorder to alcohol; had abstained from alcohol for less than six months; and had not recently completed a supervised treatment program as a result of this reported condition.

20The appellant denies they suffer from alcohol use disorder.

21The appellant testified that for a few months prior to mid-April 2024 they had been very sick with rapid weight loss and other gastrointestinal symptoms including the inability at times ‘to keep anything down’. The appellant testified that they had an appointment scheduled to see Dr. Stacey on April 23, 2024 and had Dr. Stacey’s requested pre-visit laboratory testing done around 7:30 a.m. on April 22, 2024. When questioned, the appellant testified that on the evening of April 21, 2024, while making dinner, they consumed one or more beers.

22The appellant testified that at their appointment with Dr. Stacey on April 23, 2024, Dr. Stacey told them that their blood or urine test from April 22, 2024 was ‘high’ for alcohol and that Dr. Stacey would be sending a report to the Ministry of Transportation.

23The appellant testified that they considered themselves a social drinker. Later, the appellant stated that over the past year or so: their alcohol consumption started to escalate due to ‘life events’; they estimated that they were recently drinking 24 beers per week (either regular or large size); and they did not really keep track of their alcohol consumption.

24The appellant testified that, after their April 23, 2024 appointment with Dr. Stacey, they were voluntarily admitted to hospital for approximately five days, where Dr. Stacey was one of the attending physicians. The appellant testified that they believed that they were admitted for the investigation of their weight loss, falling, and gastrointestinal symptoms, and that neither ‘withdrawal’ nor ‘withdrawal management’ were mentioned or discussed. On discharge from hospital, the appellant testified that Dr. Stacey wrote prescriptions for four new medications which they started taking, including: acamprosate (Campral); mirtazapine (Remeron); pantoprazole (Pantaloc); and vitamin B1 (thiamine). The appellant stated that the Campral was for ‘alcohol’.

25The appellant stated that they feel better since being discharged from hospital and relates this to: sleeping better; eating better; and not focussing on negative events in their life. When questioned, the appellant denied that the medications prescribed, nor their abstinence from alcohol, helped them feel better.

26The appellant relied on the following to show or demonstrate that they do not suffer from alcohol use disorder:

i. their urine was very dark (i.e., concentrated) on April 22, 2024 and was not adequate to analyze at the laboratory;

ii. Dr. Stacey made the diagnosis of alcohol use disorder on a single blood or urine test, rather than on a pattern of repeated tests;

iii. they were not informed that they were hospitalized for ‘withdrawal management’;

iv. Dr. Stacey requested that they do out-patient urine testing for alcohol ‘once in a while’ following their discharge from hospital. The appellant decided to do out-patient urine testing for alcohol every Monday to Friday at 7:30 a.m., when the laboratory is open. The appellant testified that all these test results to date have been negative for the presence of alcohol;

v. they do not currently think about drinking alcohol; and

vi. they requested, more than once, that Dr. Stacey refer them to a gastroenterologist to get tested for any effects of alcohol on their liver. According to the appellant, office staff were advised by Dr. Stacey that liver testing by a specialist was not necessary, due to the appellant’s improving liver testing.

27I prefer the written evidence of Dr. Stacey regarding the appellant’s diagnosis of alcohol use disorder. Dr. Stacey is qualified to make such a diagnosis. In addition, Dr. Stacey arranged the appellant’s voluntary admission to hospital for ‘withdrawal management’ and Dr. Stacey was responsible for prescribing the appellant’s new medications when they were discharged from hospital. As a licenced and duly qualified physician in the province of Ontario, I know that: Campral is approved for treating patients with alcohol use disorder and is effective for promoting abstinence from alcohol; and prescribing vitamin B1 is important in those with heavy alcohol consumption and/or alcohol use disorder because heavy alcohol consumption can result in thiamine deficiency. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Furthermore, I find on a balance of probabilities, that Dr. Stacey did not rely on a single positive alcohol test to come to the conclusion that the appellant suffers from alcohol use disorder. As stated above, the appellant testified that they were aware that office staff were advised by Dr. Stacey that liver testing by a specialist was not necessary, due to the appellant’s improving liver testing. This means, on at least two occasions, blood work for liver function testing was ordered and/or reviewed. Moreover, I know that people who consume larger quantities of alcohol typically show increased levels of some liver functions tests and that abstinence from alcohol typically causes these elevated liver function tests to decrease (i.e., improve) over time.

28I assign less weight to the appellant’s self-assessment that they do not suffer from alcohol use disorder. I know that the appellant’s multitude of negative urine tests for alcohol since May 2024, means that the appellant has likely been abstinent from alcohol, which they attested to at the hearing. However, I know that abstinence from alcohol does not mean that a person does not suffer from alcohol use disorder. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The appellant has not submitted any medical evidence to dispute Dr. Stacey’s diagnosis of alcohol use disorder. I accept that the appellant has had difficulty obtaining their medical records from Dr. Stacey’s office. However, despite being granted a four-week adjournment, the appellant did not reach out to the hospital to obtain their hospital records from their admission in late April 2024. I prefer the objective, medically supported assessment of Dr. Stacey over the appellant’s subjective self-assessment.

29I find that the Registrar has established on a balance of probabilities that the appellant suffers from alcohol use disorder.

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

30I 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 their ability to drive a motor vehicle of the applicable class safely.

31The Registrar’s representative stated that alcohol use disorder can significantly interfere with a driver’s ability to drive safely and presents a safety risk to other road users. They further stated, according to the Registrar’s letter dated June 5, 2024, that in order to consider reinstatement of the appellant’s driver’s licence they require confirmation that the appellant has remained abstinent from alcohol for a period of one year and this period may be reduced to six months if the appellant’s healthcare practitioner confirms that the appellant has successfully completed a treatment program and is supportive of the appellant’s driving privilege.

32Section 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.

33The Registrar relies on the CCMTA Standards, in particular Chapter 15.6.3 (Substance Use Disorder) plus internal policies at the Ministry of Transportation. Chapter 15.6.3 provides that all drivers suffering from Substance Use Disorder may be eligible for a licence if they meet the criteria for remission and/or have abstained for twelve months. It also states that earlier re-licencing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.

34The respondent’s representative stated that according to Dr. Stacey’s May 24, 2024 completed Substance Use Assessment form, the appellant: is very motivated; has submitted three urine samples since May 6, 2024 which have all been negative for ethanol; is pursuing therapy; is compliant with medications and appointments; and has not yet completed a supervised treatment program as a result of the reported condition. However, the respondent’s representative stated that in this form, Dr. Stacey did not overtly support the early reinstatement of the appellant’s driver’s licence.

35The appellant testified that they have been abstinent from alcohol since their admission to hospital in late April 2024, and stated that they: do not suffer from alcohol use disorder; do not suffer from any medical condition that significantly interferes with their ability to drive a motor vehicle safely; have a clean driving record; and have never driven 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 alcohol-related infractions.

36In addition, the appellant testified that upon discharge from hospital they received a package with information regarding counselling program(s) in the community. They stated that they enrolled in such a program, have completed three sessions as of the date of the hearing and are planning to complete the entire counselling program which is to run 6-10 sessions.

37While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

38Although I am not bound by the CCMTA Standards, I find them to be reasonable. The use of alcohol affects the functions necessary for driving including reaction times, visual acuity, judgement and insight, alertness and motor co-ordination. The use of alcohol impairs a driver’s judgement and behaviour towards others, including in 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.

39Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

40I acknowledge that when considering earlier re-licencing of a driver’s licence, the CCMTA Standards do not state a specific time period required for remission.

41Based on the appellant’s testimony and Dr. Stacey’s written evidence (April 26, 2024 and May 24, 2024), I accept that the appellant: has been abstinent from alcohol since their admission to hospital which is now slightly less than four months; is enrolled in counselling/therapy, with one-half or less of the scheduled sessions completed (i.e., ‘pursuing therapy’ according to Dr. Stacey); is motivated to maintain sobriety; and is compliant with medications prescribed by and appointments with Dr. Stacey.

42However, I agree with the respondent that no treating healthcare provider has supported the early re-instatement of the appellant’s driver’s licence.

43In addition, despite the optimism, based on the evidence and submissions before me, I find on a balance of probabilities that the appellant currently lacks sufficient insight into their condition of alcohol use disorder. 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 their treatment regime and any conditions of licencing. Insight is an important consideration when determining fitness to drive. Despite the evidence that the appellant was hospitalized for withdrawal management and is prescribed and is taking a medication that is approved for treating patients with alcohol use disorder and effective for promoting abstinence from alcohol, the appellant currently denies or cannot accept that, on a balance of probabilities, they suffer from alcohol use disorder. I acknowledge that the appellant has been compliant with their treatment regime to date (i.e., appointments including counselling, urine drug screening and medications). However, the appellant does not believe the Campral is helping them and stated that the reason they are compliant with the Campral is that they do not like/try to avoid confrontation.

44Based on the totality of the evidence and submissions available to me, I accept the respondent’s submission that further time and medical information should be submitted is reasonable keeping in mind public and road safety.

45I commend the appellant for their recent efforts to remain abstinent from alcohol. I also acknowledge the burden that the lack of a driver’s licence is having on the appellant’s personal and work life. However, driving is a privilege, not a right.

46I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

47I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from alcohol use disorder, that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

48For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: August 28, 2024

__________________________

Erica Weinberg

Adjudicator