Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 17489/ADLS

In the matter of an appeal from a suspension under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between:

Daniel Esliger Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

PANEL: Dr. Isla McPherson, M.D. Jeffrey Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Daniel Esliger, Self-represented For the Respondent: Ian Soorkam, Agent

Heard by teleconference: September 29, 2025

DECISION

OVERVIEW

1Daniel Esliger, the appellant, appealed under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) the suspension of his driver’s licence for 90 days under section 48.3.1 of the HTA as a result of his failure to pass an evaluation conducted by a Drug Recognition Expert (“DRE evaluation”) under subsection 320.28(2) of the Criminal Code (Canada) on August 11, 2025.

2The appellant submits that his ability to operate a motor vehicle or vessel was not impaired by a drug or a combination of drug and alcohol, and that he had a medical condition, at that time of the activity for which the suspension was imposed, that impaired his performance of the DRE evaluation.

ISSUE

3The issue in dispute, in accordance with s. 50.1(2)(b)(ii) of the HTA, is whether the appellant’s ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the appellant had a medical condition, at the time of the suspension, that impaired his performance of the DRE evaluation that was conducted under subsection 320.28(2) of the Criminal Code (Canada).

RESULT

4We confirm the Registrar’s decision to suspend the appellant’s driver’s licence. For the reasons that follow, we find that the appellant has failed to establish that his ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the appellant had a medical condition, at the time of the suspension, that impaired his performance of the DRE evaluation.

LAW

5A person whose driver’s licence has been suspended under s. 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

6Section 50.1(2)(b) of the HTA sets out the only grounds on which on a person may appeal a s. 48.3.1 suspension of their driver’s licence. The ground of appeal raised by the appellant is in s. 50.1(2)(b)(ii), which provides that the Tribunal may set aside the suspension if:

…the person’s ability to operate a motor vehicle or vessel was not impaired by a drug or by a combination of a drug and alcohol, and the person had a medical condition, at the time of the activity for which the suspension was imposed, that impaired his or her performance of the evaluation that was conducted under subsection 320.28 (2) of the Criminal Code (Canada).

7Following a hearing, the Tribunal may, under s. 50.1(4) of the HTA, confirm the suspension or may order that the suspension be set aside.

8The appellant has the burden of proving on a balance of probabilities both parts of his ground of appeal, being:

(a) That his ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and

(b) That he had a medical condition at the time that impaired his performance of the evaluation that was conducted under s. 320.28(2) of the Criminal Code.

9The Open Court Principle was explained at the outset of the hearing as it had not been discussed during the Case Conference.

PRELIMINARY MATTER

10The appellant voiced concern at the onset of the hearing when all attendees were being introduced that the Registrar had called Officer Henderson as a witness. He stated that he had been told by the agent for the Registrar that they would be calling the arresting officer, and not the officer who had conducted the DRE.

11Upon review of the CCRO, the Registrar complied with the timelines and had disclosed their witness list and brief description of the anticipated testimony, which included Officer Henderson, to the appellant and the Tribunal by email prior to the disclosure deadline in accordance with the Case Conference Report and Order.

12As the appellant is currently housed in a detention centre with limited access to email, it was explained that he could submit a request an adjournment to be considered in order to allow for an opportunity to prepare for the presence of the Registrar’s witness.

13The appellant declined to submit an adjournment request and confirmed his preference to proceed with the hearing.

ANALYSIS

(a) Was the appellant’s ability to operate a motor vehicle impaired by a drug or a combination of a drug and alcohol?

14After considering the evidence, we find that the appellant has failed to establish that that his ability to operate a motor vehicle was not impaired by a drug on August 11, 2025.

15The appellant testified that he had injured his right foot on August 8, 2025, when he jumped over a fence, and subsequently purchased a street drug that he thought was Percocet to treat the pain. He testified that he then believed he may have taken an overdose of Tylenol and walked to a nearby Emergency Department (ED). He testified that in the ED he was given a treatment for the overdose of Tylenol with NAC [N-acetylcysteine].

16The appellant testified that although he was in the ED to treat an overdose of Tylenol taken for pain, the acute injury to his foot was not assessed, nor did he receive medical attention at any time for this injury. The appellant relied on undated photographs he submitted of a bruised right foot to confirm the injury. He testified that the injury to his right foot affected his ability to perform the walking components of the DRE.

17The appellant submitted the laboratory test results from his visit to the ED on August 8, 2025, which included a urine toxicology result. The toxicology result demonstrated his urine sample was positive for cocaine, opioid and benzodiazepine metabolites.

18Under cross-examination, the appellant testified that he does not take any prescription medication, including prescribed benzodiazepines or opioids, and was not provided a prescription from his ED visit on August 11, 2025. He testified that the results of the positive urine toxicology are due to the street drug that he bought being “laced” with other substances, citing that the person who sold him the drug may have wanted to harm him.

19The appellant testified he did not take any drugs, prescription or non-prescription after August 8, 2025. On the morning of August 11, 2025, he drove himself in his own vehicle to the Children’s Aid Society (CAS) to attend to personal matters. He testified the security guard at CAS alerted the Police as to his presence, who arrived on scene and requested he provide a breath sample, which demonstrated a result of “0.0”. He testified the Police subsequently applied handcuffs and transported him to the Police Station where a drug recognition expert, Officer Henderson, was consulted and she administered a DRE test.

20The appellant testified that on his way to the Police Station he felt that there was something in his eye. As a result, when he arrived at the Station, he testified he dunked his head in the toilet in an attempt to flush his eye and believes some of the blue cleaning solution in the toilet may have irritated his eyes and compromised his ability to perform the visual component of the DRE, particularly the horizontal gaze test.

21The appellant’s testimony that he was not under the influence of any drugs while operating a motor vehicle is not supported by any evidence. The appellant’s testimony that he suffered from an injury to the right foot and irritation to his eyes from cleaning solution are also not supported by any evidence.

22The Registrar called Officer Henderson as a witness. Officer Henderson testified as to her specific qualifications to administer a DRE, which included successfully completing both a classroom component and practical training. She testified that she was called in to conduct a DRE due to concerns of drug impairment identified by the arresting officers.

23Officer Henderson testified that prior to starting the appellant’s DRE, the appellant was asked when he had last eaten and slept and whether he was sick or injured. She testified that his right foot was swollen and her notes reflected that she had documented the appellant had a bruised right foot. She testified this injury was taken into consideration during the evaluation. She testified the appellant was cooperative and willing to undertake the examination, and the appellant corroborated this history that he was willing to participate in the DRE. Officer Henderson testified that despite accounting for any disability imposed by the appellant’s right foot injury, the result of the DRE still demonstrated that the appellant performed poorly. She recounted the various measures that comprise the DRE including vital signs assessment, pupillary reaction, horizontal gaze testing for nystagmus, eye convergence testing and various tests of balance and coordination among others. She testified that performing poorly on one of the components does not dictate the outcome of the assessment, but rather the cumulative results of all the components considered together. With the assistance of her notes, she described the spectrum of abnormal results that had been taken into account in assessing the appellant on August 11, 2025, including an abnormal blood pressure reading, fixed pinpoint pupils, bloodshot and watery eyes, horizontal gaze nystagmus, lack of eye convergence, slurred and mumbled speech, poor finger-nose coordination, swaying back and forth and side to side on the Romberg test, missing all heel-to-toe steps, stepping off the straight line walk, and not following directions which included walking with hands in the air when not instructed to do so, and walking a further distance than was requested, among other findings.

24Officer Henderson testified that based on her assessment, the appellant was under the influence of a central nervous system depressant, specifically within the category of narcotic analgesics. As the result of her findings, a urine sample had been collected from the appellant following the DRE and sent for analysis, but the results were not yet available.

25Officer Henderson was asked about whether there were any concerns related to the appellant’s eyes. She testified that there were no concerns noted during the assessment and the appellant had no blindness, did not require corrective lenses and had pupils equal in size. She testified that the appellant did not disclose any concerns related to his eyes prior to or during the DRE, and the appellant became very upset after being advised of his poor performance on the DRE and at that point dunked his head in the toilet, not prior to the DRE.

26We have considered the appellant’s testimony that his ability to operate a motor vehicle was not impaired by a drug. However, this is weighed against his testimony that he had a history of buying and consuming an illicit drug as he described doing on August 8, 2025, and his testimony that the Security Guard at CAS had sufficient concern with his behaviour to notify the Police. His position is also weighed against the testimony of Officer Henderson that the arresting Officers had sufficient concern to request she conduct a DRE, and that the appellant performed poorly on multiple facets of the DRE, including those that would be independent of the medical conditions identified, such vital signs assessment and pupillary response. Furthermore, the appellant’s position is not supported by any evidence. In fact, the only evidence submitted by the appellant is his urine toxicology result from August 8, 2025, which confirms the presence of cocaine, opioids and benzodiazepines metabolites at that time. While we acknowledge that the urine toxicology results do not establish drug use on August 11, 2025, they do corroborate the appellant’s own account of recent illicit drug use, and when considered in conjunction with the credible evidence of observable impairment on August 11, 2025, the totality of the evidence supports the conclusion, that the appellant was impaired by a drug to an extent that would affect his ability to operate a motor vehicle on August 11, 2025.

27As the appellant has the burden of proof, we find the appellant has not satisfied his onus on a balance of probabilities to set aside the decision of the Registrar of Motor Vehicles.

Did the appellant have a medical condition at the time of the suspension, that impaired his performance of the evaluation that was conducted under s. 320.28(2) of the CC.

28While the appellant testified as to his injured right foot, he has not put forward any evidence in support of a medical condition at the time that impaired his performance. Given that the appellant has not established the first part of the two-part ground of appeal he has put forward, it is unnecessary for us to determine this issue.

Conclusion

29For the reasons above, we find that the appellant has failed to establish his ground of appeal.

ORDER

30We confirm the suspension of the appellant’s driver’s licence.