Gilbert Patrick v. Registrar of Motor Vehicles, 2025 CanLII 62721

Tribunals Ontario Tribunaux decisionnels Ontario

Licence Appeal Tribunal d’appel en matière de permis

Licence Appeal Tribunal File Number: 17041/ADLS

Appeal under subsection 50.1(1) of the Highway Traffic Act R.S.O 1990, c. H.8, (the “Act”) from a decision to suspend a driver’s licence pursuant to section 48.3 of the Act

Between

Gilbert Patrick Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Dr. Isla McPherson, M.D., Member Jeffery Campbell, Vice-Chair

Appearances: For the Appellant: Gilbert Patrick For the Respondent: Ian Sookram, Agent

Date of hearing by teleconference: June 16, 2025

REASONS FOR DECISION AND ORDER:

A. Overview

1Gilbert Patrick, the appellant, appealed under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) after the April 20, 2025, suspension of his driver’s licence for 90 days under section 48.3 of the Act as a result of his refusal to provide a breath sample demanded under s. 320.28 of the Criminal Code of Canada.

2The appellant’s ground of appeal in his Notice of Appeal is that he failed or refused to comply with a demand, because he was unable to do so for a medical reason.

3On April 20, 2025, at approximately 1:00 a.m., as the appellant was driving his vehicle on Harwood Avenue in Ajax, Ontario, he was stopped by Durham Regional Police who asked the appellant to submit to a roadside breath test in order to determine whether the appellant was driving with over the prescribed legal blood alcohol concentration limit. Upon completion of that test, as well as a second roadside breath test, which registered “fail”, Officer Kristen Ramenda (“Officer Ramenda”) placed the appellant under arrest pursuant to s. 320.14 of the Criminal Code of Canada.

4The appellant was then transported to Division 19 of the Durham Regional Police where he was required to undergo a breathalyzer test. After unsuccessful attempts at obtaining a breath sample from the appellant, the appellant was charged under s. 320.15(1) of the Criminal Code of Canada.

50Subsequently, a 90-day Administrative Driver’s Licence Suspension under s.48.3. of the Act was imposed.

B. ADJOURNMENT REQUEST

6Before the commencement of the hearing, the appellant requested an adjournment, as he was hoping to get a note from his physician with respect to his prescription of Pantoprazole. He stated that he has an appointment with the physician later on the same day and may be able to obtain that note.

7As the appellant had not provided any medical reason in his NOA as to why he was unable to provide a breath sample, he was questioned as to how the doctor’s note may apply to the substantive matter in the appeal. The appellant explained how the medication Pantoprazole works but did not provide an explanation as to how a note from his primary care provider would be relevant to the appeal.

8The Registrar did not consent to the adjournment.

9Rule 16.2 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) states that an oral request for an adjournment will only be considered in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.

10While we find that further medical documentation from the appellant could be a compelling circumstance, that circumstance has been known by the appellant for weeks prior to the hearing of today’s date. The appellant had been aware of the requirement to obtain medical information since May 14, 2025, when he filed his Notice of Appeal. Further, this matter has been previously adjourned on May 30, 2025, per the request of the Registrar, providing the appellant further time to obtain necessary medical information. We find that the reasons for the appellant’s request were foreseeable and avoidable. While the appellant has advised that he has attempted twice to obtain a note from his doctor, he has had more than four weeks to be successful in obtaining that note. Further, the appellant did not provide an explanation as to why the doctor’s note would be relevant to his appeal.

11We are not satisfied that the circumstances surrounding the adjournment request are compelling or that the appellant did not or could not have known the circumstances giving rise to the adjournment request prior to the hearing. Therefore, pursuant to Rule 16.2 of the Rules, the appellant’s adjournment request was denied.

C. ISSUE

12The issue in this appeal is whether the appellant failed or refused to comply with a demand for a breath sample under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

D. RESULT

13For reasons that follow, we find the appellant has failed to establish that he failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) for a breath sample because he was unable to do so for a medical reason. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

E. LAW

14A person whose driver’s licence has been suspended under section 48.3 of the Act may appeal the suspension to the Tribunal under section 50.1 of the Act. Relevant to this appeal, section 50.1(2)(a)(ii) of the Act sets out the ground of appeal for the section 48.3 suspension of the appellant’s driver’s licence:

ii. that the person failed or refused to comply with a demand under section 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.

15The appellant has the burden of proof on a balance of probabilities.

16Following a hearing, the Tribunal may, under s.50.1(4) of the Act, confirm the suspension or order that the suspension be set aside.

F. EVIDENCE and ANALYSIS:

17The appellant testified that in the early morning hours of April 20, 2025, he was driving his vehicle searching for a place to park overnight, as he was unable to park on the street in front of his home. He eventually decided to park in the lot of a grocery store, when he saw someone he knew. He testified that he and his friend went to a bar, where the appellant said that he paid for two beers but drank only one.

18The appellant then agreed to drive his friend home and, enroute, stopped at a red light. He testified that at the red light, while attempting to place his phone in the phone-holder he missed the green light and waited out the next red light. When that light turned green again, he proceeded and ended up on the wrong side of the road. It was when he was returning to the correct side of the road that he was pulled over by the Durham Regional Police.

19The appellant testified that the officer who pulled his vehicle over must have spotted the unopened can of beer in his car, and subsequently, required him to undergo a roadside breath test. When the approved screening device that the officer was using seemed to malfunction, the officer called for another officer to come and assist. Upon arriving, Officer Ramenda then administered a second roadside breath test. The appellant testified that he was placed under arrest as he had failed the roadside breath test.

20The appellant testified that, after being transported to Division 19 of the Durham Regional Police, he attempted to blow three times into the breathalyzer as required by the breathalyzer technician/officer at the Division. He testified that, as those attempts were not successful, he was charged with a refusal to provide a breath sample.

21Under cross-examination the appellant was asked for more information regarding his failure of the roadside breath test. He clarified that he had blown over the acceptable limit and failed the test. He was further questioned as to whether he had a medical reason as to why he had not provided a sufficient breath sample at the police station. The appellant testified that he has acid reflux for which he takes 40 mg of the medication Pantoprazole every morning after breakfast. The appellant testified that, at the time the breathalyzer test was being administered (that being after midnight of April 20, 2025), the Pantoprazole would have worn off, therefore not preventing his acid reflux from occurring and the acid would have given a false-positive result on the roadside breath test.

22The appellant was further questioned as to why he was able to provide a sufficient breath sample at the roadside and not at the police station. The appellant testified that neither the Pantoprazole nor his acid reflux prevented him from blowing into the breathalyzer at the police station. Upon further questioning, the appellant testified that there, indeed, was no medical reason why he could not blow into the breathalyzer.

23The Registrar called Officer Ramenda to testify. Officer Ramenda confirmed that, upon administering the roadside breath test with an approved screening device, the result registered the colour red, which is a “fail”, and indicates the driver’s blood alcohol concentration was over 100 mg/100 ml of blood. Subsequently, she placed the appellant under arrest and transported him to Division 19 of the Durham Regional Police. Officer Ramenda testified that when the appellant was placed in the back of the police cruiser and she attempted to read him his rights, he yelled at her, at which point she detected a strong odor of alcohol on the appellant’s breath.

24Officer Ramenda testified that her partner acted as the breathalyzer technician and conducted the breath test at the police station, and as such she did not witness the breathalyzer being administered. When her partner transferred custody back to herself following the test, she testified that her partner told her the appellant was charged with refusing to comply with a demand to provide a breath sample after the appellant allowed the breath test to ‘time-out’ twice. Officer Ramenda testified that the appellant expressed, at no time that she was aware of, that he had a medical condition.

25By the appellant’s own testimony, he was able to provide a suitable breath sample at the roadside that resulted in him registering a blood alcohol level over the legal threshold that resulted in his arrest. There is no explanation provided by the appellant as to why he was unable to provide a sufficient breath sample when at the police station. The medical reason that the appellant has cited in his testimony is that the acidity of his stomach would have resulted in a false positive result. The appellant has provided no evidence at all that supports his position that he was unable to provide a breath sample due to a medical reason.

26It is evident from the appellant’s testimony that he has no medical condition which impaired his performance of the evaluation at the time that led up to his licence suspension. According to section 50.1(2)(a)(ii) of the Act, it is necessary for the appellant to establish, on a balance of probabilities, that a medical condition impaired his performance of the evaluation, and, as the appellant’s testimony is that no such condition exists, the appellant has failed to establish this part of the test.

27We find that the appellant has failed to prove that his ability to he was unable to provide a breath sample due to a medical condition.

G. DECISION

28For the reasons set out above, we confirm the decision of the Registrar to suspend the appellant’s driver’s licence.

Dr. Isla McPherson, M.D.

Jeffery Campbell, Vice-Chair