Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 17162/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:

Sueda Ozdemir Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

PANEL: Dr. Isla McPherson, M.D. Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: No one appeared For the Respondent: Ian Sookram, Agent

Heard by teleconference: June 23, 2025

DECISION

Overview

1Sueda Ozdemir, the appellant, appeals from a suspension of her driver’s licence under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The suspension was made on May 4, 2025, by a police officer under section 48.3 of the HTA for 90 days as a result of her refusal to provide a breath sample.

2The appellant seeks to set aside the 90-day suspension. In summary, the appellant’s ground of appeal as set out in her Notice of Appeal is that she failed or refused to comply with a demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically she underwent a lip filler treatment on May 2, 2025.

PRELIMINARY ISSUE - Appellant Failed to Attend the Hearing

3The appellant did not attend the hearing despite having been given notice of the hearing by the Tribunal. We waited 30 minutes for her to attend the hearing, but she did not.

4Rule 3.7.1 of the Licence Appeal Tribunal Rules, 2023 provides that if a party who has been given notice of a hearing does not attend their hearing within 30 minutes of the schedule start time of the hearing, the Tribunal may proceed with the hearing in the absence of that party.

5In response to our request for submissions on whether or not to proceed with the hearing in the absence of the appellant, the respondent submitted that the hearing should proceed in the absence of the appellant because she was sent notice of the hearing date by the Tribunal and the respondents witness Detective Charles Brian Wookey was present and ready to give evidence.

6We decided to proceed with the hearing in the absence of the appellant because the respondent was in attendance with a witness, there had been no communication from the appellant to the Tribunal prior to the commencement of the hearing explaining her non-attendance, and the appellant attended the June 6, 2025, Case Conference at which she was advised of the hearing date.

7Further, after being contacted by Tribunal staff during the course of the hearing, the appellant advised Tribunal staff that she didn’t see much point in joining the event as her vehicle would be returned within the month.

ISSUE

8The issue to be determined is whether the appellant failed or refused to comply with a demand under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically because she underwent a lip filler treatment on May 2, 2025.

RESULT

9We 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 she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason, specifically because she underwent a lip filler treatment on May 2, 2025.

LAW:

10A person whose driver’s licence has been suspended under s. 48.3 or s. 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

11Section 50.1(2)(a) of the HTA sets out the only two grounds on which on a person may appeal a s. 48.3 suspension of their driver’s licence:

i. that the person whose licence was suspended is not the same individual who submitted to an evaluation under section 254 of the Criminal Code (Canada), or

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

12Following 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.

The appellant has the burden of proof in this appeal.

ANALYSIS:

The Appellant did not Fail or Refuse to Comply with the Officer’s Demand Because she was Unable to do so for a Medical Reason.

13In accordance with her Notice of Appeal, the appellant in this case bears the onus to establish on a balance of probabilities that she failed or refused to comply with the demand for a breath sample because she was unable to do so for a medical reason. We find that the appellant has failed to meet this onus for the following reasons.

14Even though the appellant failed to attend the hearing on June 23, 2025, we considered her Notice of Appeal, in which the appellant stated that the suspension of her driver’s licence was issued following a breathalyzer refusal due to “documented medical reasons”. The only medical evidence submitted by the appellant is a letter dated May 19, 2025, from Parisa Mashhadi, a registered practical nurse at a laser clinic, which states that the appellant underwent a “lip filler treatment” at the clinic on May 2, 2025. We give no weight to Ms. Mashhadi’s letter for the following reasons.

15Firstly, Ms. Mashhadi does not indicate that the lip filler prevented the appellant from giving the breath sample or how it could do so.

16Secondly, although Ms. Mashhadi states that the appellant “was concerned that blowing into the device might compromise her treatment results or cause discomfort, and therefore declined” the breath sample, this statement is not made by the appellant herself in her Notice of Appeal. The appellant chose not to attend the hearing and testify under oath, so we have no evidence from the appellant herself to this effect. Further, Ms. Mashhadi does not state the source of her information on this point.

17Thirdly, Ms. Mashhadi’s letter does not refer to a medical concern or diagnosis. The term “medical” typically confers the presence of a disease pathology. Cosmetic enhancement to lips through the use of filler is different from a medical pathology related to the lips. There is no evidence before us that on May 4, 2025, when the demand was made, the appellant had any lip or other disease pathology which would constitute a medical reason for failing or refusing to comply with the demand.

18Fourthly, Ms. Mashhadi’s letter is necessarily based on the appellant's self-report after the incident, when the appellant would have had an interest in attempting to find a medical justification for her response to the police demand. Still further, it is based on general information about the appellant's lip filler procedure, as contrasted with Detective Wookey’s description of the appellant's actual conduct on the day the demand was made.

19We accept the testimony of Detective Wookey and find it to be credible and reliable. Detective Wookey is an experienced police officer of some 34 years, and he testified with the aid of notes made contemporaneous with the demand.

20Detective Wookey testified that at the time the breath sample was demanded, the appellant refused to come out of her cell to go to the breath sample room, there did not appear to be any reason why the appellant refused to give the breath sample, and there is no record of any statement made by the appellant at the time of the demand that she had any medical reason to refuse to comply with the demand for a breath sample. Although Detective Wookey testified based on the reports of other police officers, we note that hearsay is admissible before us, and was necessary and relevant here given that Detective Wookey typically does his work based on information reported to him by others as recorded by him in his notes. Detective Wookey testified with the aid of his notes which had been disclosed to the appellant.

21Based on the respondent’s submissions and the evidence of Detective Wookey at the hearing, we find that the appellant has failed to meet her onus to establish that she had a medical reason for failing or refusing to comply with the demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada). The appellant’s Notice of Appeal and attached letter fall short of establishing this.

Conclusion

22For the reasons above, we find that the appellant has failed to establish that she failed or refused to comply with a demand under s. 320.27 or 320.28 of the Criminal Code (Canada) because she was unable to do so for a medical reason.

ORDER

23We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.