Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 17317/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:

Edison Varghese Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

APPEARANCES: For the Appellant: Edison Varghese, Self-represented For the Respondent: Stephen Grootenboer, Agent

Heard by teleconference: August 25, 2025

DECISION

Overview

1Edison Varghese, the appellant, appeals from a 90-day suspension of his driver’s licence under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), following a traffic stop by a police officer, on June 23, 2025.

2The appellant’s ground of appeal as set out in his Notice of Appeal is that he failed or refused to comply with a demand made under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason, specifically, that he has a breathing issue because of allergy and his throat was getting dry.

ISSUE

3The issue to be determined is whether the appellant failed or refused to comply with a demand for a breath sample under s. 320.27 or s. 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason, specifically that he has a breathing issue because of allergy and his throat was getting dry.

RESULT

4We confirm the Registrar’s suspension of the appellant’s driver’s licence. For the reasons that follow, we find that 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) because he was unable to do so for a medical reason, specifically that he has a breathing issue because of allergy and his throat was getting dry.

LAW:

5A person whose driver’s licence has been suspended under s. 48.3 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

6Section 50.1(2)(a) of the HTA sets out the only grounds on which a person may appeal a s. 48.3 suspension of their driver’s licence. The ground of appeal raised by the appellant is in s. 50.1(2)(a)(ii) which provides that the Tribunal may set aside the suspension if:

…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.

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 proof in this appeal.

9Here, the appellant appealed on the ground that he failed or refused to comply with a demand for a breath sample because he was unable to do so for a medical reason as set out in 50.1(2)(a)(ii) of the HTA.

ANALYSIS:

The appellant did not fail or refuse to comply with the officer’s demand because he was unable to do so for a medical reason.

10After considering the totality of the evidence, we find that 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) because he was unable to do so for a medical reason, specifically a breathing issue because of allergy and throat getting dry. Our reasons are as follows.

11In support of his ground of appeal, the appellant submitted medical evidence submitted in the form of two medical opinions from the appellant’s family physician Dr. Fareeha Khan, dated June 27 and July 18, 2025, and lab results of a urine and a blood test taken June 24, 2025.

12We find the urine and blood tests are not relevant to our determination because they were done the day after the June 23, 2025 breath sample demand and therefore are unlikely to be an accurate reflection of the appellant’s medical condition on June 23, 2025. Also, the results of these tests are not relevant to the appellant’s alleged breathing issue because of allergy and his throat was getting dry.

13We give little weight to Dr. Khan’s letters for the following reasons.

14Firstly, Dr. Khan’s June 27, 2025 letter lacks details and does not state definitely that the appellant was unable to provide a breath sample because of a medical reason. Dr. Khan states that the appellant has “chronic allergies and significant throat dryness” that “impaired his ability to produce an adequate breath sample for the breath analyzer device”. While this is a clear diagnosis of a medical condition, it merely says it “impaired” his ability to produce an adequate breath sample – it does not state that the appellant was unable to produce a breath sample. In terms of Dr. Khan’s opinion whether the appellant was unable to provide a breath sample because of the medical condition, Dr. Khan merely stated that there is a “plausible clinical explanation for his inability to complete the breath test.” Additionally, the letter lacks details or further explanation upon which the Tribunal could rely: Dr. Khan does not explain how or why this conclusion was reached and makes no reference to any medical issue with the appellant’s lungs, or lips or mouth.

15Secondly, although Dr. Khan’s July 18, 2025 letter states that the appellant’s medical history includes episodes of “seasonal allergic rhinitis and throat dryness”, Dr. Khan states that he has previously been advised to use over-the-counter Claritin, that symptoms were managed conservatively, and no formal investigations or prescriptions were required. There is no evidence from Dr. Khan that the appellant has been referred to a specialist or undergone any testing for his seasonal allergies and throat dryness, that his condition is severe enough to require further medical investigation, hospitalization or prescribed medication, or other treatment. This is consistent with the appellant’s testimony.

16Thirdly, neither of Dr. Khan’s letters comment on the appellant’s medical condition on June 23, 2025, although the appellant testified that he went to see Dr. Khan that day, and Dr. Khan performed a physical examination.

17As a result, we find Dr. Khan’s letters of little assistance in establishing that the appellant was unable to comply with the breath demand for a medical reason on a balance of probabilities. Further, we find that Dr. Khan’s opinions are based on general information about the appellant's conditions, and no reference is made in Dr. Khan’s reports about the appellant's actual medical condition on June 23, 2025.

18The appellant’s testimony does not support a finding that, at the time he was asked to give a breath sample, he was unable to do so for a medical reason. The appellant testified that he had taken his over-the-counter allergy medicine on June 22, 2025, but not on June 23, 2025. The appellant also testified that he does not carry his allergy medicine with him but leaves it at home and only takes it when needed after gardening or mowing the lawn which he testified is typically twice a month.

19Although the appellant testified that he made several attempts to blow into the breath device, the testimony of Police Constable Velina Georgieva, supported by her contemporaneous notes, show that the appellant was provided ten opportunities to give a breath sample but failed or refused to blow an adequate amount of breath to constitute a sample.

20Although the appellant says that he was unable to give an adequate breath sample because of his allergies and dry throat, and because he panicked when pulled over by the police, the appellant admitted that he does not have a medical condition of anxiety disorder and there is nothing in Dr. Khan’s reports referring to this.

21Although the appellant testified that he was sneezing and had a dry throat at the time the breath sample was demanded, he admitted that he did not ask for any medical assistance from the police officer.

22The appellant clarified in his testimony that the reference to breath testing “strips” referred to in his Notice of Appeal means the straw into which he was asked to blow. The appellant testified that the straw he was asked to blow into was not attached to any breath testing machine.

23Constable Georgieva, an experienced police officer, testified with the aid of her detailed and contemporaneous notes. Constable Georgieva testified the appellant had no trouble walking to the rear of his motor vehicle in order to get into the police vehicle, was not sneezing or coughing, did not ask for any medical attention, and only asked for water after all the ten attempts to give a breath sample were completed. Constable Georgieva testified that she told the appellant she did not have any water to give him.

24Constable Georgieva reviewed all of the 10 times that the appellant was asked to give a breath sample and the results. Many of the attempts resulted in little or no air at all being blown into the handheld approved screening device (ASD) that is used at roadside to take breath sample. Constable Georgieva testified that she observed the appellant sucking instead of blowing on many of the attempts and the appellant was not blowing any air into the ASD. Constable Georgieva explained how the breath sample was to be given several times, and the appellant blew air out of his mouth when she asked him to. Constable Georgieva also testified that she asked the appellant on several occasions if he understood the instructions on how to blow into the ASD and he confirmed that he did. Despite that, the appellant did not blow a sufficient air sample and continued to suck instead of blow, and failed to put his lips tight to the straw.

25Constable Georgieva testified and confirmed that the straw was attached to the handheld ASD, and that she held the ASD with the straw attached up to the appellant’s face as he was given the straw to blow into.

26We prefer the testimony of Constable Georgieva and find it to be more credible and reliable than that of the appellant. Constable Georgieva is an experienced police officer, her testimony is supported by notes, and withstood cross-examination.

27Based on the testimony of Constable Georgieva we find that a demand for a breath sample was made on June 23, 2025, was acknowledged by the appellant to be understood, and then refused by the conduct of the appellant who did not provide the required sample. We accept the testimony of Constable Georgieva who observed no medical conditions that would prevent the giving of a sufficient breath sample, the appellant had no problems communicating with Constable Georgieva which would be expected if the appellant was having trouble breathing because of his allergies and/or his dry throat, the appellant was able to walk to the rear of his vehicle and to get into the police vehicle, did not ask for medical attention, and did not ask to use any over-the-counter medicine.

28We find that the reports from Dr. Khan and testimony of the appellant are not sufficient to support a finding that the appellant was unable to give a satisfactory breath sample on June 23, 2025 for a medical reason.

29We note that although the appellant’s wife Betsy Varghese testified at the hearing, her testimony and written letter submitted for the hearing were unhelpful to our determination as her information about the appellant’s ability to give a satisfactory breath sample on June 23, 2025 comes from the appellant, not her direct observations, because she testified that she was not present with the appellant on June 23, 2025 at the time of the breath sampling and only knows what the appellant told her about what happened.

30The letters submitted by the appellant from Hilltop Inc., Abraham Jacob and George Matthew are of no assistance to the determination we had to make as these letters attest to the appellant’s good character generally and that he does not use alcohol. The issue before us is whether the appellant’s medical condition prevented him from providing a satisfactory breath sample on June 23, 2025 and we have found that it did not.

31The onus is on the appellant to prove that his medical conditions, specifically breathing issue because of allergy and throat getting dry were a 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 testimony and his medical evidence fall short of establishing this.

32As a result, we find that the appellant failed to provide sufficient evidence to establish on a balance of probabilities that on June 23, 2025 he failed or refused to comply with the breathalyzer demand for a medical reason, specifically breathing issue because of allergy and throat getting dry.

Conclusion

33For the reasons above, we find that 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) because he was unable to do so for a medical reason.

ORDER

34We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LICENCE APPEAL TRIBUNAL

Isla McPherson, M.D.

Avril A. Farlam, Vice-Chair