Licence Appeal Tribunal File Number: 17396/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:

Taiwo Ademola

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL: Dr. Kailey Minnings, M.D. Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Taiwo Ademola, Self-represented For the Respondent: Leila Pereira, Agent

Heard by teleconference: August 27, 2025

DECISION

Overview

1Taiwo Ademola, the appellant, appeals from a suspension of his 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 July 13, 2025 by a police officer under section 48.3 of the HTA for 90 days.

2In summary, the appellant’s grounds 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.

3The Notice of Appeal dated July 18, 2025 (the “NOA”) does not specify a medical reason.

ISSUE

4The 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.

5In the NOA the appellant submitted that he needs his driver’s licence for employment, and that the breath tests results do not accurately reflect his condition at the time of driving because of:

A. a false “fail” reading on the roadside screening device, caused by recent use of an alcohol-based mouthwash, and

B. potential unreliability of the Intoxilyzer tests conducted more than two hours after driving and following repeated machine restarts.

RESULT

6We 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 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.

LAW:

7A 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.

8Section 50.1(2)(a) of the HTA sets out the only grounds on which on 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 s. 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.

9Following 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.

10Here, 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.

11The appellant has the burden of proof on a balance of probabilities in this appeal.

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.

12After 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. Our reasons are as follows.

13Firstly, the appellant admits that he complied with the demand for breath sample on July 13, 2025 and was able to give a breath sample more than once, including road-side and later at the police station with Police Constable Christoper Prpic, a qualified and experienced police breath technician.

14Secondly, P.C. Prpic testified that a sufficient breath sample was given by the appellant at the police station and that the analysis showed that the allowable limit was exceeded after rounding down and his Certificate of a Qualified Technician dated July 13, 2025, filed, confirms this.

15Thirdly, the appellant sent an email dated August 22, 2025 advising the Tribunal and the respondent that on July 13, 2025 he was feeling unwell in the evening, and later testified to the same effect. The appellant’s email states:

flu-like symptoms and had taken DayQuil, a common cold mediation in addition to using Listerine mouthwash which contains 26.9% alcohol…I was ill and under medication at the time, as confirmed by a medical report from Albion-Islington Medical Centre dated August 18, 2025. I was not impaired, nor did I consume alcohol that day beyond what was in the medication and mouthwash”

16The appellant testified at the hearing that he took Dayquil at about noon on July 13, 2025 and Nyquil between 6 and 7 p.m. before driving his motor vehicle. He did not recall the amount of medicine that he took. The appellant did not point or direct us to any medical evidence supporting the need for him to do so.

17The note from Dr. Alireza Behnami dated August 18, 2025, more than one month after the breath sample was given, simply states: “As per patient, he had used Dayquil for his illness”. This note is dated more than one month after the breath sample was given. This note does not record that Dr. Behnami or any other physician saw or treated the appellant at any time in July, 2025. There was no diagnosis of any medical condition for the appellant on July 13, 2025, and Dr. Behnami does not indicate that they prescribed any treatment at all, let alone over-the-counter treatment of Dayquil and/or Nyquil. This note merely states that “per patient”, the appellant used Dayquil for his “illness”. This note does not specify any “illness” or indicate when Dayquil was used by the appellant. It is apparent that Dr. Behnami’s note simply repeats what the appellant told him and that Dr. Behnami has no knowledge of the appellant’s health on July 13, 2025. As a result, we give no weight to Dr. Behnami’s note.

18Although the appellant testified that he went to the clinic where Dr. Behnami’s practices on July 9, 2025 to complain of fever, coughing and watery eyes and was told to take Dayquil and Nyquil at that time, he could not remember the name of any physician who he saw at the clinic and said he spoke to a woman at “the front desk”. The appellant did not produce any medical note of a visit to the clinic on July 9, 2025, or any other document confirming this visit. Given the absence of any written corroboration of this alleged medical treatment, we do not find the appellant’s testimony of alleged medical treatment to be credible or reliable.

19Much of the appellant’s testimony was directed to his view that by using mouthwash before he went out driving on July 13, 2025 at about 7:00 p.m., and by having taken Dayquil at about noon and Nyquil between 6 and 7:00 p.m. on July 13, 2025, the result of the breath sample that he gave was false. The appellant had no evidence to put forward to corroborate his testimony that he used mouthwash and these two over-the-counter treatments and no evidence that, even if he did use them, their use had the effect of increasing the amount of alcohol in his body, thereby affecting the results of the breath sample.

20To the contrary, when P.C. Prpic testified at the hearing, with the aid of his contemporaneous notes, and when the appellant questioned P.C. Prpic about this on cross-examination, P.C. Prpic testified that at the time he took his breath sample which was approximately two hours after the police had pulled the appellant over in his motor vehicle, the use of mouthwash, Dayquil and Nyquil would not have affected the result of the breath sample. We prefer the testimony of P.C. Prpic, a qualified and experienced police breath technician, and find it to be more credible and reliable than of the appellant on this point. P.C. Prpic’s testimony is supported by contemporaneous notes, written analysis of the breath sample he took, and withstood cross-examination.

21The onus is on the appellant to establish that he was unable to comply with the breath demand for a medical reason on a balance of probabilities. The appellant’s testimony and his evidence fall short of establishing this. His admission that the breath sample was given roadside and some two hours later at the police station establishes the opposite, that he was able to comply.

22As a result, we find that the appellant failed to provide sufficient evidence to establish on a balance of probabilities that on July 13, 2025 he failed or refused to satisfactorily comply with the breathalyzer demand for a medical reason.

Conclusion

23For 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

24We confirm the Registrar’s decision to suspend the appellant’s driver’s licence.