Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 18156/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:

Akpoghene Regha Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

PANEL: Dr. David To, Member Bruce Stanton, Member

APPEARANCES: For the Appellant: Doyun Kim, Counsel For the Respondent: Leila Pereira, Agent

Heard by teleconference: January 26, 2026

Overview

1Akpoghene Regha (the “appellant”) appeals from the 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 “Act”) after failing to provide a breath sample in response to a demand under the Criminal Code (Canada) on December 13, 2025.

2The appellant seeks an order to set aside the 90-day suspension. In summary, the appellant’s grounds of appeal as set out in his Notice of Appeal are 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, because “[he] was experiencing confusion and disorientation following a motor vehicle collision”.

ISSUE

3The issue to be determined is:

a. Whether the appellant failed or refused to comply with a demand made under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason, pursuant to s. 50.1(2)(a)(ii) of the Act.

4The appellant bears the burden of proving on a balance of probabilities that he was unable to comply with the demand because of a medical reason.

RESULT

5Having considered all the evidence and submissions, we find that the appellant has not established on a balance of probabilities that he failed or refused to comply with the demand for a breath sample because he was unable to do so for a medical reason.

6We confirm the Registrar’s suspension of the appellant’s driver’s licence.

ANALYSIS

The appellant did not establish that his failure or refusal to provide a breath sample was for a medical reason.

7In a Notice of Suspension dated December 13, 2025, the appellant’s driver’s licence was suspended after failing to provide a breath sample in response to a demand under the Criminal Code (Canada).

8A 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.

9Paragraph 50.1(2)(a) of the Act sets out grounds on which a person may appeal a suspension under s. 48.3. The appellant appeals on the ground set out in s. 50.1(2)(a)(ii), that he failed or refused to comply with a demand made under s. 320.27 or 320.28 of the Criminal Code (Canada) because he was unable to do so for a medical reason.

10In his Notice of Appeal and in his testimony, the appellant explained that on December 13, 2025, he was driving on an unfamiliar road on a dark and snowy evening after work and felt tired and stressed after work. Because of the offset in the unfamiliar road, his vehicle went into a ditch, struck an object, and his vehicle’s airbags deployed. The appellant testified that he felt confused and disoriented at the roadside and had difficulty using his cellphone to call his workplace. At the scene, he was assessed by paramedics in the ambulance but was not taken to the hospital. At this time, he was asked by police officers to provide a breath sample. The appellant submits that he was unable to provide the breath sample because of a medical reason.

11The appellant explained he visited his family physician several times after the accident. Medical reports from his family physician, Dr. Kelsey Lawson, dated January 6, 2026, and January 19, 2026, state that the appellant had a motor vehicle accident and had likely suffered right-sided chest pain from a musculoskeletal cause. Dr. Lawson also noted that from a January 12, 2026 visit, the appellant had “migrainous type headache, likely mild traumatic brain injury / concussion?”. In the physical exam section, Dr. Lawson noted “neuro grossly intact. +Romberg, dizziness”.

12In the medical report of January 6, 2026, Dr. Lawson wrote that the appellant had right-sided chest pain, with a likely musculoskeletal cause from the accident. The appellant testified that he first noticed the pain the day after the accident after analgesics wore off. Similarly, chronic medical conditions were noted by Dr. Lawson, and the appellant stated he was mostly adherent to his medications for those conditions. The appellant has not presented any evidence or testimony that the chest pain or chronic conditions had any role in his inability to provide a breath sample.

13The appellant also testified that he was only given a limited number of attempts to comply with the breath sample, which was administered by Police Constable Atkinson, who attended the scene of the accident. Constable Atkinson’s notes and testimony state that after giving a demonstration, he provided the appellant with two further attempts; he explained that the appellant did not put his mouth close enough to the mouthpiece of the device before blowing on some of these attempts. We are not able to consider the number of attempts to obtain a breath sample or issues relating to the breath sample administration as a basis for reinstating the licence, because, as discussed above, s. 50.1(2)(a) of the Act sets out the limited grounds on which a person may appeal a suspension under s. 48.3 – either inability to do so for a medical reason, or a case of mistaken identity.

14The appellant further testified that because he was confused and panicked, he could not comprehend the instructions to properly give the breath sample. He recalls giving breath samples and did not refuse to provide them. In contrast, Constable Atkinson testified that the appellant understood and followed all his instructions apart from those related to the breath sample, noting that he was not co-operating; he would not put his lips over the mouthpiece. Rather, he held the device in front of his mouth and then exhaled on to it. Constable Atkinson testified that he demonstrated how to use the device but after two more attempts, the appellant was not co-operating and “it was unproductive to continue.” He testified that, at that point, he arrested the appellant.

15The appellant seeks an order from the Tribunal to have the suspension of his licence set aside.

16We accept that the collision was significant. The photographs of the vehicle and airbag deployment support that conclusion. As a licensed physician in Ontario, and as authorized by s. 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, Dr. To takes notice of the fact that mild traumatic brain injuries (often referred to as a “concussion”) can occur in the context of such mechanisms of injury, and that concussion symptoms, including headaches, dizziness, confusion, and poor coordination and balance can manifest minutes to hours after such an event.

17Although Dr. Lawson’s medical reports were helpful to understand the appellant’s cognitive and physical symptoms in the subsequent weeks and the impact the accident has had on him, they do not provide any opinion or linkage to the appellant’s medical condition immediately after the accident or how or why the appellant was unable to comply with the breath sample demand. In particular, there is no medical opinion evidence specifically explaining that the concussion he sustained on December 13, 2025 prevented him from being able to provide the breath sample.

18Considering that Dr. Lawson’s reports of January 6, 2026 and January 19, 2026 make no link or reference to his medical condition being a basis for failing to complete the breath sample, we are not persuaded on a balance of probabilities that the appellant’s stated medical reasons (including confusion, panic, and being unable to comprehend what he was being asked to do) resulted in him being unable to provide the breath sample. We are further persuaded in this conclusion by Constable Atkinson’s testimony that the appellant was speaking normally for 5 minutes in the ambulance before attempting the breath sample, that the appellant seemed to be able to follow all directions except for the administering of the breath sample, and that several minutes after the attempted breath sample he walked normally without issue from the ambulance to the police car. We are persuaded by the appellant not being taken by the paramedics to the hospital and not exhibiting symptoms requiring immediate medical attention, and that he has not presented any medical opinion evidence that he suffered neurological deficits consistent with an inability to understand or follow instructions or to blow into the mouthpiece at the time of the breath sample demand.

19The onus in this appeal is on the appellant to prove that he refused or failed to comply with the breath sample demand because he was unable to do so for a medical reason. Considering all the evidence available before us, the appellant did not establish this ground on a balance of probabilities.

CONCLUSION

20For the reasons above, we find that the appellant has not established 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

21Pursuant to s. 50.1(4) of the Act, we confirm the Registrar’s suspension of the appellant’s driver’s licence.