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Information Sheet on Medical Evidence in Appeals of Administrative Driverís Licence Suspensions
A driverís licence may be suspended for 90 (ninety) days under the Highway Traffic Act because the driver refused or failed to respond to a police officerís demand made under section 254 of the Criminal Code to:
(a) provide a sample of breath, blood, oral fluid or urine,
(b) perform physical co-ordination tests, or
(c) submit to an evaluation.
The driver can appeal this 90-day suspension to the Licence Appeal Tribunal (ďTribunalĒ) on the basis that the driver failed or refused to comply with the demand because the driver was unable to do so for a medical reason.
In an appeal of an administrative driverís licence suspension, it is the driverís responsibility to present evidence to the Tribunal that will prove their case on ďa balance of probabilities.Ē This means that the Tribunal member needs to be satisfied that it is more likely than not that the facts presented are true. Evidence may be provided to the Tribunal in documents sent with the appeal or before the hearing, or through oral testimony as a witness at the Tribunal hearing. For more information about evidence in general, see the Tribunalís Information Sheet Ė Calling Evidence.
The Tribunal can also hear appeals of administrative driverís licence suspensions on the ground that the appellant (the suspended driver) was not the person who had provided the sample, or that the appellant was not the person who had refused or failed to respond to the police officerís demand. Drivers appealing on this ground should consult the Information Sheet Ė Calling Evidence.
A driver needs to provide medical evidence to prove that a valid medical reason caused the driverís refusal or failure to provide a sample, or respond to the police officerís demand. In almost all cases, the driver will need to provide a medical report that is completed and signed by a doctor.
The report must do more than establish that the driver has a medical condition, or had a medical condition at the time of the demand. The report must also link the driverís refusal or inability to provide a sample, or respond to a demand, with the identified medical condition.
The information provided in a medical report should include:
a) the doctorís name, telephone number and address;
b) the driver/patientís name, date of birth and address;
c) a statement that the doctor is aware that the report may be used in support of the patientís appeal from suspension of their driverís licence under Section 50.1 of the Highway Traffic Act;
d) how long the doctor has been caring for the driver as a patient and the date of the most recent examination that supports the doctorís findings in this report;
e) whether the doctor is the driverís family physician;
f) if the doctor is a specialist, their field of specialty;
g) details of the condition, its diagnosis and the history of the condition that prevented the driver from providing a sample or responding to a demand, including the results of any tests, such as recent pulmonary function tests, medications that have been prescribed, rays, MRIs or scans, other laboratory tests and reports from specialists; and
h) the doctorís signature.
Normally, the doctor does not attend the hearing, though some appellants ask or summons the doctor to attend as a witness.
To help the appellantís doctor provide medical information in support of the driverís appeal, the Tribunal has created a form (available on the Tribunalís website) that can be completed and served on the Registrar of Motor Vehicles and filed with the Tribunal.
The driver may also choose to serve and file other documents as evidence to support the appeal, such as relevant emergency room discharge notes or hospital charts. In most cases, the driver also testifies about what occurred on the day the demand was made.
The Registrarís Evidence
Once the appellant has presented their evidence, a representative of the respondent, the Registrar of Motor Vehicles, will present the Registrar's case. The Tribunalís decisions (published on the CanLII website) can provide information as to the position taken by the Registrarís representative on other appeals and the medical evidence the Registrar has relied on. In many hearings, there will be testimony from the police officers who were there when the demand for a breath sample or other tests was made.
The Tribunalís website at tribunalsontario.ca/lat has Information Sheets, Rules of Practice, Practice Directions, FAQs and other useful information.
This information sheet is intended to provide general information to appellants and other parties. It is not legal advice. If you wish to obtain legal advice, you should consult a person licensed by the Law Society of Upper Canada (www.lsuc.on.ca).
This Information Sheet may be found online at tribunalsontario.ca/lat
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