7151 v. Registrar of Motor Vehicles, 2012 CanLII 12255

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2012/03/13

FILE:

7151/ MED

CASE NAME:

7151 v. Registrar of Motor Vehicles

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 47(1) of that Act - to Appeal a Suspended Licence

7151

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Ian Turnbull, MD

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Kyle Biel

Heard by teleconference:

February 28, 2012

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the "Registrar") pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

INTRODUCTION

The Applicant is a 49-year-old technician whose driving privileges were suspended effective December 24, 2011 (Exhibit 1). The Registrar had received a Medical Condition Report (Exhibit 3, Tab 1) from a physician pursuant to Section 203 of the HTA, citing "Alcohol Dependence".

The Applicant stated that he needs his driver's license since his job is 40 km from home. The Applicant believes he has made significant changes in his lifestyle and thinks the family doctor notified the Registrar because the Applicant did not agree with his advice.

EXHIBITS

1. Notice of Suspension dated 2011/12/15 submitted by the Registrar
2. Notice of Appeal dated 2012/ 01/16 submitted by the Applicant
3. Registrar's Submissions dated 2012/02/10

FACTS

On November 21, 2011, the Applicant asked for his doctor's help to complete a short-term disability form. One of the questions asked was "should his driving privileges be revoked?" and the physician checked "No".

Surprisingly, the physician's office called the Applicant the next week wanting to see him as soon as possible.

At the December 3, 2011 visit, the physician said not drinking during the week was of "no physical benefit" and the family support he was receiving was all wrong. The Applicant then decided to leave the physician's practice; the physician countered by saying "he was still going to report me".

The Medical Condition Report (Exhibit 3, Tab 1 – December 2, 2011) cites "Alcohol Dependence," adding "documented history of alcohol-dependence and misuse problems, poor insight, ongoing drinking".

The Registrar's response (Exhibit 3, Tab 2 – December 14, 2011) lists the information required by the MTO's Medical Review Section for consideration of restoration of his driving privileges. The Applicant does not currently have a physician to assist him in completing this information. No medical information has been received by the Registrar as of the teleconference hearing.

The months preceding this last visit give the necessary context.The Applicant "over-indulged" on beer in late April 2011. He saw his physician because of abdominal pain, deemed to be "a pancreatic attack" due to excessive alcohol consumption. The Applicant modified his consumption from four bottles a day to weekends only. The Applicant says the physician was supportive. The weekend beer consumption ranged between six and 14 bottles.

In July 2011, the Applicant went on vacation forgetting his anti-depressant medication. He had been taking various anti-depressants for over 10 years. Surprisingly, the Applicant felt much better – "more energy, happier, didn't need as much sleep" and "was able to make smarter decisions". The family physician wanted to restart anti-depressants; the Applicant disagreed.

His wife says that since limiting drinking to the weekend, he no longer has "debilitating" pancreatic attacks. She supports the Applicant's discontinuance of anti-depressants because "he knows his body better."

The Applicant's mother says he has improved since discontinuing anti-depressants, and states that the physician is not responsive to her son's concerns. She asks "why did he (the physician) wait seven months to report him?"

The Applicant's father says the issue is the physician's ego, not drinking and driving.

The Applicant called these three family members as witnesses; all say that he would never drive after drinking.

The Applicant is the sole wage-earner for his family and works 40 km from home.

The Applicant has no demerit points (Exhibit 3, Tab 4).

ISSUES

Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?

Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle safely?

or

Is the Applicant no longer addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94, Section 14 states:

(1) An applicant for or a holder of a driver's licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

(2) In determining whether an applicant for or a holder of a driver's licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver's licence set out in the CCMTA Medical Standards for Drivers; and

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver's licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

Section 50 of the Act states:

50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.

APPLICATION OF THE LAW TO FACTS

The Registrar has made the case that the Applicant shows Alcohol Dependence. The Tribunal agrees the Applicant's driving privileges should remain suspended pending a review of the medical information requested by the Registrar on December 12, 2011 (Exhibit 3, Tab 2).

The Medical Condition Report (Exhibit 3, Tab 1) cites "Alcohol Dependence" adding three observations.

Firstly – "documented history of alcohol dependence and misuse problems". Regrettably, the Tribunal does not see the documented Applicant office visits. The family doctor merely reiterates his concerns (Exhibit 3, Tab 3). This is not to say the Applicant has not been prejudiced by his physician's report (Exhibit 3, Tab 3) which simply restates the Medical Condition Report (Exhibit 3, Tab 1). The report is a conclusion, with no reasons or explanations given.

Secondly – "poor insight". The Tribunal agrees with the physician's assertion that the Applicant lacks insight into his alcohol-dependence. Merely shifting consumption from weekdays to the weekend does not confront the problem – possible bouts of pancreatitis, impairment of judgement and driving safety.

Despite suggestions from his family physician to abstain and/or seek counselling, the Applicant maintains "he knows his body better". The Applicant says his physician says "he is jeopardizing his practice" and has "bad support" from his family. Again, without access to the Applicant's medical records, these comments are difficult to evaluate.

Thirdly, "ongoing drinking". Abstaining or modifying drinking beer habits is not a consideration with the Applicant. Initially, he believed his physician was supportive of eliminating drinking beer during the week and confining beer drinking to the weekend. This delivers a mixed message to the Tribunal.

In the Applicant's favour is his belated recognition that he should cut back his beer consumption. The pain of recurrent bouts of pancreatitis should be reason enough. If the "pancreatic attacks" were as debilitating as his wife describes, the Applicant should stop drinking beer.

The Applicant feels better after stopping years of anti-depressant drug therapy. He consulted a psychiatrist after stopping his anti-depressant medication. Tellingly, the psychiatrist did not restart anti-depressant drug therapy.

The Tribunal does not fully understand why the Applicant was fit to drive on November 21, 2011, and reported as having "Alcohol Dependence by the same physician on a Medical Condition Report on December 2, 2011.

The Applicant's mother asked why his physician did not send a Medical Condition Report after the April 2011 incident – "pancreatic attack". The physician surprised the Applicant in late November 2011 by requesting a return office visit on an urgent basis. The Applicant had seen his physician on November 21, 2011, at which time he was deemed to be safe to operate a motor vehicle. Because of ongoing differences of opinion, the Applicant told the physician he was leaving his practice. The physician replied, "I'm still going to report you."

Again, lack of access to the Applicant's medical notes leads only to speculation as to why the doctor changed his mind between November 21, 2011 and December 2, 2011. A likelihood is that the physician reviewed his four-year association with the Applicant and decided that he was not safe behind the wheel of a car.

The Applicant is the sole wage-earner for his family, works 40 km from home, and needs his driver's license to commute to work. Regrettably, the HTA does not provide for extenuating circumstances.

The Tribunal must consider the safety of both the Applicant and the Ontario driving public.

The larger issue is not the absence of documented visits to his family physician. The Tribunal must seriously consider the cryptic reiteration (Exhibit 3, Tab 3) of the physician's Medical Condition Report. The Registrar cites the CCMTA (Canadian Council of Motor Transport Administrators) Medical Standards for Drivers (August 2011), Section 13 (Exhibit 3, Tab 5, Paragraph 13.2), "Alcohol Dependence and Alcohol Withdrawal of Seizures" and – "may not drive any motor vehicle for 12 months during which time the individual must remain seizure-free and alcohol-free."

Earlier re-licensure may be considered upon favourable recommendation from an addiction specialist recognized by the licensing authority and the successful completion of an alcohol rehabilitation program.

The Tribunal is left with the question as to why the physician abruptly changed his mind about the Applicant's driving capability between November 21, 2011, and December 2, 2011. But the Tribunal accepts that in all probability, the physician is acting in the best interest of both the Applicant and the driving public.

The consideration of restoration of driving privileges follows receipt of the required medical information. His family doctor raises concerns about the Applicant's ability to drive safely. To counter this evidence, the Tribunal only has the Applicant's assertions that he is safe to drive coupled with his driving record. In the interest of public safety, the Tribunal concludes that it is reasonable for the Applicant to provide the Registrar with the requested medical information.

DECISION

Upon the application by the Applicant to appeal the decision dated December 15, 2011 of the Registrar to suspend his driver's licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;

IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be confirmed.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, MD, Presiding Member

RELEASED: March 13, 2012