Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-03-13
FILE:
7219/MED
CASE NAME:
Applicant 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
7219
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patrick Coffey M.D.
APPEARANCES:
For the Applicants:
Applicant
For the Respondent:
Kyle Biel
Heard on March 8, 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”).
FACTS
The Registrar’s Evidence
The Applicant’s licence was suspended on April 5, 2001 as a result of an intracranial haemorrhage. The licence was reinstated on February 5, 2002
The Applicant’s licence was suspended again on August 21, 2008 as a result of a seizure thought to be due to alcohol withdrawal and to the Applicant’s decision to reduce his alcohol intake. The licence was reinstated on September 8, 2009.
The Applicant’s licence was suspended again on May 11, 2010, probably due to a letter received by the MTO from the Applicant’s physician, dated April 26, 2010. This letter included a medical report which showed that the Applicant’s blood GGT level was moderately elevated and the MCV minimally elevated.
A Medical Condition Report was sent to the Ministry of Transportation (MTO) on May 22, 2011 by Dr. W, indicating that the pertinent condition of the Applicant was “Alcohol or drug abuse” and adding that “The threat to road safety is unknown”. When the MTO received this report, it was decided that the Applicant’s driving privilege should be suspended.
The Substance Abuse Assessment form was completed by Dr. S and the Applicant on September 7, 2011. The main points of this are as follows:
Hospitalisations in last 12 months: May 2011, treatment of superficial head injury – result of a fall; admitted for four days for observation.
Physical examination negative. GGT 77, AST and ALT normal.
AUDIT score 4. Leeds Questionnaire score 0.
Laboratory report of October 20, 2011: GGT 76 (slightly elevated). AST and ALT normal.
Medical Advisory Committee Case Summary December 15, 2011.
Recommendation: Remain suspended.
Instructions: Will reconsider reinstatement with a report from the driver’s treating physician or addictionist to confirm the driver has remained abstinent of alcohol for a sustained period of 12 months supported by bio-chemical markers, (MCV, GGT, ALT and AST.) A clinical explanation will be required for any level outside normal laboratory range.
Laboratory report of February 1, 2012 showed a normal GGT (25) and normal AST and ALT.
Certified Driver Record for the Applicant dated February 13, 2012:
No convictions, discharges or other actions. Demerit points – zero.
The Applicant’s Evidence
The Applicant explained what happened on May 21, 2011. At home, he tripped and suddenly fell, hitting his head heavily on a ceramic floor. He was taken to the nearest hospital Emergency Department where he was admitted and kept under observation for possible concussion for two or three days. The doctor he saw after he first arrived at the hospital was a doctor with whom he had difficulty in communicating. He did not see Dr. W, who wrote and signed the Medical Condition Report, until his second day in the hospital.
The Applicant said that alcohol played no part in this fall at home, and, in fact, he had not been drinking that day. In spite of this, he noticed that on the Medical Condition Report it was written as the main condition, “Alcohol or drug abuse”.
The Applicant described himself as an occasional drinker and said that he now drinks very little. But, he admitted that he did consume alcohol excessively in the past. He explained that in the past he had been a Vice President of the Canadian Division of an international insurance company and had to attend and sometimes organise and sometimes host important meetings and dinners.
He said that he does not drink and drive and added that if an occasion away from home involved alcohol consumption, his wife would drive.
The Applicant stated that he has an impeccable driving record and that he has never had an alcohol-related incident.
He has had his licence reinstated in the past when it was well known that he was not totally abstinent of alcohol.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Is the Applicant 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 Tribunal notes that the Applicant’s licence has been suspended before. The first time, in 2001 was because of an intracranial haemorrhage. The second time in 2008 was because of a seizure thought to be due to alcohol withdrawal. The third time,in 2010 was, as far as can be ascertained from the file, because of evidence which showed that the Applicant was not totally abstinent from alcohol.
The Tribunal notes that the Applicant’s licence was again suspended on June 21, 2011 following a hospital Emergency Department visit on May 21, 2011, as a result of a fall and a head injury. At that time, what was written in the Medical Condition Report was “Alcohol or drug abuse”. But, the Applicant has testified that alcohol played no part in this fall.
The Tribunal takes into consideration the following:
The Applicant admits that he consumed alcohol excessively in the past, but now he consumes less; and in fact, he now considers himself “an occasional drinker”. The Tribunal notes that, in keeping with this past alcohol consumption, the file shows that some bio-chemical indices for alcoholism for the Applicant were raised.
The Applicant has testified that he does not drink and drive.
He has an excellent driving record.
The Applicant’s licence has been reinstated in the past when it was known that he was not totally abstinent of alcohol.
In view of the above, the Tribunal is of the opinion that the Applicant does not have a condition likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated June 21, 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 set aside.
LICENCE APPEAL TRIBUNAL
Patrick Coffey M.D., Presiding Member
RELEASED: March 13, 2012