Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2012-06-01
FILE: 7393/MED
CASE NAME: 7393 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 Suspend a Licence
Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. Garry Fisher
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Toronto May 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”).
PRELIMINARY MATTERS
The hearing was delayed about 30 minutes to await the arrival of the Applicantwho was held up in traffic. He was accompanied by his sister-in-law who was to play a significant role in the proceeding. Both were sworn. The arrangement was acceptable to the Respondent.
FACTS
On September 25, 2011, the Applicant was in church when he felt faint and shaky. He had to be assisted to sit and rest. He was taken by ambulance to a nearby Hospital Emergency Room for assessment and treatment. The presenting problem was electrolyte imbalance and malnourishment. He was hypokalemic (a low serum potassium) Underlying the problem was a regular daily excessive alcohol consumption.
He was kept in hospital overnight, treated with fluids and electrolyte, and discharged the next day. The E.R. doctor sent a Form 203 to the MTO specifying “seizure or syncope”. An appointment was arranged with Dr. K.,a neurologist, who saw him on October 5, 2011. He too submitted a Form 203 stipulating “seizure vs. alcohol withdrawal” plus excessive alcohol use and noted that EEG’s were pending.
The MTO notified the Applicant on October 2, 2011 and on November 3 2011 that his licence to drive was suspended. The first notice was regarding possible epilepsy – ruled out by normal EEG’s. The second notice acknowledged the Applicant’s alcohol dependence and specified the steps required of the Medical Review Section to reinstate his driver licence:
-Complete a Substance Abuse Form by a treating physician
-If alcohol dependence is confirmed, be shown to be alcohol free for a year – shortened, if in the opinion of the treating physician he/she is supportive of driving privileges reinstated and an “alcohol treatment program” is treated successfully.
-Bio-chemical markers repeated and explained.
Dr. K. reported early on that he had a very low index of suspicion that the Applicant had a seizure and subsequent EEG’s and a CT scan of the head were not un-expectedly normal.
Dr. T.A.M,. ,the Applicant’s family doctor,. filled out the Substance Abuse Form with the Applicant and has responded to the MTO very positively about reinstating the Applicant’s licence to drive. She sees the Applicant regularly and clearly believes that he has been abstinent since the frightening, (his words), event of September 25, 2011. It is her opinion that some sort of alcohol treatment program would be of little value to this man – compared to the support he already receives from his family, his regular support group at his church, and his family doctor..
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
LAW
Two medical issues were presented: seizures vs. alcohol dependence
The question of seizures did come up as a possibility, but was quickly discarded by the Applicant’s physicians. The Applicant is alcohol dependent unquestionably. He has not had a drink since September 25, 2011.
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
CCMTA Medical Standards for drivers are, of course, guidelines. Earlier re-licensure may be considered upon favourable recommendation by an addiction specialist “recognised by the licensing authority”.
The Applicant (assisted by family) had trouble finding a list of specialists. At one point, they tried calling the MTO and were on the phone line for about an hour and a half, before getting someone who gave advice, but, the Tribunal agreed with the Respondent, it was interesting, but hearsay.
The Tribunal is of the opinion that the Applicant is clearly alcoholic, but has been abstinent for 8 months and has the support of his family, his family doctor, and his church support group. Further, the Tribunal was impressed with the presentation of the Applicant and support of his sister-in-law and very clear support from his family doctor. In a letter dated March 21, 2012, she specifically wrote: “recent lab tests show the man to be in excellent health... all within normal limits” and “I hope you will give serious consideration to reinstating this man’s driving licence since I believe that he does not present any danger on the road”. She went on to state that a lack of a driver’s licence is “keeping him from accepting employment”.
DECISION
Upon the application by the Applicant to appeal the decision dated October 2, 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
Dr Garry Fisher, Presiding Member
RELEASED: June 1, 2012