Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 7376/MED
CASE NAME: 7376 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
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. W. Hurst, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard in Toronto, Ontario
June 15, 2012
PRELIMINARY MATTERS
The Applicant did not appear at the Licence Appeal Tribunal offices for the 9:30 a.m. hearing. After waiting 30 minutes, the Case Management Officer (C.M.O.) handling this file phoned the Applicant and on the second attempt contacted him. The Applicant stated that he was unaware that the hearing had been planned for this date. The Tribunal had sent the hearing notice to the Applicant by Courier and there is no report of the letter and notice not being accepted or that there was a problem with the Applicant’s address. There was no error in the address, the C.M.O. having clarified this with the Applicant.
Mr. Biel the Agent, for the Registrar of Motor Vehicles, presented a copy of the contents of their disclosure package (Exhibit 2) which had been delivered to the Applicant. It had been received and in this list of contents the Applicant was informed that the date of the hearing at the Tribunal headquarters was June 15^th^, 2012.
The Tribunal decided to proceed with the hearing with the Applicant in absentia.
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Minister (“the Respondent”) pursuant to 32 (5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
Mr. Biel presented a Medical Condition Report dated the 22^nd^ of October, 2011. Dr. A.H. had ticked the box for alcohol dependence. There were no added notes.
On November 30, 2011, the M.T.O. wrote to the Applicant describing its receipt of a report indicating that he has a condition that affects his ability to drive safely, specifically alcohol dependence. His licence was suspended under Section 47(1) of the Highway Traffic Act.
The Ministry instructed the Applicant to take this letter to his physician listing its requirements:
- Completion of the enclosed Substance Abuse Assessment Form by his treating physician.
- If alcohol dependent, the Ministry required confirmation he had remained abstinent from alcohol for a period of one year.
- A clinical explanation must be provided for the results of any biochemical markers that are outside the normal laboratory range.
- Results of all investigations must indicate that the problem is controlled.
This was the essence of the requirements to achieve restoration of his driving privilege.
Ultimately, on February 16^th^ 2012, the Ministry received a Substance Abuse Assessment Form regarding the Applicant completed by his physician Dr. M.W. This highly detailed questionnaire was remarkable in this case in that no problems pertaining to the use or abuse of alcohol were noted by the doctor. However, in the section regarding substance dependence (DSM.IV) the doctor ticked the box indicating important social, occupational, or recreational activities given up or reduced because of substance abuse. He also ticked the box for continued substance abuse despite knowledge of having a persistent or recurrent social, psychological or physical problem that is caused or is exacerbated by use of the substance.
This section expands the description of substance abuse (DSM.IV). It includes current substance use resulting in a failure to fulfil major role obligations at work, school or home such as repeated absences or poor work performance, and also substance related absences, suspensions, or expulsions from school; or neglect of children or household.
The final page of this document describes a 30 day session of treatment for his alcohol abuse at a small community hospital in 2007, and another session for 90 days at a different community medical centre on February 14^th^, 2011. This page also noted the Applicant was participating in a 12 step meeting at AA and also he was cooperating with a sponsor. Again, mention was made of his participation in a relapse program. The doctor went on to check all the boxes stating that there was evidence of maintenance of recovery.
The diagnosis was alcohol abuse with recommendations that the Applicant abstain from the use of alcohol. The date of this document was dated May 31^st^, 2011. This was the date on which the Applicant was advised to abstain. (In reality, the final page of this report completely negates the previous pages).
Ultimately these notes were reported to the Medical Advisory Committee of the Ministry (February 16^th^, 2012). They advised that the Applicant remain suspended. They would reconsider reinstatement with a report from the driver’s treating physician to confirm on-going abstinence from alcohol for a sustained period of 12 months recorded by biochemical markers.
Their reasons were as follows:
“Reported to M.T.O. by E.R. physician on October 22/11. Diagnosis of alcohol dependence. Driver has attended two abstinence based treatment programs with relapse. Last noted consumption of alcohol November 2011. Driver reports consuming 4 – 5 beers per occasion. One year of abstinence required. Reconsideration can not be given in this case. M.A.C. notes convictions for impaired driving (1994 and 2007) and recent ADLS in 2011.”
On April 3^rd^, 2012 the M.T.O. wrote to the Applicant advising that he take their letter to his doctor and obtain the following information to be sent to the Medical Review Section:
- Confirmation that he has remained abstinent from alcohol for a period of one year.
- The results of recent biochemical markers with a clinical explanation for any abnormal levels.
Mr. Biel entered a certified copy of the Applicant’s driving record with multiple convictions and/or suspensions for impaired driving beginning in 1994.
In completing his presentation Mr. Biel noted inconsistencies found in the Substance Abuse Assessment Form, the date of this document was May 31, 2011. The entire questionnaire (audit) was negative for any alcohol related problems. Chronic depression was noted and he stressed the initial Medical Condition Report filed by Dr. A.H. He also observed conflicts with regards to the dates of the institutions of reduction or abstinence programs. He said that Dr. W. simply hasn’t acquired the entire story regarding the Applicant’s problems.
He then emphasized the Medical Advisory Committee’s decision that this suspension be continued.
MR. BIEL’S SUMMARY
He stated the evidence is clear that the M.T.O. had to act, upon receipt of the Medical Condition Report of October 22^nd^, 2011 regarding the Applicant’s alcohol dependence. This is based on Ontario Regulation 34/94 Section 14(b) regarding substance abuse and addiction. He also enclosed a copy of the pertinent sections in the CCMTA Medical Standards for drivers. He observed that the Applicant’s problem with alcohol is proven given the details described in the Substance Abuse Assessment Report and multiple offences for impaired driving. He stated that with this history the Highway Traffic Act states that the licence holder must establish 12 months of abstinence, supported by biochemical markers. Questioning by the Tribunal as to how long the Applicant has actually been abstinent disclosed that there have been two relapses in the Applicant’s abstinent efforts to date.
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
Based on the information presented at the hearing, the Tribunal is satisfied that the Applicant received notification of the hearing which he had requested. That notification of the date, time and location of the hearing was couriered to him at his correct address and not returned to the Tribunal. Also noteworthy is the copy of the CanPar Proof of Delivery of the package from the M.T.O. to the Applicant, Exhibit Number 2 presented by Mr. Biel. This package was an itemized list of documents which including the date of the hearing, June 15^th^, 2012.
All of the information regarding the Applicant’s problem with alcohol found in the Substance Abuse Assessment Report and observations of the Ministry’s Medical Advisory Committee confirms Mr. Biel’s observation that Dr. M.W. has not elicited the entire story. In the detailed questionnaire of this Form, the Applicant has a clean slate but significant problems on the final page of the report show that the Applicant is not coping well at all. His dependence on alcohol with multiple relapses is well documented.
The Applicant’s driving record is alarming, with several episodes, documented by the police, of driving while impaired.
The Medical Advisory Committee recommended that the suspension continue until the Applicant has documented the 12 month period of abstinence and made it clear that an earlier consideration of this one year term “can not be given”.
Special attention should be given to the Applicant’s letter to the M.T.O. dated April 26^th^, 2012 in which he states:
1 “I have taken correctional measures to show the Ministry that I am no longer a threat to the safety of other road users. I have been attending AA meetings and have a signed meeting sheet indicating the same. In addition, I have been in regular communications with my treating physician”.
2 We (his doctor) have discussed the correctional measures indicated and we believe my condition has improved drastically. My health has been cleared by Dr. M.W. and my alcohol consumption is not an issue at this time.” (emphasis added)
3 “As indicated above, I have been attending regular meetings and have remained abstinent from alcohol for some time now. (emphasis added) Considering my course of action, I am certain that there would be no clinical explanation for any alcohol level outside the normal laboratory range”.
The Tribunal’s observation is that this latter comment makes no sense based on the evidence. Further, the underlined comments above reflect the Applicant’s poor understanding of his problem.
The Tribunal notes that this letter indicates the Applicant is avoiding the fact that he has not completed any significant interval of abstinence.
There is ample evidence before Tribunal on which it can conclude that the Applicant has not achieved a significant interval of abstinence. His multiple driving offences speak volumes against any early restoration of his driving privilege offences.
DECISION
Upon the application by the Applicant to appeal the decision dated December 12, 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;
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 is confirmed.
LICENCE APPEAL TRIBUNAL
Dr. D.W. Hurst, Presiding Member
RELEASED: June 27, 2012