Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7604/MED
CASE NAME: 7604 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. David Borenstein, Member
APPEARANCES:
For the Applicant: M.N, the Applicant’s son-in-law
For the Respondent: Sonia De Santis
Heard in Toronto: September 18, 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
On March 22, 2012, Dr. J.L, the family physician of L.D (The Applicant) sent the Ministry of Transportation a Medical Condition Report that stated that the Applicant suffers from Alcohol Dependence. This was based on a Cage Score of 3/4 and AUDIT (Alcohol Use Disorders Identification Test) score of 28. He wrote, "I’m concerned about this patient being a serious risk to road safety". Dr. J.L had been the Applicant’s family physician for 14 months at that time.
Dr. J.L also sent a copy of the AUDIT test he performed. He also sent a copy of the Appendix G from the DSM-IV criteria for substance abuse and dependence. He circled those criteria he felt allowed him to categorise the Applicant as abusive and dependent on alcohol.
Based on the information, the Ministry of Transportation sent the Applicant a letter dated June 12, 2012 notifying him of the suspension of his driver’s license, the reason for this decision and a list of those things he was required to submit to have his driver’s licence reinstated. The Ministry also sent the Applicant a copy of their substance abuse assessment form for his physician to complete. In their package, the Ministry defined Alcohol Dependence as "the repetitive inappropriate use of alcohol associated with loss of control, inability to abstain, a preoccupation with obtaining alcohol and withdrawal symptoms." They defined Alcohol Abuse as ‘the recurrent inappropriate use of alcohol. Someone who abuses alcohol is not necessarily addicted or dependent on alcohol. The goal of treatment for such individuals is not always abstinence. Moderation management is often the goal of alcohol abusers."
The Applicant appealed the suspension of his drivers licence on July 31, 2012. He did not submit any of the requested information to the Ministry of Transportation
The Applicant’s argument
The Applicant was represented by his son-in-law, M.N. He submitted as evidence, the World Health Organization’s (WHO) Guidelines for use of the AUDIT in Primary Care (Second Edition) and revised answers to the AUDIT questions after the test had been translated to the Applicant by M.N in his native language. His new AUDIT score was 14. A submission from the website, ratemds.com, regarding other opinions of Dr. J.L was also submitted, but was not accepted due to being complete hearsay, by unknown individuals and having no relevance to the case at hand.
According to M.N, the entire argument to suspend the Applicant’s driving privileges was based on the Medical Condition report solely supported by the AUDIT and CAGE scores. It is the M.N’s belief that the test was not performed to the standards of the WHO Guidelines. Furthermore, he maintains that language barriers prevented the Applicant from providing answers to the test questions and that in fact the Applicant’s wife answered the majority of the questions on her husband’s behalf. The Applicant’s wife, J.D, gave evidence that she indeed answered the majority of the AUDIT questions without asking her husband his answers, and without fully understanding the nature and purpose of the test. Additionally, she did not understand all the questions fully due to her language difficulties. Thus, it was argued that the test score of 28 obtained by the family physician is based entirely on hearsay evidence. Additionally, the Applicant feels that upon careful review of the answers provided on the initial AUDIT, the answers are actually contradictory.
M.N, argued that by the time the AUDIT was performed, the Applicant was only using a small amount of alcohol in his morning coffee for sweetener. Based on WHO guidelines the new AUDIT score of 14 would only require advising the Applicant of proper alcohol intake habits. Although the family had concern’s about the Applicant’s use of alcohol in the past, they no longer have these concerns. According to the witnesses, the Applicant has not had any alcohol since May 2012.
The Registrar’s argument
The representative for the Registrar submitted the documentation provided by Dr. J.L. She argued that the new AUDIT score of 14 submitted by the Applicant is also based on hearsay from the family. Additionally, it was suggested that.J.D can’t be sure that the Applicant never drinks unless she is always with her husband. The Registrar’s Agent questioned why the Applicant has refused to provide a repeat of the AUDIT performed by an unbiased practitioner and performed in the Applicant’s native language. The Applicant has also refused to provide any of the other documentation required by the Ministry in their initial letter to him. In closing, the Registrar’s Agent reminded the Tribunal that no evidence was given by the Applicant and that his wife does admit to the Applicant’s past problems with alcohol use; the family’s response is ‘they took care of it’.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
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 only objective evidence provided in this hearing is the Medical Condition Report filed by Dr. J.L. It is based on the Applicant’s AUDIT score and subjective CAGE assessment. Based on the Applicant’s submission and witnesses, it is clear that the Applicant did not fully understand the test, and that the answers obtained on the initial AUDIT were likely obtained from the Applicant’s wife who did not fully understand the AUDIT questions. Her testimony before the Tribunal revealed language difficulties and indeed the AUDIT answers initially provided by the family physician do show some contradictions. At its core, AUDIT is a ‘self-reporting’ test and all witnesses now say they did not understand the test and are now reporting different facts; including testimony that the Applicant has not had any alcohol to drink in over four months. Additionally, it is truly unknown how much alcohol was considered ‘too much’ in the past.
The Registrar has asked some compelling questions, including why the Applicant has not sent any of the information the Ministry requested including but not limited to a substance abuse assessment form performed in the Applicant’s native language.
The Applicant’s representative states that there is no alcohol issue for which documentation could be sent, and that Medical Condition Report sent to the Ministry is invalid, thus the Applicant should not have to prove anything to the Ministry.
In summary, The Medical Condition Report that lead to the suspension of L.D’s driving privileges was based on J.D’s interpretation of what her husband’s answers would be to the AUDIT questions. Neither The Applicant nor his wife speaks English well enough to fully understand the questions that were asked of her husband. Both the Applicant’s wife and son-in-law now rescind this report and offer new testimony. Despite the one statement by Dr. J.L as to his concerns for road safety, no other actual objective evidence has been submitted. The Ministry has not provided reference to any medical records, specific incidents, or legal reports (including the Applicant’s driving record) that would support the Applicant is ‘addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his ability to drive a motor vehicle safely’, as per OReg 340/94 Section 14(1b).
DECISION
Upon the application by the Applicant to appeal the decision dated June 12, 2012 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
David Borenstein, Presiding Member
RELEASED: October 1, 2012