7690 v. Registrar of Motor Vehicles, 2012 CanLII 77019

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-11-23

7690/MED

7690 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

D. W. Hurst, M.D

For the Applicant:

Self-represented

For the Respondent:

Russell McKnight

Heard in Toronto:

November 15, 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

Mr. McKnight presented an overview of the Registrar's evidence for this hearing.

He noted that Tabs 1 – 6 were a review of other problems that the Applicant has had with licencing. Events consisted of visual problems and also a concern about possible sleep apnoea. These have been resolved.

The Applicant did interject with this presentation to describe how his doctor had missed a diagnosis of a tumour of his thyroid which went away spontaneously. The sleep apnoea has not been a problem again.

On March 5, 2012, a Medical Condition Report was sent to the Ministry of Transportation (M.T.O.) with a diagnosis of alcohol dependence as well as "mental or emotional illness – unstable."

Under the Optional Section of this report there was a very detailed note by Dr. D.H. who said: "This gentleman has longstanding alcoholism and mental health issues. The mental health issues are essentially stable, the alcohol is not. He says that he never drives after consuming alcohol, but I have seen him several times in the office in the early morning with a strong odour of alcohol on his breath. Several recent injuries where alcohol was a factor. Today he admitted to consuming 12 beers last night and was noted to have a smell of alcohol by receptionist, nursing and myself. I have encouraged him to restart addiction counselling, AA, that he has done before, and that I am reporting his condition to the M.TO".

On March 28, 2012, the M.T.O. wrote to the Applicant regarding this report from Dr. D. H. that he has been diagnosed as having alcohol dependence and a psychiatric condition. The Registrar stated that in accordance with Section 47(i) of the Highway Traffic Act a suspension had been applied. This letter went on to explain the Ministry's requirements:

Completion of the enclosed Substance Abuse Assessment Form by your treating physician or a physician specializing in addiction medicine.

Information that the Applicant had remained abstinent from alcohol for a period of one year. They said this period could be reduced if his physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.

Any biochemical markers outside the normal laboratory range.

Complete psychiatric history with accurate diagnosis, treatment, and current status.

Mr. McKnight entered a copy of the Ministry of Transportation Substance Abuse Assessment Form which the MTO has not received in the completed state.

Mr McKnight then submitted the certified copy of the Applicant's driving licence showing zero demerit points and his current suspension for medical reasons. He also presented a copy of the CCMTA report regarding determining driver fitness in Canada.

Mr. McKnight observed that no more information has been received by the Ministry from the Applicant in the last 7 – 8 months.

THE APPLICANT'S EVIDENCE

The Applicant made a statement that he had included documents from his employer in his notice of appeal.

This letter from his employer dated April 20^th, 2012 consists of one paragraph stating that the Applicant's tenure with his company as its lead mechanic is satisfactory, describing him as reasonable, attentive, knowledgeable and a responsible employee. He has never exhibited any form of erratic or inappropriate behaviour.

The Applicant went on to state that Dr. D. H. is a non-drinker and considers anybody who takes a drink a day is an alcoholic. Dr D.H.also implied the recent accidents suffered by the Applicant were alcohol related. The Applicant said that each one of them was due to:

1A mugging

2Tripped on the stairs with 2 laundry baskets

3Leaping out of bed because he heard water running from the ceiling of the bathroom and ,slipped on the tile floor, fell and cut his ear on the vanity.

He stated that on that evening of the water leak he had had 3 beers between 4 and 9pm.

The Applicant referred to the comment by Dr. D. H. that he smelled of alcohol when he came to the doctor's office, observed also by his nurse and secretary. He said that it was a morning office visit and that he was not driving on that occasion and had a beer or two. He also at this point noted his perfect driving record with transports of over 30 years and 2 million kilometres accident free.

The Applicant acknowledged the fact that he found Dr. D. H. to be very harsh and critical. "The doctor had never asked him if he has had a drink when he drives". The Applicant's mental and emotional stability was reviewed and he has been treated for bipolar condition ever since the collapse of the function of his thyroid many years ago (myxoedema). The doctor had missed this diagnosis. He suffered depression and anxiety but the thyroid deficit has been corrected with .175mg of Thyroxin daily. The Applicant says he has always been compliant. The Applicant also noted that his doctor still feels that he needs medication to stabilize his bipolar condition which apparently developed about the time of the thyroid problem.

The Applicant described the serious nature of his work; he is now in charge of a garage servicing the transports and indeed he has a very responsible job. He noted from his employer's note that he is doing quite satisfactorily and says that he never drinks at any time when he is on the job.

Questioning from the Tribunal disclosed that the Applicant is a beer drinker and never consumes liquor or wine. As a routine every day of the week, he has 2 beers when he comes home and then 1 more with dinner. On the weekend, he may visit grandchildren and there is no drinking there, but then has one beer at home

The Applicant disclosed that he also suffers from chronic lymphocytic leukemia which is dormant. He is receiving no therapy. Explaining his regular weekly consumption, he says it is sometimes less than a case of 24 and sometimes a little more than a case. He says that after a 4½ year separation from his wife because of her infidelity, a divorce was obtained two months ago. In that interim, he did drink much more than usual.

In cross examination, Mr. McKnight inquired as to the name of the drug being used for the bipolar condition and the Applicant could not name it. The Agent stressed to him that almost always with such medication one is not supposed to take alcohol at any time. He asked the Applicant why he was not carrying on with addiction counselling and was told it occurred too late in the day and also requires a $35.00 taxi ride there and back.

The Applicant stated in cross examination that he still goes to the AA meetings twice a week and he is still seeing Dr. D. H. The incomplete forms were then explored and the Applicant said he was under the impression that he would only have to do that after the 12 month interval. He also said that there wasn't a serious urgency about having a licence, but with winter coming on he thought it would be useful. He apparently is able to walk to most of the places that are important in his life.

Mr. McKnight explained the importance of returning the completed Substance Abuse Assessment Form which would provide the M.T.O. with sufficient medical information to determine whether they had to pursue the full 12 month period and that it was even possible his licence might be restored sooner.

Mr. McKnight then questioned the lack of wisdom in appearing at a morning office visit with Dr. D. H. smelling of beer when he was supposedly presenting a case of not suffering from alcohol dependence. The Applicant explained that he maintained his somewhat unsatisfactory relationship with Dr. D. H. because of the horrors of trying to find a new doctor. Using the Substance Abuse Form as a template, Mr. McKnight questioned the Applicant's rate of consumption: in only 3 of 10 categories he has already achieved a high score of 9 and certainly there was an indication of dependence. Mr. McKnight also elicited the fact that the Applicant had become abstinent in April of this year and went approximately 7 weeks without alcohol just because he felt like it.

Mr. McKnight underlined the fact that the CCMTA states that if a driver is alcohol dependent he must not be allowed to drive because of the possibility of accidents related to mistakes and impaired judgment. The Agent went on to state that it is quite evident that the Applicant is alcohol dependent and must stop drinking for a year to achieve reinstatement of his driving privileges.

CLOSING SUBMISSIONS

Mr McKnight emphasized that this decision to suspend is reasonable. The Ministry must act on the Medical Condition Report and if there is a diagnosis of dependency there must be a demonstrated 12 month interval of abstinence. Mr. McKnight felt that the diagnosis is clear but that if the Substance Abuse Form is completed it would help the Ministry in shortening the interval. He again underlined that Dr. D. H. has reported the Applicant and that he has documented several incidents of excess consumption of beer and that the doctor wants him to continue with AA counselling. Mr. McKnight also expressed concern over the consumption of alcohol by a bipolar individual who is on mood altering drugs. He asked that the Registrar's position be confirmed.

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 Applicant has had an extensive series of medical problems over the years leading to licencing difficulties but until this occasion his driving privilege has always been restored. On March 5, 2012, Dr. D. H., his physician of longstanding, wrote a Medical Condition Report indicating problems of alcohol dependence and also mental instability. The doctor also added a detailed optional note describing the Applicant's longstanding alcoholism and mental health issues. He said the mental health issues have since been stable but that his alcohol problem is not. He described having seen his patient several times in the office in the early morning with a strong odour of alcohol on his breath. There were also several recent injuries where the doctor determined that alcohol was a factor. He also stated that the Applicant had previously been receiving addiction counselling and urged him to return to this plan. It was noted that the Applicant was a regular attendee at the AA meetings.

Inevitably, the Registrar of Motor Vehicles was obliged on March 28, 2012 to issue a letter of Notice of Suspension. Having received this M.C.R. from Dr. D. H. the Ministry had no other option.

The Ministry also outlined and detailed the steps that must be taken by the Applicant in order to regain his licence. None of this advice has been followed by the Applicant including the fact that he has failed to complete the Substance Abuse Form though the Registrar indicated that with the completion of this form, and a supportive letter from his doctor, there was the possibility that the one year suspension could be shortened. The Registrar's Agent has given the Tribunal a thorough review of the Applicant's problems and he took some time to explain how the Applicant can possibly shorten the suspension period by complying with the Ministry's requests.

In presenting his evidence,the Applicant has said repeatedly that he never drives when he has been drinking and has an impeccable driving record with no events in 30 years, having driven millions of kilometres. He is now in charge of the maintenance of the vehicles and his employer has written a brief note describing the Applicant's capabilities. The Tribunal notes that Dr. D. H. continues to prescribe mood altering drugs to control his bipolar problem which appears to be well controlled.

The Agent has indicated that the Ministry has very little information about the Applicant but they are in a position where the problem of possible alcohol dependence could not be ignored as described in the H.O. Medical Condition Report. They have requested further detailed information but this has not been forthcoming.

The Tribunal has an identical problem with the history taken from the Applicant at the hearing indicating that he is consuming a lot of beer on a daily basis. The CCMTA's standards state that if there is dependency, his licence must be suspended. This decision could only be based on the balance of probabilities. One must give credence to the doctor's Medical Condition Report which expresses his concerns. There is also the real possibility that if the Applicant follows the directions that the Registrar sent him on March 28, 2012, his driving privilege could be restored. The Applicant already has described to the Tribunal a period of several weeks of total abstinence which he had done on a whim.

The Tribunal must give emphasis to Dr. D. H.'s optional note on the M.C.R. showing his great concern regarding his patient's dependency.

DECISION

Upon the application by the Applicant to appeal the decision dated March 28, 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 confirmed.

LICENCE APPEAL TRIBUNAL

D. W. Hurst, M.D., Presiding Member

RELEASED: November 23, 2012