Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-01-14
FILE:
7791/MED
CASE NAME:
7791 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
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patrick Coffey, M.D. Member
APPEARANCES:
For the Applicants:
self-represented
For the Respondent:
Kyle Biel, Agent
Heard in Toronto:
January 3, 2013
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
Registrar’s Evidence
Emergency Room Physician Dr. S sent a Medical Condition Report to the Ministry of Transportation concerning the Applicant on August 13, 2012. In this the physician wrote “Alcohol Dependence” as the medical condition.
After the Ministry received this report, a letter was sent to the Applicant informing her that it had been decided to suspend her driving privilege and detailing the steps which the Applicant would have to take for her licence to be reinstated.
The Substance Abuse Assessment Form was completed by Dr. T, the applicant’s family physician, on October 5, 2012.
Health History. The doctor indicated 1. Pancreatitis, and 2. Hospitalisations within the last 12 months. A fall on August 13th 2012, likely due to Alcohol intoxication. Patient used to drink frequently in the past but she quit alcohol drinking for five years. On August 13, 2012 she was upset for some family issue and drank again an unknown amount of alcohol. She has not been drinking again since August 14, 2012.
Physical Assessment was found normal. Laboratory Evaluation showed a reading of 101.4 for MCV (Lab range 80-97) and 69 for GGT (Lab range 5-40), (likely due to alcohol intoxication), on August 13, 2012.
The AUDIT score was 10. The Drug Abuse Screening Test score was 0, the Leeds Dependence Questionnaire score was O, there was 0 written besides the Substance Dependence and the Substance Criteria.
The Diagnosis was written “Misuse” of alcohol.
Laboratory test (urine) for Ethyl Alcohol was “Undetected”, September 22, 2012.
Dr. T wrote the following letter dated December 10th 2012, to “Whom it may concern”.
I, Dr. T, have been X’s (the Applicant’s) family physician and primary care giver since August 2004. I have examined and consulted with her on December 7th 2012 and have found that she is in stable physical and emotional health and certainly capable of driving a car. To the best of my knowledge she has not had any alcoholic intake since August 14, 2012. I recommend therefore that her driver’s licence and driver’s privileges be restored.
Laboratory report of December 5, 2012 showed the Applicant’s GGT to be 75, and her MCV to be 102.7.
The Certified Driver Record for the Applicant, (December 5, 2012), showed no convictions, discharges or other actions. The demerit points were zero.
The Applicant’s Evidence
The Applicant explained what happened on the evening of August 13, 2012. That day she received serious and worrying news about a member of her family. As a result of this, over the next few hours she drank a considerable quantity of alcohol and more than she should have. She fell and hit the back of her head. There was a cut which was bleeding. Her husband thought that the cut might need suturing, so he called an ambulance which took her into the Emergency Department of the local hospital and her husband drove to the hospital. The superficial wound on her head was attended to by a nurse. She was seen by a doctor in the Emergency Department, Dr. S, who ordered blood tests. Dr. S saw her several hours later and she was allowed home, about 5 a.m.
The Applicant was dissatisfied with Dr. S, who wrote a diagnosis of Alcohol Dependence after a very brief interview. As a result of the form Dr. S filled out, (the Medical Condition Report), the Applicant lost her driving privilege. She pointed out that her family physician, Dr. T, who has known her for the last eight years, wrote a very different report and expressed the opinion that her licence should be restored. The Applicant asserted that she is not addicted to alcohol and she has never driven under the influence of drugs or alcohol. She has a perfect driving record. She has been driving since her early twenties, She drove a large school bus for 10 years and a taxi for one year. For the last 25 years she has not had a speeding ticket, nor has she had any accidents or demerit points.
At the hearing the Applicant was asked why she abstained from alcohol for five years earlier in her life. She replied that her doctor was worried by the fact that tests showed that her liver might be damaged. He was not sure why and did not ascribe this to alcohol. She was asked at the hearing about her consumption of alcohol. She indicated that in her early life in a European country occupied by the Germans, food was extremely scarce at times, but she might at that time have consumed a little too much alcohol. Then, for the first few years after arriving in Canada she was too poor to drink and subsequent to that she indicated that she consumed alcohol sporadically. The Applicant said that since she lost her driver’s licence four and a half months ago, she has not consumed any alcohol. Her husband, who was at the hearing confirmed this.
The Registrar’s Concerns. The representative of the Ministry was concerned that, in spite of the claim of the Applicant that she had been abstinent from alcohol since August 14, 2012, the laboratory tests showed elevated levels of GGT and MCV on October 2, 2012 and on December 5, 2012. In fact, the levels in December were slightly higher than in October. He also questioned Dr. T”s reasoning where he wrote that the elevation of these biochemical levels in October were due to the Applicant’s consumption of alcohol in August, nearly two months before. The Respondent said that the Ministry had already requested a medical explanation for this, and he intimated that as soon as a satisfactory explanation arrived, the Ministry’s position would probably change.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
See Regulation 340/94
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
The Tribunal has to decide whether or not the Applicant is suffering from a medical condition that may make it dangerous for her to operate a motor vehicle.
The Tribunal considers that the concerns of the Ministry are valid, where it is shown that the laboratory GGT and MCV levels for the Applicant are slightly elevated. This could indicate (a) that the Applicant is still consuming alcohol, or (b) there is chronic liver damage of many years standing, possibly made worse by the Applicant’s considerable intake of alcohol on August 14, 2012.
Points in favour of (b)
Many years ago the Applicant’s physician was concerned about possible liver damage, indicating that the liver function test results were probably abnormally high. The Applicant testified that when she was young and in an occupied country in Europe during the 2nd World War, at times she had almost nothing to eat and at the same time consumed a slightly excessive amount of alcohol on many occasions. Because of this, she might well have suffered a degree of liver damage, leaving her blood liver function results permanently slightly deranged.
In the Substance Abuse Assessment Form of October 2, 2012 it was shown that there were no Alcohol Related Syndromes, the AUDIT score was 10 (low), the Drug Abuse Screening Test was entirely negative, the Leeds Dependence Questionnaire was zero, the Substance Dependence and the Substance Abuse Criteria were negative. The Diagnosis was written as Misuse (of alcohol), not Abuse or Dependence. All the data in this SAAF form indicate to the Tribunal that this diagnosis of Misuse rather than Abuse or Dependence is the correct one, and it tends to corroborate the Applicant’s testimony that she has been abstinent from alcohol for the last four and a half months.
The Applicant testified that she has not consumed alcohol in the last four and a half months which the Tribunal considers credible. This was corroborated by her husband who was at the hearing. The Tribunal also found this evidence of his credible.
Additional relevant Facts
The Applicant gives a history of having driven a large school bus and a taxi as well as the family car. Her Certified Driving Record is excellent.
In Dr. T’s report of December 10, 2012, he wrote, in part, that he found the Applicant in stable physical and emotional health and certainly capable of driving a car, and he recommended that her driver’s licence be restored.
The Tribunal is of the opinion that the Applicant is not suffering from a medical condition that may make it dangerous for her to operate a motor vehicle. The Tribunal has decided that the Applicant’s driving privilege should be reinstated.
DECISION
Upon the application by the Applicant to appeal the decision dated November 6, 2012 of the Registrar to suspend her 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: January 14, 2013