Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7901/MED
CASE NAME: 7901 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.
APPEARANCES:
For the Applicants: self-represented
For the Respondent: Sonia De Santis
Heard in Toronto: March 12, 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”).
PRELIMINARY MATTERS
The Applicant submitted an additional document, a letter to the Applicant, dated March 11, 2013. In this letter the Ministry of Transportation informed the Applicant that the Substance Abuse Assessment Form was not received in its entirety and requested that the completed form be re-faxed to the Medical Review Section. The Respondent agreed to the admission of this letter in evidence, the document being marked as Exhibit # 4.
FACTS
The Registrar’s Evidence
Dr. A sent a Medical Condition Report to the Ministry of Transportation (MTO) on October 31, 2012, in which he indicated that the Applicant was suffering from the condition of Alcohol Dependence.
In the Certified Driving Record for the Applicant, dated February 13, 2013, it is indicated that the Applicant was convicted of speeding on July 27, 2010 and on November 30, 2012. Current Demerit points total 02.
The Applicant’s Family Physician, Dr. H sent a letter to the MTO, dated March 1, 2013, in which she wrote:
This letter is in support of X’s (the Applicant) appeal to have his driver’s licence reinstated. He has been a patient of mine since 1992; and he has certainly expressed to me that he does consume alcohol, and on occasion, too much. He has, however, very clearly stated that if and when he does consume alcohol he does not drive—and uses alternate transportation. He also, over the past three years, made concerted efforts to reduce his alcohol consumption—as verified by his recent blood work, in which his liver function tests were normal.
In the Substance Abuse Assessment Form, (missing several pages, including the date), it is shown that the AUDIT score is 8, and the Leeds Dependence Questionnaire score is 1.
Laboratory testing for the Applicant on November 5, 2009 showed the GGT level to be 97, (normal 15-73). Testing on September 9, 2010 showed the MCV to be 94.7 (within normal limits) and the GGT to be 70 (normal 5-50). Testing on March 12, 2012 showed the GGT to be 59, (normal 5-50). Testing on February 25, 2013 showed the GGT to be 48 (normal), and the MCV to be 94.3 (normal).
Mr. G sent the following letter, dated February 26, 2013, to the Ministry of Transportation:
I have been a friend of Mr.X (the Applicant) for several years. On many occasions, he has asked me to take him to the bar we frequent for a couple of drinks and then to take him home. On a couple of occasions, I have seen him there and he has asked for a ride home. I take him home in his car and then drive myself home in his farm truck. I have never seen him leave the bar impaired as long as I have known him.
Mr. M sent the following letter, dated February 27, 2013, to the Ministry of Transportation:
I am writing this letter as the owner of the X Bar and Grill. X (the Applicant) is a regular client of mine.
With respect to how he leaves my establishment after drinking, I can say I have never seen him drive away impaired, or I would have stopped him. I have seen him leave with a regular friend; I have called him a cab; I have ordered him a service which delivers both car and driver home. The only times he drives himself is if he has had only one or two beers.
The Applicant’s Evidence
The Applicant, who is a large animal veterinary practitioner, said that he has been curtailing his alcohol consumption over the past several years. He found it best to do this on his own. He tried Alcoholics Anonymous and also he was urged to undergo a rehabilitation addiction program. He has found that he is being successful without the aid of these.
Five years ago was the last time he drove while being over the legal limit of alcohol. If he drinks it is only in the evenings. He only drinks beer and this is always “light beer”, with less alcohol.
He was asked what his present alcohol consumption was. He said that his goal had been a maximum of 20 beers a week and this has now come down to 14 to 18 beers a week. He said that “The Ministry has stated that 14 beers a week is safe for a male”. He has just embarked on a six week period of abstinence from alcohol in conjunction with a friend.
For a long time the Applicant has been very careful to arrange for someone to drive him home, if it happened that he consumed more than one or two beers at a social function.
At the hearing there was a witness who is a long-time member of the office staff of his partner, a fellow large animal veterinarian, Ms. J. Since his license was suspended, Ms.J has been driving him on a daily basis around his practise. He addressed several questions to her, to all of which she answered “No”. These questions were the following:
Have you ever seen me drinking during a work day?
Have you ever seen a hangover?
Have you ever smelled alcohol on my breath?
Do I drink alcohol at lunch?
ISSUES
Is the Applicant 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?
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 Registrar relies on:
- Ontario Regulation 340/94 Section 14 that states:
An applicant 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 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.
- Section 15.6.3. of the C.C.M.T.A. Medical Standards for Drivers states that:
STANDARD
All drivers eligible if:
Meets the criteria for remission and/or has abstained from the substance for 12 months.
Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and /or treating physician recognised by the licensing authority and the successful completion of a drug rehabilitation program.
The functional abilities necessary for driving are not impaired.
Dr. A’s diagnosis of alcohol dependence (October 31, 2012).
The Applicant has not abstained from alcohol.
The Applicant did not seek help from Alcoholic Anonymous or an addiction specialist.
The Applicant relies on:
The Applicant’s family physician Dr. H’s letter, dated March 1, 2013. In this, the doctor supports the reinstatement of the Applicant’s driver’s licence.
The Applicant has been consuming less alcohol over the last several years and the latest Laboratory test results and indices for alcohol have been normal.
For several years the Applicant has been careful to arrange for another driver to take him home if he has consumed more than one or two beers at a social function.
The supporting evidence of Ms. J at the hearing.
The supporting letters of Mr. G, dated February 26, 2013 and of Mr. M, dated February 27, 2013.
The Certified Driver Record does not show any convictions for impaired driving.
In the Substance Abuse Assessment Form the score for AUDIT was 8, and the score for the Leeds Dependence Questionnaire was 1. Both these are low scores.
The Tribunal notes the above and is especially impressed by the fact that the Applicant has consumed and is still consuming less alcohol, to the extent that the liver function tests are now normal and that evidence is shown of the Applicant’s customary practise of using someone to drive him if he finds that he may have exceeded the minimum safe consumption level of alcohol.
After consideration of all the evidence and the application of the law to the facts, the Tribunal does not find sufficient evidence to warrant the continued suspension of the driver’s licence under Section 47(1) in that he does not suffer from a medical disability likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated December 4, 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
Patrick Coffey Presiding Member
RELEASED: March 20, 2013