Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7987/MED
CASE NAME: 7987 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: Dr Garry Fisher, Member
APPEARANCES:
For the Applicant: His spouse, as Agent
For the Respondent: Russell McKnight
Heard in Toronto
April 17, 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 was accompanied by his spouse, who presented the majority of the information for him.
FACTS
The Applicant is a 56 year old man who was reported on October 7, 2009, by Dr. M.C. – an E.R. doctor in a regional hospital emergency room – via a form 203 – to suffer from "alcohol or drug abuse". He also noted – "threat to road safety is unknown".
The MTO sent a letter dated November 17, 2009, suspending his driver's licence. A Substance Abuse Assessment Form was included and the Applicant was advised to obtain reports on his status from a treating physician or a physician specialising in addiction. Biochemical markers were requested (MCV and GGT)
At the time of the suspension, the Applicant's licence was under suspension after he had been stopped on July 8, 2009, with a blood alcohol over 80. (He recalls that he was returning beer bottles to a beer store in cottage country the morning after a party when he attracted the attention of a police officer).
Late that summer, the Applicant's father died. He had been very close to him and took it hard. His wife points out that he had always been a nervous sort of fellow, prone to anxiety and depression. Dr N.A,. the family doctor,, prescribed diazepam for the anxiety and Tylenol #3 for joint aches. On October 7, 2009, he had taken diazepam, Tylenol #3 and some beer. He appeared to faint – enough so that his wife called an ambulance and he ended up in a nearby hospital. The Applicant was then seen by Dr. M.C. an ER physician who saw him once briefly. A form 203 was sent in signalling "alcohol or drug abuse".
The MTO letter suspending his driver licence didn't change his status – the licence was already suspended from the July 8, 2009 incident.
During 2010, the Applicant enrolled and attended self help meetings (AA), 3-4 times a week. His motivation seemed to be the need to fulfil MTO requirements for driver licence reinstatement. Another need was to see an "Addiction Specialist" and the Applicant began a programme on January 28, 2011, at a regional centre with Dr. G.B.H. The Tribunal had, before it, a note from this doctor dated March 29, 2011, to the MTO. It summarized the contact with the Applicant and, in the opinion of the Tribunal, wasn't a particularly helpful missive. Alcohol dependence was assumed. The Applicant completed the programme and declined further sessions.
On April 7, 2011, the MTO reinstated the Applicant's licence. "You will be required to file a follow up report on October 29, 2011. We will contact you before this date,"
On May 24, 2012, the Applicant was informed by the MTO that a new report from a knowledgeable physician plus recent results of bio-chemical markers was needed by July 19, 2012, or the licence would again be suspended.
On October, 31, 2012, Dr. N.A. wrote that his patient had not abused alcohol for the past six months and that the persistent elevation of liver tests was due to a finding (by Dr. D.M.N.) that the elevations were a direct result of Hepatitis C infection. That investigation is still on-going.
The MAC of the MTO is inflexible about the need for total abstinence from alcohol. The Applicant readily admits that he does have an occasional beer. He tells the Tribunal that the last event was at Christmas with his family.
Dr. N.A. wrote the MTO review section on January 2, 2013, that his patient had not abused alcohol for twelve months and the abnormal liver tests were due to Hepatitis C.
A suggestion from his internist is that since the Applicant has many old tattoos, Hepatitis C could have been introduced with multiple needles.
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
Is the Applicant addicted to the use of alcohol to an extent likely to significantly interfere with his 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
Section 203 of the Highway Traffic Act obliges a medical practitioner to report to the Registrar, by filing a form, if he/she suspects "alcohol dependence" which may make it dangerous for the person to operate a motor vehicle.. In this instance, an ER doctor saw the Applicant once, briefly, filled out a form, and sent it off to the MTO. The Tribunal has no other information than a simple checkmark in a box.
Section 14 of the Regulation is clear about addiction to alcohol or drugs. The assessment of the situation is based on CCMTA Medical Standards for Drivers and in this instance, the Tribunal turns its attention to the paragraph – "Earlier re-licencing may be considered upon favourable recommendation from ........a treating physician ...and the successful completion of a drug rehabilitation programme". Dr. N.A. was supportive. Dr. N.M.N. was supportive. The Applicant did complete a programme.
Several problems are apparent in the treatment of the Applicant:
- The original ER visit provides no explanation for the opinion of "alcohol dependence", but the Applicant has been so labelled since that day.
- The addiction specialist uses the phrase "has been diagnosed with alcohol dependence" which suggests to the Tribunal that he simply assumed the diagnosis. He offered no really useful information.
The total abstinence requirement of the MAC and CCMTA is certainly reasonable when it is clear and documented that a person is dependent on a substance or alcohol. Weighing the evidence, on a balance of probabilities, the Tribunal does not find that to be the situation in this instance. The Tribunal is impressed that the Applicant and his wife have presented a credible and truthful picture of their situation, supported by the documentary evidence of Dr N. A.. The Tribunal therefore finds that the Applicant is not suffering from a condition likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated July 19, 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 set aside.
LICENCE APPEAL TRIBUNAL
Dr. Garry Fisher, Member
RELEASED: April 23, 2013