Licence Appeal Tribunal
Appeal en matière de permis
FILE: 8067/MED
CASE NAME: 8067 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: 8067
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle M Biel, Agent
Heard in Kitchener: May 30, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the "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 5, 2008, the Ministry of Transportation Deputy Registrar notified the Applicant of his driving privilege suspension for medical reasons under section 47(1) of the Act.
Dr P.L. reported under section 203 of the Act that the Applicant had "alcohol or drug abuse" and "the threat to road safety is unknown".
The Applicant had voluntarily admitted himself to a private facility that specializes in dealing with addiction on January 29, 2008. He acknowledges that at that time he was addicted to cocaine. He was discharged before the course of treatment was up because of disruptive behaviour – he was found to be advising other patients on the financial benefits of buying duty free alcohol.
On the day of discharge Dr. P.L. filed a form 203.
A report from his Family Doctor (Dr. L.S.) was requested. It was to include a complete drug and alcohol use history, physical examination, urine toxicology screening, and bio-chemical markers (MCV and GGT) including explanations for any abnormal results. An Alcohol Assessment form was completed by Dr.L.S. on May 15, 2008. It described problem alcohol drinking, but not dependence.
A decision to appeal was taken to the Licence Appeal Tribunal (LAT) and heard on Jan 28, 2009. Findings were summarized in five points – the second of these being perhaps the most significant:
"The Registrar was justified in continuing suspension of the Applicant's licence to drive under Regulation 340/94 (14) (b) without medical evidence supporting reinstatement".
Following that decision a letter was received, dated May 5, 2009, from Dr. L.S. accompanied by urine test results: February 6 and 20, 2009 – positive for cannabinoids, March 10, 2009, positive for cocaine. She stated that she believed he would "stay abstinent in the future".
Dr. L.S. wrote again on August 24, 2010. She reported that 5 drug screen urine tests on October 30, 2009, April 23, 2010, April 27, 2010, and July 9, 2010 were negative. She noted that the random GGT on July 9, 2010 was 88 (range 15 – 73).
No explanation was offered and no follow up GGT tests were done.
The Ministry last wrote the Applicant on June 23, 2011. Opiates were detected in urine on May 11, 2011. The Applicant had a colonoscopy and was given the common combination of fentanyl and versed (May 25, 2011 note from Dr. M.T.) explaining the urine opiate.
Next the Ministry required confirmation of stability from his Family Doctor. She did state again in her August 2010 note that she thought the Applicant would remain abstinent.
For his part he testifies that he uses no alcohol.
The third Ministry request is problematic i.e. follow up bio-chemical markers MCV and GGT need to be done as the letter from two years ago stipulates.
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
In particular:
Is the Applicant 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?
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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver's licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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 contends that his original voluntary admission in January 2008, to a regional facility specialising in treating substance abuse, was that he wanted to get over his apparent addiction to cocaine.
In the process of answering about personal habits, he admitted to periodically drinking alcohol (and smoking marijuana in the past).
He testifies to the Tribunal that he does not now drink alcohol. Further, he notes that he has two small children, coaches little league, and is an all round good fellow. The Tribunal is inclined to believe him. He brought with him a fresh 5 drug screen urinalysis dated May 23, 2013. It is completely negative for drugs and alcohol.
What he has not done is deliver a fresh opinion from his doctor –Dr. L.S., although her last note stated that she thought he would remain abstinent and he attests to that before the Tribunal and in a signed note to the Ministry.
The Respondent has stated that new check lists have been or are being prepared for family doctors to assist in identifying the information sought by the Medical Review Committee of the Ministry of Transportation. A list would have been useful here – a repeat of the GGT would have been welcome, but not essential in making a reasoned opinion.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision effective March 15, 2008 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
Garry Fisher, M.D., Member
Released: June 11, 2013