Licence Appeal Tribunal
Appeal in matter of licence
FILE: 8041//MED
CASE NAME: 8041 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
8041 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
TRIBUNAL: David W. Hurst, M.D., Member
APPEARANCES:
For the Applicant: self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto, Ontario May 23rd, 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
Mr. Biel for the Respondent presented a Medical Condition Report wherein a seizure – alcohol related, was recorded, and described as a first time general seizure under investigation. The date was the 25th of August, 2012.
September 28th, 2012
The M.T.O. wrote to the Applicant noting that he had suffered this seizure, thought to be alcohol related. Under Section 47(1) of the Highway Traffic Act they suspended the Applicant's driving privilege.
For reinstatement the Ministry requested: if after an assessment by his physician the diagnosis was confirmed of alcohol dependence and/or that you have experienced an alcohol withdrawal seizure, the Ministry will require confirmation that he has remained seizure free and abstinent from alcohol for a period of one year. This period could be reduced if the physician confirmed that he had successfully completed an alcohol treatment program and is supportive of his driving privilege.
Also requested was that the enclosed epilepsy and seizure questionnaire be completed and returned to the Ministry. It is noted by the Agent that this form has not been completed and returned.
December 5th, 2012
Dr. S. A. C. (neurologist) reported that the Applicant suffered a grand mal seizure on August 25, 2012. He was described as having been drinking heavily before and had withdrawn from alcohol on the day of his seizure. Examination on October 10th, 2012 was normal. His CT Scan was negative and an EEG done in the office showed no seizure activity. The patient had had no recurrence of his seizures. It was this doctor's opinion that this was a single alcohol withdrawal seizure and as long as he doesn't binge drink this should not be a problem. Dr. S. A. C. also filed with the Ministry the EEG report done October 10th, 2012 showing normal findings and that no seizure activity was seen as one would expect with alcohol withdrawal seizure.
December 17th, 2012
The Applicant reported to the M.T.O. regarding a letter from his GP, Dr. J. N. This letter dated December 14th, 2012 stated the Applicant is in good health and has been seizure free. He concurred with the neurologist's assessment that this had been a single alcohol withdrawal seizure. Dr. N. agreed that the Applicant must refrain from binge drinking and recurrence of withdrawal seizures would not be expected.
January 3rd, 2013
The M.T.O. wrote to the Applicant and reviewed these subsequent reports stating that his driving privilege should remain under suspension. They said that the medical evidence submitted to date did not support the reinstatement of his driving privilege.
For reinstatement they requested:
1: Information that he has remained seizure free and abstinent from alcohol for a period of one year.
2: This period may be reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of his driving privilege.
3: A clinical explanation for the results of any biochemical markers (MCV, GGT, AST & ALT) that are outside the normal lab range.
4: The enclosed forms to be completed in full and all questions answered.
With compliance for these requests the Ministry could then consider reinstatement of his driving privilege. It was noted that the Ministry had sent a Substance Abuse Assessment Form to the Applicant to be completed.
Also entered by the Agent was a copy of the Applicant's driving record with a suspension for medical reasons noted on August 10th, 2012.
The Agent also entered the CCMTA driving standards with particular attention to Section 17.6.3, alcohol – related provoked seizures.
This standard states: All drivers are eligible for a licence if:
1: The treating physician has confirmed that the cause of the seizure was alcohol use.
2: They have undergone addiction treatment and have received a favourable report from an addiction counsellor.
3: There is no diagnosis of alcohol abuse/dependency.
4: It has been at least six months since they have used alcohol and have not had a seizure.
5: Earlier relicensing maybe considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licencing authority, and the conditions for maintaining a licence are met.
It was the Agent's observation that review of these provisos shows that the Applicant complied with at the most 1.5 – 2 out of 6 of these conditions.
The Agent concluded that the medical reports they have received are quite inadequate to clarify the matter of the Applicant's possible alcohol abuse or addiction so that the CCMTA standards have not been met while confirming that the laboratory tests are within normal limits. He closed his presentation with the observation that the M.T.O. has not received the questionnaires and that the documentation they have received regarding this matter was not adequate to proceed with reinstatement of the driving privilege.
APPLICANT'S CASE
The Applicant informed the Tribunal that his doctor simply did not clearly understand what it is that the M.T.O. required. He also has told the Applicant he didn't know to what agencies he should send him for possible therapy. The Agent for the M.T.O. explained that they must rely on the Applicant's GP regarding such matters.
The Applicant went on to describe his seizure which was witnessed by others and admitted that he had been drinking heavily a day before this event and then had stopped his alcohol consisting of beer and brandy. He also admitted that he had been drinking a lot for two months taking perhaps a "mickey" (12oz) daily.
He described his normal drinking habit as 2 beers a day with the "guys" and consuming more on weekends, perhaps 12 beers on Saturday but not much on Sunday. He describes his drinking from Monday to Thursday as 2 – 3 oz of brandy plus the odd beer daily. He described his drinking habits over the years as being a light drinker on weekdays and less than a case of beer on weekends. He referred to the possibility of heat stroke and dehydration at the time of the seizure. After the seizure he remained abstinent for 4 – 5 weeks and since then has been having a casual 1 – 2 beers a day. He also described being abstinent from January 1st into early April and since then drinking a few beers in April and this included 1 beer last night prior to this hearing.
Regarding his doctor visits the Applicant described 2 – 3 visits with Dr. N., his family doctor, since last August and that Dr. N. has never commented regarding his drinking. He did see Dr. C. once and she, a neurologist, has described all tests as being normal.
Questioned by the Tribunal as to the failure to complete the Assessment Form (seizures and alcohol) he stated that his doctor didn't feel this was necessary. He also didn't know of any agencies to which he might refer the Applicant. The Applicant has received no medication for prevention of seizures.
Questioning by the Agent disclosed that at the time of the seizure there was no loss of control of bowel or bladder and no biting. It was noted that the Applicant had been in hospital for 2 – 3 hours for testing and was not alarmed by the event. The Applicant had no explanation as to why he was still drinking but said that it was only casual.
The Agent stated that the M.T.O. needs more comment as to whether the Applicant needs treatment. He recommended that he return to Dr. N., his family doctor, for further assessment, dealing with the missing Assessment Forms, in essence a more detailed report to the M.T.O. which is still lacking details in this matter.
The Tribunal questioned the possibility of the Applicant's alcoholism (no forms have been returned to the M.T.O.). The Agent said that this matter is about an alcohol withdrawal seizure and not about substance abuse.
The Agent's final statement confirmed that the Ministry needs a minimal of six months abstinence from alcohol and these forms to be filled out before they can consider reinstatement of the Applicant's driving privilege.
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 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
As a result of a grand mal seizure that the Applicant suffered after a period of very heavy drinking with withdrawal shortly thereafter this has resulted in the Applicant's loss of his driving privilege. He explained to the Tribunal that this very heavy drinking bout was largely due to an adverse land transaction (he owns a home construction company). Today's testimony has shown that while the Applicant is a quite enthusiastic drinker the subject of possible addiction/abuse of alcohol has not figured largely in the evidence given. The Agent, in his deposition indicated that the M.T.O.'s main concern is about the seizure. In the matter of the application of fairness and accuracy, it then becomes the concern of the Tribunal to make an accurate judgment.
In the Applicant's favour one must consider:
1: The doctors have not seen fit to consider or pursue substance abuse therapy and in fact the Applicant only sees his G.P. on a random or annual occasion.
2: Alcoholism has not been pursued at this hearing, in any detail.
3: The Applicant has voluntarily been abstinent for a significant interval (January to early April 2013).
4: The Applicant did not consider the possibility that he needs treatment regarding his consumption of alcohol.
5: The Applicant has definitely had a learning experience. Epilepsy has been ruled out and the Applicant's solitary seizure was the result of withdrawal from a period of heavy alcohol consumption.
THE M.T.O POSITION
They have received limited information from the doctors, and although alcoholism is not being stressed by the Ministry, they are requesting that the Applicant seek and receive treatment at a substance abuse centre. They also requested progress reports about dependency or an abuse problem but these have not been a cause of concern for the doctors.
The Applicant has correctly been concerned by the occurrence of a grand mal seizure. This after consideration and investigation has been deemed a solitary event assuming the Applicant does not indulge in binge drinking.
The Applicant is a rational person who has given an honest and accurate description of what happened and has also provided a detailed description of his regular drinking habits. It is the observation of the Tribunal the Applicant occasionally drinks to excess but at the same time is capable of periods of abstinence without any ill effects. While the Ministry has been rightly concerned about this event, it is the considered opinion of the Tribunal that the Applicant, a well-balanced individual, is not likely to indulge in such behaviour again.
DECISION
Upon the application by the Applicant to appeal the decision dated September 28th, 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
D. W. Hurst, M.D., Presiding Member
RELEASED: May 29, 2013