8053 v. Registrar of Motor Vehicles, 2013 CanLII 32986

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-05-29

FILE: 8053/MED

CASE NAME: 8053 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

8053 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, MD, Member

APPEARANCES:

For the Applicants: Unrepresented

For the Respondent: Russell McKnight, Agent

Heard in Ottawa: May 22, 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's faxed material (four pages) dated May 17, 2013, by consent, was entered as Exhibit 4.

FACTS

1. The Applicant is a 67-year-old businessman said to have had an alcohol-withdrawal seizure on November 12, 2012. While lifting sign stakes from the back of a vehicle he had a syncopal episode and fell backwards, striking his head on the ground. The term "seizure" came from a bystander. This episode could be either a syncopal episode or unexplained loss of consciousness, or an alcohol-withdrawal seizure.
2. The Applicant was hospitalized November 12, 2012 until November 19, 2012, awaiting a Magnetic Resonance Imaging (MRI) examination of his head at another hospital.
3. A physician sent a Medical Condition Report to the Registrar dated December 12, 2012 (Exhibit 3, Tab 1) reporting pursuant to Section 203 of the Highway Traffic Act (HTA) checking the “Siezure (s)-cerebral” box.
4. In a letter dated December 6, 2012 (Exhibit 3, Tab 2), the Registrar suspended the Applicant's driving privileges and requested the Applicant to provide medical information to the Medical Review Section.
5. The Epilepsy and Seizures form was completed by his physician (Exhibit 3, Tab 3). The physician indicated "syncope/ loss of consciousness (loc)" on Part 1, Question 1. In Section B - Question 1 indicated "alcohol withdrawal" as the cause of his seizure. The physician further noted there was no evidence of recent atrial fibrillation.The physician indicates the Applicant is compliant with the recommended treatment regimen (abstinence), and has appropriate insight into his condition and its functional impact on his ability to drive.
6. In a consultation note dated November 16, 2012 (Exhibit 3, Tab 6), the Applicant's cardiologist states the Applicant is "a binge drinker" and "he had been drinking fairly heavily in the 48 hours prior to this event." The internist's impression was "ethanol toxicity with seizures and episodes of atrial fibrillation." Although the cardiologist states in the last paragraph that "he should be prevented from driving "until he is able to abstain from alcohol and has no further seizures," the Registrar has no record of a timely Medical Condition Report.
7. In a letter dated February 13, 2013 (Exhibit 3, Tab 7), the Registrar asked the Applicant to have a Substance Abuse Assessment (SAA) form completed by his physician.
8. The SAA form (Exhibit 3, Tab 10) states the Applicant has been abstinent of alcohol since his fall November 2012. He attended rehabilitative programs for alcohol dependence in 1985 and 1986. His current SAA form "score" is 8.
9. The Applicant has tried attending Alcoholics Anonymous (AA) in the past, but found that rather than being helpful, he was concerned the meetings made him wish he could drink more!
10. All the hematologic and biochemical markers requested by the Registrar have been within normal range (Exhibit 3, Tabs 11, 14 and 15) and Exhibit 4.
11. A letter dated April 4, 2013 (Exhibit 3, Tab 14), from his family physician is supportive of re-instatement of the Applicant's driving privileges.
12. The Applicant's certified driving record dated Mary 1, 2013 (Exhibit 3, Tab 22) shows no current demerit points.
13. Since the Applicant no longer wished a D-Z (commercial) driver's licence, the Cardiologic Assessment form (requested in the Registrar's letter dated February 13, 2013 (Exhibit 3, Tab 7) was not completed.
14. Upon receipt of a letter dated April 23, 2013 (Exhibit 1) continuing his driver's licence suspension, the Applicant filed a Notice of Appeal, dated April 26, 2013 (Exhibit 2).

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

The Tribunal finds the Registrar has failed to justify the continuation of the suspension of the Applicant's driving privileges (Exhibit 1).

The Registrar acted correctly in suspending the Applicant's driving privileges. In a letter dated December 6, 2012 (Exhibit 3, Tab 2) following receipt of a Medical Condition Report from a physician (Exhibit 3, Tab 1), faxed to the Registrar November 11, 2012.

The Registrar cites the Canadian Council of Motor Transport Administrators (CCMTA) guidelines (Exhibit 3, Tab 17), "Determining Driver Fitness in Canada," Page 231.

The Registrar maintains the Applicant has only two options for consideration of restoration of his driving privileges.

The choices are either:

(i) Evidence of alcohol abstinence and being seizure free for 12 months, or

(ii) Confirmed, successful treatment of a rehabilitation program and a support form from the family physician.

Referring to the CCMTA guidelines. Section 15.6.3 Substance Abuse or Dependence - All Drivers:

This applies to all drivers who are under the influence of alcohol and illicit drugs such as opoids, cocaine, amphetamines, etc.

STANDARD

All drivers eligible for a licence if

• Meets the criteria for remission and/or has abstained from the substance for 12 months.
• Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority and the successful completion of a drug rehabilitation program.
• The functional abilities necessary for driving are not impaired.
• Where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.

Conditions for maintaining licence

None

Reassessment

• Routine or more frequently at the discretion of the licensing authority

Information from health care providers

• Types of drugs used
• Details of underlying medical conditions
• Opinion from an addictions specialist and/or treating physician recognized by the licensing authority
• The successful completion of a substance abuse rehabilitation program and
• Report on whether the individual is abstinent and/or in remission

Rationale

These substances are known to potentially impair the ability to operate a motor vehicle safely.

The Registrar reviewed the Applicant's entire file following submission of the Substance Abuse Assessment Form (Exhibit 3, Tab 10) and laboratory data (Exhibit 3, Tab 11) and in a letter dated March 25, 2013 (Exhibit 3, Tab 12) asked for confirmation of continued abstinence from alcohol.

The Applicant's sworn testimony regarding the syncopal episode of November 12, 2012 differs significantly from the internist's letter dated November 12, 2012 (Exhibit 3, tab 6).

Rather than drinking heavily for the previous 48 hours, the Applicant claims it was more like 4-8 days in which he had a dozen beers and two bottles of alcohol. The Applicant says in mid-November 2012 his business was a little "flat" and he spent a lot of time sitting at home, watching television and was tempted to have just one drink.

The Applicant tried AA years ago, and "it is not for him." He further states AA is "his worst enemy." The Tribunal has heard similar remarks from other Applicants over the years.

Since hitting the back of his head in the fall of November 12, 2013, the Applicant has abstained from alcohol. He questions where the abstinence period of 12 months came. To him, it is "just a number, picked out of a hat.” He cites his clean driving record, over 1,000,000 miles of safe driving and normal laboratory results for biomedical markers.

The Applicant has now been abstinent for six months and has the support of his family physician for restoration of his driving privileges.

Accordingly, the Tribunal decides that it is unnecessary for the Applicant to wait another six months for restoration of his driving privileges.

In considering the entirety of the evidence, sworn testimony and submissions of the Registrar and the Applicant, the Tribunal is mindful of the safety of both the motoring public and the Applicant.

The Tribunal finds the evidence supports the conclusion that based on a balance of probabilities, the Applicant does not currently suffer from alcohol dependence which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon application by the Applicant to appeal the decision dated December 12, 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 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 is set aside.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, MD, Presiding Member

RELEASED: May 29, 2013