#7756 v. Registrar of Motor Vehicles, 2013 CanLII 335

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-01-04

FILE:

#7756/MED

CASE NAME:

#7756 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:

D. Ian Turnbull, MD

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Kyle M. Biel

Heard in teleconference:

December 19, 2012

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Applicant against a decision of the Registrar of Motor Vehicles (the “Respondent Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

INTRODUCTION

The Applicant is a 48-year-old businessman whose driving privileges were suspended in a letter from the Respondent Registrar dated May 30, 2012 (Exhibit 3, Tab 2).

A physician reporting pursuant to Section 203 of the Highway Traffic Act (HTA) sent a Medical Condition report dated May 11, 2012 (Exhibit 3, Tab 1) indicating both seizures and alcohol dependence. He told the Applicant he would lose his driver's licence for two years (Exhibit 2).

The Applicant submitted much of the medical information asked for in the Letter of Suspension (Exhibit 3, Tab 2) dated May 30, 2012.

In a letter dated October 19, 2012 (Exhibit 1), the Ministry continued his driver’s licence suspension, requiring his physician to confirm to the Medical Review Section of the Respondent Registrar that the Applicant had been both seizure-free and abstinent from alcohol for one year, had successfully completed an alcohol-treatment program and supported restoration of driving privileges.

The Applicant sent a Notice of Appeal (Exhibit 2) dated November 23, 2012 and a teleconference hearing was arranged for Wednesday, December 19, 2012.

PRELIMINARY MATTERS

The Respondent wished to enter as an Exhibit, Chapter 15 (Drugs and Driving) of the Canadian Council of Motor Transport Administration (CCMTA) faxed to the Tribunal on December 14, 2012. With the agreement of both the Applicant and the Tribunal Member, Chapter 15 (Pages 218-232) was accepted as Exhibit 4.

The Applicant introduced a letter dated December 12, 2012 from his family physician sent to the Tribunal on December 14, 2012. The Respondent and Tribunal Member consented to this letter being accepted as Exhibit 5.

EXHIBITS

1. Letter dated October 19, 2012, continuing suspension of driving privileges – Registrar.

2. Notice of Appeal Medical – dated November 23, 2012 – Applicant.

3. Tabbed submission (1-6) – Respondent.

4. Faxed transmission dated December 14, 2012 – CCMTA Guidelines, Chapter 15, Draft 12, September 2012 – Respondent.

5. Letter dated December 12, 2012, from Applicant’s family physician – Applicant.

FACTS

The Applicant had an alcohol-withdrawal seizure in a grocery store May 5, 2012 (Exhibit 3, Tab 1). The Applicant remained in hospital for nine days. The Applicant says this was brought on by the long-awaited legal decision regarding custody of his daughter.

The Applicant had an alcohol-withdrawal seizure 12 years ago. At that time, he learned his wife was having an affair and his marriage broke up. He testified that it was “like having the rug pulled out from under you.”

The Substance Abuse Assessment (SAS) form dated June 18, 2012 completed with his physician (Exhibit 3, Tab 3b) indicates a score of six (6).

The same SAS form, Page 5 – Substance Dependence Criteria – queries “periodic excess alcohol-related to social stress”.

Exhibit 3, Tab 3g is a “draft” SAS form which the Applicant prepared prior to meeting with his family physician (it is neither signed, nor dated).

Exhibit 3, Tab 3g summarizes some of the stressors the Applicant has been dealing with, beginning with his marriage breakup 12 years ago and subsequently a protracted custody battle for their daughter.

The Applicant believes the sexual allegations surrounding the custody dispute cost him his job in 2009. He is currently grieving the job action and hopes to be re-instated.

The Applicant’s current source of income is two rental properties. He fears losing his properties if he is unable to renovate and rent them. He needs his car to carry his renovation tools.

Based on the information before the Respondent Registrar, the Applicant's driving privileges were suspended in a letter dated Mary 30, 2012 (Exhibit 3, Tab 2).

The Applicant’s certified driving record (Exhibit 3, Tab 5) shows an effective date of driver's licence suspension of June 12, 2012 and no demerit points.

ISSUES

Should the decision of the Respondent 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 Tribunal finds the Respondent has failed to make the case that the Applicant’s driving privileges should remain suspended. The Tribunal decides that the Applicant's driving privileges should be restored and the decision of the Respondent Registrar set aside.

The first issue is the Applicant's seizure.

O. Reg. 340/94, Section 14(1)(a):

(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

The Applicant has had two alcohol-withdrawal seizures in the past 12 years, both revolving around the custody dispute with his former wife over their daughter.

The Applicant has not had a seizure in seven months. The Applicant testified that he “is not an alcoholic” and “does not suffer from alcoholism.” The Applicant said that he is "not just committed to sobriety, but 100% abstinence and he has no intentions to drink". He says drinking is "not his style", and he "has made significant life change."

The Applicant’s testimony was consistent with the medical evidence. The believability of his determination to remain abstinent was supported by his attendance at AA meetings and attempt to seek counselling.

None of the clinical, laboratory or radiologic investigations are abnormal.

The testimony of the Applicant’s witness and long-time friend indicates the Applicant had a responsible approach to alcohol and confirms the multiple stresses the Applicant was under.

He had a non-epileptic seizure due to another abrupt alcohol withdrawal on May 11, 2012. The Applicant attended weekly AA (Alcoholic Anonymous) sessions until the end of October 2012 and attempted to receive alcohol counselling, although the Applicant's attendance at Alcoholics Anonymous (A) was irregular and his early termination of his counselling for "privacy issues" was difficult to understand. His physician does not believe the Applicant is alcohol-dependent (Exhibit 3, Tab 6, and Exhibit 5).

The CCMTA Guidelines (Exhibit 4), “Section 17.6.3, Page 247, Alcohol-related Provoked Seizures” provides for earlier re-licencing upon receiving a formal recommendation of a treating physician.

All drivers eligible for a licence if:

• the treating physician has confirmed that the cause of the seizure was alcohol use;

• they have undergone addition treatment and have received a favourable report from an addiction counsellor;

• there is no diagnosis of alcohol abuse/ dependency;

• it has been at least six months since they have used alcohol and have not had a seizure;

• earlier re-licencing may be 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.

The second issue is that of alcohol addiction.

O. Reg. 340/94, Section 14(1)(b),

(1) An applicant for or a holder of a driver’s licence must not,

(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.

Many of the facts and evidence are common to the abrupt alcohol-withdrawal seizure May 11, 2012. The Applicant completed the SAS form with his physician and had a low score of six (6). HIs doctor did not indicate alcohol dependence.

The Applicant says he attended AA meetings until the end of October 2012. The Applicant states that the counselling sessions (two) ended "because of privacy issues".

In the CCMTA Guidelines (Exhibit 3, Tab 6) (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 opioids, cocaine, amphetamines, etc.

All drivers eligible for a licence 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 recognized by the licensing authority and the successful completion of a drug rehabilitation program.

The Applicant’s strongest case is made by the December 12, 2012 letter (Exhibit 5) from his family physician of 32 years:

"Please be advised that he is a regular patient of mine. He had his driving privileges suspended because of excessive drinking and a single alcohol withdrawal seizure.

He is no longer drinking. There have been no further seizures. His neurologic exam is normal. There was no evidence of seizure activity on his EEG. Liver function tests have returned to normal.

I do not think there is a medical reason for him not to drive. I recommend that his driving privileges be reinstated and that there should be lifelong abstinence from alcohol."

The Tribunal is mindful of the safety of both the Applicant and the motoring public, and has reviewed Ontario Regulation 340/94, Section 14 (1)(a) and (b) of the HTA.

The Tribunal recognizes there is no 100% guarantee the Applicant will not make an imprudent decision in the future when faced with "stressors". The Tribunal believes the Applicant is now committed to an alcohol-abstinent future.

The Tribunal has considered carefully the CCMTA Guidelines (Exhibit 3, Tab 6), Section 17.6.3, Page 247 and Exhibit 4, 15.6.3, Page 231. Both consider earlier re-licencing after seizure-free and abstinence periods of six months. The Respondent Registrar asked the Applicant to provide documentation of both alcohol abstinence and seizure-free for a period of 12 months.

In view of the combination of the CCMTA Guidelines and the reliable opinion of his family physician of 32 years, the Tribunal decides the Applicant need not wait for 12 months of being seizure-free and abstinent from alcohol.

In conclusion, the Tribunal finds that the Applicant is not suffering from either an alcohol addiction or a seizure disorder that is likely to significantly interfere with his ability to drive a motor vehicle.

DECISION

Upon the application by the Applicant to appeal the decision dated October 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 based on probability, the Tribunal has decided that the Applicant's driving privileges should be restored, and the decision of the Registrar be set aside.

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. Ian Turnbull, MD, Presiding Member

RELEASED: January 4, 2013