Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8082/MED
CASE NAME: 8082 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
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: Russell McKnight, Agent
Heard in London: June 6, 2013
REASONS FOR DECISION AND ORDER
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
The Applicant is a 32-year-old homemaker who became addicted to Oxycontin following a motor vehicle accident. She was subsequently referred to a physician specializing in “pain” and enrolled in his program in March 2010.
The Applicant and her spouse were unhappy with the pain specialist and left the program in June 2010. The pain specialist sent a Medical Condition Report (Exhibit 3, Tab 1), dated June 15, 2010, indicating “drug dependence.”
The Registrar, in a letter dated July 6, 2010 (Exhibit 3, Tab 3), suspended the Applicant’s driving privileges effective July 15, 2010 (Exhibit 3, Tab 13), and asked for detailed, up-to-date medical information from her physician.
The Applicant submitted a letter dated March 7, 2011 (Exhibit 3, Tab 4) stating she had been in a methadone clinic program since October 6, 2010 (Exhibit 3, Tab 4). The Registrar responded (Exhibit 3, Tab 5) in a letter dated March 15, 2011, reiterating the need for detailed, up-to-date medical information from either her treating physician or a physician specializing in addiction medicine.
In a letter dated September 24, 2012 (Exhibit 3, Tab 6), the Applicant wrote the Registrar stating that her driver’s licence had been suspended as a result of wrongful reporting by her physician to the Registrar that she was unfit to drive. In the same letter, the Applicant also asked for “a copy of what the doctor sent to you guys – it’s my right to get that from you,” “plus I want any other documents that involvement and the pain specialist.”
The Registrar’s response, in a letter dated October 22, 2012 (Exhibit 3, Tab 7), to the Applicant’s request did not include the Medical Condition Report (Exhibit 3, Tab 1), acceding to the reporting physician’s request “to be notified if his patient requested a copy of the report”.
In a letter dated October 22, 2012 (Exhibit 3, Tab 8), the Registrar wrote the pain specialist asking for a brief explanation of his concerns about the disclosure of the Medical Condition Report. The pain specialist responded (Exhibit 3, Tab 8a) in a letter dated November 2, 2012.The Applicant had a right to appeal to the Information and Privacy Commissioner .
There is no record of a decision by the Privacy Commissioner in the submission of the Registrar (Exhibit 3). The Applicant never received the requested copy of the June 15, 2010 Medical Condition Report and saw it for the first time in the Registrar’s disclosure package.
The Application resubmitted a Notice of Appeal (Exhibit 2), dated June 13, 2012, received by the Tribunal May 14, 2013. Thereafter, the hearing was scheduled.
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 made the case that the Applicant’s driving privileges should remain suspended.
The Registrar acted correctly in suspending the Applicant’s driving privileges in a letter dated July 6, 2010 following receipt of a Medical Condition Report (MCR) dated June 15, 2010 indicating drug dependence.
Although the drug(s) involved were not stated in the MCR, the Registrar’s agent stated that since 2007 the Registrar’s policy has been to automatically suspend driving privileges if either alcohol dependence or drug dependence or a psychiatric condition is checked off.
The Registrar again acted correctly in asking the Applicant to supply detailed, up-to-date medical information to the Medical Review Section regarding her condition in a letter dated July 6, 2010. The Registrar reiterated the request for medical information in a letter dated March 25, 2011.
The Applicant responded in a letter dated September 24, 2012 (Exhibit 3, Tab 6), by complaining about her pain physician of March – June 2010. The Tribunal notes that there are more appropriate forums to deal with physician complaints, such as a local Academy of Medicine or the College of Physicians and Surgeons of Ontario (CPSO).
The issue before the Tribunal is not her pain physician's allegedly "wrongful" reporting of the Applicant to the Registrar in a Medical Condition Report dated June 15, 2010. The Tribunal is focussed on Ontario Regulation 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.
The Applicant complained that the process is confusing, with many phone calls, numerous letters, differing requirements from various MTO staff.
The Applicant’s chief complaint is that the pain physician “wrongfully” reported her to the Registrar in the MCR dated June 15, 2010 . According to the Applicant, she had already left his practice and first learned of the suspension in the Registrar’s letter of July 6, 2010.
The Tribunal notes the physician neither names the drug(s) involved in drug dependence, nor uses an opportunity in the “optional” section of the MCR to elaborate.
The Tribunal does not understand the pain specialist’s disingenuous reasons in his letter dated November 12, 2012 (Exhibit 3, Tab 8a) for not releasing the MCR to the Applicant who left his practice almost 2-1/2 years ago. The Applicant knew which physician had reported her to the Registrar. The Registrar's letter dated July 6, 2010 indicated "drug dependence;" the only information included in the MCR.
The MCR contained the absolute minimum of required information. The Applicant paid $100 to have a Tribunal hearing to see the document which has caused her driving privileges to be suspended three years ago.
The Applicant currently has no family doctor, but sees two physicians weekly at the Methadone Clinic. It is not clear they are specialists in Addiction Medicine.
Either a clinic physician or a new doctor should be able to assist the Applicant in providing the medical information needed by the Registrar. The requested information is set out Exhibit 5, Tab 5:
- Reason for methadone maintenance therapy
- Confirmation that you are both clinically and functionally stable
- Confirmation that you have remained abstinent from all addictive substances for a period of one year (this period may be reduced upon receipt of a supportive statement from your treating physician)
- Confirmation that you are compliant with the rules and expectations of the methadone program
In sworn testimony, the Applicant states when she presents the clinic physicians with this request they tell her that sending a supportive letter to the Registrar would cost her almost $2,000.
Initially, enthusiastic about being referred to the pain specialist, the Applicant became disillusioned when promises allegedly were not kept, missed appointments were not followed up, physiotherapy and massage therapy were overlooked, and she couldn’t talk to the doctor, suggesting that the doctor was "abusive," etc.
According to the Applicant, a urine sample taken in early March 2010 at the pain specialist's clinic tested positive for a small amount of cocaine. To stay in the program, the Applicant had to write a letter acknowledging a relapse, although she stated in sworn testimony that she was “clean”, March to June 2010. But in her Notice of Appeal (Exhibit 2, Page 3), she refers to a “one-day exception” during this three-month period.
The Applicant states in her Notice of Appeal that "we have started another program that is amazing; we stay clean with the exception of maybe one-to-three times per year when we have a drink or two, and let loose." That is problematic, though candid, evidence which raises possible public safety concerns.
Further, the Applicant states in her Notice of Appeal that, "if this case is valid, then they would have to suspend everybody that drives. This is telling us that anyone on Oxycontin or any substance or alcohol should not drive."
The Registrar refers to Regulation 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.
The Registrar directs the Tribunal to the Canadian Council of Motor Transport Administrators (Exhibit 3, Tab 9), Edition 12, September 2012, Chapter 15, “Drugs and Driving,” Section 15.6.3, Page 231.
This applies to all drivers who are under the influence of alcohol and illicit drugs such as opioids, 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.
Currently, the Applicant says she is “clean,” and has been so for almost three years. The Applicant has had ample opportunity to comply with two reasonable requests from the Registrar to provide the detailed medical information required by the Registrar for consideration of restoration of her driving privileges, and has not. In sworn testimony, the Applicant acknowledges "there is always chance of relapse."
In considering the entirety of the evidence and sworn testimony and submission of the Applicant and the submissions of the Registrar, the Tribunal is mindful of the safety of both the motoring public and the Applicant., as it must be in the context of this legislation. While the Tribunal agrees with the Applicant that the information provided by the doctor in June 2010, which precipitated the suspension provided no detail and understands her resulting frustration with the resulting MTO process, the Tribunal supports the reasonable request of the Registrar for detailed and up-to-date medical information from her current treating physician before consideration of the restoration of the Applicant's driving privileges.
The Tribunal finds the evidence supports the conclusion that on a balance of probabilities, the Applicant suffers from drug dependence which is likely to interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated July 15, 2010 of the Registrar to suspend her 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 confirmed.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, MD, Presiding Member
RELEASED: June 20, 2013