8077 v. Registrar of Motor Vehicles, 2013 CanLII 41655

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-06-24

FILE: 8077/MED

CASE NAME: 8077 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

8077 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATORS: Kevin Flynn

APPEARANCES:

For the Applicants: Self-represented

For the Respondent: Kyle M. Biel, Agent

Heard in Barrie June 14, 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

The Respondent's Evidence

On March 13, 2013 an unsolicited Medical Condition Report was completed by a family physician, Dr. M. who has known the Applicant for one year, in compliance with Section 203 of the Highway Traffic Act.

The condition reported was:

Alcohol Dependence

• Difficulties with excessive alcohol consumption.
• He denies seizure, DTs, or any legal involvement.
• My concern is that he is unwilling/unable to decrease his alcohol usage.
• The potential for alcohol and driving safely issue is very significant.
• Patient is aware of this report.

Attached to the report was a copy of laboratory results dated March 11, 2013.

Biochemical tests indicative of chronic alcohol abuse:

• AST: 52 (normal 7-37)
• GGT: 238 (normal 15-73)
• MCV: 113.1 (normal 80-100)

On March 19, 2013 the Registrar informed the Applicant that it had decided to suspend his driving privilege under Section 47(1) of the Act. He was requested to take the attached Substance Abuse Assessment Form to his physician, or nurse practitioner, and that if a diagnosis of alcohol dependence is confirmed, confirmation will be required of abstinence from alcohol for a period of one year. This period may be reduced if his physician confirms that the Applicant has successfully completed an alcohol treatment program and is supportive of reinstatement.

The information requested should be forwarded to the Medical Review Section.

The Applicant was informed of his right to appeal to the Licence Appeal Tribunal.

The Applicant telephoned the Medical Review Section on March 25, 2013 and was advised to take the Registrar's letter to his physician.

The information requested has not been received by the Registrar.

Notice of Appeal was received by the Tribunal on May 13, 2013.

Reasons for Appeal:

I see no justification for my licence being taken away from me under the Highway Traffic Act.

Reasons:

In 57 years of driving, I have one traffic ticket on my record.

I have never been charged with impaired driving

I never drink and drive.

The Applicant's Evidence:

The Applicant is 74 years of age, is retired from the Canadian Forces and lives alone since the death of his wife in 1999. He lives in a house some distance from his physician who began to provide care about one year ago. He attended the laboratory on March 7, 2013 in preparation for a general physical examination by his doctor and was seen by the physician on March 15, 2013. He disagrees with the date shown on the Medical Condition Report which is dated March 13, 2013.

He stated that the physician did not inform him on that day that a report would be sent to the Ministry of Transportation.

Under examination he informed the Tribunal that he began to drink after his wife died and that he has been attending for alcohol counselling at a Mental Health Clinic weekly for about twelve months. He is aware that his physician had spoken to the counsellor.

He was advised by his counsellor that controlled drinking was not appropriate and that he must stop.

His current usual consumption is two drinks of rum daily, whereas two years ago he drank one bottle a day. He drinks alone mostly at home and sometimes will stop drinking for three or four days. The longest period of abstinence was twenty one days on the advice of his counsellor.

He has two sons and a daughter who are aware that he is receiving counselling.

He no longer attends Dr. M. who completed the report to the Ministry and is having difficulty finding a new physician.

The Applicant stated that he does not believe that he can quit drinking as he has no motivation and has no interests or hobbies. He acknowledged that he took a drink the evening before the Tribunal Hearing.

ISSUES

Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?

See Regulation 340/94

Is the Applicant no longer 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.

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 Registrar relies on:

1. The Medical Condition Report of alcohol dependence, supported by abnormal biochemical markers of chronic abuse of alcohol, filed by a physician in compliance with Section 203 of the Act raised a concern for unsafe driving.
2. Section 47(1) (g) of the Act authorised the suspension of the Applicant's driving privilege pending further receipt of further medical information.
3. The Substance Abuse Assessment form that was forwarded to the Applicant has not been completed.
4. No medical support for reinstatement has been submitted by the Applicant.
5. Regulation 340/94(14)(2) coupled with the reporting physician's statement that the Applicant's alcohol dependence poses a significant risk to public safety and justifies the continuation of his suspension
6. The Canadian Council of Motor Transport Administrators (CCMTA) Section 15.6.3 applies to all drivers who are under the influence of alcohol and states:

All drivers are eligible for a licence if they:

• Meet the criteria for remission and/or abstain for 12 months.
• Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licencing 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.

The Applicant submitted a written statement filed as Exhibit #3.

There is no reason to have my licence suspended. I have an excellent driving record for 57 years.

I do not drink and drive.

I used to be a driving instructor in the military and I know the importance of responsible driving.

I was not informed prior to my doctor that the report had been sent in, only after and I was told that the report might be sent in.

My wife was receptionist for the doctor who sent the report for 13 years until her death in 1999.

I live out of town alone and taxis are very expensive.

The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant's driving privilege under Section 47(1)(g) of the Act upon receiving a Medical Condition Report of alcohol dependence from a physician in compliance with Section 203 of the Act.

The concerns expressed by the physician in the Medical Condition report were supported by biochemical markers for chronic alcohol abuse.

The Registrar was justified in continuing the suspension under Regulation 340/94 (14)(b) in light of failure by the Applicant to submit a completed Substance Abuse Assessment.

The reporting physician has stated that there is a "very significant risk to safe driving" in view of the unwillingness or ability of the Applicant to decrease his alcohol usage.

The Applicant has stated that he is receiving counselling for alcohol abuse. The Tribunal encourages him to follow the advice of his counsellor that he should quit drinking.

He is advised to take the Decision by the Tribunal to his physician.

DECISION

Upon the application by the Applicant to appeal the decision dated March 29, 2013 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 confirmed.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

RELEASED: June 24, 2013