Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8130/MED
CASE NAME: 8130 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
8130 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Applicant: Ken J. Berger, Counsel
For the Respondent: Russell McKnight, Agent
Heard in Toronto: July 2, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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
Counsel for the Applicant presented clinical laboratory test results to be entered as an exhibit, by consent.
FACTS
The Applicant is a 38-year-old thespian whose driving privileges were suspended in a letter from the Registrar dated April 24, 2013 (Exhibit 1). The Registrar received a Medical Condition Report (“MCR”) dated April 15, 2013 (Exhibit 4, Tab 1) from a physician, reporting pursuant to section 203 of the Act citing “Alcohol Dependence”. The same letter requested the Applicant to provide the following information for consideration of restoration of driving privileges:
- if your physician confirms a diagnosis of alcohol dependence, the Ministry will require confirmation that you have been abstinent for a period of one year.
- the (suspension) period may be reduced if your physician confirms that you have successfully completed an alcohol treatment program.
- your physician is supportive of (restoration) of your driving privileges and attached a Substance Abuse Assessment form (“SAA”) for completion by the family physician.
Rather than complete the SAA form, the Applicant thought she might regain her driving privileges sooner if she appealed to the Tribunal. Counsel for the Applicant sent a Notice of Appeal (Exhibit 2) dated June 4, 2013.
The Applicant testified that in August 2012, she became concerned about her relationship with alcohol -- consuming four-to-five glasses of wine, three-to-five times a week. She voluntarily sought help from an addiction centre “before it became a problem,” and stopped drinking. The Applicant also voluntarily attended a three-week program at a residential alcohol rehabilitation centre from December 1 – December 21, 2012.
In March 2013, because of an “unfortunate life occurrence", the Applicant had a "relapse" and returned to the addiction centre. She saw the same physician who had seen her from August to December 2012.
According to the Applicant, in the Fall of 2012 this physician had been concerned about her injuring herself or others or committing a crime. But in March 2013, the physician told the Applicant she had to report her to the Registrar. When the Applicant asked what that meant, the physician’s reply was "they'll look at it, and probably call you in”.
The Applicant continues to see a registered health care professional for counselling on a weekly basis, and participates in support groups. The counsellor’s letter of recommendation dated June 10, 2013, states "she has also demonstrated a commitment to on-going sobriety" and is "motivated and committed to her recovery" and continues “she consistently demonstrates a high level of insight and personal reflection".
The Applicant is a busy professional with both business and teaching commitments. She needs her driver's licence to take advantage of business opportunities.
The sworn testimony of the Applicant's husband is straightforward. He confirms the Applicant's story of his coming home late at night to find her asleep on the couch in front of the personal video recorder (“PVR”) with a wine glass on the table. He states he is "hypersensitive" to alcohol dependence since he had to deal with the issue repeatedly during his film making career.
He doesn’t believe she has a problem and doesn't understand why she thinks she needs help, although he is supportive of her proactive stance.
He confirms she doesn't (and wouldn't) drink and drive and he is "pretty rigid about it". He is certain (because of his work experience) that he can tell if people are alcohol dependent (i.e. not showing up for work, making mistakes at work, hiding bottles, missing deadlines). He states that he and his wife are social drinkers and that guests' car keys are set aside at parties. He cannot understand that the mere checking of a box (on the MCR) has led to an immediate suspension of her driving privileges.
The letters of recommendation from colleagues (Exhibit 3) repeatedly state that the Applicant exhibits "consummate professionalism", never misses an appointment, is punctual, has never been late and "can be counted on". Counsel submits that these traits are not associated with alcohol dependence.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Is the Applicant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with 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 Tribunal finds the Registrar has not made the case that the Applicant’s driving privileges should remain suspended.
The Tribunal finds the Registrar acted correctly in suspending the Applicant’s driving privileges following receipt of an MCR in April 2013, indicating alcohol dependence.
The automatic suspension and its justification are based on O. Reg. 340/94 of the Act, section 14(1)(b), which states:
(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.
and the guidelines of the Canadian Council of Motor Transport Administrators (“CCMTA”), Chapter 15, Section 16.6.3, Page 231, Substance Abuse or Dependence:
The physician at the addiction centre acted properly in sending the MCR pursuant to section 203 of the Act on April 15, 2013. The fact that he is in-training and is not the Applicant’s family physician is irrelevant. The Tribunal's experience is that most MCRs are completed by Emergency Room (“ER”) physicians. The Registrar must rely on the considered clinical opinion of the reporting physician.
The Tribunal finds the following facts:
- The Applicant voluntarily sought help in August 2012 at an addiction centre when she worried about her evening wine consumption.
- The Applicant has stopped drinking.
- Her husband’s testimony was credible and convincing. He is genuinely surprised that she believes she has a problem.
- The letters of reference (Exhibit 3) all refer to a competent, hardworking professional, exhibiting none of the traits commonly associated with alcohol dependence.
The Applicant's Counsel submitted the following in support of reinstatement of the Applicant’s licence:
- The physician that completed the MCR is not the Applicant’s family physician and that a higher standard of proof (other than the checking of a box on the MCR) is required for immediate suspension of driving privileges.
- That the suspension is a “drastic” action (“an overcall”) and does not address whether the Applicant can safely operate a motor vehicle.
- The Applicant has normal laboratory test results (Exhibit 5).
- The Applicant has a clean driving record – no demerit points; no driving under the influence (DUI) citations (Exhibit 4, Tab 3).
Counsel cites a Tribunal decision (6421/MED) regarding an alcohol dependence issue in which the Registrar’s suspension was set aside, referring to a Ministry of Transportation (“MTO”) alcohol form which was before the Tribunal Member in February 2011. He stated that the Member in that decision noted a criterion for being alcohol dependent is "50 or more standard drinks per week". Counsel stated this Applicant is not alcohol dependent because she has only 20-25 glasses a week.
The MTO alcohol form was not included in the current submissions. Granted, the issue is similar ("alcohol dependence"), but the circumstances are as different as the Applicants. It is noted that the Tribunal Member in the 6421/MED decision stated, "the standard number of drinks per week ‘was only one factor’ in determining alcohol dependence".
The 10-page SAA form (Exhibit 4, Tab 2a), which includes the Alcohol Use Disorders Identification Test (AUDIT) is a more comprehensive assessment of alcohol dependence.
The Tribunal agrees with the Applicant’s assertion that the automatic suspension, just for checking off a box on her MCR form lacks nuance. The Tribunal believes most physicians are unaware that there is a virtual automatic suspension if they check either “alcohol dependence, drug dependence or mental or emotional illness – unstable” box on the MCR.
The Applicant is portrayed by Counsel as a "problematic drinker", somewhere between a social drinker and an alcoholic (alcohol dependent). The Tribunal believes Counsel is correct; the Applicant cares more about her career and family considerations, rather than where her next drink is coming from.
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.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant does not currently suffer from an addiction to alcohol which is likely to significantly interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision effective May 4, 2013 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 set aside.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Member
Released: July 11, 2013