Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8228/MED
CASE NAME: 8228 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: Dr. Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Barrie
August 14, 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”).
FACTS
The Respondent’s Evidence
The Applicant’s driving privilege was suspended in November 2007 under Section 47(1) of the Act following a Medical Condition Report that reported erratic behaviour and several motor vehicle collisions while taking Percocet and Oxycontin for degenerative disc disease, and hypothyroidism with severe obesity. She also had sleep apnea. Her behaviour was complicated by grief reaction following the death of her son.
Following treatment and stabilisation a favourable medical report was submitted and her driving privilege was re-instated in April 2009.
She was a member of the Canadian Armed Forces from 1986 to 2013.
On August 14, 2012 an unsolicited Medical Condition Report was completed by a Base physician, Dr. G. in compliance with Section 203 of the Act. The condition reported was:
Drug Dependence
Medication Misuse
Poor judgement with driving and decision making ability while under influence of medications
Patient is aware of this report.
On August 31, 2012 an unsolicited Medical Condition Report was completed by another Base physician, Dr. B. in compliance with Section 203 of the Act. The condition reported was:
Drug Dependence
Addendum to MCR filed by Dr. G. On August 14, 2012: Long history of escalating opioid use, with extreme resistance to treatment. Openly disregards her current narcotic agreement by engaging in doctor shopping and misuse of local emergency rooms and urgent care clinics. Clinically assessed as impaired on two visits and continued to drive despite being advised that she was unfit to do so. Police notified. Extremely poor insight and judgement, particularly with respect to driving. Patient is aware of this report.
The Registrar informed the Applicant by mail on August 31, 2012 that her driving privilege was suspended under section 47(1) of the Act.
She was requested to take the notice of suspension to her physician and to have a Substance Abuse Assessment form completed and submitted.
The form has not been completed and returned.
As a result of receiving her medical records under Access to Information the Applicant submitted a medical report of injuries sustained in a fall down stairs on August 29, 2012, for which she received treatment at a civilian hospital including a prescription for Percocet.
Her medical officer reported impairment by substance abuse on that date and reported to police that she was seen driving, having been advised on August 14, 2012 not to drive.
Also submitted was a report of drug screen performed on February 19, 2013:
No illicit drugs were detected.
A report by Dr. B. Dated January 8, 2013 stated:
This member has been a very challenging patient. She has demonstrated limited insight into her medical conditions and their interplay. Progress is unlikely to be meaningful until her substance issues are resolved, and she continues to deny these. Most unfortunate.
On July 30, 2013 the Registrar informed the Applicant that these reports had been reviewed and that it had been decided to continue her suspension.
She was requested to take the letter to her physician when her condition improves and that in order to be considered for reinstatement a favourable recommendation was required confirming successful treatment of substance abuse, and that she is taking medication at the appropriate dose for a minimum period of six months.
The Applicant’s Evidence
The Applicant stated that in 2011 she underwent plastic surgery and was prescribed Oxycontin and Percocet under a narcotic contract. She stopped using these narcotics in October 2011. In February 2012 she fell down stairs and injured her back during exercise and was given an anti-inflammatory prescription. She went to a civilian Emergency Room in August 2012 because her pain was increasing and was given Percocet which she combined with an ant-depressant which she had been prescribed previously.
Regarding her continuing to drive following the physician’s report of August 14, 2012 she stated that she did stop driving but was advised by colleagues that she could drive until she received official notice of suspension.
Following the reports by the physicians to MTO in August she attended an addictions counsellor but did not discuss the letter from the Registrar that requested a Substance Abuse Assessment.
The last time she took Oxycontin was in January 2013 when she took a dose from a friend on one occasion. She has been referred to a pain clinic for management of her continuing back pain. At present she is not in counselling but has not used narcotics since January 2013 and has not been prescribed opioids for about a year.
She received a medical discharge from the military in May 2013 and has returned to her civilian address and is attending the former medical clinic there.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Does the Applicant 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?
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 Agent for the Respondent stated that:
The Registrar was justified in suspending the Applicant’s driving privilege under Section 47(1)(g) of the Act upon receipt of reports by two physician, in compliance with Section 203 of the Act, that stated the conditions of drug dependence.
The Registrar was justified in continuing suspension of the Applicant’s driving privilege under Regulation 340/90 section 14(1)(b) upon failure by the Applicant to submit confirmation by her physician that her opioid abuse has been successfully treated and that she has been taking prescribed medication at an appropriate dosage for a period of six months.
Medical reports of escalating drug use and resistance to treatment.
The Applicant has failed to submit medical support for reinstatement and confirmation of abstinence from opioids for a period of six months.
The Canadian Council of Motor Transport Administrators, (CCMTA), Section 15.6.1 applies to all drivers who are the influence of prescribed psychotropic medication.
STANDARD: All drivers eligible for a licence if
- The functional abilities necessary for driving are not impaired.
The Registrar no longer requires completion of the Substance Abuse Assessment and since the Applicant is now under the care of a physician who has access to her medical records, she is strongly advised to arrange for the confirmation requested in the letter of July 30, 2013 to be submitted by that physician in order to be considered for reinstatement.
The Applicant submits that there were errors in several of the physicians’ statements, in particular regarding her driving following the August 14, 2012 order by Dr. G. to stop driving. She submits that she did stop driving but was advised by colleagues that she could drive until she received official notice of suspension. She received the letter of suspension on August 31, 2012.
She acknowledged that she would approach her current physician to prepare a letter of support for reinstatement and confirmation of abstinence from opioids for a period of six months as requested by the Registrar.
The Tribunal finds that the Registrar was justified in suspending the Applicant’s driving privilege under Section 47(1)(g) of the Act upon receipt of two medical reports of drug dependence.
In the absence of medical information in support of reinstatement, the Registrar is justified in continuing the suspension under Regulation 340/94 (14)(a).
DECISION
Upon the application by the Applicant to appeal the decision dated September 10, 2012 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
Dr. Kevin Flynn, M.D., Presiding Member
Released: August 22, 2013