8354 v. Registrar of Motor Vehicles, 2013 CanLII 69321

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-31

8354/MED

8354 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

-and-

Registrar of Motor Vehicles

Respondent

David W. Hurst, M.D., Member

For the Applicant:

self-represented

For the Respondent:

Sonia De Santis, Agent

Heard in Guelph, Ontario

October 24th, 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

On November 5th, 2012 a Medical Condition Report was filed with the Ministry and signed by Dr. B.F. Under a list of common medical conditions there was a tick mark for alcohol dependence. An optional note stated in almost illegible script that there were ongoing struggles with alcohol dependence. There was a comment about a couple of incidents of driving under the influence. The note also indicated that the patient had embarked on a treatment program and she should continue to see her own physician (Dr. K.L.)

On December 5, 2012 the M.T.O. wrote to the Applicant indicating that her driving privilege was suspended under section 47(1) of the Highway Traffic Act. This form letter went on to state that the Ministry will require confirmation that the Applicant has remained abstinent from alcohol for a period of one year. This period may be reduced if her physician confirms that she has successfully completed an alcohol treatment program and is supportive of her driving privilege. An enclosed Substance Abuse Assessment Form was to be completed by the Applicant and her doctor.

On December 29, 2012 the Applicant wrote a letter “To Whom It May Concern” (M.T.O.) regarding the M.T.O.’s letter of December 5th, 2012. The Applicant asked for clarification and the possibility that the suspension could be reduced to six months and if so she would complete the Substance Abuse Form.

The Applicant went on to state that she does not drive under the influence of alcohol. She said that when the Medical Condition Report was filed she had been driven to the hospital by family and had not been driving at all and the doctor was aware of this fact. In this letter she stated that she had suffered from some alcohol dependence during times of stress. She was getting help from a regional mental facility for the past year. She was also attending five to seven AA meetings per week and sees an Addiction Counsellor on a regular basis. She sees a sponsor regularly, has never had any problems with the law, nor has she ever had a DUI. She emphasized that she does not drink and drive. She has just completed the self referral to this regional treatment centre for a five week inpatient program. She asked that her suspension be reconsidered.

On February 11th, 2013 the M.T.O. replied that her licence was suspended for medical reasons and that to achieve reinstatement she must comply with the requirements in their previous letter. They said that the period of suspension “may be reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege”. Also mentioned in this letter was that the Substance Abuse Assessment must be completed in full.

The Substance Abuse Form was completed and signed by Dr. K.L. and returned on March 22nd, 2013. In this report hospitalizations were recorded as including a period of admission January 4th, to February 8th, 2013 at the regional health centre and this note indicated that the Applicant had suffered from a chronic anxiety disorder since the age of 26. Laboratory work indicated a very slight elevation of the MCV at 100.4 and GGT at 47. She was noted to be using antidepressants (Effexor and Olanzepine).

In this Substance Abuse Form the section regarding Audit – alcohol use disorders identification tests – showed a total score of 8 owing to episodes of failing to do what was normally expected of her, a feeling of guilt or remorse about drinking on two occasions in a month, and also in the past year on four occasions. One of her advisors had expressed concern about her drinking.

The remainder of this Substance Abuse Questionnaire disclosed that she had continued to use alcohol to help her persistent or recurrent social or interpersonal problems, which in fact were exacerbated by the use of alcohol. This form also indicated that she has continued with her treatment programs and now has been totally abstinent for three months.

On May 22nd, 2013 Dr. K.L. wrote to the M.T.O. indicating that his patient has completed an inpatient alcohol treatment program successfully and she is supportive of her patient regaining her driving privilege.

Laboratory work on March 14th 2013 disclosed only a mild elevation of the GGT at 47, (normal range 5 – 40), with a normal MCV, AST, and ALT.

On April 19th, 2013 the Deputy Registrar of Motor Vehicles wrote to the Applicant stating that her Medical Report has been approved and that a notice of reinstatement will be mailed under separate cover.

On July 12th, 2013 Dr. K.L., the Applicant’s family physician, wrote to the Ministry stating that the Applicant’s licence had been reinstated based on information that was given to her. She then said in this letter that the information was inaccurate. She says that her patient has not stopped drinking alcohol although she had no reason to suspect that she is driving under the influence of alcohol.

On September 9th, 2013 the M.A.C. (Medical Advisory Committee) of the M.T.O. on reviewing matters as a result of a report received July 12th, 2013, recommended continued suspension. Their reasons were:

Driver has attended twice at a treatment centre and relapsing both times. She has a diagnosis of dependence which is supported by her attendance at this treatment centre to undergo an abstinence based program. The driver misled her treating physician by stating that she was abstinent and was subsequently reinstated. However it has been brought to M.T.O.’s attention by the treating physician that the driver did not actually cease consumption of alcohol. The driver must be suspended. Will reconsider reinstatement with a report from the treating physician to confirm this driver has remained abstinent from alcohol for a sustained period of 12 months.

September 9th, 2013 the M.T.O. wrote to the Applicant indicating that her licence was suspended. This letter again stated their requirements for reinstatement.

On August 1st, 2013 Dr. D.W. of a regional mental health centre wrote to the M.T.O. regarding the Applicant stating that she had entered a phase 3 after care program on February 25th, 2013 with active participation and expected discharge date as of October 28th, 2013. This letter described a 36 week treatment program which helps to prevent relapse and assists with the further development of problem solving and coping skills required on a day to day recovery. Outpatient follow up is also offered with a family member or significant other to deal with the broader impact of addiction, and to aid in the restoration of healthy family function. The follow up includes weekly educational sessions and group discussions/counselling sessions, 12 step meetings, and a fee to offset program expenses is charged.

On September 16th, 2013 the Applicant wrote to the M.T.O. stating that despite her suspension for alcohol dependence she is now in recovery and does not drink at all. She admitted to a very brief relapse in early July. She went on to state that she is now off work on disability for anxiety and depression. She is attending a minimum of 14 AA meetings a week in addition to attending an aftercare recovery program once a week. This program began after she had completed a five week program at a local treatment centre. She has meetings with her sponsor twice a week and is completing the 12 step alcoholics anonymous step work. The Applicant also says that she is entering an inpatient program at her health centre in early October for their Integrated Mood and Anxiety Program. In house AA meetings will continue during that period. She asked that her period of suspension be reduced.

The Agent for the M.T.O. completed her presentation by presenting a certified copy of the Applicant’s driving record indicating suspensions for medical reasons and showing no demerit points. She also presented segments of the CCMTA document with emphasis on chapter 15 regarding drugs and driving. In this part of her presentation she gave special emphasis to section 15.6.3 regarding substance abuse or dependence. Also she emphasized Ontario Regulation 340/94 section 14 of the CCMTA document. Herein are the standards to be met by all drivers with particulars regarding the use of alcohol or drugs “which are likely to interfere with his or her ability to drive a motor vehicle safely.”

THE APPLICANT’S PRESENTATION

She began by stating that she suffers from chronic alcoholism and explained the difficulties she had in attending and complying with all of the intensive treatment program which she has been carrying out for the past several months. As part of her narrative she presented a series of exhibits that have been bound together and presented as Exhibit 3 in the LAT file #8354/MED.

Review of the Applicant’s “exhibits”:

Exhibit 1

I am completely abstinent from alcohol
After completing the AA step 3, I have connected with my “higher power” and pray to him each day to remove the mental alcoholic obsession
I have never been one to drink and drive
I attend 12 – 14 AA meetings per week
I am currently in the Mental Health Centre aftercare program (weekly after the 5 weeks inpatient addiction program)
I have never had a DUI or had any other legal issues
I meet with my sponsor once per week and speak to her several times a week
I am a member of the local AA home group where I participate in the business meetings
I am currently an inpatient in a program at the local Mental Health Centre for two months which focuses on anxiety and depression as well as attending the in house AA meetings. This program will help my anxiety hence my chances of relapse behaviour
I have a good group of supporters through fellowship as well as family
Having my licence reinstated will enable me to continue to attend as many AA meetings as possible which helps my recovery immensely
I have become very active in the AA meetings (chairing the group often)
My physician is in favour of my driving reinstatement as noted in a letter I have as evidence

Exhibit 2 – August 1st, 2013 letter previously noted in the narrative from Dr. D.H.

Exhibit 3 – A letter from Ms L.B. (Applicant’s sponsor). This letter is a review the Applicant’s program is completed successfully. (Ms. L.B. outlined her therapeutic efforts, and satisfaction with the Applicant’s progress).

Exhibit 4 – A letter from her Mental Health Centre describing their requirements for a patient to be included in the Integrated Mood and Anxiety Program and stresses that the patient must have achieved three months of sobriety prior to admission to this treatment program.

Exhibit 5 – A letter from the Applicant’s family physician Dr. K.L. dated October 21st 2013. Again she describes the Applicant’s treatment for her alcohol addiction for the past 22 months. She has been abstinent from alcohol since July 10th, 2013 and has never driven while intoxicated. This doctor summarized in her letter stating that her patient is managing her condition well and she did not believe that she presents any risk while driving. The GGT liver function test appended to this doctor’s letter showed a level of 59, slightly elevated.

The Applicant in her closing statement said that she has been abstinent, committed to the AA program and aftercare, and is extremely desirous to return to her regular employment.

The Agent cross examined the Applicant asking for details of her initial visit to hospital regarding her alcohol, on November 5th, 2012. The Applicant said that she was suffering from panic and anxiety and had two glasses of wine which made her worse. She realized that she needed help and asked her sister-in-law to drive her to the hospital. She admitted her problem to the doctor but did not recall many details of the two day stay in the emergency department but was transferred to the local mental health centre. She described her drinking habit which became significant in her mid 30s eventually consuming four glasses (one bottle) of wine per evening.

The Applicant further described her treatment at the regional mental health unit. She has progressed now to the point of total abstinence. She described her one evening of relapse during this treatment period when she ingested four or five glasses of wine and understood the rule that her 12 month period of abstinence began again on that date (July 10th, 2013). She also described her current treatment program that consists of counselling during the day, with the family, the AA in a home setting, and back to the hospital at 9:45pm. Referring to her own Exhibit #4 she emphasised that she is stable with three months of sobriety and only needs help with her anxieties and is learning other tools besides alcohol to cope with this anxiety. She referred to her two drugs which are antidepressants. There are no other medical problems.

The Agent summarized by noting the Medical Condition Report describing the Applicant as being alcohol dependent on November 5th, 2012. She reviewed the ongoing help that she has received at a regional mental care unit. She observed that her last drink was actually July 10th, 2013 when she suffered a one day relapse.

The Agent commended the Applicant for her progress, underlining that she must remain suspended for a full 12 months, the period to be reduced with successful completion of her treatment program and supportive reports from her physicians.

The Applicant summarized briefly by pointing out that her employers are very supportive and wish her to return as soon as possible.

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 Applicant’s problem began on the evening of November 5th, 2012 when she, of her own volition, asked family to drive her to the emergency to seek help for alcohol dependency. She had realized for some time she suffered from dependence which probably developed as she used alcohol as a crutch to cope with her chronic anxiety and depression difficulties.

This incident at the emergency department triggered the completion of a Medical Condition Report of her alcohol dependence. The Applicant has been under suspension for her driving privilege since that time.

The Applicant has undergone extensive treatment both as an inpatient and an outpatient at the mental health unit, and progressed well. She became abstinent but unfortunately had a one day relapse on July 10th and now she has achieved an interval of abstinence of three months. A major part of her help has come from her attendance with the AA organization, both as an inpatient and in the home setting. Laboratory work has shown that the liver function tests have returned to normal with the exception of the GGT which remains slightly elevated. This slight elevation is possibly due to the daily consumption of mood altering drugs prescribed by the Applicant’s doctor. The Applicant has now completed a five month inpatient and outpatient course of treatment at her mental health unit and will now continue treatment as an outpatient with emphasis on her participation with the AA program. The Applicant’s doctor now states in a recent letter that the Applicant presents no risk as a driver. The position of the M.T.O. is that the Applicant is alcohol dependent and a 12 month suspension is mandatory under the edict of the Highway Traffic Act. This 12 month interval can be shortened subject to the approval of the M.T.O. if she completes a satisfactory treatment program and has supportive information from her doctor(s).

The Applicant has never experienced any difficulties with the police regarding her driving.

The Tribunal is presented with the difficult decision as to whether the Applicant is addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.

ON BEHALF OF THE APPLICANT:

She voluntarily sought help with her problem at the emergency room triggering an automatic Medical Condition Report regarding her dependency.
The Applicant has been fully compliant in her treatment program as an inpatient and outpatient at a well recognized mental health unit. The Applicant has been fully compliant in her attendance with the AA both as an inpatient and an outpatient.
The Applicant suffered one relapse in a period of many months and has now been totally abstinent for three months.
The Applicant states that she never drives under the influence and has never had any problems with the police.
The Applicant’s liver function tests have returned to normal, (the GGT is slightly elevated possibly due to the use of her mood altering drugs).
She has a supportive letter from her doctor stating that she presents no risk as a driver.
The Applicant’s employers (the County) are anxious to have her return as soon as possible.
The Ministry, with complete reports regarding the Applicant’s treatment program and supportive letter(s) from her doctor(s), can shorten the period of suspension.

ON BEHALF OF THE MINISTRY:

They acted appropriately upon receipt of a Medical Condition Report stating that the Applicant was alcohol dependent. There was no alternative.
As a result of her one day relapse she has now achieved only three months of abstinence.

Her doctor states that the Applicant represents no risk as a driver. She is progressing very well with the treatment program which is helping her to discover other methods of coping with her long term difficulties with anxiety and/or depression.

Weighing the evidence on the balance of probabilities, the Tribunal finds the Applicant is not addicted to the use of alcohol to an extent likely to significantly interfere with her ability to operate a motor vehicle safely. She is very compliant, with excellent insight, and has had skilled professional care.

DECISION

Upon the application by the Applicant to appeal the decision dated November 5, 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 set aside.

LICENCE APPEAL TRIBUNAL

David W. Hurst, M.D., Presiding Member

RELEASED: October 31, 2013