Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-10-24
FILE:
8276/MED
CASE NAME:
Applicant 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:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant:
Self represented
For the Respondent:
Russell McKnight, Agent
Heard in St Catharines:
October 18, 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
An unsolicited Medical Condition Report was completed on August 10, 2012 by Dr.K., the Applicant’s family physician for seven years, based on examination on August 9, 2012.
Alcohol Dependence
Police were notified on August 10, 2012. Her licence needs to be suspended and she accepts a treatment program to deal with her alcohol dependence.
Cannot reach her (to make her aware of the notice to the Ministry).
The Applicant informed the Tribunal that she was made aware of the notification to MTO by a message left on her telephone by Dr. K. She then contacted the local Licence Bureau for guidance and was advised to contact the Driver Review Section.
On September 4, 2012 the Registrar informed the Applicant that her driving privilege was suspended under section 47(1) of the Act.
She was informed that in order to be reinstated she must take the letter of suspension to her physician when her condition improves and have a Substance Abuse Assessment completed and forwarded to the Medical Review Section.
Due to a breakdown of communication between the Applicant and Dr. K., who had been not only her family physician for seven years but also a close social friend, she sought the assistance of a Dr. A. and requested that he complete the Substance Abuse form.
According to the Applicant, Dr. A. attempted to obtain patient information from Dr K.
and was unsuccessful. He applied to the Freedom of Information Office with the Applicant’s consent, with a written note:
Please send information on what our next step should be to have this patient get her licence back.
Dr. K. was requested by the FOI office to respond to the request for release of the medical report dated August 10, 2012.
On July 8, 2013 Dr. K. responded:
Please release the form as per patient’s request. Patient is no longer under my care. She could obtain copy of that from you or her Family Physician.
I have no objection to patient receiving copy of her form from her current F.P.
The Applicant then received a copy of the Medical Condition Report.
Dr. A. signed the Substance Abuse Form which was completed by a staff member on May 9, 2012, based on examination the same date.
How long has this person been your patient: Not completed.
Health History: not completed
Physical Assessment and Laboratory Information:
BP 126/71
Neurological Exam: all normal
Laboratory results on May 6, 2013
MCV: 102.1 (Range 80-100)
GGT 141 (Range 12-43)
AST 121 (Range 7-31)
ALT 56 (Range 10-44)
Age of First Use: 47
Age of First Regular Use: 47
First intoxication: N/A
Frequency of Use: every other day
Amount consumed on each occasion: 2 glasses of wine
Longest period of abstinence in last 3 years:2 months
Date of reduction or Abstinence: 2 month
Alcohol Related Syndromes: Not completed
Illicit drugs: N/A
Current use of Prescribed Medication: Age of first use: 50
Medications: Ezetrol,Rosuvastatin,Cipralex,Coversyl. All taken daily
Current Use of Over the counter meds: Potassium, Magnesium,Omega 3, Milk thistle
Other withdrawal syndromes: Not completed
AUDIT (Alcohol Use Disorder Identification Test (scored out of 10)
How often drink of alcohol: not in last two months
Has a relative or friend or a doctor or other health worker been concerned about your drinking or suggested that you cut down? Yes but not in the past year
Score: 2
Drug Abuse Screening Test (over past 12 months)
All negative response except:
Can you get through the week without using drugs? Yes
Are you always able to stop when you want to? Yes
Leeds Dependence Questionnaire (Score 10)
Do you drink morning, afternoon? Sometimes
Score: 1
Substance Dependence (DSM 1V) Criteria: Not completed
Substance Abuse (DSM 1V) Criteria: Not completed
Use of 12 Step Program; Use of Relapse prevention; Evidence to support maintenance of recovery; Diagnosis; Recommendations; Advice to reduce or abstain?; All Not Completed.
In response to receiving the Substance Abuse Form the Registrar informed the Applicant on May 22, 2013 that further information was required. The following was requested:
- An up to date report which provides a diagnosis of alcohol dependence or misuse.
- Confirmation that she has remained abstinent for a period of one year. This period may be reduced if her doctor confirms that she has successfully completed an alcohol treatment program and is supportive of reinstatement.
- Clinical explanation for the elevated bio-chemical markers submitted.
Dr. A. Submitted a laboratory report of tests performed on July 19, 2012:
MCV: 97.9 (Range 80-100)
GGT 53 (Range 12-43)
AST 39 (Range 7-31)
The May 22, 2012 information request was repeated by letter dated August 15, 2013.
The Applicant’s Evidence
The Applicant stated that she has been in Canada since 1995 and worked fulltime as an artist, with an international clientele.
She went to the office of Dr. K. on August 9, 2012 for a repeat prescription of Crestor. She walked to the office which was close to her residence.
Dr. K. was her family physician for 7 years and was also a close personal friend.
She was planning a trip to Europe to her country of origin. It was the anniversary of the death of her husband who was a police officer, and also her relationship with a new boyfriend had recently ended.
She had been on a strict diet and had not been sleeping well.
There was no discussion with Dr. K. on that day concerning her use of alcohol.
She acknowledged that her alcohol use had increased because of the above circumstances.
Her close friend, Ms E. was a mutual friend of the Applicant and Dr. K.
She was sworn as a witness.
She was contacted by the Applicant when the Notice of Suspension was received and went with her to the local Licence Bureau where they were advised to get the laboratory tests that had been requested.
She accompanied the Applicant to Dr. A. who tried to contact Dr. K. without success.
She called the MTO office for assistance and was with the Applicant when Dr. A. told them that he had no success from his attempts to contact Dr. K.
The Applicant stated that there was no discussion of alcohol during her visit to Dr. K on August 9, 2012. No blood tests were ordered on that date. The following day a message from Dr. K. on her answering machine stated:
Your licence is suspended. You are not to drive.
Following a recess, the Applicant informed the Tribunal that she had been working on a fund-raiser for her deceased husband in 2011. She had been to see her hairdresser for sponsorship and some disagreement occurred with her physician.
Dr. K. had told her boyfriend that she, the Applicant, should reduce her drinking and that a suspension could last only six weeks.
She informed the Tribunal that her last drink was in March 2013 during a party at her home.
Her friend, Ms E. informed the Tribunal that she had asked Dr. K. why she had notified MTO and was told that it was for “tough love”. It then transpired that an “Intervention” had taken place that included Dr. K., the Applicant’s boy friend, and two other friends.
Neither the Applicant nor Ms. E. were a party to this event where apparently a discussion took place about the Applicant’s use of alcohol.
Following the “Intervention” the boyfriend took the Applicant’s car keys and told her that she would get them back in six weeks.
This Intervention took place prior to the section 203 notification to MTO by Dr. K.
In her Reasons for Appeal, the Applicant stated that she had an international clientele for her art work and has been unable to earn a living without a driver’s licence.
She stated that she did not agree to take a treatment program when she met with Dr. K.
She maintains that Dr. K. handled this matter with malice and that the section 203 notice to MTO was not justified. Recent laboratory tests on July 19, 2013 showed that her previous abnormal results were now normal.
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 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.
The Respondent relies on:
The Medical Condition Report filed by a physician in compliance with section 203 of the Act that reported alcohol dependence. This justified suspension under section 47(1) of the Act.
The Applicant was advised to reduce her alcohol consumption by her friends and by her family physician, at a time when she was drinking more at the anniversary of her husband’s death and the break-up with her boyfriend.
Laboratory tests that showed evidence of increased alcohol consumption in May 2013
The report by her physician on August 10, 2012 that the police were informed that the Applicant should not drive.
There has been no medical support for re-instatement.
The Applicant did not make a submission to the Tribunal.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant’s driving privilege upon receipt of a Medical Condition Report of alcohol dependence from a physician in compliance with section 203 of the Act.
The Tribunal finds that based on sworn evidence by the Applicant and her friend who was involved following the suspension, the reporting physician was in conflict of interest when she reported to the Ministry under section 203 on August 10, 2012, in light of her participation in an “Intervention” where neither the Applicant nor her representative were present, prior to the notice to the Ministry under section 203.
This brings into question the justification for the section 203 notification of alcohol dependence on August 10, 2012.
Nevertheless, the abnormal laboratory results reported on the Substance Abuse Assessment on May 9, 2013, together with the Applicant’s account of the circumstances leading up to that time, are indicative of alcohol misuse. These results were markedly reduced close to normal on re-testing by her new physician on July 19, 2013.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a condition 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 Registrar’s decision effective September 14, 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
Dr. Kevin Flynn, M.D., Presiding Member
Released: October 24, 2013