Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7848/MED
CASE NAME: 7848 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: D. Ian Turnbull, MD
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Guelph: January 28, 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 Applicant is a 58-year-old businessman who had the MTO (Ministry of Transportation) Medical Report completed by his family physician (Exhibit 3, Tab 1) on April 29, 2011, as a condition of maintaining his AZ licence. The physician stated the Applicant was addicted to alcohol and indicated “previous history of excessive alcohol intake – recently (illegible) a week.”
In a letter dated July 6, 2011 (Exhibit 3, Tab 6), the Registrar asked the Applicant to complete a Substance Abuse Assessment form (SAA) with his physician. The completed SAA form (Exhibit 3, Tab 7a) dated August 22, 2011, said the diagnosis was “alcohol dependence”. His doctor recommended abstention from alcohol.
In a letter dated October 18, 2011 (Exhibit 3, Tab 8), the Registrar suspended the Applicant’s driving privileges for medical reasons under Section 47(1) of the Highway Traffic Act (HTA) and asked him to provide the Registrar with medical information to consider possible re-instatement of his driving privileges.
On February 6, 2012, an Addiction Medicine Specialist sent his report (Exhibit 3, Tab 13) indicating “chemical dependency”. The Applicant says the physician told him to abstain from alcohol.
The Addiction Medicine Specialist stated that alcohol consumption was at night, 1-1.5 bottles of white wine, and that he had been drinking that amount for the past 10 years. Although the Applicant had stopped drinking in 1996 (for three-to-four years), he resumed drinking Scotch, two-to-three 40-ounce bottles each week for at least six years. The Applicant told the physician that he spent $10,000 annually on alcohol.
In January 2012, the Applicant cut back to two drinks per month.
The Applicant’s score on the Alcohol Use Disorder Inventory Test (AUDIT) was 17, and on the Diagnostic Statistical Manual of Mental Disorders IV (DSM IV), the Applicant met five of the seven criteria for substance abuse.
In a letter dated March 16, 2012 (Exhibit 3, Tab 14), the MTO re-stated the medical information required by the Medical Review Section to consider re-instatement of his driving privileges including:
"Laboratory Tests
(1) Hematology – Mean Corpuscular Volume (MCV) – a measurement of red blood cell (RBC) size, and
(2) Biochemical Markers:
a. Gamma-glutanyl transpeptidase (GGT)
b. Asparate amino transferase (AST), and
c. Alanine transaminase (ALT)"
The letter re-iterated that confirmation of abstinence from alcohol for one year was required.
There was a possibility of reducing this period if the Applicant provided:
- Physician confirmation of completion of an alcohol treatment program, and
- Physician support for re-instatement of his driving privileges
In a letter dated March 20, 2012 (Exhibit 3, Tab 15), his physician provided a supportive letter to the Registrar, stating the Applicant had reduced his alcohol consumption significantly, and the Applicant is not planning to become completely abstinent.
Following a letter dated July 31, 2012 (Exhibit 3, Tab 18) from the Registrar saying the MTO was still unable to re-instate his licence, the Applicant filed a Notice of Appeal dated January 7, 2013 (Exhibit 2), with submissions.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
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 Registrar has made the case that the Applicant’s driving privileges should remain suspended.
The Registrar acted properly in suspending the Applicant’s driving privileges in a letter dated October 18, 2011 (Exhibit 3, Tab 8), effective October 28, 2011. The suspension was based on receipt of the SAA form, completed by the Applicant’s physician of 20 years, indicating alcohol dependence.
The Registrar was correct in asking the Applicant to provide up-to-date medical information, including proof of abstinence from alcohol for one year.
Following an inquiry by the Applicant, the Director of the office of the Medical Addiction Specialist in a letter dated February 14, 2012, expands on the Addiction Medicine Specialist’s physician’s report (Exhibit 3, Tab 3) in Exhibit 2, Tab “J”) follows:
"AUDIT score of 17 – needs education and individual counselling.
DSM-IV score – over a 12-month period, the Applicant scored positively in five of seven categories:
Tolerance
Drinking more than intended
Unsuccessful attempts to cut down in use
Impaired social activities
Using alcohol despite physical and psychological consequences"
The diagnosis of chemical dependency is considered in remission when there is 12 months of continuous abstinence, validated through a third party or laboratory work.
In a letter dated January 26, 2012 (attached to Applicant’s Notice of Appeal – Exhibit 2, Tab “H”), the Applicant visited a Community Addiction Services (CADS) facility. He told them he had “significantly changed his drinking in the last six months”, and went on to say, “he was not interested in abstinence.” In testimony, the Applicant indicated he had approached the same agency on three occasions, but nothing had come of it (availability of counselling is provided on the condition of alcohol abstinence).
The Applicant’s case is summed up in a letter dated July 20, 2012 (Exhibit 2, Tab “N”) and revolves around his now quarterly visits to his family physician who felt the Applicant could operate a motor vehicle safely as stated in a letter dated March 20, 2012 (Exhibit 3, Tab 15a). The Tribunal notes the self-reported changes in alcohol consumption over the past year and realizes the SAA report and the report of the Medical Addiction Specialist are over a year old.
The letter lists many administrative problems (short notice of licence suspension, delayed fax messages, phone waiting times with the MTO). The Applicant argues that in spite of the changes in his alcohol consumption (although not abstinence), he gets the same negative response from the Registrar each time he submits medical information, including laboratory tests.
The Applicant's letter, dated July 20, 2012, poses a difficult problem for the Tribunal. Seemingly, the Applicant's consistent refusal to consider abstinence precludes him from consideration of restoration of his driving privileges, let alone early restoration.
The advice of the Medical Review Section of the Registrar, the CCMTA Guidelines, medical addiction specialist, family practitioner and substance abuse counsellors, cannot be dismissed lightly by the Tribunal. These are experienced professionals with an interest in the safety of the motoring public.
The Tribunal has to assess the considered opinion of the Applicant's family physician, who states the Applicant can operate a motor vehicle safely. There are reassurances that the Applicant only drinks at night, only drinks at home and never would consider driving after drinking. Nevertheless, a person with an alcoholic addiction runs a significant risk of relapse, and the consequences are unpredictable.
The Applicant expanded on the reason his practitioner sent in the Medical Review Report dated April 29, 2011 (Exhibit 3, Tab 1). The Applicant says his physical condition had changed, and his laboratory results were abnormal. He was diagnosed (for the first time) with diabetes, Type II.
His family doctor told him that “abstinence was difficult to control, but moderation was even more difficult.” His physician also told him that “moderation was not a good thing to recommend.”
The Applicant believes his drinking of alcohol is a habit, not a physical dependence. He has had stresses, particularly 2003-2004, but currently has a new partner. He enjoys having a drink while he is cooking dinner.
The Applicant questions the concept of “proof of abstinence,” and wonders what his subsequent drinking habits would be should he abstain for a year.
The Applicant counters professional recommendations for abstinence from multiple independent parties with “what else could a doctor say?” and that it would be more difficult to confirm moderation than abstinence. His doctor told him that even if he abstains, the laboratory data will remain abnormal for some months.
The Respondent refers to the applicable regulation:
(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.
The Respondent also refers to the Exhibit 3, Tab 23, the Guidelines of the Canadian Council of Motor Transport Administration (CCMTA), Draft 12, September 2012 where it states on page 231- Section 15.6.3 – “Substance Abuse All Drivers” – the standard is abstinence from the substance for at least 12 months.
The Respondent states there is an opportunity for earlier re-licensing based upon a favourable recommendation from an addiction specialist and/ or treating physician and the successful completion of a drug rehabilitation program and a period of abstinence.
The Applicant has only supplied a supportive letter from his family physician, dated March 20, 2012. The Tribunal believes that restoration of the driving privileges should be based on more than a supportive letter from his physician which has already been rejected on numerous occasions by the Registrar.
The Respondent suggests, and the Applicant agrees, that he is “stubborn.” He continually rejects advice from many sources regarding abstinence, and he continues to drink and had done so even the night before the hearing.
The Respondent points out that had the Applicant followed his physician’s advice in August 2011 and abstained from alcohol, he would have had his licence back by now. The Applicant counters that he could simply say he was abstinent because the medical laboratory tests can’t prove it, but “he won’t lie.” The Applicant is interested in the repeated and improving results of laboratory tests, specifically a hematologic marker (MCV) and three biochemical markers of liver damage (ALT, AST and GGT).
There is no single laboratory test for alcoholism, and the hematologic and biochemical markers requested by the Registrar have the usual interpretative issues of both specificity and sensitivity.
The Tribunal supports the Applicant's change in his drinking habits and the positive changes in his lifestyle and health.
However, in considering the entirety of the evidence and the Act, the Tribunal is mindful of the safety of both the Applicant and the motoring public.
The medical evidence indicates an alcohol addiction, with physical consequences, that has posed concern to the medical professions who have seen the Applicant. The Tribunal finds the evidence supports the conclusion that on a balance of probabilities, the Applicant is suffering from an alcohol addiction and/or medical condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated October 18, 2011, 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
D. Ian Turnbull, MD, Presiding Member
RELEASED: February 13, 2013