Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-11-15
FILE:
8392/MED
CASE NAME:
8392 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 V
ehicles 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. David Borenstein, Member
APPEARANCES:
For the Applicant:
Self represented
For the Respondent:
Russell McKnight, Agent
Heard in Toronto
November 7, 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 April 27, 2013, Dr. D.S saw the Applicant in the Emergency Department. A Medical Condition report was completed and sent to the MTO. The report cited 'seizure - cerebral' as the reportable condition. The Applicant was notified in writing of suspension of his driver's license on May 3, 2013. The Ministry requested their Epilepsy and Seizures report form to be completed by the Applicant's family physician.
The Epilepsy and Seizure Report stated that the Applicant's primary medical problem is alcohol and drugs. His last seizure had been within the previous 5-6 months. It had been a generalized tonic-clonic seizure. The etiology of the seizure was alcohol/drug withdrawal. EEG, CT head and blood work had been normal. Also noted was that drugs had been used within the previous 5-6 months. A urine toxicology screen within the previous three months has been positive. The physician’s comments did state 'fit to drive'. The physician Dr. C.B. was the Applicant's long time family physician. The report was dated August 1, 2013. The doctor noted that the Applicant was to be referred to an internist, Dr. D. B.
Dr. D.B. saw the Applicant on July 15, 2013. The consult stated that the patient had no further seizures, promised to “quit cocaine and major drugs”, and was advised of abstinence and all drugs. “He can drive”.
On August 27, 2013, the MTO wrote to the Applicant and confirmed the suspension of driving privileges. They requested proof of abstinence from alcohol/drugs for a period of one year. This period of proved abstinence could be reduced if the Applicant had his physician confirm completion of an alcohol/drug treatment program. The MTO also requested repeat blood work that was normal and completion of their substance abuse assessment forms.
The Applicant has since submitted the following to the MTO: a substance assessment form dated October 29, 2013 in which it is noted that treatment goals only include abstinence from cocaine and the alcohol had been consumed as often as a 'beer once a week'. His most recent alcohol consumption had been dated as October 11, 2013. A certificate of completion for the Partner Assault Response Program was also submitted. It was dated July 11, 2011.
Lastly, the MTO, at hearing, submitted the Applicant’s driving record. Of note, is a suspension in May of 2002 for one year, also based on high alcohol levels when driving.
The representative for the MTO confirmed in Chambers that the Applicant had completed an alcohol/drug program at that time called 'Back on Track'. Thus, The Applicant has completed two rehab programs prior to his seizure from alcohol withdrawal.
The Registrar’s case:
As per the CCMTA Standards, it is reasonable to ask the Applicant to prove one year of abstinence from alcohol and drugs. There is already a history of a suspension in 2002, and a history of completion of two programs, both prior to the seizure from alcohol withdrawal that caused his current suspension. The Applicant admits to still drinking alcohol, and when questioned about his consumption on Oct. 11, 2013, responded, "What's one beer..... I didn't even think about it..." When asked what the programs had taught him, the Applicant responded "not much...it was a waste of money" and "I can't remember that stuff, it was so long ago". The Registrar feels that this attitude warrants a year of proven sobriety or at least completion of recent alcohol and drug rehab program to justify a reduction of suspension to six months.
The Applicant’s case:
He needs his driver's licence to work. He drives for a living and has lost a great amount of money thus far. His two physicians have cleared him to drive in their notes, even if the information the MTO requested was not included. He feels he sees others who are worse off medically, with their driving privileges, and that this shows he should have his privileges reinstated. He also feels he has done everything the MTO asked of him thus far.
His common law wife was with him in Chambers and did testify that he is not a 'big drinker', and has made efforts and can have an occasional drink without additional alcohol consumption. The night of the seizure he had binged and used cocaine. Both the Applicant and his partner were not completely aware of the difference between alcohol induced and alcohol withdrawal seizure. The generic definition of these two similar but distinct events was explained in Chambers.
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 Tribunal must ascertain whether or not the Registrar has met the burden of proof that the Applicant suffers from a condition that is likely to significantly interfere with his ability to drive a motor vehicle safely. The Tribunal concludes, on a balance of probabilities, that it has met its onus. In this case, the Applicant has had a withdrawal seizure from alcohol. It is his second suspension of his driving privileges related to alcohol. He admits to alcohol consumption in October 2013 despite being told by his physician to abstain. He hasn’t shown a great appreciation for the severity of his alcohol intake or the danger it might pose to both himself and other drivers on the road. He is at risk of alcohol intake and withdrawal complications. Additionally, he has not completed any recent alcohol/drug programs, though the Tribunal notes that the programs completed in the past do not appear to have not curbed his consumption of alcohol.
DECISION
Upon the application by the Applicant to appeal the decision dated May 3, 2013 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
David Borenstein, Presiding Member
RELEASED: November 15, 2013