8374 v. Registrar of Motor Vehicles, 2013 CanLII 78369

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

DATE: 2013-11-15

FILE: 8374/MED

CASE NAME: 8374 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

8374 Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: David W. Hurst, M.D., Member

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Kyle M. Biel, Agent

Heard in Toronto October 31st, 2013

REASONS FOR DECISION AND ORDER

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

Mr. Biel presented a Medical Condition Report pertaining to the Applicant in which the list of common medical ailments showed a tick mark for alcohol dependence. The form was signed by Dr. J.S., dated May 10th, 2012.

On May 30th, 2012, the Ministry of Transportation ("M.T.O") wrote to the Applicant describing its receipt of a report indicating that she may have a condition that affects her ability to drive safely. The condition was noted to be alcohol dependence and the Ministry informed the Applicant that her driving privilege was suspended under section 47(1) of the Highway Traffic Act. In this form letter the Ministry then stated their requirements for reinstatement, specifically:

• Completion of the enclosed Substance Abuse Assessment form
• The Ministry asked for confirmation that she had remained abstinent from alcohol for a period of one year and this could be reduced if her physician confirms that she has successfully completed an alcohol treatment program and is supportive of her driving privilege. The considerations included a record of biochemical markers, which might be outside the normal laboratory range. Also needed were the results of all investigations and confirmation that the condition is controlled.

The Substance Abuse Assessment form was not completed at that time.

On June 7th, 2012, the Applicant wrote to the Ministry submitting letters applicable to her case. In that letter, she asked for "a delay of execution" on her driver's licence suspension.

An appended letter of June 4th was addressed "To Whom It May Concern" at M.T.O. file #000585875 and in this letter the Applicant stated that her doctor at emergency did not know her. She said she had passed both a police and a RCMP check. She had been in the AA for five years.

She noted she lost her job after ten years of employment on April 27th, 2012. She drank continuously for 14 days until she decided to admit herself to a local mental health centre which generated this Medical Condition Report leading to her suspension. The letter went on to describe the difficulties created by her loss of the driving privilege. She noted that while her family doctor had retired she said he would confirm that she has been battling her drinking with success and she felt that someone has made a horrible mistake.

As part of her submission she included a letter dated May 11, 2012 from Ms C.L., an addictions counsellor discharge planner, who reviewed the Applicant's involvement with their treatment centre indicating that she had been admitted on May 9th, 2012 and discharged on May 12th, 2012. She was accepted in an assessment interview with their community treatment services and was assigned to an addiction counsellor.

The Applicant's next submission was a letter dated May 28th, 2012 which confirmed that the Applicant had been at the aforementioned treatment centre and had attended an assessment on May 28th, 2012 reporting that she was abstinent from alcohol for the last 19 days and that her goal was to continue abstinence from alcohol. She said she had been attending the AA meetings on a daily basis, sometimes attending more than one a day when possible. She was hoping that the institution could provide her with further discussions of coping strategies around cravings, triggers and urges.

On July 17th, 2012, the M.T.O. wrote to the Applicant regarding her submissions, but merely pointed out that the information previously requested (Substance Abuse Assessment) had not been received.

Again, the Ministry stated that this form must be completed in full and if the physician confirms a diagnosis of alcohol dependence, the Ministry will require confirmation that you have remained abstinent from alcohol for a period of one year. Also required was that she had successfully completed an alcohol treatment program.

MTO again sent the Applicant the Substance Abuse Assessment form to be completed. This document was completed with the help of the Applicant by Dr. S.L. and is dated the 19th of June 2012.

A review of this completed document indicates that there have been and possibly still are some problems. The amount of alcohol consumed on each occasion was listed as 10 beers (the Applicant vehemently states this is in error and might have been not on one occasion but in one week). Her longest period of abstinence in the last three years was 5.5 months. Withdrawal symptoms have been experienced by the Applicant. The section on Alcohol Use Disorders Identification Test indicated that there have been problems leading to her consumption of beer. This section gave her an elevated score of 16 which indicates the possibility of dependence.

The section described as Leeds Dependence Questionnaire showed a score of 3 again indicating a possibility of dependence.

The section called Substance Dependence (DSMiv) Criteria again indicated problems including

• Substance is often taken in larger amounts or over longer periods then intended
• A great deal of time is spent in activities necessary to obtain the substance (e.g. driving long distances)
• Important social occupational or recreational activities given up or reduced because of Substance Abuse
• Continued substance use despite knowledge of having a persistent or recurrent social, psychological or physical problem that is caused or exacerbated by use of a substance
• Withdrawal, as manifested by either or: a) Characteristic withdrawal syndrome from a substance; or b) The same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

The final page of the Substance Abuse Assessment form dealt with attendance at the various inpatient and outpatient activities at her treatment centre and multiple meetings with AA. Also noted was her regular attendance and correspondence with her personal counsellor.

Evidence to support maintenance of recovery, all positive in this case, was:

• Responsible attitude
• Awareness of Harm Associated with Relapse
• Good social network
• No contact with substance abusers
• Engaging in alternative activity

It was recommended that she abstain. Laboratory work filed with this Substance Abuse Assessment form showed MCV 102.2 (normal range 80 – 97), MCH 34.8 (normal range 27.0 – 32.0), ALT was below normal and the GGT was in the mid normal range.

On October 4th, 2012, the M.T.O. wrote to the Applicant again stating that further information is required and asked that the letter be taken to a treating physician, specialist or nurse practitioner to have the following information sent to the Medical Review Section. The enclosed form was to be completed in full and all questions answered. This document was a Mental Health Assessment form.

This was completed and signed by Dr. R.W. on the 7th of November 2012. Herein, the patient's medical history disclosed that there was alcohol dependence and that the last alcohol intake had been in May of 2012. The Applicant's condition was described as stable, no current symptoms. This interval of stability was marked as between three to six months. There were no difficulties in cognition, attention or memory and no difficulties with judgment. She had been binge drinking previously but no alcohol had been consumed since May 2012. The patient was described as compliant with the recommended treatment regimen. The patient was under regular medical supervision. She was described as showing appropriate insight, particularly regarding the impact on her functional ability to drive. The note stated that the Applicant had taken no alcohol since May of 2012. She was described as still undergoing counselling at her mental treatment centre and was attending regular AA meetings. She was described as motivated to continue counselling and "stay quit".

On November 30th, 2012, the M.T.O. wrote to the Applicant stating that her medical report has been approved and that a notice of reinstatement will be mailed.

On June 6th, 2013, the M.T.O. wrote to the Applicant stating that their records indicated that you are required to file an up to date assessment from your treating physician or a physician specializing in addiction medicine; this assessment is now due and must include the following:

• Confirmation of continued abstinence from alcohol
• The results of recent biochemical markers (MCV, GGT, AST & ALT) with a clinical explanation if the results are outside the normal laboratory range.

On July 9th, 2013 Dr. R.W. wrote to the M.T.O. regarding the Applicant, stating as follows: "I am [the Applicant's] family physician. I am writing to provide up to date information regarding her history of alcohol abuse. I saw her yesterday in the office. She tells me that since May 2013 she has not been completely abstinent from alcohol, but has had only a few days of drinking three to four drinks per day; she is drinking much less than previously. She continues to attend alcoholics anonymous regularly. Blood work was done at a clinic and is attached. Her MCV is still elevated though it has improved since her last set of blood work in 2012. The elevated MCV is probably because of the effects on bone marrow of the alcohol, and the improvement in MCV is likely because she has been drinking much less. This should continue to improve as long as she does not return to heavy drinking again. Her liver enzymes are normal." The appended laboratory reports showed that the MCV was just scarcely elevated. The liver function tests were all within normal range.

On August 20th, 2013, the M.T.O. again wrote to the Applicant stating that they had received and reviewed the subsequent reports indicating that you have a condition that affects your ability to drive safely. Her reported condition was alcohol dependence. They told the Applicant that the Registrar has decided to suspend her driving privilege under section 47(1) of the Highway Traffic Act.

On October 2nd, 2013, the Applicant wrote to the M.T.O. requesting copies of all of her pertinent information.

Mr. Biel then entered a certified copy of the Applicant's driving record which records three suspensions for medical reasons and no demerit points. Also appended was a copy of the pertinent sections of the CCMTA standards section 15.6.3, having to do with the functional abilities necessary for driving which must not be impaired by any addiction or dependency. The M.T.O's position is that the Applicant is dependent, had treatment, has relapsed and still drives.

THE APPLICANT'S EVIDENCE

The Applicant's initial comment was that there was nothing untoward on her driving record before Dr. J.S. filed the Medical Condition Report on May 10, 2012. At that time, she had recently lost her job and was drinking fairly heavily. She voluntarily went to the area mental health treatment centre to get help with her withdrawal symptoms. The Applicant was very unhappy with these developments but was able to achieve a documented period of abstinence of 12 months and her licence was restored. Laboratory tests at that time were within the normal range.

She then admitted to Dr. R.W. that she had some "slips" with drinking on two occasions and then referred to her previous letters already documented in this narrative of her excellent driving record, an impeccable work record, and also noted that she had a high level insurance rating for her car. She claimed that she was proven to be not alcohol dependent. She pointed out emphatically that Dr. J.S. who filed this incriminating MCR report only saw her once. She never drinks and drives. Her use of alcohol is confined to beer.

Questioning from the Tribunal at this point confirmed that licencing problems were due to follow up medical reports. She emphatically stated that she is not dependent but may occasionally abuse the use of alcohol.

The Agent cross-examined the Applicant referring to the Substance Abuse report of "10 beers a day". She stated that was a mistake and probably referred to 10 beers a week.

The Applicant admitted that the AA knows about her drinking. She agreed that the local mental health treatment centre is "abstinent based" and she said she was abstinent for one year and then relapsed. She then completed the relapse prevention program. Mr. Biel noted that Dr. S., Dr. L., and Dr. W. all described the Applicant as dependent. The Applicant denied this. The Agent then noted that she has labelled all of the doctors' comments as being incorrect and she agreed.

SUBMISSIONS

Mr. Biel drew the Tribunal's attention to the Applicant's unacceptable scores from the various sections of the Substance Abuse form and indicated that shortly after the Applicant had achieved the restoration of her driving privilege she began to drink again.

Mr. Biel summarized M.T.O's position beginning with Dr. R.W.'s letter of July 9th, 2013 (a follow up report) indicating that while the Applicant drinks, she is drinking much less, hence the improvement in her laboratory markers. He said that the Applicant is still consuming three to four beers a day and is still dependent. At section 14(b) of Ontario Regulation 340/94 it states that the licence holder must not be addicted or dependent on any substance which would interfere with her ability to drive safely. The Agent pointed out that Dr. S., Dr. L., and Dr. W., all concur that the Applicant is dependent. She said that they are all mistaken. The Agent noted the M.T.O. observes, again referring to the Substance Abuse form, marginal or poor scores in nearly all sections of this questionnaire. He noted that Dr. R.W recorded that the Applicant is using alcohol again, is not in remission, and not controlled. The diagnosis is not changed and the Applicant is alcohol dependent. He indicated that the Applicant may not clearly understand that despite her interval of abstinence of 12 months, this policy must continue. He asked for another 12 months period of abstinence.

The Applicant summarized her position, saying the action of the M.T.O. is very unfair. She achieved a period of 12 months of abstinence and said that nowhere do they state that she must never indulge in alcohol again. She says she is not dependent and does not drink every day.

Upon further questioning from the Tribunal, the Applicant indicated that after her licence was restored in November 2012 she had two "slips" and on each occasion she was using between three and four beers a day. These events occurred in a short interval in late June and early July of 2013 over some unhappy family problems. She denied any consumption of alcohol whatsoever since July of 2013.

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

Problems for the Applicant began when the M.T.O. received a Medical Condition Report with the box ticked for alcohol dependence by Dr. J.S. This was filed on the 10th of May, 2012.

Shortly after this, the M.T.O. wrote to the Applicant indicating receipt of a report stating that the Applicant was alcohol dependent. Under section 47(1) of the Highway Traffic Act, M.T.O. suspended her driving privilege. This form letter explained clearly to the Applicant what she must do to regain her licence. These steps included the completion of the Substance Abuse Assessment form. For reasons not clear to the Tribunal this was not done. The Applicant, to her credit, went to have treatment at a local hospital. This began in a residential withdrawal management unit on May 9th, 2012 with discharge on May 12th, 2012. At this time, a period of abstinence of 19 days was established in order to continue treatment with this institution. Her attendance with AA as often as twice a day was achieved.

On July 17, 2012 the Ministry again requested the completion of the Substance Abuse form. This document was eventually completed and signed by Dr. S.L. Review of the findings in this report indicated some problems with alcohol, but the Applicant did achieve a passing grade. After the completion of a Mental Health Assessment form with a satisfactory note added by Dr. R.W., the M.T.O. wrote to the Applicant on November 30th, 2012 saying that she would have her driving privilege restored.

On June 6th, 2013 the M.T.O. wrote to the Applicant indicating that an up to date follow up assessment was now required and on July 9th, 2013 Dr. R.W. wrote to the M.T.O. indicating that the Applicant is not completely abstinent from alcohol and had a recent set back, consuming three to four drinks a day, described as a reduction in her previous use.

A review of the Substance Abuse Assessment form indicates that there are significant problems. The section entitled Alcohol Abuse Disorders Identification Test created by the World Health Organization says any score over 13 shows that there is serious alcohol related harm occurring. The Applicant's score was 16 indicating that she must abstain from the use of alcohol.

In this same document, the DSMiv discloses that abuse is present and interfering with the candidate's life when there are three or more findings including problems with tolerance, withdrawal and loss of control, all indicating dependency. The Applicant's score was five.

The Agent underlined the regulation which states that the licence holder must not be addicted to an extent to interfere with her ability to drive safely. Dr. S., Dr. L., and Dr. W. all concurred that this dependency is present. The Applicant stated that they are all wrong. The evidence presented suggests that these doctors' assessments are accurate. Despite the Applicant's regular involvement with the AA for five years and the treatment received at a regional addiction treatment centre, the Applicant continues to drink. Dr. R.W. observed that the Applicant continues to use alcohol is not in remission, and is not controlled.

In the section of the CCMTA document 15.6.3 – substance abuse or dependence, it states all drivers are eligible for a licence if they meet the criteria for remission and/or have abstained from the substance for 12 months. The evidence presented shows the situation has not changed and the Applicant remains alcohol dependent. The Agent drew attention to the DSMiv criteria where the Applicant definitely failed the study in this medical segment of the questionnaire. The Applicant in summarizing her presentation claimed that the whole process has been very unfair. She initially achieved a 12 month of total abstinence and was never told that she had to continue with this policy and claims she is not dependent and doesn't drink every day. She also observed that her driving and work record is satisfactory. On questioning from the Tribunal she stated that she has been abstinent since sometime in July.

The Agent has produced evidence that while the Applicant achieved restoration of her driving privilege she has fallen below the standards of the law disclosed in the follow up examination. The Applicant while making some progress with her alcohol dependence may be lacking in insight of her problem. She passed the 12 months edict successfully but it is clear she still needs help. Institution of this 12 month rule becomes a useful measure in assisting the person (the Applicant) to a successful recovery. The Ministry is correct in its position that it is in the best interest of the Applicant, within the context of the Act, that she comply with their requirements.

The Tribunal finds the Applicant is, based on the evidence presented, addicted to the use of alcohol to an extent likely to significantly interfere with her ability to operate a motor vehicle safely. Given more time, it is hoped she can achieve total abstinence for the period required by the Ministry for reinstatement of her driver's licence.

DECISION

Upon the application by the Applicant to appeal the decision dated August 21st, 2013 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

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

RELEASED: November 15, 2013