Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-12-12
FILE:
8151/MED
CASE NAME:
8151 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:
David W. Hurst, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Kyle Biel, Agent
Heard in Toronto:
December 3, 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
Mr. Biel's presentation began with reference to a Medical Condition Report about the Applicant dated May 13, 2013 by Dr. C.F. On the list of common ailments he had ticked the box for alcohol dependence. An optional note stated that,
"The Applicant was recently my patient while in treatment for alcohol dependence. He was discharged on May 7th, 2013 after leaving the program early against medical advice. It is my assessment that he is at ongoing risk of driving while intoxicated". This Medical Condition Report had been filed with the Ministry required under section 203 of the Highway Traffic Act. On May 16th, 2013 the M.T.O. wrote to the Applicant about their receipt of a report indicating that "you have a condition that affects your ability to drive safely".
The Applicant was reported in this condition to be suffering from alcohol dependence.
The Registrar of Motor Vehicles decided to suspend his driving privilege under Section 47(1) of the Highway Traffic Act. This letter to the Applicant went on to state that:
- If your 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.
- This period may be reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege.
An enclosed form was to be completed in full and all questions answered. (This was a Substance Abuse Assessment Form).
The letter from the Ministry went on to state that when they have received this information from the Applicant they would review it against the National Medical Standard to determine whether his licence could be reinstated.
Mr. Biel then entered a copy of the Ministry of Transportation Substance Abuse Assessment form which was to be completed by a physician in the presence of the Applicant. This completed document has not been returned to the Ministry.
The Agent then entered a certified copy of the Applicant's driving record. There were two speeding suspensions.
Pertinent to this Tribunal there was an administrative driver's licence suspension beginning in September 2012 and ending in December 2012. In June of 2013 the Applicant was cited driving with more than 80mg of alcohol in September 2012. On the 5th of June, 2013 the Applicant's driving privilege was suspended until June 5th, 2014 for driving with a blood alcohol content in excess of .08.
The Applicant's current demerit points totalled 7.
In essence the Applicant had received a 190 day suspension of his licence after a criminal trial. There is also a medical suspension now running concurrently.
The Agent then entered a copy of the CCMTA document (Canadian Council of Motor Transport Administrators). He outlined chapter 15, drugs and driving, and section 15.1. He specifically itemized section 15.6.3 – Substance Abuse or Dependence – All Drivers. It states that:
"Earlier relicensing may be considered upon favourable recommendation from an addiction specialist and/or treatment physician recognized by the licensing authority and the successful completion of a drug rehabilitation program."
The Agent observed that regional centre made a diagnosis regarding the Applicant of alcohol dependence. M.T.O. wants a 12 month period of abstinence, documented, and a completion of a recognized treatment program, all of this being based on the Highway Traffic Act.
The Applicant had no questions regarding the Agent's presentation.
The Applicant presented his case stating that he had been suspended in December 2012 for driving under the influence, with the advice of his lawyer to try for a three month suspension with monitoring by an alcohol interlock device on his car. The Applicant also voluntarily went to an alcohol treatment centre for help.
The Applicant explained that he was never examined by the doctor assigned to him at this centre and no history regarding alcohol abuse was taken. He complained that he never actually had a "one on one" examination by this doctor.
The Applicant was very worried about the effect of this suspension (DUI) on his career. He appeared to be in denial as to any wrong doing. He admitted to having been convicted of this charge but claims that the breath analyzer test stated that he was not impaired.
The Applicant described his treatment at the Regional Centre being an inpatient from the 17th of April to the 7th of May, 2013. He left (against their advice) before the end of their 35 day prescribed course of treatment – "he didn't like it". He then acknowledged a second suspension interval because he did not complete his treatment program.
He stated that he never received an information package from M.T.O. At this point Mr. Biel commented that this package had been sent to the Applicant (correct address) on the 24th of June, 2013 and then later, the Applicant not being home to receive this mailing by the courier, the courier left a note indicating they would hold the package and it was ultimately returned to M.T.O. on July 11th, 2013. Mr. Biel explained that it was again sent to the Applicant by courier on July 11th, 2013 and delivery on July 12th and July 15th failed because the Applicant was not there. The package was held for 6 days and then returned to M.T.O. on July 24th, 2013.
Later this package was sent to the Applicant's new address in another city, again with failure to deliver. At this point the Applicant acknowledged that he had received a message from the courier indicating that the package was in an adjacent city but he did not pick it up. Mr. Biel informed the Tribunal that everything had been done that was possible to deliver this information package to the Applicant.
The Applicant said that since he didn't receive the package he never completed the Alcohol Abuse Form with the doctor. He then drew attention to reports on a blood test delivered to the Tribunal on December 2nd; he is now in a position to complete the form with his own doctor. The Applicant went on to explain that this Notice of Hearing document had arrived too late for him to complete his preparation for this hearing.
The Applicant then noted he has been receiving counselling on an outpatient basis from his regional treatment centre and stressed that it is an urgent matter to have his driving privilege restored. He is pursuing a graduate degree at a university in Ontario and ultimately plans to go to the U.S. to obtain his PHD in his chosen profession. He also noted that the evidence provided by Dr. C.F. is cursory only. He indicated that he has learned his lesson and in fact these events resulted in him missing a job costing him about $10,000.00. He said that he was more than willing to have his car fitted with an alcohol interlock device for the required one year period of abstinence.
At this point Mr. Biel indicated that this would have nothing to do with his medical suspension. It transpires that the Applicant has an appointment with his doctor for December 12th, to fill out the Alcohol Abuse Assessment Form.
The Agent cross examining the Applicant observed that Dr. C.F. is not the Applicant's personal physician but did interview the Applicant in multiple group sessions during his somewhat abbreviated stay at the treatment centre. The Applicant had left this centre early because he "had enough and didn't like his roommate".
The Agent then refuted the Applicant's statement that he had never received any Notice of Hearing. He noted Exhibit 2 in this presentation which was the document from the government of Ontario titled Notice of Appeal – Suspension or Cancellation of a Driver's Licence for Medical Reasons, Under S.47(1)(b)(s).50 of the Highway Traffic Act. This document was stamped as received June 14th, 2013 by the Licence Appeal Tribunal and contained a hand written note (the Applicant agrees) giving his reasons for his appeal to the Tribunal. Under the section of acknowledgment the Applicant signed his name with the date of June 10th, 2013.
On direct questioning the Applicant told Mr. Biel that he has been abstinent of alcohol for five months.
MR. BIEL'S SUMMARY:
He said that a suspension must be applied as outlined in section 47(1) of the H.T.A. He observed that Dr. C.F. had reported in his Medical Condition Report that the Applicant is alcohol dependent. Mr. Biel said that M.T.O. had acted correctly under Ontario Regulation 340/94 and section 14(b) which requires that the licence holder not be addicted to alcohol or drugs to an extent likely to significantly interfere with his ability to drive a motor vehicle safely. Mr. Biel drew attention to the Applicant's driving record and the suspensions, and that they have no alternative but to act accordingly. Mr. Biel noted that they lack sufficient evidence that the Applicant's problem is under control. He did not accept the Applicant's reasons for not receiving the Ministry's notices and showed him that in fact he did. He observed that the doctor at the treatment centre (Dr. C.F.) was truly concerned for his patient and that there is nothing at the present time that would enable M.T.O. to reinstate his licence.
The Applicant summarized his case again with the complaint that he never had a "one on one" session with Dr. C.F. and that his interface with this doctor was all in a group setting with no privacy. He said that he has suffered 15 months without a driver's licence and is out of pocket $10,000.00. He explained that he has "learned my lesson". He described himself as responsible and now willing to cooperate in a completion of an Alcohol Abuse Assessment Form.
Questioning from the Tribunal indicated that he began to drink at the age of 14 which had to do with experimenting in a school setting and then at his first university there was excessive drinking on the weekends. He said there is no family history of alcoholism. He described his summers when there was drinking every night. His tolerance went up and he was able to consume more alcohol and still be functional. After his first alcohol related driving offence he was abstinent for three months. He described the counselling that he is receiving now. He told the Tribunal that he has been to AA but is not a regular. His drinking is "only problematic" and that he is not an alcoholic. He observed that Dr. C.F. did not call him alcoholic but said that very few people of his young age appear at this treatment centre.
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 Ministry had no alternative but to suspend the Applicant's driving privilege on receipt of the Medical Condition Report from Dr. C.F. Their concern was heightened upon review of the Applicant's driving record with alcohol related suspensions. The Ministry was very perplexed with the inability of the courier company to deliver M.T.O.'s presentation package despite going through all of the correct procedures. The Ministry has been diligent in their management of this problem. The Tribunal concludes that the Applicant simply ignored this whole matter hoping it would go away. In so doing, he has been very economical with the truth.
It is clear that the Applicant has a problem with alcohol; whether it is abuse, dependency or addiction, it is not certain from the evidence presented today as to the correct diagnosis. The Ministry is rightly concerned, and the Applicant's reaction to this whole interval in his life is to deny or ignore his involvement with M.T.O. Until the present time his participation with the doctors and counsellors trying to help him, is casual at best.
The Tribunal notes that the Applicant's reaction to his difficulties with alcohol, is to ignore the communications from M.T.O. He simply asks for return of his driving privilege as though this will solve all his problems to rid him of these difficulties. Today, in fact, he has told the Tribunal his own plan for reinstatement.
In his favour scant laboratory reports (liver markers – GGT) are all in the normal range. The Applicant observes it is likely because he has been abstinent for five months but this is not documented. The Applicant says he has stopped drinking because of the severe shock of what he has been through.
The H.T.A. prescribes a documented 12 month interval of abstinence in order to be considered for relicensing, a requirement proven to be effective.
It appears that the Applicant only recently has developed insight into the fact that he has a serious problem with alcohol and at a young age.
DECISION
Upon the application by the Applicant to appeal the decision dated May 26th, 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
Dr. David W. Hurst, M.D., Presiding Member
RELEASED: December 12, 2013