Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-12-23
FILE:
8413/MED
CASE NAME:
8413 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:
Sonia DeSantis, Agent
Heard in Barrie:
December 17, 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
On the 9th of August, 2013, a Medical Condition Report was signed by Dr. R.K.A., with a tick mark for alcohol dependence and drug dependence and contained an optional note regarding alcohol abuse daily/nearly daily, a mickey. Drug use heavy in car with friends who are all intoxicated. This document was received by the M.T.O. who wrote to the Applicant on July 12th, 2013 to state that the Ministry had decided to suspend her driving privilege due to alcohol dependence and substance use/abuse. This was carried out under section 47(1) of the Highway Traffic Act.
For reinstatement, the Ministry required:
- Confirmation that you have remained abstinent from alcohol for a period of one year. This period maybe reduced if your physician confirms that you have successfully completed an alcohol treatment program and is supportive of your driving privilege.
- If your physician confirms a diagnosis of substance dependence, the Ministry will require confirmation that you have remained abstinent from an illicit and/or non-prescribed medication for a period of one year. This period may be reduced if your physician confirms that you have successfully completed a drug treatment program and is supportive of your driving privilege.
A Substance Abuse Assessment form was completed jointly by Dr. R.K.A. and the Applicant, and signed August 7th, 2013. This doctor had been the Applicant’s family doctor for 10 years. An appended laboratory study showed a trace of cannabinoids but was negative for barbiturates, opiates and benzodiazepines. A routine blood screen showed no abnormalities. The blood ethyl alcohol was less than 2.
The Agent’s next presented a certified copy of the Applicant’s driving record showing a mild speeding infraction on April 24th, 2013 and a suspension for medical reasons on the July 22nd, 2013. Demerit points were nil.
Ms De Santis then entered the CCMTA document with special emphasis on section 15.6.3, and reviewed the H.T.A. requirement.
This completed the Agent’s presentation.
The Applicant had no questions and presented her case. She is 18 years old and attending a first semester in a college in Ottawa. She has never been intoxicated and is usually the designated driver when socializing with her friends. She described behaviour lectures she has received from her mother and is an only child. Her last experience with alcohol and marijuana was on August 6th and she was tested for the substances on August 7th.
Questioning from the Tribunal disclosed that she had been socializing with her friends and had consumed two to three shots of whisky which she described as possibly a half to a whole ounce in each shot. She admitted that possibly she was drunk. As it turned out, she had an appointment with Dr. A. and she had been seeing this doctor regarding some mood swings. She described how this consultation resulted in both of them clashing and the medical visit went downhill from there. He was abusive of her and used bad language. The Applicant and her mother, who was close at hand, said that she was to be tested for blood level and thyroid studies and was surprised to find that he had tested for alcohol and other substances. These events resulted in the filing of a Medical Condition Report with the Ministry. Questioning from the Agent disclosed that she had been seeing this doctor since the age of 10 when she had problems with migraine plus a fractured ankle, but that over the years she was not a regular visitor with this doctor.
The Applicant described her first experience with marijuana at the age of 17 and alcohol at close to the age of 15. She admitted to drinking on a casual basis following that but was not smoking marijuana. Her doctor determined that his patient was suffering from depression and she was placed on Soloft. She later abandoned this medication but admitted that she had been seeing a counsellor. She is on no other medication, but is having an occasional social drink.
On July 9th, 2013 she visited her doctor. Again she described to the Agent a clash that she had with that doctor on that date and it was totally unsatisfactory. Out of this came a Medical Condition Report as noted; the Applicant said that the doctor’s additional notes about a mickey a day was clearly his own comment and she simply agreed to what he said. There was no real truth in it.
Regarding marijuana she said she had flirted with it on two or three occasions but in no way was a regular user, nor is she with alcohol.
A review of the Substance Abuse Assessment form disclosed nothing to cause concern to the Tribunal. The Applicant’s mother who had been watching the situation that had developed quite closely questioned the section on the form entitled substance abuse (DSMiv) criteria in which Dr. A. answered yes to all of the questions suggesting that there is a substance abuse problem.
He apparently was then out of town and the Applicant’s mother in conjunction with the doctor’s secretary explained the inaccuracy of these somewhat critical comments by the doctor and they were all changed and were negative indicating there was no real problem.
Dr. A. recommended that the Applicant abstain and noted that she was already reducing consumption. He approved of the Applicant’s voluntary counselling and that she should stop using alcohol and cannabis.
Questioning of the Applicant by the Agent disclosed that she had had no alcohol since August 7th, 2013 and had two to three beers on October 31st. She has had no marijuana since August 7th. The Applicant said that she understood the suspension but is not sure what the Ministry was requesting from her. The Agent then cited key portions of the CCMTA document and that the Ministry wants total abstinence for a year. She conceded that this interval could be shortened with satisfactory reports from her doctors, particularly since she is now abstinent.
Discussion of the visit to Dr. A. on July 9th, disclosed that it was an unhappy event for the doctor and his patient. The Applicant volunteered that this Medical Condition Report was filed based on anger and that he was using expressions such as mickey out of context. Her mother volunteered she requested blood and urine studies to demonstrate that her daughter was not indulging and she disagreed with the doctor’s diagnosis which also included the diagnosis of depression.
The Agent interjected to say that while blood tests were ordered on July 10th, nothing has been reported to the M.T.O.
THE AGENT IN SUMMARY
The M.T.O. by law had to suspend based on the Medical Condition Report. The CCMTA publication 15.6.3 explains the 12 month criterion of abstinence and importance of a suitable support program. She said that the Ministry position was not unreasonable. She said the doctor wants abstinence and so does the M.T.O. She said that the 12 month edict could be shortened with reports of negative toxicology.
Questioning from the Tribunal disclosed that the Applicant, had first experimented with alcohol when she was 16 and never used it regularly. She does it as a social event, particularly in that she doesn’t really like to drink. She might have two beers on occasion. She is home every weekend and away from her friends where these things occur and now has a boyfriend in the home area plus her part time work that keeps her fully occupied. Her father has never used alcohol and the mother only occasionally, mostly when she is travelling on holiday. She has no siblings.
The Applicant feels the Medical Condition Report was filed when the doctor was agitated and indulging in considerable anger. Her visits with this doctor have been rare over the years. He also apparently knew about the altered comments in the MCR’s report to which he agreed when he was in a better mood. The Applicant’s mother interjected to say that it appeared that this doctor has never done one of these forms before. This also was making him angry.
The Applicant summarized by pointing out that she is a good student and getting good marks at college and doesn’t really like alcohol nor does she like to use marijuana and that these events had happened purely on a social basis.
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 licencing problems for the Applicant began when Dr. R.K.A., (her family physician) filed a Medical Condition Report on the 9th of August, 2013 and by pure coincidence she was to see her doctor regarding depression problems. As it transpired in taking some history, he found that the patient had attended a lively party the night before where alcohol and marijuana were consumed by the Applicant. The doctor ticked the boxes for alcohol dependence and drug dependence with an optional note saying that the Applicant was abusing alcohol daily/near daily mickey and also marijuana use - heavy. He stated that – in car with friends who are all intoxicated.
In accordance with the law, the M.T.O. wrote to the Applicant on July 12th, 2013 stating that she had conditions:
- Alcohol dependence
- Substance use abuse
Her driving licence was suspended under section 47(1) of the Highway Traffic Act. Ultimately a Substance Abuse Assessment form was completed jointly between the doctor and the Applicant and there was accompanying laboratory work which was essentially normal except that toxicology studies of the urine showed a trace of marijuana.
A review of the Substance Abuse Assessment form demonstrates that there were no serious abnormal findings.
Testimony from the Applicant is that she is 18 and in a first semester at a college where she is achieving very good marks. The Applicant admitted that she had been participant in social events where marijuana and alcohol were consumed with others. Questioning from the Tribunal discloses consumption of alcohol is quite mild and at the most would consist of two beers. She added in testimony that she doesn’t really like to drink and she really does not enjoy the use of marijuana. She says there is no possibility of dependency on either one of these substances. Her last drink was October 31st, consisting of 2 – 3 beers and she has not used marijuana since August.
It is apparent given the testimony that the Applicant is not dependent on anything and in fact has stated that she does not enjoy the use of these substances. This leaves the Tribunal to consider the condemning comments in the Medical Condition Report.
The Applicant’s mother presented a summary review of a diary that she wrote and sent to the Tribunal regarding her daughter’s visit to Dr. A. on May 7th, 2013. This is a detailed document and part of the visit was to deal with the outstanding Substance Abuse Assessment form. (The Applicant considered that her doctor was in a bad mood partly because it appeared to her he had never encountered one of these forms before, found it complicated and charged her $150.00).
Her mother’s deposition proceeded over further visits – May 27th, 2013, July 9th, 2013, July 10th, 2013, July 21st, 2013, August 7th, 2013.
The Applicant describes these sessions with her doctor as starting off badly and going downhill. Her mother’s deposition indicates that the doctor was indulging in very unfortunate and profane language and his behaviour, given the comments here, appeared quite unprofessional. Given the Applicant’s description of her use of alcohol and marijuana, on a balance of probabilities it is not likely that she is dependent (she in fact usually functions as the designated driver for her friends).
When the Ministry received this Medical Condition Report they had no option but to suspend. The details provided at the hearing indicate that the Dr. R. K. A. erred in his assessment of the situation and in fact given the deposition provided by the Applicant’s mother spelling out his inappropriate language, this doctor’s critical comments should be considerably discounted.
There is nothing in the Applicant’s testimony today to suggest that she is dependent on or is abusing either alcohol or marijuana. In fact she is performing extremely well with the transition from the home to the college setting.
DECISION
Upon the application by the Applicant to appeal the decision dated July 12th, 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 set aside.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Presiding Member
RELEASED: Decemeber 23, 2013