8561 v. Registrar of Motor Vehicles, 2014 CanLII 10701

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-02-21

FILE: 8561/MED

CASE NAME: 8561 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, Member

APPEARANCES:

For the Applicants: Self-represented

For the Respondent: Kyle Biel, Agent

Heard in Guelph: February 11, 2014

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 the evening of December 6, 2013, the Applicant slipped on a piece of paper and fell in her home striking her head on her desk. The following morning, because of bruising to her face and neck, she was driven to a local hospital. Because of multiple, small subdural hematomas and initial diminished cognitive function, she was admitted and discharged December 13, 2013.

A hospital physician sent a Medical Condition Report (MRC) dated December 12, 2013 (Exhibit 3, Tab 1) pursuant to Section 203 of the Highway Traffic Act (HTA) checking three (3) boxes:

• Alcohol dependence
• Had injury with significant defects, and
• “Other”

In the “Optional” section, the physician stated, "the significant fall December 6, 2013, resulted in multiple foci of subdural hematomas with resulting deterioration in cognitive function -- on a baseline of alcohol dependence and previously documented (on discussion with the family doctor) of cognitive impairment."

In a letter dated December 17, 2013 (Exhibit 3, Tab 2), the Applicant's driving privileges were suspended. The Applicant was asked to complete a Ministry of Transportation (MTO) Substance Abuse Assent (SAA) form (Exhibit 4) and the MTO Cerebrovascular Disease Traumatic Brain Injury/ Tumor or other Neurologic Disease (Exhibit 5) with her family doctor.

The Registrar further stated, “if your physician confirms a diagnosis of alcohol dependence, the Ministry will require a confirmation that you have remained abstinent from alcohol for a period of one year.”

The Applicant completed both requested forms with her family physician on January 22, 2014.

The Applicant's medical information was evaluated by the Registrar’s Medical Review Section (MRS) and in a letter dated February 3, 2014 (Exhibit 6), the Registrar restated the request for:

• Abstinence from alcohol for one year
• Confirmation of completion of an alcohol treatment program
• Explanation of the liver function tests, and
• Enclosed a form for “Mental Health Assessment”

In a letter dated January 13, 2014, the Applicant had sent a Notice of Appeal to the Licence Appeal Tribunal.

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 Registrar has made the case that that the Applicant's driving privileges should remain suspended.

The Registrar acted correctly by suspending the Applicant's driving privileges (effective December 27, 2013) upon receipt of an MRC Report from a hospital physician reporting pursuant to Section 203 of the HTA.

The Registrar acted correctly in requesting medical information from the Applicant regarding possible substance abuse and a head injury sustained on December 6, 2013.

The (SAA) form (Exhibit 4) completed with her family physician indicates the doctor believes the Applicant is alcohol-dependent and recommends abstinence. The physician recommends additional counselling and says "the patient is not reliably telling me of her alcohol use." The physician believes the elevated biomedical markers (Page 2) are "related to alcohol use."

The Substance Abuse Assessment form included three tests:

1. Alcohol Use Disorders Identification Test (AUDIT).

2. Drug Abuse Screening Test (DAST).

3. Leeds Dependence Questionnaire.

The results of the tests suggest the Applicant is not alcohol dependent. The Tribunal doesn’t know whether the Applicant's answers to the survey questions are credible or unreliable as suggested by her family doctor.

In the MTO Cerebrovascular Traumatic Brain Injury form completed with the Applicant's physician on January 22, 2014, the doctor states the Applicant has a primary diagnosis of "organic brain syndrome, possibly due to alcohol" and "possible mild cognitive component".

The Registrar refers to the Canadian Council of Motor Transport Administration (CCMTA) publication, August 2013, Part 2, CCMTA Medical Standards for Drivers, Chapter 15 - Drugs and Driving.

The Registrar relies on Section 15.6.3.

15.6.3 - Substance Abuse or Dependence - All Drivers

This applies to all drivers who are under the influence of alcohol and illicit drugs, such as opioids, cocaine, amphetamines, etc.

STANDARD

All drivers eligible for a licence if

• Meets the criteria for remission and/or has abstained from the Substance for 12 months

• Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority and the successful completion of a drug rehabilitation program.

• The functional abilities necessary for driving are not impaired

• Where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.

Conditions for Maintaining Licence

None

Reassessment

Routine or more frequently at the discretion of the licensing authority

Information from Health Care Providers

• Types of drugs used

• Details of underlying medical conditions

• Opinion from an addictions specialist and/or treating physician Recognized by the licensing authority

• The successful completion of a substance abuse rehabilitation Program and

• Report on whether the individual is abstinent/ and or in remission

Rationale

These substances are known to potentially impair the ability to operate a motor vehicle safely

The Tribunal regards the Applicant as a credible witness with some insight into her problems. The Applicant's states that she has a glass or two of wine when playing bridge with her friends, never hard liquor and has not had a drink in months.

The biomedical markers (which are elevated) are a single snapshot of liver function, presumably done while the Applicant was hospitalized two months ago. The Applicant states the tests are to be repeated in early March 2014. An in-hospital ultrasound demonstrated an enlarged liver.

The Applicant states she has done some "research" into these tests and has found their interpretation to be somewhat "sketchy" and "not totally reliable." The Applicant's biomedical test results from December 2013 are consistent with, but not diagnostic, of alcohol dependence.

The Tribunal adds the diagnosis of alcohol dependence is not solely made on biomedical markers. There are no definitive laboratory tests for alcohol dependence.

The Applicant attended a rehabilitation centre (February 27, 2013 - April 24, 2013) for a "major depressive disorder". The Applicant clarifies it was an "Integrated Mood and Anxiety Program" and not for alcohol dependence, as stated by her family physician in Exhibit 4. She had a "bad patch" with overwhelming personal issues in early 2013.

Her family physician states (Exhibit 4) the Applicant attended some Alcohol Anonymous (AA) meetings in May 2012. The Applicant states AA "was not the place for me."

In the Applicant's submission, she states she has had a spotless driving record, "not even a fender bender in 46 years." The Registrar's agent correctly points out the Applicant’s medical condition, not her driving record (Exhibit 3, Tab 3), is the issue.

The Applicant states repeatedly that she believes "that drinking and driving is both unethical and irresponsible." The Applicant thinks her cognitive function is back to normal. The Applicant refers to Exhibit 5 and the improvement in her Montreal Cognitive Assessment Score (MoCA) while in hospital. The Applicant provides evidence of her considerable professional achievements over the past decade in her closing statement (Exhibit 7).

The Applicant wants her driving privileges restored because "life is difficult in a small town not being able to drive." The HTA makes no provision for hardship cases under Section 47(i).

The Tribunal is persuaded by recent comments (January 22, 2014) on both the MTO SAA and Cerebrovascular Disease/ Brain Injury forms completed with her family physician of six years. The physician states, "the Applicant is not reliably telling us of her alcohol use," and "claims to be abstinent now, but I am not certain of this."

Absent strong evidence to the contrary, the only reasonable conclusion the Tribunal can draw is that the Applicant is possibly alcohol dependent.

The physician does not recommend consideration of restoration of her driving privileges.

The Registrar wants the Applicant to provide confirmation of abstinence from alcohol for one year.

The Tribunal is mindful of the safety of both the Applicant and the motoring public.

O. Reg. 340/94, Section 14 states:

(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.

DECISION

Upon the application by the Applicant to appeal the decision dated December 17, 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

Dr. David Ian Turnbull, M.D., Presiding Member

RELEASED: February 21, 2014