Licence Appeal Tribunal
Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 8391/MED
CASE NAME: 8391 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 Borenstein, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: February 18, 2014
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 July 18, 2011, the Applicant presented to a local urban Emergency Department with a pneumothorax. Dr. M.P., the Respirologist that treated him on that day, completed a Medical Condition Report that cited "alcohol dependence" and sent this form to the Ministry of Transportation of Ontario ("MTO"). On July 22, 2011, the Applicant was notified of the suspension of his driver's licence via post. MTO required information about his alcohol dependence and the completion of a Substance Abuse Assessment, which was attached to the letter.
Dr. V.K., the Applicant's family physician of four years, completed the Substance Abuse Assessment on January 29, 2013. It noted that the Applicant suffers from gastric/peptic ulcer disease, has minor elevations in his MCV and GGT, drinks about six beers a day (down from when the Medical Condition Report was filed), and has used cannabis in the past. The Applicant's prescription medications include Percocet (6 tabs a day) and oxyneo (3 tabs a day). His AUDIT score was 12. A DSM IV criterion diagnosis was determined as tolerance to opioids and alcohol. The report also stated that treatment programs have been refused to the Applicant, as the doctors "feel he is not misusing nor abusing and not dependant".
In response to the above information, MTO contacted the Applicant on April 10, 2013, and confirmed the driving suspension. MTO requested information on both the alcohol use and the tolerance to opioids for pain management.
A referral note from Dr. N.P., a psychiatrist who had seen the Applicant on June 14, 2012, was submitted. The note stated that the Applicant used alcohol and cannabis, with a previous use of cocaine that had ceased since the pneumothorax. At the time of the consultation, he was drinking twelve beers in an evening. No hangovers were reported and he has continued to work safely as a roofer. The opioids are used for chronic shoulder pain stemming from an injury. Judgement was described as adequate. The diagnoses provided were "alcohol abuse versus dependence" and "mixed substance abuse". A recommendation for referral to an addiction specialist was made should the Applicant be agreeable. But at that time it was felt he was "reluctant to reduce his alcohol to a reasonable level". A pain specialist should manage the pain medications. No further psychiatric involvement was deemed to be required.
On October 30, 2013, MTO advised the Applicant that the above report was "stale-dated" and unacceptable for the purpose of its review. The Tribunal hearing was originally scheduled for November 14, 2013, but was adjourned to a later date so that the Applicant could obtain new evidence.
This new evidence was in the form of a typed note dated February 1, 2014 from Dr. V.K. and it stated that the Applicant cannot see his psychiatrist at this time, but noted that the Applicant states he is only drinking two beers in the evening and never drinks and drives. Explicitly written is that neither the family physician nor psychiatrist believe the Applicant is abusing alcohol.
The Registrar's Submissions
The Applicant admittedly uses prescription opioids and drinks six beers a day. There is reason for concern that either of these, or the interaction of the two, could interfere with his ability to drive safely. Both the Applicant's psychiatrist and family physician believe he needs an addiction specialist and that he probably wouldn't be compliant with any rehabilitation program. Both physicians have stated the Applicant suffers from substance tolerance and dependence. Three letters to the Applicant have asked for a full assessment and none have been provided in a timely manner. There are unanswered and valid questions about the Applicant's driving safety. The Canadian Council of Motor Transport Administrators ("CCMTA") Medical Standards for Drivers require the functional ability to drive for both medication and alcohol use, and in the case of alcohol, a favourable recommendation from an addiction specialist.
The Applicant's Submissions
The Applicant testified he has a few beers at night. He has worked for years safely as a roofer. He never drives under the influence of alcohol and, at this point, he has such a tolerance to beer that he believes his blood work would never be fully normal. Both his physicians have said he is okay to drive as stated in the last note provided to MTO dated February 1, 2014. Currently, the Applicant's psychiatrist won't see him as he feels that he has no further treatment to offer.
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:
- (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
This decision must be based on MTO's ability to show that the balance of probabilities suggest that the Applicant is addicted to a drug or alcohol to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.
In this instance, this is a complicated history to examine. The facts of this case are muddied by contradictions. Both physicians that saw the Applicant feel that he is not abusing alcohol, but both have also stated that he is dependent. This may be a reference to prescription opioid dependence and not alcohol. It is hard to discern based on the documentation provided. Furthermore, this originally began with MTO asking for an explanation of pure alcohol use, and then upon review of information the Applicant initially submitted, a new request for information on the alcohol use, the elevation of bio-chemical markers and the use of opioids and their interaction with alcohol as it pertains to the Applicant's ability to drive was made.
The Tribunal believes the Applicant when he testified that he has cut back on his alcohol consumption. He is prescribed narcotics for a documented chronic pain issue and this is a known treatment regimen for chronic pain. The mild elevation in the two bio-chemical markers (MCV and GGT) of the Applicant submitted on the Substance Abuse Assessment could indeed be continuously elevated with continued alcohol use as the Applicant suggests. Additionally, as the adage goes in medicine to treat the patient, not the labs; this can also mean that the patient determines ability to drive not two bio-chemical markers.
However, based on the Applicant's testimony and on the documentation provided by his physicians, it is probable that the Applicant still suffers from alcohol dependence. This could very well cause difficulties with driving, and the interaction of alcohol with his pain medications could further exaggerate these problems. Therefore, based on the evidence provided, and on the balance of probabilities, the Tribunal concludes that the Applicant currently has a condition that is likely to significantly interfere with his ability to drive.
The Tribunal does believe that the key to answering whether the Applicant can safely drive lies with an addiction specialist as MTO and both physicians have recommended. Should a physician trained in addiction medicine specifically state in writing that: (a) based on his/her experience and training, the Applicant is safe to drive despite his current alcohol consumption and prescription use and (b) the medications and alcohol are not likely to interact such to create an unsafe clinical picture; then the Applicant should have his driving privileges reinstated. This should be irrespective of his bio-chemical markers unless the addiction specialist deems that the bio-chemical markers are important to make his/her decision.
DECISION
Upon the application by the Applicant to appeal the Registrar's decision, effective August 1, 2011, 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, M.D., Member
Released: March 7, 2014