Licence Appeal Tribunal
FILE: 8595/MED
CASE NAME: 8595 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
8595 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard in Toronto: March 5, 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
The Respondent’s Evidence
The Applicant is appealing a suspension of his driving privilege under section 47(1) of the Act, effective January 30, 2010.
The suspension was based upon a Medical Condition Report completed on January 20, 2010 by Dr. F. an Emergency Room physician, in compliance with section 203 of the the Act.
The condition reported was based on examination on January 20, 2010 and stated::
Seizure(s)-Cerebral
First episode of seizure.
Will require Neurology for follow-up
On January 21, 2010 the Registrar informed the Applicant by letter that his driving privilege was suspended pursuant to section 47 (1) of the Act.
In order to be reconsidered for reinstatement he was required to submit a detailed up-to-date report by his physician, to include the following:
The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the condition is controlled and that there are no other disqualifying medical concerns that may impact his ability to safely operate a motor vehicle.
A reference to his repeated seizure(s), including a narrative of his seizure history and confirmation that he has remained seizure free.
Whether a diagnosis of epilepsy has been determined.
He was informed that all the requested information must be provided or it may result in a delay of his review.
A report by a neurologist, Dr. S. to the ministry dated March 17, 2010 was received on March 29, 2010.
It stated:
On January 20, 2010 while out with friends drinking and using cocaine, he apparently had a witnessed seizure. He has no previous history of seizures although he did have faints when he was between ages of 8 and 15 preceded by dizziness and related to heat exposure.
His past medical history is otherwise unremarkable. There is no family history of seizures.
His general physical and neurological examinations were normal. A CT scan done in the Emergency Department was normal. His serum sodium was slightly reduced but not enough to account for a seizure.
EEG was normal.
It was felt that his seizure was triggered by alcohol and cocaine. He says that he is no longer using these substances. Recent biochemistry including a urinalysis drug screen on February 20, 2010 was normal.
No further investigation or treatment is planned.
The Registrar informed the Applicant on April 19, 2010 that the report was reviewed and it had been decided that the suspension should remain.
He was required to submit a completed Substance Abuse Assessment with an explanation for, GGT, AST and AST) that are outside normal laboratory range.
In addition the report must provide a diagnosis and recommend a form of treatment if warranted. The results of a physical examination, complete drug history and urine toxicology drug screen is also required.
A Substance Abuse Assessment form was enclosed.
In response the report by Dr. S. on March 17, 2010 was again submitted. The Registrar informed the Applicant again on August 19, 2010 that because the seizure appeared to be associated with alcohol abuse and cocaine use the Substance Abuse Assessment was required. If his physician confirms a diagnosis of alcohol/drug dependence confirmation would be required that he has remained seizure-free and absent from alcohol/illicit substances for a period of one year.
A Substance Abuse Assessment form was enclosed. He was requested to take the form to the reporting physician for completion.
On August 2, 2011 the Registrar received a letter from a Dr. K., a physician at an Urgent Care Clinic:
I am writing to report that (the Applicant) is medically clear to drive, and therefore have his driver’s licence reinstated.
I reviewed (Applicant) on July 11, 2011 at which time I also reviewed the consultation report from the neurologist who managed his care, follow-up and investigations, Dr. S., which was clear, and found no abnormalities. From his neurological evaluation and investigations, it was concluded that the episode that occurred previously was an isolated event. I have forwarded the consultation report from Dr. S. along with this letter.
Enclosed was a copy of a letter that was sent by Dr. S. to Dr. A-C, family physician, dated March 17, 2010
I saw (the Applicant) in follow-up today. He reports no further blackouts. His EEG was normal.
His seizure was probably drug-induced. He says that he has stopped using cocaine and alcohol. I will update the Ministry of Transportation on his medical status.
The Applicant was informed by the Registrar by letter dated August 23, 2011 that following a review of the above correspondence, a further report from his treating physician was required.
This report must confirm that he has remained both seizure free and abstinent from alcohol and drugs for a period of one year. This period may be reduced if his physician confirms that he has successfully completed an alcohol and drug treatment program and is supportive of reinstatement of his driving privilege.
The Applicant submitted reports of drug screens performed on November 5, 2012, January 28, 2013, February 25, 2013, March 18, 2013. All were negative for common drugs of abuse.
The Registrar acknowledged receipt of the laboratory reports, and on February 13, 2014 informed the Applicant that he must take this letter to his treating physician, specialist or nurse practitioner and have the following information sent to the Ministry:
Confirmation that he has remained seizure free and abstinent from all illicit drugs for a period of one year. This period may be reduced to six months if his physician confirms that he has successfully completed a drug treatment program and is supportive of his driving privilege.
Mr. Biel informed the Tribunal that the Ministry has not received the requested Substance Abuse Assessment form to date.
He submitted the Applicant’s driving record that showed an offence under the Highway Traffic Act for driving while suspended, on December 26, 2012.
Following receipt of the above reports the Registrar informed the Applicant by letter that it had been decided that the suspension should continue.
He was requested to take the letter to his treating physician and have the following sent to the Medical Review Section:
If his physician confirms a diagnosis of alcohol abuse\dependance, the ministry will require confirmation that he has remained abstinent from alcohol for a period of one year. This period may be reduced with confirmation that he has successfully completed an up-to-date alcohol treatment program and is supportive of driving privilege.
Results of recent bio-chemical markers (MCV, GGT, AST & ALT) with a clinical explanation for any levels outside the normal laboratory range.
The Applicant’s Evidence
The Applicant stated that on the date of the Medical Condition Report he had been partying with some friends at a friend’s home. He consumed three or four glasses of vodka and used one line of cocaine, between 7 and 10 p.m.
He was informed that he fell and was shaking. There was no biting of his tongue and no incontinence. He awoke around 3 .a.m. in a hospital bed in the Emergency Room.
He did not have seizures in the hospital. He was seen by a physician and was picked up by his wife in the afternoon. He was informed that he would need to have an EEG and be seen by a neurologist.
He stated that he did not show the registrar’s letter or the Substance Abuse Assessment form to his family physician or to Dr. K.
He travelled to California frequently on business.
Regarding the traffic offence of driving while suspended on December 26, 2012 he stated that he failed to move to the left lane when he drove by a police vehicle parked on the side with flashing lights and was stopped.
He stated that his last use of alcohol was in March 2010.
In his Reasons for Appeal he stated that he owned a marketing agency for the past twelve years and had an active travel schedule. He had custody of his two year old and his social life led to the alcohol abuse and cocaine resulting in seizure.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Is the Applicant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his ability to drive a motor vehicle of the applicable class 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.
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.
The Respondent relies on:.
An unsolicited Medical Condition Report filed by a physician in compliance with Section 203 of the Act reporting seizures..
Section 47(1)(g) of the Act authorised the Registrar to issue a suspension of the Applicant’s driving privilege.
Ontario Regulation 340/94 (14) authorised the Registrar to continue the suspension until the Applicant submits confirmation by his treating physician that he has remained abstinent from all illicit drugs for a period of twelve months, has successfully completed a drug treatment program and is supportive of his driving privilege.
A Substance Abuse Assessment form has not been completed in spite of repeated requests by the ministry.
The Canadian Council of Motor Transport Administrators (CCMTA), under section 17.6.3 applies to all drivers with alcohol related seizures
STANDARD: All drivers are eligible for a licence if:
The treating physician has confirmed that the cause of the seizure was alcohol use
They have undergone addiction treatment and have received favourable report from an addiction counsellor
There is no diagnosis of alcohol abuse/dependence
It has been at least six months since they have used alcohol and have not had a a seizure
Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognised by the licensing authority
The conditions for maintaining a licence are met
The Applicant acknowledged that he has not adhered to the Registrar’s requirements for reinstatement.
He stated that will take steps to meet those requirements as he needs his licence in order to conduct his business.
APPLICATION OF THE LAW TO FACTS
The Tribunal finds that the Respondent was justified in issuing a suspension of driving privilege upon receipt of a Medical Condition Report of seizure by a physician in compliance with section 203 of the Act.
The Substance Abuse Assessment form requested by the Registrar has been ignored by the Applicant in spite of being requested on several occasions.
The Registrar was justified in issuing a suspension of driving privilege under section 47(1) of the Act, and a continuation of the suspension under Ontario Regulation 340/94 (14) due to failure by the Applicant to provide the medical information for consideration of reinstatement,
The Tribunal finds that the onus is on the Applicant to provide the information requested by the Registrar confirming abstinence from illicit drugs for a period of twelve months.
The Tribunal finds that the medical report filed by a physician in an Urgent Care clinic, on August 2, 2011, who is not the reporting physician or the treating physician, does not adequately provide either a medical history or diagnosis or an assessment of the Applicant’s misuse of alcohol and use of an illicit drug.
The Tribunal finds that there is no medical evidence in support of re-licensure.
DECISION
Upon the application by the Applicant to appeal the decision effective January 30, 2010 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
Kevin Flynn, M.D., Member
Released: March 13, 2014