8448 v. Registrar of Motor Vehicles, 2014 CanLII 2483

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-01-02

8448/MED

8448 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

-and-

Registrar of Motor Vehicles

Respondent

David W. Hurst, M.D., Member

For the Applicant:

Self Represented

For the Respondent:

Kyle M. Biel, Agent

Heard in Toronto:

December 12, 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 a Medical Condition Report concerning the Applicant. It was dated September 26^th, 2013 and signed by Dr. S.L.. A tick box was marked for alcohol dependence.

The M.T.O. wrote to the Applicant on September 30^th, 2013 indicating they had received a report that he had a condition that affected his ability to drive safely. This was alcohol dependence. Under section 47(1) of the Highway Traffic Act, The Registrar of Motor Vehicles had decided to suspend his driving privilege.

In this form letter, the Ministry required for the following for reinstatement:

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.
The enclosed form be completed in full and all questions answered (Substance Abuse Assessment form).

The next entry was a certified copy of the Applicant’s driving record showed that on

November 30^th, 1990 the Applicant driving with more than 80mg of alcohol in his blood. There was a conviction and a suspension of his licence until November 30^th, 1991. A second offence occurred on April 22^nd, 2010 when the Applicant was convicted of impaired driving with a suspension until April 22^nd, 2011. On February 7^th, 2011, the Applicant was charged with operating a motor vehicle with no insurance and driving while licence was suspended. He was suspended until October 22^nd, 2011. On April 22^nd, 2011 the Applicant was suspended for failure to complete a remedial program. On October 10^th, 2013 the Applicant was suspended for medical reasons. There were no demerit points.

The Agent then presented portions of the CCMTA document pertaining to medical standards for drivers. He stressed Section 15.6.3 substance abuse or dependence which described the standards for eligibility:

Meets the criteria for remission and/or has abstained from substance for 12 months
Earlier re-licencing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licencing 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

Information from health care providers:

Types of drugs used
Details of underlined medical condition
Opinion from an addiction specialist and/or treating physician recognized by a licencing authority
The successful completion of an substance abuse rehabilitation program and
Report on whether the individual is abstinent and/or in remission

The Agent’s next entry was from Dr. J. B., the Applicant’s family doctor, dated November 20^th, 2013. This doctor had reviewed the Applicant’s history concerning his driver’s licence suspension. He said the Applicant had a relapse of alcohol dependence July 2013 to October 5^th, 2013. Since October 5^th he has been in remission from alcohol dependence. His blood work (MCV, AST, ALT, GGT) has returned to normal values.

The letter noted that the Applicant attends AA meetings, CAMH intensive group sessions and will see a psychiatrist starting December 18^th, 2013. He started the alcohol diversion medication (Revia) on October 5^th, 2013.

The doctor notes that the Applicant has agreed to a minimum of a monthly appointment in his office. He will complete blood work monthly including drug screens. He will report any alcohol use. This plan will be enforced for 12 months’ time. He said that at this time he did not believe that the Applicant poses a serious risk to road safety and he will continue to monitor his condition. If he does not adhere to the above plan the doctor will send an update report to the Ministry.

On September 30^th, 2013, the Ministry again wrote to the Applicant with their form letter describing his alcohol dependence and their requirements for reinstatement.

The Agent’s next entry was a Substance Abuse Assessment form on the Applicant dated October 13^th, 2013. This report was ticked for loss of consciousness and a written note mentioned blackouts due to alcohol in February of 2013 with none since then. Laboratory work showed that the liver function tests were essentially normal.

It was noted that the Applicant’s longest period of abstinence in the past three years was 2.5 years and his most recent use of alcohol was October 5^th, 2013.

Under AUDIT – Alcohol Use Disorders Identification Test box marked with a total score of 9 indicated that there were concerns about his substance abuse. The section regarding substance abuse dependence (DSMiv) criteria indicated some degree of dependency.

The final page of this substance abuse document indicated that the Applicant was a regular patient at CAMH, involved in two programs, and he was also participating in two programs with the AA. He noted that with the AA he currently has a sponsor. He had been referred to a psychiatrist, a psychologist and is also taking Revia (which helps to diminish the dependence problem). This document was signed by Dr. J.B. on November 20^th, 2013. Appended laboratory work showed that the AST, ALT and GGT (liver function tests) were all in the low normal range.

The goal of treatment was abstinence.

On December 9^th, 2013, the M.T.O. wrote to the Applicant again, stating his licence should remain under suspension and their requirements for reinstatement. They pointed out that there must be more evidence of stability, in other words, a total of one year suspension. This interval could be reduced with evidence of suitable treatment programs and hopefully supportive letters from his doctors. They observed that the 12 month edict still is in place because of his family’s doctor comment that he is “dependent”. The Agent observed that the M.T.O. is applying the CCMTA standards indicating the 12 month interval. He made note of the fact that the Applicant has now been abstinent for the last two months.

The Applicant had no questions.

In his presentation, the Applicant noted that he has in the past abstained 2½ years voluntarily. This led up to February 2013 when he suffered a minor relapse and went to CAMH for help. He stayed voluntarily for 24 hours and was then discharged with plans to recommence his previous treatment program. He went to his family doctor asking for the “drug” which is Naltrexone or Revia. The Applicant underlined the fact that he has now been abstinent since October 5^th, 2013. He is going to groups, including the AA and also goes twice a week to CAMH participating in a coping skills program. The Applicant says he understands the problem and noted the brief relapse in the last year. He does not own a car but rents cars on occasion. He began to drink at the age of 17 with friends when they would share a 6 pack of beer. His alcohol source now is wine, on occasion. He described binge drinking and a binge lasting one to two days, drinking 1 to 1½ bottles of wine a day. He then would stop drinking with concerns about his family and his partner who is supportive. He described the binge drinking as beginning four years ago over 1½ years. He described himself as a social drinker and then he occasionally goes over the edge, drinking every day. The frequency of his binges was about two per month. He told the Tribunal that his father and brother were serious drinkers. He understands his mistakes and admits that he is an alcoholic.

Mr. Biel cross-examined the Applicant. His 2.5 year period of abstinence occurred after his driving convictions in April 2010 and the Applicant admitted to a short relapse in July 2013 until October of this year. Mr. Biel inquired about the Applicant’s blackouts in February of 2013, suggesting that there had been drinking then. There was stress from work and problems with a painful back. The Applicant said that after the events in February of this year using wine plus valium he quit drinking until July with a relapse occurring from July to October 2013. The Applicant said that he was abstinent throughout the summer but relapsed in September from anxiety. Further questioning by the Agent disclosed that the Applicant had been with the AA in November 2009 at the time of an impaired driving conviction and was with them for several months. The Applicant said that the matters are different now and that he needs an AA sponsor and a regular program and regular blood work. He admitted to poor judgment at the time of his conviction. The Applicant pointed out that there was an interval of one year when he had an ignition interlock on his car and that led to a total abstinence for one year.

Mr. Biel summarized the M.T.O.’s position noting that the Ministry acted to comply with section 47(1) of the H.T.A.

He observed that the Applicant is dependent, as noted by the CAMH report and therefore the Ministry must suspend. The M.T.O.’s decision is based in law and this is found in the H.T.A.’s 340/94,14(b) that a holder of a licence must not be addicted. The Applicant is clearly alcoholic as noted by CAMH and Dr. B., both offences and convictions relating to alcohol. Mr. Biel observed that two doctors have confirmed the Applicant’s addiction.

The Agent said that the Applicant must achieve a 12 month interval of abstinence which could be lessened with treatment programs and supportive letters from his doctors. The Agent hoped that the Applicant is controlled and will abstain but that it is too soon to reinstate.

The Applicant knows that it is a privilege to drive, that he is a safe driver and that the scoring in the survey documents says only a low dependence.

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 Applicant is a cheerful, bright individual and displays an almost insouciant approach to difficulties that have ensued from his dependence from alcohol. He has demonstrated good insight by voluntarily presenting at CAMH when he suffered a relapse in his attempts at total abstinence. His convictions for driving under the influence of alcohol have served to concentrate the Applicant’s mind on the problem from which he suffers. He is fortunate that he has not suffered from any accidents or caused injuries, to himself or others. The Tribunal observes the Applicant is an intelligent, responsible individual with insight of his dependence. On his behalf, it is noteworthy that he has voluntarily achieved a period of total abstinence lasting 2½ years. His so called “binges” are brief and low grade mainly because of his own sense of responsibility. He has availed himself of professional help and is participating in treatment programs. With this guidance he should do well.

At the present time two physicians have separately made a diagnosis of alcohol dependence.

The Ministry was by law required to suspend his driving privilege and they have rightly mandated that a period of total abstinence for one year, documented by his doctors, and with this the Tribunal is in agreement. Based on the evidence before it, and on a balance of probabilities, the Tribunal concludes that the Applicant is addicted to alcohol to an extent which is likely to significantly interfere with his ability to drive a motor vehicle safely. The Applicant needs this interval of abstinence, combined with ongoing treatment sessions and possibly follow up care and observation after he has complied with this 12 month restriction.

DECISION

Upon the application by the Applicant to appeal the decision dated September 30^th, 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

David W. Hurst, M.D., Member, Presiding Member

RELEASED: January 2, 2014