8760 v. Registrar of Motor Vehicles, 2014 CanLII 30040

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-15

8760/MED

8760 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

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Kevin Flynn M.D., Member

For the Appellant:

Self represented

For the Respondent:

Kyle M. Biel, Agent

Heard in Toronto

May 7, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant respecting a decision of the Minister of Transportation (the “Respondent”) pursuant to 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

FACTS

The Respondent’s Evidence

On July 15, 2010 an unsolicited Medical Condition Report was completed by Dr. S., an Emergency Room physician in compliance with section 203 of the Act.

The condition reported was:

Blackout or Loss of consciousness or Awareness

On July 19, 2010, the Appellant was informed by the Registrar that his driving privilege was suspended under section 47(1) of the Highway Traffic Act (the Act).

In order to be considered for reinstatement he was required to submit a detailed up-to-date report from his physician, to include:

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.
Results of all recent and pertinent investigations (i.e. ECG, EEG, Holter monitor), A narrative of this and any previous syncope/loss of consciousness history and confirmation that there have been no further episodes.

A letter from Dr. E., his family physician for 21 years, dated June 23, 2011 stated that the Appellant had ongoing alcohol abuse/misuse for several years and had recently completed an in-patient rehabilitation program and continues to attend an outpatient counselling program through ADAPT.

A certificate of completion of the 21 day rehabilitation program was attached.

The Registrar informed the Appellant on August 19, 2011 that he must meet the requirements outlined in the letter of July 19, 2010 and also must submit a complete Substance Abuse Assessment with results of bio-chemical markers (MCV, GGT, AST and ALT) with an explanation of any that are outside the normal range.

In a letter dated June 12, 2012, Dr. E stated that the Appellant had attended AA meetings, but was unclear if he continued to do so.

Dr. E. attached copies of the electronic medical records between September 14, 2011 and May 1, 2012.

In summary, the notes contained reference to the Appellant’s past history of consuming 26 oz whiskey daily and but reduced to 2-3 drinks on weekends (i.e. May 1, 2012).

May 15, 2012: MCV 130.3 (Normal 80-97)

GGT 189 (Normal 5-50)

AST 25 (Normal 5-42)

ALT 11 (Normal 4-43)

A report from the local Mental Health Clinic dated December 13, 2011, in summary, stated:

Began heavy drinking after retirement from 45 years at a bank
Collapse after grocery shopping and was admitted to the local hospital
At his wife’s insistence was admitted to the rehabilitation centre
Marital separation
Diagnosis: Adjustment Disorder and alcohol abuse in remission; possible alcohol-related seizure.

The Substance Abuse Assessment was completed by Dr. E. on March 27, 2012.

Hospitalizations: local hospital February 2011; Rehabilitation Centre April-May 2011.

Alcohol Use Disorders Identification Test (AUDIT) score 11. (10-19 = Moderate dependence)

12 Step Programs At last visit informed me that he has not been attending AA as he found them ‘too repetitive’. Has plans to attend again ‘in the future’.

Evidence of Support: Responsible attitude, Awareness of harm associated with relapse; Good family support.

Diagnosis not given

Recommendations: Reduce to Low Risk (2 drinks a day or 14 per week)

Follow-up with AA/ADAPT; Ongoing medical follow-up.

Age of first use: age 24; First intoxication age 24

Longest period of abstinence: few months

On September 4, 2012, the Registrar informed the Appellant that on review of the information submitted it had been determined that the suspension should continue.

The Appellant was advised to take the letter of suspension to his physician and to have the following information submitted:

Confirmation that he has remained abstinent from alcohol for a sustained period of one year
The results of recent bio-chemical markers (MCV, GGT, AST & ALT) with a clinical explanation for any level outside the normal.

The Appellant’s Evidence

The Appellant stated that he came to Canada with his parents in 1952, got married and had three children.

His alcohol problems began in 2004 following his retirement as a bank teller. He found he had too much time on his hands and had a comfortable retirement income. He drank mostly at home and had hidden supplies of alcohol. His wife became aware of his abuse of alcohol and, after he had a collapse and admission to hospital, she insisted on his admission to a rehabilitation centre.

His retirement funds were converted to his wife’s account when they separated. He moved to an apartment and reduced his alcohol consumption. He attended AA eight or nine times and stopped because of boredom and attended ADAPT twice.

He now does not have alcohol at home and his last drinks were at the weddings of his two sons two years ago.

Under cross-examination, he stated that he had not been drinking on the day of his collapse or the previous day. He was admitted to the local hospital for four weeks and to the rehabilitation centre for four weeks.

He stated that he did not take the letter of suspension dated September 4, 2012 to his family physician with the required information to be submitted. When reminded by the Tribunal and the Registrar’s Agent that in order to be considered for reinstatement he must do so, he agreed.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?

Is the Appellant 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

The relevant statutory provisions state as follows.

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)

Further, 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 50 sets out the right of appeal:

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.

The Respondent relies on:

The receipt of a Medical Condition Report in July 2010 of black-out related to alcohol abuse, from a physician in compliance with section 203 of the Act, authorised the Registrar to issue a suspension of the Applicant’s driving privilege.
The Appellant has not been attending a relapse prevention program following completion of four weeks at a rehabilitation centre.
Abnormal liver function tests in 2012 were consistent with alcohol abuse.
The Appellant has failed to submit a medical report that confirms a period of abstinence from alcohol for a period of twelve months, with results of bio-chemical markers of alcoholism.
The Canadian Council of Motor Transportation Administrators, (CCMTA), Section 15.6.3 criteria for holding a driver’s licence a twelve month period of abstinence from alcohol. Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Registrar was justified in suspending the Applicant’s privilege under section 47(1)(g) of the Act upon receipt of a report from a physician in compliance with section 203 of the Act, of blackout related to alcohol abuse.

The Appellant has a history of dependence on the use of alcohol to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.

The Appellant has successfully completed a 21 day in-patient treatment program for alcohol abuse but has failed to participate in a relapse prevention program following rehabilitation.

The Appellant has failed to submit a medical report that confirms abstinence from alcohol use for a period of twelve months, with results of biochemical markers and an explanation of results that are outside the normal range.

DECISION

Upon the application by the Appellant to appeal the decision effective July 28, 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: May 15, 2014