8776 v. Registrar of Motor Vehicles, 2014 CanLII 36460

Licence Appeal Tribunal

DATE: 2014-07-04

FILE: 8776/MED

CASE NAME: 8776 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 Appeal a Suspended Licence

8776 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, MD, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Kyle M. Biel, Agent

Heard by teleconference: June 25, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal by the Appellant 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

Four documents were entered into “Exhibits” with consent of both parties.

1. The Appellant is a 49-year-old admitted alcoholic who relapsed in early 2014, having been abstinent for the previous 13 years.
2. The Appellant had been drinking the night of April 8, 2014, continuing until 6 a.m., April 9, 2014. She was driven home, leaving her car in a nearby parking lot.
3. Around 10 -11 a.m. of April 9, 2014, she walked back to her car, intending to drive it home. The Appellant’s daughter, concerned about her mother’s condition, called the local police, telling them her mother had been binge drinking over the last several weeks.
4. The police intercepted the Appellant before she could get into her car. The police brought her to hospital, relaying her daughter’s information about binge drinking to an Emergency Room (ER) physician.
5. Reporting pursuant to Section 203 of the Highway Traffic Act (HTA), the physician then sent a Medical Condition Report (MCR) to the Registrar, dated April 9, 2014, indicating alcohol dependence (Exhibit 3, Tab 1).
6. The physician adds in the “Optional” section of the MCR, “binge drinking over the last several weeks, with drinking while driving…. today – intercepted by police, but not charged.”
7. In a letter dated April 10, 2014 (Exhibit 3, Tab 2), the Registrar suspended the Appellant’s driving privileges (effective April 20, 2014) because of reported alcohol dependence. The letter stated the requirements for consideration of re-instatement of the Appellant’s driving privileges.

What the Ministry requires from you to be reinstated:

Take this letter to your treating physician, specialist or nurse practitioner when your condition improves and have the following information sent to the Medical Review Section:

• 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(s) completed in full and all questions answered.

8. The enclosed form was the Registrar's Substance Abuse Assessment (SAA) form. Despite attending a medical clinic with five physicians, none has helped her complete this form. Their explanation is that they are not treating her for alcohol dependence.
9. The Appellant believes her relapse is caused by allergic reactions to her prescription medication. A prescription pad note dated June 18, 2014 from her dermatologist (Exhibit 4) states, “the Appellant was misdiagnosed with shingles, and put on painkillers and may have contributed to her relapse; she is now diagnosed with severe dermatitis.”

The Appellant includes (Exhibit 4) a list of prescription drugs (19 entries from August 8, 2013 – April 8, 2014 including repeats) chiefly for management of anxiety and depression.

10. The Appellant provides a letter dated June 18, 2014 (Exhibit 4) from a counsellor at a local support facility attesting to her current attendance stating she is addressing her long history of alcoholism.

The counsellor confirms the Appellant’s affirmed testimony that she recently had voluntarily attended a similar facility for four weeks, and had successfully completed their program. He notes she currently shows progress, is pursuing post-secondary education and is motivated.

11. The Appellant describes herself as a “hard worker.” She is upset at having been given multiple prescription drugs, which have put her “in danger” and precipitated her relapse after 13 years of sobriety. The Appellant stopped drinking April 20, 2014. She has adjusted her medications and wants her driving privileges restored.

ISSUES

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

Is the Appellant no longer 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 the Appellant’s driving privileges should remain suspended. The Medical Review Section (MRS) of the Registrar requires the information requested in the letter of suspension dated April 10, 2011. To this date, none of the requested information has been received by the Registrar.

The MRS expeditiously reviewed the Appellant’s submission dated June 20, 2014 (Exhibit 4) and found there was neither documentary evidence to refute the diagnosis of alcohol dependence, nor evidence to support consideration of restoration of the Appellant’s driving privileges.

The Tribunal is at a loss to explain her physicians’ refusal to help her complete the SAA form. Although there is no legal requirement to provide this completed form, it is a reasonable request from the Registrar to assess alcohol dependence.

The Tribunal finds the Appellant’s testimony to be candid and honest. She is “sorry she is an alcoholic,” and admits drinking April 8 and April 9, 2014. She states she is currently “not an alcoholic, but a recovering alcoholic.” Although the Appellant pointed out that the ER physician’s reference to “binge drinking” in the MCR is hearsay, the Tribunal notes that the source of this information was the Appellant’s daughter, who was so worried about her mother on April 9 that she informed the police, who then related her concerns to the hospital ER physician. The Tribunal does not need to make a specific finding of “binge drinking;” there was enough credible evidence that the Appellant was drinking to a level that affected her ability to drive safely.

The Registrar cites the guidelines of the Canadian Council of Motor Transport Administration (CCMTA), “CCMTA Medical Standards for Drivers,” Edition 13, August 2013, which the Regulation states may be considered in deciding whether the legislative test is met.

The applicable standard for alcohol dependence is on Page 230, 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 licencing 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 is mindful of the safety of both the Appellant and the motoring public. In considering Regulation 340/94 of the HTA, Section 14(b):

(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.

The Tribunal finds that the Registrar has proven its case on a balance of probabilities. The Appellant has not presented enough evidence to counter the Registrar’s evidence that she is an alcoholic who recently started drinking again and that she is currently addicted to an extent likely to interfere with her ability to drive safely. Although the Appellant is credible in her testimony that she stopped drinking on April 20, 2014, the two months since that time are not long enough to support the reinstatement of her licence. The CCMTA guideline suggests a minimum period of one year of abstention or remission; there should be a good reason to justify departing from this guideline. The Appellant’s dermatologist provided a brief note that the painkillers she had been given “may have contributed to her relapse,” but this does not provide a strong enough case to reinstate the Appellant’s licence after just two months, especially since the Appellant was unable to have any physician complete a Substance Abuse Assessment form that would enable a fuller assessment of her current situation.

DECISION

Upon the application by the Appellant to appeal the decision dated April 10, 2014 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 Appellant,

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

D. Ian Turnbull, MD, Presiding Member

RELEASED: July 4, 2014