Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8882/MED
CASE NAME: 8882 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
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis
Heard in by teleconference: July 3 and July 25, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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”).
The hearing commenced on July 3 2014, but was adjourned as the parties sought more information, and resumed on July 25 2014.
FACTS
The Appellant is a 44 year old male truck driver whose licence to drive was suspended on April 25, 2014, under s. 47(1) of the Act.
He has known familial polycystic kidney disease (PCKD) and has been followed by nephrologists for at least 15 years. His nephrologist, Dr. D.B., wrote in 2009 that the Appellant’s medical situation was basically stable, but her note also stated that “he smokes marijuana joints (THC) on average 2 daily and has done so for the past 15 years.”
The Appellant moved from one town to another five years ago, and acquired a new family doctor: Dr.E.S, who he has seen 3 times in 5 years. He needed a medical report to be filed with the Ministry of Transport (MTO) and went to Dr E.S. She wrote on February 4 2013, that the Appellant “smokes marijuana once a day.”
On June 14, 2013, the MTO sent a letter to the Appellant asking him to have Dr.E.S. offer an opinion on “whether… marijuana consumed at dinner…given his kidney disease... posed a danger to driving.” The family doctor declined to offer an opinion. She, in fact, asked the MTO “medical section” that if they knew of such an expert, please provide her with a name.
Dr.E.S filled out substance abuse forms with the Appellant and advised “that he should be abstaining” because it would be “an issue with the Ministry.”
Dr D.B., nephrologist, an expert in renal disease, commented that the Appellant smoked marijuana daily, but offered no comment on whether he should abstain. No reference was made to the pharmacology of THC in the presence of PCKD.
The MTO’s Medical Advisory Committee wrote on May 13 2013, and on August 13 2013, that “marijuana is known to impair operation of a motor vehicle for up to 24 hours after ingestion.” Licence suspension was ordered until abstinence was established.
The Appellant was advised on December 23, 2013, that his licence was suspended.
Dr J.B., an addiction specialist, has advised the Appellant since January 2014. Follow up has involved meetings with social workers at a drug abuse centre.
Since March, 2014, the Appellant has had urine testing, verifying abstinence from THC. He has been convinced by his doctors that the smoking aspect of marijuana use, in light of his known asthma, is harmful to his health. Maintenance of good health, in general, when he has PCKD and deteriorating renal function, is a goal, when renal dialysis or renal transplantation is clearly a possibility.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Is the Appellant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his 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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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 Tribunal has identified a number of issues which bring into question this decision to suspend the licence of the Appellant;
1- Smoking marijuana in the face of impending renal failure and its effects seems to be unexplored territory. The MAC sought an expert on the subject, without success it appears.
2- The MAC refers to “ingestion” of marijuana. This was smoking “joints”, there was no evidence of ingestion.
3- What is the difference between “use” and “addiction”? The Appellant claimed that he used marijuana. The MAC equated use with addiction, but provided no evidence in support of that position.
4- Are there standards for illicit drug use? None were put before the Tribunal at this hearing.
The MAC evidence for adverse marijuana effects a morning after smoking a “joint” is vague, but nevertheless makes sense in encouraging the Appellant toward a healthier life style.
The Appellant is committed to abstinence and is having intermittent urine screens for THC. He wants to get back to work. Driving is his work.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely. His driving privileges should therefore be fully reinstated.
DECISION
Upon the application by the Appellant to appeal the decision effective December 23 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 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 set aside.
LICENCE APPEAL TRIBUNAL
Garry Fisher M.D., Member
Released: August 1, 2014