Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-08-28
FILE:
8959/MED
CASE NAME:
8959 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
ORDER
ADJUDICATOR:
Dr. David Borenstein, Member
APPEARANCES:
For the Appellant:
Self represented
For the Respondent:
Mr. Kyle Biel
Heard by teleconference;
August 20, 2014
REASONS FOR DECISION AND ORDER
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
The Appellant had himself taken to the Emergency Department on or around May 4, 2014, after drinking hard alcohol in response to a stressful domestic situation, and with fears of alcohol withdrawal should he suddenly stop drinking on his own. During this visit, the attending physician, Dr. DS prepared and sent a Notice of Medical Condition form to the Ministry of Transportation (MTO) stating “alcohol dependence” and “alcohol withdrawal.” No other information was provided.
On June 4, the MTO sent the Appellant a letter in which they stated his driving privileges were to be suspended, and that the MTO required proof of abstinence for 1 year. This time period could be reduced following the completion of a treatment program or completion of the ministry’s substance abuse assessment form, which was included in the package.
The Appellant provided a letter dated July 10, 2014, by his health care provider and nurse practitioner, Ms. BCF, which stated that he attends the clinic regularly to discuss his issues, he has a normal alanine aminotransferase (ALT) and aspartate aminotransferase (AST) and a gamma-glutamyl transferase (GGT) of 220. He reported to his health care provider that he had been free of alcohol for 90 days. No substance abuse assessment form had been completed and there was no additional lab values provided, including any baseline values.
A letter dated June 19, 2014, from a psychotherapist, Mr. TH, stated that the Appellant admits to a drinking problem, but his last drink was on May 1, 2014. A driving licence would help him get to his Alcohol Anonymous meetings.
Upon review of the above-mentioned documents, the MTO confirmed the suspension of the driving license in writing on July 28, 2014. The MTO substance abuse assessment form was again included in the package.
Neither party refuted any of these facts in the hearing.
The Registrar’s case
There is limited information available. A certified physician has sent a note explicitly stating the Appellant should not drive due to alcohol use. Through testimony and the letters provided there is a clear diagnosis of alcohol dependence. One of the three lab values that were provided is abnormal, with a GGT of 220. It s a clear the Appellant does not meet CCMTA standards as per section 15.6.3. The MTO highly suggests that the Appellant complete the substance abuse assessment form and send the MTO the information they require to make an informed decision. Furthermore, the Registrar was able to determine through cross-examination that the situation that lead to the medical condition report, involved a several day binge of rye and that it started on April 30, 2014. The Appellant was then admitted to the hospital for a period of 8 days during which time a stomach problem was diagnosed and is currently under investigation.
The Appellant’s case
The Appellant testified that his health care practitioner told him that if one were to review the questions of the MTO alcohol abuse assessment form, no one who had a few drinks a week and an ‘extra drink at a ballgame’ would pass. And therefore, she felt there was no reason to complete the form. He himself never drinks and drives, and was in fact a professional driver with a clean driving record for the majority of his career prior to some vision problems. The current situation also stemmed from a domestic problem with his son, and that he only has a historical use of beer. During the binge that sent him to hospital, he had alcohol delivered for extra money so not to leave the house.
Additionally, he had quit drinking in the past for 17 years and only in 1998 did he restart drinking occasionally. He has discussed quitting again with his health care provider as he eventually was drinking 4 beers a day, and it was in these conversations that he was told that the effects of suddenly quitting hard liquor could be lead to major medical issues due to withdrawal. For this reason, he called the ambulance in May to go to the Emergency Room. He doesn’t feel the stomach issue he was diagnosed with in hospital is related to the use of alcohol. He also stressed that he had asked to be brought to the hospital and found it to be completely unfair that he should lose his licence when asking for help, when he know others in the community who drink more than him and drive. He consistently repeated that he doesn’t’ understand how this should happen. Currently he is visiting New Brunswick, and did ask during the hearing if he could have a driving licence in that province should he move, and how he could get his licence back now. The Registrar’s representative provided the answer to these questions.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
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 CCMTA guidelines generally require the following standards for licensure with a medical condition of substance abuse and/or dependence.
- The driver meets criteria for remission and/or has abstained from alcohol for 12 months.
- Early re-licencing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority and the successful completion of a drug rehabilitation program.
- Proper functional ability to operate a motor vehicle
- Conditions for maintaining a licence are met.
The testimony of the Appellant, along with the letters from his nurse practitioner and psychotherapist do highly suggest a diagnosis of chronic alcohol dependence as defined by the DSM-IV. And, as such his driving privileges are subject to the criteria outlined above. The Tribunal certainly empathizes with the Appellant’s feeling of being punished for trying to get help. Certainly, one of the faults in any standardized system is that not everyone that should be identified as high risk is identified, however this does not allow one to turn a blind eye to those identified as a risk.
In this case, the Registrar has met the burden of proof, and provided a significant case to suggest that there is a risk of the Appellant currently driving and that although he states he is no longer drinking, a proper period of observation and/or completion and submission of the substance abuse assessment form with appropriate blood work is reasonable, based on the evidence before the Tribunal. Additionally, the Appellant appears to be lacking an appreciation as to the severity of his alcohol use. A hospital admission of 8 days, along with a diagnosis of a stomach issue following binge drinking, certainly suggests an alcohol problem that is uncontrolled. This is further corroborated by the Appellant’s own testimony that he was drinking about 4 beers a day prior to his hard liquor binge, an amount that had been steadily increasing after a long period of abstinence, that he had alcohol delivered to him at home and by his inquiry at the hearing regarding the possibility of getting a driver’s licence in another province to circumvent his Ontario suspension. At this time, the Appellant really has not provided the MTO with any of the information they need to reinstate his licence nor has he provided this information to the Tribunal at the hearing..
DECISION
Upon the application by the Appellant to appeal the decision dated June 14, 2014 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 confirmed.
LICENCE APPEAL TRIBUNAL
David Borenstein, Presiding Member
Released: August 28, 2014