Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 9121/MED
CASE NAME: 9121 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
9121 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Michael Paczak, Paralegal
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: October 22, 2014
DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant respecting a decision of the Registrar of Motor Vehicles pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Respondent’s Evidence
An unsolicited Medical Condition Report was completed on June 23, 2014 by an Emergency Room physician, Dr. L., based on examination that same date. The conditions were checked as ‘Alcohol Dependence’ and ‘Drug Dependence’ as well as ‘Choreoathetosis: Involuntary muscle and limb movements from drug use’.
The Ministry informed the Appellant on June 23, 2014 that her driving privilege was suspended under section 47(1) of the Act. She was requested to have a Substance Abuse Assessment form completed, in order to determine if her licence can be reinstated.
In order to be considered for reinstatement, she was requested to take the letter of suspension to her physician 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.
If your physician confirms a diagnosis of substance dependence, the ministry will require confirmation that you have remained abstinent from all illicit and/or non-prescribed medication for a period of one year. This period may be reduced if your physician confirms that you have successfully completed a drug treatment program and is supportive of your driving privilege.
On August 4, 2014, her family physician for 14 years, Dr. Y., completed the Substance Abuse Assessment. Dr. Y. diagnosed the following:
Psychiatric Disorder
Chronic Anxiety or Tension
Physical examination and Laboratory Assessment: Normal
Age of first alcohol use: 16
Amount consumed on each occasion: 1 Litre of wine. Most recent use: July 1, 2014
Longest period of abstinence in last 3 years: 12 months December 2011-November 2012
Current medications: Antabuse 250 mg daily; Effexor XR 75 mg daily.
Alcohol related syndromes : Uncomplicated alcohol withdrawal: June 2014.
June 2014 cocaine twice in one year. Now has quit.
Alcohol Use Audit: score 17 (>13 = Alcohol-related harm. (Relapse June 2014; quit July 1 , 2014)
When relapsed used 8 drinks daily
Drug Abuse Screening:
Has used drugs, more than one drug at a time and able to stop when she wants to and feels guilty about drug use.
Has used AA in 2011. Now attends 2-3 times weekly
(Treatment centre): June 2013 completed.
(Treatment centre) Relapse Prevention: 2011 completed.
12 Step Program: attending regularly
Evidence to Support Maintenance of Recovery:
Responsible attitude; Sense of Hopefulness; Awareness of Harm associated with Relapse;
Good social network;
No contact with substance abusers; Engaging in alternative activities; Enhanced self-esteem.
Diagnosis: Dependence. Quit July 1, 2014 after short relapse in June 2014
Recommendation: Abstain. Previous abstinence 2011
To continue on Antabuse and Effexor.
Results of eight weekly drug screens between July 8, 2014 and August 18, 2014 were negative.
The Addiction Treatment Centre confirmed completion of the 21 day program on July 5, 2013. It was recommended that the Appellant attend Relapse Prevention Group weekly and also that she attend AA meetings twice weekly. The Appellant last attended the Relapse Prevention program on September 4, 2013.
Verification of attendance at AA for over one year up to August 18, 2014 was submitted.
Several references were also submitted as to the Appellant’s good character and sense of responsibility.
In response, the Registrar informed the Appellant on September 15, 2014 that it had been decided that the suspension should remain. In order to be considered for reinstatement, she was informed that she should take the letter of suspension to her physician and have the following information sent to the Medical Review Section:
Confirmation that she has remained abstinent from alcohol for a period of one year. This period may be reduced if her physician confirms that she has successfully completed an alcohol treatment program and is supportive of her driving privilege.
The results of bio-chemical markers (MCV, GGT, AST and ALT) with a clinical explanation for any levels outside the normal laboratory range.
Confirmation that the reported choreoathetosis is controlled.
Reference was made to the Canadian Council of Motor Transport Administrators (CCMTA) Section 15.6.3: that applies to all drivers who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines etc.
STANDARD: All drivers are 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.
The Appellant’s Evidence
The Appellant stated that after 17 years, her marriage failed and the business which she and her husband had built was divided. In 2009, after a series of losses she became depressed and began to drink heavily and described herself as an alcoholic. She sought help in 2011. She remained abstinent from December 2011 to November 2012.
She completed the 21 day residential relapse prevention program at a treatment centre on July 5, 2013.
She acknowledges relapsing four times since 2011.
She used cocaine under the influence of her partner and in 2014 she was using marijuana, cocaine and alcohol. She ended an abusive relationship. She experienced tics and was taken to Emergency by her family on June 24, 2014.
Tests at the E.R disclosed cocaine metabolites as well as a high level of alcohol. She was advised to seek drug counselling and to see her family physician.
She stated that she has remained abstinent since July 1, 2014. Her physician started her on Antabuse and an antidepressant. She has seen her physician for counselling three times since the event on June 24, 2014.
She stated that she does not remember receiving the September 15, 2014 letter from the Registrar. She did show the letter of suspension of June 23, 2014 to her family physician.
She has been involved with AA since June as a volunteer and has successfully completed a fitness program as well as running two business locations. She has strong family support as well as community support.
She understands that the Registrar requires confirmation by her physician that she has remained abstinent from alcohol and agrees to see her physician in order to meet the requirements for consideration for reinstatement.
ISSUES
Does the Appellant suffer from addiction to the use of alcohol or a drug to an extent likely to significantly interfere with her ability to drive a motor vehicle of the applicable class 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 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.
Section 47(1) states:
Subject to section 47(1) the Registrar my suspend or cancel,
(b) a driver’s licence
On the grounds of (g) any other sufficient reason not referred on clause (d), (e) or (f)
APPLICATION OF THE LAW TO FACTS
The Respondent relies on the following:
Section 47(1) of the Act authorises the Registrar to issue a suspension of the driver’s licence upon receipt of a Medical Condition Report of alcohol dependence and substance abuse, by a physician in compliance with section 203 of the Act.
Regulation 340/94 (14) authorised the Registrar to continue the suspension pending receipt of the information requested by letters on June 23, 2014 and September 15, 2014.
The Appellant’s family physician confirmed the diagnosis of alcohol dependence in the Substance Abuse Assessment completed in August, 2014.
CCMTA Section 15.6.3 recommends suspension until confirmation of abstinence for 12 months which may be reduced upon confirmation by the family physician
that she has remained abstinent and has completed a treatment program.
In submission on her behalf, the Appellant stated that she has accepted that she is a recovering alcoholic, has successfully completed a number of relapse prevention programs after seeking help, and has recognised that she cannot be a controlled drinker. Further, she has not been diagnosed with drug addiction. Her use of cocaine and marijuana has been in the context of an abusive relationship which has ended.
She pointed out that she has successfully managed two businesses with 20 employees.
Her life is now dedicated to avoiding alcohol and drugs for herself and also to helping alcoholics through volunteering with AA. The suspension for twelve months is excessive and she will arrange for a medical report by her physician confirming abstinence with supporting laboratory evidence and a recommendation for reinstatement.
The Tribunal finds as follows.
The Registrar was justified in issuing a licence suspension under section 47(1) upon receipt of a Medical Condition report of alcohol dependence and substance abuse.
The Registrar was justified in continuing the suspension under Regulation 340/94 (14) upon failure by the Appellant to submit medical confirmation of abstinence and a recommendation for reinstatement.
The use by the Appellant of cocaine and marijuana was in the context of an abusive relationship which has ended. There is no medical evidence of drug addiction.
The Tribunal finds that in view of the strong support by the Appellant’s family physician, a repeat of the alcohol treatment program is not warranted.
In view of the history of several relapses prior to the date of the Medical Condition Report on June 23. 2014, the Tribunal finds that her driving privilege should remain suspended. Weighing the evidence before it, the Tribunal finds that the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with her ability to drive a motor vehicle safely.
The Tribunal does note the steps taken by the Appellant to deal with this addiction and the support she has sought and is receiving. The Ministry’s letter of September 15, 2014 does make reference to the fact that upon receipt of specifically cited information, reinstatement of the Appellant’s driving privilege may be considered and Mr. Biel made submissions to the effect that pending a satisfactory report by the Appellant’s family physician of abstinence from alcohol for six months, supported by laboratory markers and a recommendation for reinstatement, the Appellant may be considered for reinstatement effective January, 2015. Should the ministry decide at that time not to reinstate her licence, the Appellant does have recourse to her appeal rights under the Act.
DECISION
Upon the application by the Appellant to appeal the decision 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
Kevin Flynn, M.D., Member
Released: November 3, 2014