9446 v. Registrar of Motor Vehicles, 2015 CanLII 26070

Licence Appeal Tribunal

DATE: 2015-05-12

FILE: 9446/ MED

CASE NAME: 9446 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

9446 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, M.D., Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Kyle M. Biel, Agent

Heard by teleconference: May 4, 2015

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”).

OVERVIEW

The Appellant is a 25-year-old general construction worker who was involved in a two-car collision on August 17, 2014, and sustained a closed head injury.

Drug paraphernalia was found in his vehicle. A urine toxicology screen in the Emergency Department of the local hospital was positive for cocaine, morphine and benzodiazepine.

In a letter dated August 26, 2014, the Registrar suspended the Appellant's driving privileges, effective August 30, 2014, and asked the Appellant to complete the Substance Abuse Assessment (SAA) form with his physician.

The Appellant sent the Registrar a supportive Mental Health Assessment (MHA) form from his methadone maintenance physician, dated April 20, 2015.

The Appellant also sent a physician's report dated April 14, 2015 from a rapid detoxification centre in Michigan to the Registrar. The doctor stated the Appellant had "been detoxed" on April 7, 2015.

FACTS

1. Pursuant to Section 203 of the Highway Traffic Act (HTA), the hospital Emergency Room physician sent a Medical Condition Report (MCR) to the Registrar, dated August 17, 2014, indicating Drug Dependence.

2. The completed SAA form (September 29, 2014) was interpreted as alcohol dependence. In a letter dated December 18, 2014 the Appellant was asked to provide additional medical information to the Medical Review Section and remain abstinent of alcohol for one year.

3. Triggered by the receipt of the Appellant’s Notice of Appeal dated March 5, 2015, the Appellant’s file was reviewed by the Registrar and the misinterpretation of the Appellant’s SAA form was corrected.

4. In a letter from the Registrar dated April 1, 2015, the Appellant was asked to provide confirmation that he had been abstinent from drugs for one year, confirmed by urine toxicology screening.

5. Through the internet, the Appellant learned of a rapid detoxification centre in Michigan. He was warned by the clinic the procedure carried a 30% risk of dying.

6. The procedure consists of implanting a pellet of Naltrexone near the umbilicus under general anesthesia. Naltrexone is an opiate antagonist and blocks opiate receptors in the brain. The drug is to aid narcotic-dependent persons, who have stopped taking illicit drugs, to remain drug free.

7. The Appellant was told the sustained release drug would “kick in” in 20 days and be effective for two months. The pellet was implanted on April 7, 2015 and he was told it would be effective until the end of July 2015. He is then expected to take daily oral tablets of Naltrexone.

8. His Addiction Medicine Specialist at an Ontario Addiction Treatment Centre (OATC) states in the completed Mental Health Assessment Form (dated April 20, 2015) that the Appellant has succeeded at the rapid detoxification centre and is very motivated. The doctor did not recommend consideration of restoration of his driving privileges.

9. The Appellant sent a Notice of Appeal, dated March 5, 2015, asking for re-consideration of the one-year suspension of his driving privileges.

ISSUES

Should the decision of the Registrar to suspend the Appellant’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 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.

ANALYSIS

The Registrar has made the case that the Appellant's driving privileges should remain suspended. A one-month period of abstinence from illicit drugs is simply too short a time to consider restoration of the Appellant's driving privileges.

The SAA form completed with the Appellant’s methadone maintenance physician on September 22, 2014, shows a Drug Abuse Screening Test (DAST) score of 12, indicating substantial dependence. The AUDIT (Alcohol Use Disorders Identification Test) score was 4.(misuse or possible abuse )

The Registrar relies on the guidelines of the Canadian Council of Motor Transport Administrators (CCMTA), Version13: Edition 13, August 2013, which Ontario Regulation 340/94, Section 14(2)(a) states may be considered specifically page 230.

Section 15.6.3 - Substance Abuse or Dependence - All Drivers - 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 physicians 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 licensing 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 Appellant’s evidence is two-fold.

Firstly, he cites personal reasons:

• needs car for work
• dependence on others for transportation
• no bus service where he lives
• difficult to get a general construction job
• cannot contribute to society which is depressing
• staying at home doesn't help rehabilitation

Regrettably, the HTA does not make any provision for personal hardships in Section 47(1).

Secondly, in March 2015, the Appellant decided he was “rolling the dice” with his health and decided to stop using illicit drugs. He chose to attend a rapid detoxification clinic in Michigan. The only evidence provided by the Appellant is the doctor’s letter dated April 14, 2015 from the rapid detoxification clinic in Michigan. This letter outlines the rapid detoxification procedure and the expected results from the implanted Naltrexone pellet

The Appellant states the last addictive substance he used was (Percocet on April 3, 2015).

The evidence before the tribunal is clear; the Appellant has an addiction to drugs. It was a serious motor vehicle accident which precipitated his licence suspension. He has sought treatment and appears motivated to overcome the addiction.

The issue at this time is the length of the driver's licence suspension required for consideration of restoration of the Appellant’s driving privileges The date of the implantation of the Naltrexone pellet (April 7, 2015) is a possible starting date of his abstinence from addictive substances.

The Tribunal agrees with the Registrar that a longer period of stability is required. The Tribunal notes that his treating physician did not recommend consideration of restoration of his driving privileges. The period of stability could be reduced from one year to six months if the Appellant can provide the Registrar's Medical Review Section with the following medical information requested in a letter dated April 27, 2015:

• abstinent of all addictive substances for one year
• his physician's confirmation that he has successfully completed a substance abuse treatment program
• results of urine toxicology screening
• the physician is supportive of restoration of his driving privileges

The Tribunal is mindful of the safety of the Appellant and the motoring public and refers specifically to O. Reg. 340/94, Section 14(1)(b) which states:

(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.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from an addiction which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the application by the Applicant to appeal the decision effective August 26, 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

D. Ian Turnbull, M.D., Member

Released: May 12, 2015