9614 v. Registrar of Motor Vehicles, 2015 CanLII 50488

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-07-16

9614/MED

9614 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

-and-

Registrar of Motor Vehicles

Respondent

David Borenstein, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Kyle M. Biel, Agent

Heard in Toronto:

June 30, 2015

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”).

FACTS

In 2013, following several speeding tickets resulting in 10 demerit points, the Ministry of Transportation (“MTO”) had investigated the Appellant. In evidence, MTO submitted its Driver Improvement Interview Report dated October 23, 2013, in which the interviewer noted that the Appellant had said he was going downtown to “pick up drugs” and was not speeding but was ticketed because the police “knew what I was up to; they know me well”. He admitted to past alcohol problems, but was clean at that point in time. The interviewer noted that the Appellant “exhibits unusual behavior throughout the interview. He is extremely fidgety, laughs uncontrollably and appears unable to sit still. He was told numerous times to not swear or else he would be asked to leave”. A medical assessment was recommended as a result of the Appellant admitting to “heavy drugs and alcohol” affecting his driving.

A medical report was completed by his new family physician, Dr. A.L., on April 4, 2014 and received by MTO on April 17, 2014. The MTO did not suspend the Appellant’s licence at this time.

On January 13, 2015, the Appellant went to his local Emergency Department (“E.D.”) for shortness of breath, at which time he told the physician he had recently used cocaine. Laboratory urine testing confirmed cocaine and benzodiazepines in the body and the physician filed a Medical Condition Report with MTO. It was completed by Dr. R.W. and it was noted “drug dependence” and “mental or emotional illness – unstable”. The physician was both an emergency room physician and a psychiatrist.

On February 17, 2015, MTO wrote to the Appellant and informed him of the impending suspension. They asked for completion of the standard Substance Use Assessment form and confirmation of abstinence from all illicit drugs for a period of one year. A reduced period of suspension could be considered upon successful completion of a drug treatment program. The form was completed on February 24, 2015 by Dr. A.L., and noted a history of drug abuse and drug misuse, based on the Appellant’s history and hospital lab tests. She had not seen him since April 2014 and the form was completed according to the Appellant’s history.

On April 10, 2015, MTO informed the Appellant that the Substance Use Assessment form initially filed was incomplete and had to be completed in its entirety. A locum for his family physician, Dr. M.A., completed the missing page of the form on April 21, 2015. The page that had originally been missing from the first submission noted that the Appellant had only abstained from illicit drugs for less than 6 months, and had last attended a rehab program more than 12 months prior.

On April 30, 2015, MTO acknowledged review of all of the information and confirmed the suspension.

MTO requested proof of greater than 12 months of abstinence from drugs via urine toxicology screening with a possible reduction of the duration of suspension, following successful completion of a drug treatment program within the last six months. Additionally, information regarding the Appellant’s mental/emotional stability was now required in the form of the MTO standard Mental Health Assessment.

A letter dated May 22, 2015, from Dr. M.A., confirmed the Appellant’s intent to discuss rehabilitation options at his local hospital and the plan to complete urine toxicology testing monthly for the next year. Also noted was that the Appellant had attended rehab in 2011/2012, and is currently reporting to be attending Alcoholics Anonymous (“AA”). On June 16, 2015, MTO again confirmed the suspension.

The Registrar’s Evidence

MTO reiterated the above history and facts. The Appellant arrived in an E.D. where an independent physician found he used cocaine, supported by urine toxicology. Other physicians have provided documents supporting a diagnosis of substance abuse and dependence. The Appellant has an admitted history of unsafe driving and admitted drug use and has now relapsed. This is despite a history of attending rehab and thus the MTO takes the position that it must request the Appellant to prove that he is safe to drive according to the Canadian Council of Motor Transport Administrators (“CCMTA”) guidelines. These guidelines state an eligible driver must:

Meet the criteria for remission and/or has abstained from the substance for 12 months.
Obtain a favorable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and successful completion of a drug rehabilitation program in order for earlier re-licencing to be considered.
Establish that functional abilities for driving are not impaired.

The Appellant has not met these criteria and is currently a safety risk to drive. To set aside the suspension would be premature.

The Appellant’s Evidence

The Appellant asked to submit his resume, certificate of rehab completion from 2010 and clean urine toxicology report, dated June 5, 2015, as evidence. There was no objection. Of note, the dates of the submitted rehab certificate differed from the information provided in the letter dated May 22, 2015, from Dr. M.A.

The Appellant strongly objected to the use of the MTO Driver Improvement Interview Report from 2013, which he feels, is inaccurate, insulting and quite damning. He stated that he did not make such overt comments about his past drug use or that he was speeding to get drugs. Furthermore, he feels that this report led to him being required to submit a medical report in the first place and that MTO has no right legally to require this information.

His objection was noted by the Tribunal; however, he was reminded that this is an appeal of his driving suspension for medical, not legal, reasons, and that the information may be submitted as evidence.

He also feels that the letters sent to him by MTO are not clear and keep asking for different things. No medical information from his visit to the E.D. has been submitted against him beyond the urine toxicology report and the Medical Condition Report. He was reminded that he, not the MTO, has the responsibility to disclose medical information in support of his position, and further that his authorization is required for the release of medical information in any event.

The Appellant noted his desire to drive for employment purposes. He has worked in the past as a transportation planner and wishes to resume his career in that field, following a hiatus for various personal stressors including substance use, coping problems and a marriage breakdown. He also requested clarification as to what is required of him as he feels that the MTO letters keep changing the criteria needed to lift the suspension. He is prepared to provide monthly toxicology reports, and to go to AA meetings, however doesn’t feel rehab will work. Except for a few small relapses, he feels that he has been “quite good” since rehab in 2012. He doesn’t feel that he is a risk on the road, and would never drive intoxicated.

ISSUES

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

In particular:

Does the Appellant suffer from a mental or physical condition likely to significantly interfere with his ability to drive a motor vehicle safely?

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:

(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 Appellant’s objections to the use of the 2013 MTO Driver Improvement Interview Report are noted. Pared down to pure facts, the Appellant almost lost his licence for multiple speeding infractions in 2013. The documentation from that incident supports the existence of a drug problem at that time and he has admitted to a history of drug use to the Tribunal. The case at hand deals with the medical conditions addressed within the report by Dr. R.W. dated January 13, 2015. Thus, the specifics of the notes contained in the MTO Driver Improvement Interview Report are not germane for the Tribunal, merely the bare facts as outlined. Additionally, to use the specifics of this note as sole proof to make the case for emotional instability after MTO accepted the Medical Condition Report provided in 2014, during the demerit point investigation, would essentially amount to “double jeopardy”.

The Appellant clearly has an issue with substance use. He has had a relapse despite rehab programs and admits to this fully. Cocaine is a substance that can impair judgment and motor function, and impacts the ability of a person to drive safely while intoxicated by cocaine. The claim that “I would never drive while on drugs” is not valid as the judgment of a person is impaired while taking the drugs. Neither the Appellant nor any of his physicians deny problems with cocaine. During the hearing, the Appellant agreed that this latest incident has forced him to start taking better care of his health.

Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is currently suffering from an addiction to a drug to an extent likely to significantly interfere with his ability to drive a motor vehicle safely. He attended a hospital E.D. in January, 2015. Toxicology tests confirmed cocaine use. There is no evidence before the Tribunal, beyond the Appellant’s admitted addiction, of abstinence or rehabilitation efforts.

However, the Tribunal does note that the requirements of MTO do seem to be expanding. Initially, the MTO requirement was limited to information pertaining to the Appellant’s substance use but now also includes providing information on his mental and emotional stability. While MTO has clearly made its case for substance abuse, the same cannot be said for emotional illness and mental instability.

No evidence has been presented to suggest that an emotional illness has been present since January 2015 that on the balance of probabilities would impair the Appellant’s ability to drive safely.

Thus, as the Appellant has requested a concrete answer as to what is required of him to have his licence reinstated, the Tribunal finds it fair to insist, given its finding that he is suffering from an addiction likely to impact his ability to drive safely, that he provide documentation on abstinence in the form of toxicology reports for the duration of one year as per the CCMTA standards. As previously stated, MTO may choose to reevaluate the duration of the suspension if the Appellant does decide to retry a rehab program. In regard to the issue of emotional stability, the Tribunal recommends the MTO set aside this requirement unless further evidence can be provided to support an unstable emotional condition rendering the Appellant unsafe to drive.

DECISION

Upon the application by the Appellant to appeal the Registrar’s decision, effective February 27, 2015, 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, M.D., Member

Released: July 16, 2015