Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-07-29
FILE:
9639/MED
CASE NAME:
9639 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:
Dybesh Regmi, M.D., Member
APPEARANCES:
For the Appellant:
Mike Paczek, Counsel
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
July 21, 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”).
PRELIMINARY MATTERS
Ms. De Santis, the Agent for the Ministry of Transportation (MTO), asked to confirm that additional documents e-mailed to Mr. Mike Paczek, counsel for the Appellant and to the Tribunal on July 20, 2015 were received and reviewed, and this was confirmed.
These additional documents included a letter from the family doctor dated July 12, 2015, a copy of the blood work of the Appellant done on July 9, 2015 and a letter from MTO dated July 20, 2015. These were filed as Exhibit 8.
FACTS
Ms. De Santis informed the Tribunal that the Ministry received a Medical Condition Report from the emergency room physician Dr. JF dated May 17, 2015, in which a tick box was marked for “Other” and the words “EtOH abuse while driving” were written beside it. The comments below stated “Pt. came in as an Driver MVC trauma. Positive EtOH 30 mmol.” A tick box was also marked indicating that the patient is aware of the report.
Following the receipt of the document, on May 26, 2015, the MTO wrote to the Appellant indicating that her reported condition is Alcohol Abuse/Dependence and that her driving privilege would be suspended, under section 47(1) of the Act. With the letter, the Ministry also included the Substance Use Assessment Form and instructed the appellant to take the letter and the forms to her treating physician, specialist or nurse practitioner and have them send the information to the medical review section.
The Substance Use Assessment Form dated June 5, 2015 was completed by Dr. RE, the family physician of the Appellant who has been involved in the ongoing management of her medical issues for over 20 years. Within the form, the Appellant’s diagnosis was identified as alcohol abuse and the patient has not abstained from alcohol. The results of biochemical markers were all elevated. The physician noted that these elevations maybe due to alcohol use. The Appellant has not completed any formal addictions treatment program or counselling with a physician, nurse practitioner or certified addictions counsellor. She has however never experienced a seizure, never used any drugs and does not have any underlying medical conditions. The alcohol use disorders identification test (AUDIT) score for the Appellant is 3, suggesting there is no misuse, abuse or addiction. The Leeds Dependence Questionnaire score for the Appellant is 1, suggesting misuse. Under the additional comments section, Dr. RE writes:
“this woman was not intoxicated at the time of the accident and she was not charged with DUI. She had some drinks the night before and had residual alcohol in her blood (B.A.C. 0.03). She has had issues with alcohol in the past (elevated liver enzymes). She has committed to sobriety and is seeking counselling. She never drives after drinking and is at low risk with respect to driving. I believe she should have her license reinstated.”
Upon receipt and review of the Substance Use Assessment Form, on June 15, 2015 the MTO wrote to the Appellant informing her that they would require further information regarding the results of all the recent biochemical markers (MCV, GGT, AST and ALT) with a clinical explanation for any levels outside the normal laboratory range.
A copy of the results of the biochemical markers tested on July 9, 2015 was sent to the MTO accompanied by letter from the Appellant’s family doctor dated July 12, 2015. Within the letter, the physician indicates that the Appellant has been totally abstinent from alcohol since July 2, 2015 and that her biochemical markers have normalized with the exception of MCV. Furthermore, the Appellant did not experience any signs or symptoms of withdrawal with abstaining.
On July 20, 2015, the MTO wrote to the Appellant informing her that a confirmation of having remained abstinent from alcohol for a period of one year along with the results of biochemical markers would be required to be considered for the reinstatement of her license. The abstinent period may be reduced to six months if the Appellant’s physician confirms that she has successfully completed an alcohol treatment program and is supportive of her driving privilege.
Ms. De Santis then referred the Tribunal to page 230 of the Canadian Council of Motor Transport Administrators (CCMTA) document and table 15.6.3 – “Substance Abuse or Dependence - All Drivers”, indicating the recommendations for reinstatement, which require abstinence from the substance for 12 months. The MTO Agent’s position was that the duration of abstinence is not long enough and the Appellant has also not completed a substance rehabilitation program or attended counselling.
The Appellant’s counsel Mr. Mike Paczek presented the case for the Appellant, who under affirmation stated that the evening of May 16, 2015 was an evening of celebration for the Appellant and her husband’s future. She had five glasses of wine late into the night with the last drink around 11 p.m. The following morning, on May 17, 2015, she went out shopping at 8 a.m. in her car and returned home. Following that, she went out again in the same morning on her motorcycle. She was unable to stop when the car ahead of her applied its brakes suddenly and she ended up having a rear collision into the car. The police present at the scene did not charge her with DUI and did not accompany her to the hospital. Prior to discharge from the hospital she was informed by the treating physician that a medical condition report indicating alcohol use would be sent to the MTO.
Mr. Paczek highlights the following points:
- The level of alcohol in her blood was 0.03, a level that is significantly lower than accepted legal limits,
- the Appellant was not intoxicated while driving and police did not charge her,
- the emergency physician noted that he has known the Appellant for one day,
- the family doctor of the Appellant supports her driving privileges,
- no untoward withdrawal signs and symptoms were experienced by the Appellant since her complete abstinence from alcohol, and;
- the bio-chemical markers have normalized since her abstinence from alcohol.
Upon questioning by her counsel, the Appellant states that she consumes alcohol 2-3 times a week and her alcohol consumption has never affected her or anyone else’s life. She has never been dependent on alcohol in her daily life and has had no issues related to alcohol. She does not drink on a daily basis.
Mr. Paczek refers the Tribunal to the certified driver record history present in the file, which does not show any prior suspensions or convictions due to alcohol. He indicated that she has never driven after consuming alcohol and was not aware of the fact that alcohol can be present in the blood in the morning even after drinking the night before.
The Appellant agrees that her family doctor discussed the high liver enzymes with her in the past and showed concerns. She agrees that she has no other underlying medical conditions. She is not sure why her family doctor was concerned about her high liver enzymes.
The Appellant lives in a rural area that lacks public transportation. The suspension has caused her significant hardships in getting around as well as attending an addiction centre.
The Appellant’s position was that she was not driving under influence of alcohol, she has never driven while being impaired, she has now abstained completely from alcohol without ill effects, and her liver enzymes have normalized. Thus the CCMTA guideline of a 12-month abstinence period is unnecessary.
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, emotional, nervous or physical disability likely to significantly interfere with her ability to drive a motor vehicle safely?
or
Is the Appellant addicted to the use of alcohol or a drug to an extent likely to significantly interfere with her 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 matter before the Tribunal is to determine from the evidence submitted whether the Appellant is addicted to alcohol to an extent that it is likely to significantly interfere with her ability to safely drive. The evidence in this case consists of the relevant forms, the medical chart notes and letters with statements given by parties under affirmation.
It is apparent that the Appellant has no prior alcohol related driving offences and was not intoxicated nor charged by police at the time of the accident. Her blood alcohol level was 0.03. The Tribunal accepts that she has never driven while being impaired, and her elevated liver enzymes normalized after uncomplicated alcohol abstinence. She is committed to never drive while being impaired and is seeking counselling.
The details in the substance use form filled out by a physician who has managed her care for over 20 years indicate that the Appellant has had high liver enzymes in the past and is due to alcohol use. The physician clearly states that she had issues with alcohol in the past. On the basis of this medical evidence the Tribunal finds that the Appellant is addicted to the use of alcohol.
But this finding of alcohol addiction does not, in itself, prove MTO’s case against the Appellant. The Tribunal must be able to find that this alcohol addiction is major enough in the circumstances of the Appellant’s situation that it is likely to significantly interfere with her ability to operate a motor vehicle safely. Generally, where a driver has an addiction to alcohol that has not stabilized, there are increased risks that the driver will drive while impaired. This is why the CCMTA guidelines suggest 12 months of abstinence before permitting a person with an alcohol addiction to drive. But the Tribunal is not bound by this guideline, and there may be suitable circumstances where the Tribunal can still find that an Appellant’s alcohol addiction is not likely to significantly interfere with her ability to drive safely. For example, the CCMTA guidelines reduce the minimum period of abstinence to six months if the driver completes an alcohol treatment program and has her doctor’s support to drive. There are instances where the Tribunal may be satisfied from the evidence that an even shorter period of abstinence is sufficient.
In this case, the Appellant has been abstinent from alcohol only since July 2, 2015, and her blood work done seven days later reveal that liver enzymes have normalized. While this shows good progress, and a willingness by the Appellant to take charge of her issue with alcohol, it is insufficient to indicate enough stability to satisfy the Tribunal, especially since the Appellant has not attended counselling or any alcohol treatment program.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is addicted to the use of alcohol to such an extent that it is likely to significantly interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective May 26, 2015 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
Dybesh Regmi, M.D., Member
Released: July 29, 2015