Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9699/MED
CASE NAME: 9699 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
9699 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dybesh Regmi, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard in Toronto: August 19, 2015
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 (the “Registrar”) pursuant to Section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
PRELIMINARY MATTERS
Mr. Biel, the Agent for the Ministry of Transportation (the “MTO”), informed the Tribunal that the Appellant had faxed additional documents to the MTO on August 18, 2015, which were reviewed by the Ministry’s medical review committee. These additional documents included a letter from the family doctor and a community addiction worker dated August 6, 2015, and August 14, 2015, respectively. Following the review, the MTO reiterated, in a letter to the Appellant dated August 19, 2015, that his driver’s licence would remain under suspension.
FACTS
Mr. Biel informed the Tribunal that the MTO received a Medical Condition Report from the emergency room physician Dr. M.M. dated November 20, 2014, in which a tick box was marked for “Alcohol Dependence.”
Following the receipt of the document, on January 6, 2015, the MTO wrote to the Appellant indicating that his reported condition is Alcohol Dependence and that his driving privileges would be suspended, under section 47(1) of the Act. The MTO also included the Substance Use Assessment Form and instructed the Appellant take the letters and the forms to his treating physician, specialist or nurse practitioner and have them send information to the medical review section.
The Substance Use Assessment Form dated February 5, 2015, was completed by Dr. K.F., the Appellant’s family physician for the last 10 years. Within the form, the Appellant’s diagnosis was identified as Alcohol Dependence. The physician indicated that the Appellant experienced an alcohol related seizure but did not know when the last seizure occurred. He stated that the Appellant had abstained from alcohol for less than six months. While he successfully completed a formal addictions treatment program, the physician did not have confirmation of completion of the program that the Appellant enrolled in less than three months ago. The physician indicated that the rise in one of the biochemical markers of the Appellant was due to alcohol but also stated “very slight elevation could be secondary to transient illness.” The alcohol use disorders identification test (AUDIT) score and the Leeds Dependence Questionnaire for the Appellant was not completed.
Upon receipt and review of the Substance Use Assessment form, the MTO wrote to the Appellant on March 27, 2015 informing him that they would require further information regarding the results of all the recent biochemical markers with a clinical explanation for any levels outside the normal laboratory range. Furthermore, the MTO also required confirmation that the Appellant remained seizure free and abstinent from alcohol for a period of one year. This may be reduced to six months if the Appellant’s physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privileges.
A copy of the results of the biochemical markers tested on May 13, 2015, was sent to the MTO. These results were normal. Accompanying the results was a letter, dated April 28, 2015, from Dr. K.F, in which he refutes the fact that the Appellant had any sort of seizure or seizure disorders in the past.
On August 6, 2015, the MTO wrote to the Appellant informing him that a confirmation of having remained seizure free and abstinent from alcohol for a period of one year would be required for the reinstatement of his licence to be considered. The abstinent period may be reduced to six months if the Appellant’s physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.
On August 18, 2015, a letter, dated August 6, 2015, from Dr. K.F., was faxed to the MTO. It indicates that the Appellant has had alcohol on two occasions since his hospital visit in November 2014, one in February 2015 and another in April 2015 while on vacation. Furthermore, the letter states that the Appellant has never had seizures. The second letter faxed on that date was the letter dated August 14, 2015, from Mr. K.P., a community addiction worker, indicating that the Appellant did attend the Community Withdrawal Management Day Program from “March 25th, 2014 to April 14th 2014” but did not complete the program due to the need to return back to work. Upon further questioning and clarification, the Appellant clarified that the date in this letter should have been “March 25th 2015 to April 14th 2015.”
Nevertheless, the MTO sent a letter dated August 19, 2015, indicating that the driver’s licence would remain under suspension until the Appellant’s treating physician or specialist sent confirmation that he was seizure free and abstinent from alcohol for a period of one year.
Mr. Biel referred the Tribunal to certified copies of the Appellant’s driving record which indicates 4 previous convictions but none related to alcohol. He also drew the Tribunal’s attention 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 Agent’s position was that the duration of abstinence from alcohol is not long enough and the Appellant has also not completed a substance rehabilitation program or attended counselling.
After the Appellant was affirmed, he stated that on the evening of November 13, 2014, he had gone out with his girlfriend for dinner and had approximately 5 to 6 drinks. After feeling nauseous and anxious, and due to concerns regarding alcohol poisoning, the Appellant presented himself to the emergency room. He denies any seizure activity prior or during his visit to the emergency room. He also denies that he has any history of alcohol dependency or abuse. There was no previous discussion between him and his physician regarding his alcohol use or elevated biochemical markers. He states he does not drive after drinking alcohol and states that this occurrence of drinking 6 drinks was a one-off event.
The Appellant works at trade shows and also at a hospital and would like his driver’s licence to ensure he can go back to his occupation. He states he started the Community Withdrawal Management Day program between March 25th and April 14th 2015, but had to leave due to work related issues. During this time, he also went on vacation and drank alcohol, which he regrets. He was not sure why his doctor was refuting the claims regarding seizures, but did not refute the diagnosis of Alcohol Dependence.
The Appellant’s position was that he does not drink and drive and he does not have alcohol dependence. His biochemical markers are normal. He recognizes that he made the mistake of drinking alcohol while in a treatment program (which he did not complete), but has since abstained completely. He is agreeable to complete the Community Withdrawal Management Day program but does not believe that the 12-month abstinence period is necessary.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
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.
APPLICATION OF THE LAW TO FACTS
It is apparent from the details in the substance use form filled out by a physician who has managed his care over 10 years that the Appellant had high liver enzyme likely due to alcohol use. The physician clearly indicates Alcohol Dependence as a diagnosis and does not refute this diagnosis in any of the correspondence to the MTO. Neither does the physician, in the most recent letter dated August 6th 2015, indicate support for the reinstatement of the Appellant’s driving privileges.
The Tribunal accepts that the Appellant was not driving when impaired and has never done so. He does not suffer from a seizure disorder and did not have a seizure during the visit to the emergency room. After abstinence, his elevated liver enzyme has normalized. He is committed to completing the treatment program and abstaining from alcohol.
The matter before the Tribunal is to determine based on the evidence submitted whether the Appellant is addicted to alcohol to the extent that it would significantly interfere with his 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.
The simple fact that the Appellant suffers from alcohol abuse does not, in itself, significantly interfere with his ability to operate a motor vehicle safely. The point to consider is whether the condition has stabilized to ensure that he is able to drive a vehicle safely. Since the hospital visit in November 2014, the Appellant has consumed alcohol in February 2015 and while on vacation in April 2015. The latter of which was during the time when he was enrolled in the Community Withdrawal Management Day program between March 25th and April 14th 2015. The Appellant did not complete this program and has not attended any other alcohol treatment program. In his evidence, the Appellant has stated that he does not have alcohol dependence. The duration of abstinence from alcohol has been 4 months and considering the Appellant’s relapses, not enough time, in the Tribunal’s opinion, has passed to determine stability.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective December 30, 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
Dybesh Regmi, M.D., Member
Released: August 27, 2015