Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 9874/MED
CASE NAME: 9874 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
9874 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: December 1, 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:
The Respondent’s Agent noted that she had asked the Appellant if he wanted an adjournment so that he had time to get more forms completed by his medical professionals. The Appellant indicated that he wished to proceed with the hearing immediately.
FACTS
On February 4, 2015, Dr. A (the Appellant’s family physician) filed an unsolicited Medical Condition Report.
The reasons checked on the report were: (1) Alcohol Dependence; and (2) Mental or Emotional Illness – unstable.
In the comment section, Dr. A wrote: “alcoholism with binge drinking and alcoholic blackouts”.
The Appellant’s driver’s licence was suspended on March 10, 2015.
The Appellant was asked by the Respondent to provide a Substance Use Assessment form, a Syncope/loss of Consciousness form, and a Mental Health Assessment form.
The Appellant did not submit these forms.
On March 25, 2015, the Appellant had a sleep study done which showed mild sleep apnea. It was noted in the consultation report that the Appellant drinks 30 beers per week.
Lab tests done on that day showed normal liver function tests and specifically, a normal GGT (a value that can be elevated with excessive alcohol consumption).
The Appellant confirmed that he drinks regularly and has for many years. He said he drinks 3 nights per week and consumes 28-30 pints of beer per week. He has no plans to decrease his alcohol consumption. He feels that his alcohol consumption does not influence his ability to drive as he has “zero tolerance for drinking and driving” and never drinks outside of his house.
He said that he has extensive driving experience and he has never been charged with driving under the influence of alcohol. His driving record supports this.
He said that Dr. A had been his family physician for 15 years and encouraged him to attend rehabilitation for alcoholism.
The Appellant stated that he lacked confidence in Dr A’s clinical abilities and professional integrity.
Due to the Appellant’s dissatisfaction with Dr. A’s care, Dr. A is no longer his physician.
He does not agree with Dr. A’s opinion that he is a binge drinker or that he has had loss of consciousness related to alcohol. The Appellant said that he had lost consciousness in his bathroom prior to the Medical Condition Report, but he felt that was due to him discontinuing his clonazepam ( a sedative medication) abruptly and was not alcohol related.
The Appellant said that he had been seeing Dr B, a psychotherapist, who told him that he was not an alcoholic. The reason he had seen Dr. B initially was that his sleep/ wake cycle had been reversed and he was hoping to get some help with that.
He said that Dr. B had sent a letter to Dr. A to say that he, the Appellant, was not an alcoholic. Apparently, the main reason cited was the normal liver function tests, including the GGT. This letter was not made available to the Tribunal and therefore the Tribunal could not review its content, in the context of the evidence given at the hearing. There were no documents available for consideration from Dr. B.
The Appellant said that, in his understanding, the normal liver function tests “prove” that he is not an alcoholic. He feels that those normal tests should be enough proof to get his licence reinstated.
He asked the Tribunal to call Dr. B. It was explained to the Appellant that this was not possible and that only the information available on the day of the hearing could be considered.
The Appellant said that he had given the forms provided by the Ministry to Dr. B and that Dr B had declined to complete them.
The Respondent asked the Appellant if he had a new family physician and if that physician could fill in the forms. The Appellant said he did have a new family physician, but that he had not given him the forms because the new physician would be “not capable of diagnosing this.”
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 his 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 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
Alcoholism can interfere with a person’s ability to drive if it increases their probability of driving while impaired or causes other mental or physical changes that occur even when a person is not legally impaired.
Driving while impaired by alcohol causes deficits in consciousness, awareness, judgement and reflexes (among other things). This makes driving while impaired dangerous to drivers and the public.
Central to the Appellant’s argument is his statement that, although he drinks regularly, he does not drive while drunk and therefore presents no risk to himself or others. On this point, the Tribunal can only consider the Appellant’s own self-assessment. He has provided no corroborating information to support his claim.
The Appellant drinks regularly by his own admission. Given his pattern and amount of drinking, he does not qualify as a low risk drinker by the CCTMA guidelines.
He cites his normal liver enzymes as proof that he is not an alcoholic and feels that these values alone should be sufficient to reinstate his licence. The normal liver enzymes do not tell us how much the Appellant drinks. The Appellant, himself, has told the Tribunal that he drinks 28-30 pints of beer per week. The liver enzymes only indicate the extent to which his drinking is affecting his liver tests (and, indirectly, his liver function). It is possible to drink excessively and have normal liver tests.
It is known that the Appellant is not a low risk drinker. The liver enzyme tests cannot refute this.
Dr. A’s assessment is that the Appellant suffers from alcoholism and binge drinking. Dr. A was concerned enough about this to submit a Medical Condition Report.
The Appellant was also noted to have a loss of consciousness. The Medical Condition Report states this was alcohol related. The Appellant states that it was not. As there is no further information available, the cause of the loss of consciousness remains unclear. This, in of itself, would present a risk to driving. If the Appellant has lost consciousness for reasons that are unclear, it is not certain when he might lose consciousness again.
Dr. A also indicated an unstable “mental or emotional illness”. The Appellant does state that he has been under the care of Dr. B for sleep issues, but there is no further information available about the presence or absence of mental illness.
Without further information (such as that which might be made available by having the Substance Use Assessment form, a Syncope/loss of Consciousness form, Mental Health Assessment form, and/or other documentation from Dr. B., the Tribunal is not satisfied that the conditions identified by Dr. A are resolved or insignificant.
In conclusion, the Tribunal finds, on a balance of probabilities, that the Appellant does suffer from a mental, emotional, nervous or physical condition or disability and an addiction likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Appellant to appeal the decision effective August 14, 2015 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
Katherine Whitehead, M.D., Member
Released: December 14, 2015