Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-11-30
FILE:
10508/MED
CASE NAME:
10508 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:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
November 25. 2016
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”).
FACTS
Evidence for the Respondent
On July 22, 2016, a Medical Condition report was completed by Dr. V., an Emergency Room physician, in compliance with section 203 of the Act, based on an examination on the same date. Section 203 requires every legally qualified physician to report to the Registrar the name, address and medical condition of any patient age 16 or over, who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. The condition reported was “Alcohol Dependence.”
On August 1, 2016, the Registrar informed the Appellant that following the receipt of a report of alcohol dependence, and based on a consideration of all available relevant facts, his driving privilege was suspended under section 47(1) of the Act.
He was directed to take the letter of suspension to his physician when his condition improves and have the following information forwarded to the Medical Review Section:
If his physician confirms a diagnosis of alcohol dependence, the Ministry will require confirmation that he has remained abstinent from alcohol for a period of one year. This period may be reduced if the physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.
The Substance Use Assessment Form enclosed must be completed and also forwarded.
On July 28, 2016, just before this medical suspension of the Appellant’s licence, a three day administrative driver’s licence suspension had been issued by police at a roadside stop because the Appellant had a blood-alcohol level above 0.05.
On August 16, 2016, a Medical Report was completed by Dr. T., the Appellant’s family physician for two years. Under Addictions, the report was checked for Alcoholism. Under History, the physician stated:
Patient has had problems with alcohol in the past and recently.
Currently doing AA as well as going to a hospital out-patient program.
Also on August 16, 2016, Dr. T. completed the Substance Use Assessment Form.
In summary, the assessment stated:
Diagnoses: Alcohol dependence and Alcohol abuse
No history of seizures
Abstained for less than 6 months
Abstained from drugs for more than 12 months
Has started a formal assistance program
Results of biochemical markers, MCV, GGT, ALT, AST all elevated due to alcohol
No abnormal physical findings
Medication prescribed does not have side effects that may affect driving
He is adhering to recommended treatment and has not demonstrated a pattern of non-adherence.
He has started a hospital-based treatment program and is attending AA meetings nearly every day.
A letter was received confirming his enrolment in a hospital assessment and treatment program with an estimated completion on September 9, 2016.
A letter from Dr. T. dated August 15, 2016 was received stating that the Appellant was under his care for two years, has checked into Detox, is attending AA almost every day and is attending the hospital treatment program.
On August 22, 2016, the Registrar informed the Appellant that the reports received had been reviewed and that the suspension will continue for a period of one year. As previously directed, he must submit confirmation by his physician of completion of the treatment program and the doctor’s support of his driving privilege. Up-to-date bio-chemical markers will also be required.
On September 16, 2016, Dr. T. confirmed by letter that the hospital based treatment program had been successfully completed and that the bio-chemical markers were back to normal. A copy of completion effective September 16, 2016 was attached.
The Registrar informed the Appellant on September 26, 2016 that the required period of abstinence was reduced to six months.
Dr. T., in a letter dated October 7, 2016, stated that:
(The Appellant) has been sober since July 28, 2016. He was previously sober from June 2015 to June 2016. I would define him as currently not dependent given his abstinence from alcohol.
On October 19, 2016, the Registrar informed the Appellant that confirmation by his physician of abstinence for a period of six months is required.
The Appellant filed a Notice of Appeal on October 28, 2016. In Reasons for the Appeal, the Appellant stated:
I had a one-time episode with alcohol that resulted in putting myself in hospital. Since the episode I inquired about professional help and attended a day program at the hospital where I was educated and gained a full understanding of the dangers with alcohol abuse. I have not had any alcohol since my visit to the hospital and for a long period before that. I know and feel that I am a very good driver and have an excellent record to back me up. I also have doctor’s notes, test results and family and friends that support my claim
Attached was a note by Dr. T., which stated:
Seen on November 11, 2016.
To update [Appellant’s] progress. He currently remains abstinent from alcohol since July 28, 2016. He continues to attend AA meetings regularly and the hospital After Care programme.
Evidence by the Appellant
The Appellant is 47 years-old. He has been employed by the municipal parks and recreation department and requires a licence in order to operate public vehicles.
He stated that he had a history of alcohol abuse in the past and was sober for a lengthy period. Due to domestic problems, he began to drink again in July 2016, and would consume 26 ounces of whiskey a day on a binge for about five days. He realized that he needed help, and with his girlfriend he called an ambulance and was admitted to hospital for two days. He enrolled in the treatment program during his hospital stay.
Following his discharge, he began to drink again, and was stopped by police in the evening on July 28, 2016. He then went to Detox and he testified that he has not consumed alcohol since July 28, 2016. He has been attending AA meetings as well as completing the hospital-based program that ended September 16, 2016. He continues to attend the After Care Program. He also regularly attends his family physician Dr. T., who is very supportive of his reinstatement.
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 (the “Regulation”), section 14(1), 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.
Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.
Section 14(2) of the Regulation permits the Minister to take into consideration the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.
Section 50 of the Act permits the driver to appeal the Registrar’s section 47 decision to the Tribunal, and the Tribunal “may confirm, modify or set aside the decision of the Minister or the Registrar.”
Submissions by the Parties
On behalf of the Registrar, Ms. De Santis cited the CCMTA Medical Standards for Drivers, December 1, 2015 edition.
As noted in the Foreword of this document:
These materials are the result of a lengthy and intensive process, begun in 2006 and concluded in 2012 and reflect CCMTA’s commitment to:
anchor its medical standards on the best evidence available
focus on functional ability to drive rather than medical diagnosis, and to
respond to case law establishing that Canadian authorities must individually assess drivers.
Under Substance Abuse or Dependence, Guideline 15.6.3, that applies to all drivers who are under the influence or alcohol or illicit drugs, the standard is:
All drivers are eligible for a licence if:
They meet the criteria for remission and/or has abstained from the substance for 12 months
Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician 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.
Ms. De Santis submitted that the Registrar was authorized by section 47(1)(g) of the Act to issue a suspension of the Appellant’s driving privilege upon receipt of a medical report of alcohol dependence, submitted by a physician in compliance with section 203 of the Act.
The Registrar submits it was authorized under section 14 of Ontario Regulation 340/94 to continue the suspension upon receipt of further information provided by the Substance Use Assessment Form that confirmed the diagnosis of alcohol dependence. This regulation also gives authority to take into consideration the relevant medical standards set out in the CCMTA Medical Standards for Drivers.
The period of abstinence required by the Registrar was reduced to six months starting on July 28, 2016 upon receipt of confirmation by the family physician of completion of the rehabilitation program, and the doctor’s support for his driving privilege.
The Registrar requests that the Tribunal apply CCMTA Guideline 15.6.3, and confirm the suspension until January 28, 2017.
The Appellant submits that the relapse in July 2016 was due to a domestic situation that has been remedied. He has taken steps to rehabilitate himself and has been educated to a full understanding of the effects and dangers of alcohol abuse.
He has good support from his spouse and his family, and continues to follow the hospital After-Care Program, as well as attending AA meetings several times a week, and sees his family physician regularly, who is supportive of his driving privilege.
He has been advised that his employer will have work for him when he is reinstated, which includes snow removal work, and with the onset of winter, this is critical to him.
APPLICATION OF THE LAW TO FACTS
While the Registrar may have been initially justified in issuing a suspension upon receipt of the July 22, 2016 section 203 Medical Condition Report, the Tribunal’s task on appeal is to apply the test for medical suspension of the driver’s licence to the evidence currently before the Tribunal.
The Appellant acknowledges that following his discharge from hospital on July 24, 2016, he consumed alcohol again and received a three day suspension of his licence for having a blood-alcohol level above 0.05, prior to the effective date of suspension under section 47(1) of the Act. He then admitted himself to Detox and was enrolled in a hospital-based treatment program as an out-patient. He completed that program on September 16, 2016.
The Appellant has responded to the Registrar’s requirements for reinstatement in all but the six month period of abstinence. Evidence by the Appellant, and supported by his physician, is that he has not consumed alcohol since July 28, 2016.
The CCMTA Guidelines are not rules or regulations that must be rigid in application. The Tribunal finds that the period of six months can be safely reduced to four in this case, in recognition of diligence by the Appellant in recognizing the dangers of alcohol abuse and taking actions towards rehabilitation. These actions included admission to hospital for two days, admission to Detox after discharge, and enrolment in a hospital-based treatment program, as well as attending AA meetings at least three times weekly.
Furthermore, the Appellant’s physician has been actively supporting his actions to maintain sobriety and has confirmed that the Appellant has not demonstrated a pattern of non-compliance with the treatment program. The physician has found no evidence of physical disability, and the abnormal biochemical factors reported in July have returned to normal.
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is not addicted to the use of alcohol to an extent which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the Appellant’s appeal of the decision of the Registrar to suspend his driver’s licence effective August 1, 2016, 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 set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: November 30, 2016