Licence Tribunal
Tribunal d'appel en matière de permis
FILE: 10036/MED
CASE NAME: 10036 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
10036 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: Kyle Biel, Agent
Heard by teleconference: March 3, 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
On May 25, 2015 the Registrar received a medical condition report filled by an emergency room (“ER”) physician. The medical condition checked on the form was Alcohol Dependence. There were no further comments provided by the ER physician.
On June 1, 2015 the Registrar sent the Appellant a letter notifying him of the decision to suspend his driving privileges due to the medical condition report. They asked that the Appellant have a Substance Use Assessment completed by his physician.
The Appellant’s regular physician completed the Substance Use Assessment form on June 22, 2015.
On the Substance Use Assessment form, the physician checked Alcohol Dependence, Alcohol Abuse, and Alcohol Misuse as applicable diagnoses.
On the form, the physician indicated that, in his opinion, the Appellant: had never experienced seizure, was abstinent from alcohol (but did not specify the duration), had completed an addictions program over 12 months ago, and there were no abnormal physical findings.
Copies of lab tests from June 17, 2015 were provided. The liver function tests were normal but the Mean Corpuscular Volume (MCV) test was increased. The family doctor checked the box to indicate that this may be due to alcohol use. The family doctor did not write any comments on the form in the space provided.
The Appellant commented on the form: “I am not a continuous drinker. I will go months without alcohol and then drink for two weeks on occasion. When I do drink, it’s 3-5 times per week. This may happen 3 times a year. I never drink and drive.”
The Registrar reviewed this information and sent the Appellant a letter dated August 13, 2015 stating that his licence remained suspended and asked for the following:
the duration of his alcohol abstinence.
confirmation of abstinence for a period of 1 year.
The Registrar also stated that the period may be reduced to 6 months if the physician confirmed the completion of an alcohol treatment program and is supportive of his driving privilege. Finally, the Registrar asked for repeat results of recent biochemical markers and an explanation of abnormal values.
The Appellant’s family physician wrote a letter on December 14, 2015 stating that the Appellant was abstaining from alcohol but the duration was not specified. Lab results from December 9, 2015 (all in the normal range) were submitted with the letter.
The physician did not comment in the letter as to whether he was in support of reinstatement of the driving privilege. He was silent on that point. He did forward a letter from Homewood Health Centre stating that the Appellant has completed 2 addiction programs (one in 2004 and one in 2007).
On February 2, 2016, a different physician (who was covering for the Appellants regular physician) wrote a letter stating that the Appellant had been abstinent from alcohol for almost 9 months. There was no comment on support for reinstatement of the Appellant’s driving privileges.
The Registrar then sent the Appellant a letter dated February 18, 2016 asking for:
- Confirmation of abstinence for a period of 1 year.
The period may be reduced to 6 months if the physician confirmed the completion of an alcohol treatment program after May 2015 and is supportive of his driving privilege.
- Repeat results of recent biochemical markers and an explanation of abnormal values.
The Appellant’s driving record showed an impaired driving offence in 2007 along with a driving suspension. The licence was reinstated on December 4, 2008.
On March 1, 2016, the Appellant submitted normal lab tests form February 29, 2016.
The Registrar submitted documents from a previous license suspension on July 13, 2010 which the Appellant also appealed to the Licence Appeal Tribunal. In setting aside that suspension, the Tribunal in its decision dated January 20, 2011 stated:
“ 1. The registrar was justified in issuing a suspension of driving privileges under section 47 (1) of the Act upon receipt of a Medical Condition Report competed by a physician pursuant to section 203 on May 13, 2010 listing “alcohol abuse” likely to significantly interfere with driving”.
The Registrar was not correct in listing the condition as
in the Notice of Suspension in July 13, 2010. The elevation of the bio-chemical marker MCV on July 30, 2010 on which the registrar relies was only marginally elevated and was not accompanies by elevated GGT. Both tests were in the normal range on November 11, 2010.
The Applicant has taken several steps to prevent relapse, by attendance at AA three times a week, enrolment in a community based addiction program, and regularly attends his family physician of 20 years.
The family physician is supportive of reinstatement.
The period of abstinence over 6 months is reasonable under the circumstances listed above.
The Applicant is not addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive a motor vehicle safely. “
The Tribunal notes that the Appellant’s family physician in 2010 (the same family physician in the current appeal) was, at that time, explicitly supportive of reinstatement of the driving privilege, stating that the Appellant was ‘medically fit to operate a motor vehicle’. At that time, the doctor did not diagnose the Appellant with alcohol dependence.
The Appellant, in his submissions, stated that he has been abstinent from alcohol since May 19, 2015.
On May 22, 2015, he began suffering from hallucinations from alcohol withdrawal which resulted in the emergency visit where the ER physician filled the medical condition report.
He submitted the letter from his regular physician which he (the Appellant) felt was supportive of his driving privilege and outlined 8 months of sobriety.
The Tribunal does note that a review of the letter (the same letter that was provided in the Registrar’s file) shows that the physician did not actually state a period of sobriety or explicitly state that he supported the driving privilege.
As he had already been to an alcohol rehabilitation program two times, the Appellant declined to undertake a third rehabilitation program. He felt that his attendance at AA meetings were more helpful in maintaining sobriety than the formal rehabilitation programs. He stated that he regularly attends AA, but had temporarily ceased to do so just preceding his most recent relapse due to a personal crisis.
He stated that he does not drink and drive but does acknowledge his prior conviction for driving under the influence of alcohol. He stated that was a mistake.
He emphasized his good driving record and noted that he is now in his 10th month of sobriety.
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
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.
The evidence before the Tribunal is that the Appellant was experiencing hallucinations, indicative of decreased mental status, at the time of his most recent ER visit. A person with altered mental status is less able to make good decisions about when and how to drive.
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.
The Canadian Council of Motor Transport Administrators (CCMTA) guidelines recommend a period of one year of abstinence.
In some cases, this period is shortened for people who have completed an addiction program and who have the support of their physician. People who fulfil these criteria are less likely to relapse and thus might reasonably return to driving with a shorter period of abstinence. The CCMTA Guidelines does, therefore, provide for some flexibility, but it must be noted that the Tribunal is not bound by the Guidelines. It may grant an appeal in the appropriate circumstances even if the conditions in the Guidelines are not met. Ultimately, the Tribunal must apply the legislative test, which is whether the Appellant is "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.”
The Appellant has been diagnosed by his regular physician as having all of alcohol dependence, misuse, and abuse.
This is significant as these are new diagnosis since the 2010/11 assessment.
The Tribunal notes that the Appellant has previously had a conviction of driving while impaired (2007).
He also had his license suspended for alcohol use in 2010 and was successful in having his driving privilege re-instated in less than one year.
In the present appeal, the following points make a shorter period of abstinence inappropriate:
This is the second time the Appellant’s driving privilege has been suspended due to alcohol use. This implies a pattern of alcohol use that is more likely to be recurrent and has been diagnosed by his physician as abuse, dependence, and misuse. These diagnoses are more severe than were declared in 2010/11.
The Appellant has undertaken no new treatment programs. The Tribunal accepts the Appellant’s opinion that AA meetings are more helpful to him than formal rehabilitation programs. That being said, he did suffer a relapse during which he had stopped attending AA.
The letters from his physicians are not explicitly supportive of reinstatement of the driving privilege. They simply repeat the Appellant’s self-disclosed period of abstinence and provide lab tests results within the normal range. This is in contrast to the letters from 2010 when the same family physician was explicitly supportive on two occasions.
The Tribunal accepts the Appellant’s report that he has been abstinent from alcohol since May 2015. Given the information provided from his physicians, and keeping in mind his prior alcohol related issues, the Tribunal finds, on a balance of probabilities, that the Appellant is addicted to alcohol to an extent likely to interfere with his ability to operate a motor vehicle safely. Given the above reasons, the Tribunal finds that there is insufficient reason to deviate from the recommended standard 12 month period of abstinence.
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: March 23, 2016