Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10034/MED
CASE NAME: 10034 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
10034 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: Sanjay Kapur, Agent
Heard by teleconference: April 13, 2016
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant regarding 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 September 16, 2015, the Appellant’s family physician sent a Medical Condition Report to the Registrar. The medical condition listed was “alcohol dependence”.
The comment section read: “Remission of alcohol abuse and drinking/driving as per his wife. Attempts made to meet with and call patient to discuss but no response.”
The family physician (Dr. #1) noted that the Appellant had been her patient for 6 months and that he was not aware of the report.
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 new family physician (Dr. #2) (the original one had gone on maternity leave) completed the Substance Use Assessment form on November 22, 2015.
On the Substance Use Assessment form, Dr. #2 checked alcohol dependence as the applicable diagnosis. She also checked the box for “other” and made some comments about the diagnostic criteria for alcohol use disorders but it was impossible to read what “other” diagnosis she wanted to indicate. It was clear to the Tribunal that the “other” diagnosis was something relating to alcohol use and not some other medical condition.
Other information on the Substance Use form included:
“abstinence from alcohol since September 2015”
“completion of a formal addictions treatment program on March 5, 2015”
“currently seeing addictions counselllor”
“not been reported for drug misuse, abuse, or dependence”
“elevated liver enzymes that may be due to alcohol use”
“ascites, jaundice, mild tremor. Liver cirrhosis and portal hypertension.”
“Currently making changes to lifestyle. Did have alcoholic hepatitis in January 2015. Stopped drinking from January 2015-June 2015.”
“Faithful in finishing the treatment program and attending appointment.”
Started drinking June 2015-Sept 15. No alcohol since.”
“I am encouraged by his faithfulness to appointments but would not yet recommend return his licence”
jaundice, tremor, and portal hypertension are all symptoms of liver failure that may be caused by liver cirrhosis due to chronic alcohol use.
There was a certificate form the community hospital confirming the successful completion of the “Early Recovery Program” on March 5, 2015.
The Registrar reviewed this information and sent the Appellant a letter dated February 26, 2016 stating that his licence remained suspended and asked for confirmation of abstinence for a period of one year.
The Registrar stated that the period may be reduced if the physician confirmed the completion of another alcohol treatment program and is supportive of his driving privilege. The Registrar asked for repeat results of recent biochemical markers and an explanation of abnormal values.
The Appellant appealed to the Tribunal, stating that he was appealing the decision of the first family doctor for the following reasons:
- “The decision was made without examination”
- “I was not aware of the report”
- “Dr (#1) went on maternity leave shortly after the medical condition report was submitted, I only had two appointments with her, with the last appointment being May 22, 2015.”
- “Much that she reported was hearsay, “drinking and driving”, I never did that.”
- “I quit using alcohol in September 2015, of my own will, haven’t had a drink since”
- “I got a new family doctor in October 2015…when Dr. (#1) went on maternity leave. I have been following up with Dr. (#2) to date. Dr. (#2) completed the assessment report but was reluctant to file it because I have been her patient for such a short time. I am also attending counselling…have completed the (2015 addiction program)”
During the hearing, the Respondent’s Agent clarified that the licence was under suspension due to the medical condition of alcohol dependence and not because of any report that the Appellant had actually been drinking and driving.
On March 30, 2016, Dr. #2 completed a second Substance Use Assessment form.
On the form, she checked Alcohol Dependence as the applicable diagnosis.
Other information on the Substance use form included :
checked box for “abstained for 5-12 months”
he had completed the 2015 addictions program and that he continues to see an addictions counsellor.
2 of the 4 liver enzymes checked were abnormal (on the previous report 4/4 had been abnormal) and noted “values have normalized” and “values have continued to decrease since September 2015.”
checked the boxes for “alcohol use” and “diseases affecting the liver – cirrhosis” as causes for the two elevated levels.
“liver shows appearance of known cirrhosis, ascites in Nov 2015. Improved with medications…”
“Patient has been abstinent since September 2015. Continues to attend monthly appointments with myself and addictions counsellor. Bloodwork continues to improve. Patient is eager to make changes and remain sober. Doing very well!”
On March 23, 2016, the Appellant’s addictions counsellor sent a letter to verify that he had attended an intake appointment to the service on December 3, 2015 and that he had attended follow up appointments on December 16, 2015, January 7, 2016, February 4, 2016, and March 24, 2016.
In a consultation note from March 24, 2016, the Appellant’s gastroenterologist reported that the alcoholic liver cirrhosis had remained stable and that the Appellant had been abstinent since September 2015.
The medical record for visits to the family doctor’s office on January 13, March 1, and March 29, 2016, were submitted. In those notes, the family physician noted that the Appellant had remained sober despite life stress (death of a close family member), that he understood that he might die if he re-commenced drinking, that he occasionally finds it hard to stay away from alcohol, and that his family is pleased with his progress.
On January 13, 2016, the family physician wrote “can potentially envision re-instating licence”.
On March 29, 2016, the family physician noted that the Appellant was appealing his licence suspension, but did not explicitly endorse returning his license.
She also noted “(The Appellant) occasionally close to tears when discussing the possibility of death if resumes drinking.”
The Registrar reviewed the new information submitted by the Appellant but did not reinstate his licence.
It is the Registrar’s position that the Appellant has not completed the first full year of sobriety that is recommended by the Canadian Council of Motor Transport Administrators (CCMTA) Guidelines nor has he fulfilled the requirements for early reinstatement as he has not completed a new alcohol treatment program since his last period of drinking. In addition, his family physician does not explicitly support his driving privilege.
The Appellant stated that he feels his licence should be reinstated as he has been sober for approximately seven months, his lab tests are improving, he has been regular in his medical follow up, he attends addiction counselling, he has not been drinking and driving, and he has a clean driving record.
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.
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 CMTAA Guidelines recommend a period of one year of abstinence for people who are alcohol dependent.
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 CMTAA Guideline does, therefore, provide for some flexibility, and it must be noted that the Tribunal is not bound by the Guideline. It may grant an appeal in the appropriate circumstances even if the conditions in the Guideline 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 Tribunal accepts that the Appellant has alcohol dependence as diagnosed by his family physician. He has had clinical and laboratory signs that are indicative of chronic and excessive drinking.
The Appellant is followed monthly by his family physician and regularly attends his liver specialist. Both the family doctor and the specialist report that the physical signs and symptoms of his liver disease are improving. His lab results also support an improvement in his physical condition. These gains are reasonably attributable to his abstinence and lend support to the Appellant’s claim that he has abstained from alcohol since September 2015.
The Appellant’s family doctor does not explicitly state that she supports the driving privilege but she does provide multiple positive comments about the Appellant’s clinical improvement, motivation to stay sober, and regular attendance for medical and addictions follow up. She comes close to explicit endorsement of the driving privilege with the comments of “can potentially envision re-instating license”, and “Doing very well!” The comments from his family doctor indicate that the Appellant is making good progress in the treatment of his alcohol dependence.
It is significant that the family doctor noted “his family is pleased with his progress”. It was the concern of the Appellant’s wife that initiated the most recent treatment for alcohol dependence. The fact that the Appellant has a spouse who is involved and concerned enough with his alcohol dependence to approach his physician about his drinking and that she continues to be involved in his recovery represent an added layer of safety for the Appellant. It means that there is someone with him regularly who can monitor his recovery and alert his care team if there is concern of relapse.
The Registrar asked that the Appellant complete another alcohol addiction program. As he is attending regular appointments with an addictions counsellor and his compliance with this program is good, the Tribunal finds that the benefit and added safety of undergoing psychosocial addictions therapy is being met. As the addictions counselling is ongoing, it provides another opportunity for regular check-ins on the Appellant’s success in maintaining sobriety and provides recurring opportunity to support him if his sobriety is challenged.
The Appellant himself seems to understand the severity of his disease and the importance of abstinence. He told the Tribunal that he is committed to sobriety and thinks that he will die if he starts drinking again. This was also noted by his family doctor.
The Appellant was able to remain sober through a period of significant stress (the death of a close family member). This also lends supports the idea that his current period of sobriety can be sustained.
The evidence from the medical reports and the Appellant’s personal submissions indicate that the Appellant is abstinent from alcohol and adhering to several modes of therapy for his alcohol dependence.
The evidence shows that the Appellant:
has demonstrated physical and biochemical improvement in his alcoholic liver disease.
has abstained from alcohol for over 6 months
demonstrates a personal understanding of and commitment to the importance of maintained sobriety
has the support of his wife who has demonstrated her willingness to be actively involved in his sobriety
is being regularly followed by his family doctor, specialist, and addictions counselllor, and
is taking part in an ongoing addictions program
Given the above reasons, the Tribunal finds that there is sufficient reason to deviate from the recommended standard 12 month period of abstinence.
The Tribunal finds, on a balance of probabilities, that the Appellant is not addicted to alcohol to an extent likely to interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective September 28, 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 set aside.
LICENCE APPEAL TRIBUNAL
Katherine Whitehead, M.D., Member
Released: April 27, 2016