Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-06-21
FILE:
10226/MED
CASE NAME:
10226 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 V
ehicles pursuant to Section 47(1) - to Suspend a Licence
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Dr. David Borenstein, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle Biel, Agent
Heard by teleconference:
June 16, 2016
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal 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
At the outset of the hearing, there was a discussion around the Appellant’s wish to adjourn as he preferred an in-person hearing and had come to the Tribunal only to realize this hearing was to be done by teleconference. He was offered an adjournment, but to a date July 2016 or later. The representative for the Ministry of Transportation (MTO) also offered a brief synopsis of what MTO required to reinstate a licence to see if the Appellant wished to provide this information prior to a Tribunal hearing. There has been no information provided in over 3 years. The Appellant chose to continue with the teleconference hearing as scheduled.
FACTS
On October 23, 2006 the Appellant was referred to a walk-in clinic physician, Dr. S.R. by his employer, following a head injury and blackouts. Dr. S.R. filed a Medical Condition Report with the MTO in which she stated that her patient had alcohol and drug dependence, and included a description of “patient drinks 72 drinks of EtOH/week and uses 8-10 joints of marijuana per day for over 2 years.”
The MTO responded by suspending the Appellant’s driver’s licence on December 21, 2006. The MTO wrote to the Appellant on December 11, 2006 and advised him of the forthcoming suspension unless they received an up-to-date detailed report from a physician who specializes in addictions medicine, a complete drug history and urine toxicology drug screening. Also requested were confirmation of completion of a treatment program, or abstinence from drug usage for a period of 12 months and participation in a relapse prevention program. Furthermore, they requested the standard Substance Abuse Assessment form and an interpretation of bio-chemical markers.
On December 2, 2010, The Appellant’s new family physician, Dr. D.S., wrote a letter to the MTO. It stated; “This man is a family practice patient who has come under my care recently. After a full medical review I feel there is no medical reason to withhold his driver’s licence.” Upon review, the MTO continue to request the same details as in their first letter.
On September 21, 2011, the family physician provided a standard Medical Report in which no abnormalities were found. No blood work was provided. Under the section for mental competence, no alcoholism or drug habituation was reported. Upon review, the MTO repeated its original request for information and details.
On March 6, 2013, the family physician provided the standard Substance Abuse Assessment form to the MTO. Many sections were left blank including the health history, the Substance Dependence DSM IV Criteria section, and the history of alcohol abuse section. The lab values for MCV and ALT were reported as normal; however, the GGT and AST levels were not reported. Noted was the Appellant’s use of marijuana at 2 - 3 times per week. The physician checked off the section noting benzodiazepine abuse and dependence may induce similar syndromes to those of alcohol abuse, but never elaborated. The AUDIT score was 1, the Drug Abuse Screening Test was entirely negative, and the Leeds Dependence Score was 0. In the section for “Diagnosis”, the physician had written “does not have substance abuse issues” and “okay to have driver’s licence reinstated”.
On March 25, 2013, the MTO wrote the Appellant and stated that they still required the treating physician to send a completed Substance Abuse Assessment form with full history supported by bio-chemical markers with a clinical explanation of any abnormalities. Further, if a diagnosis of drug or alcohol dependence is made, confirmation of successful completion of an alcohol and/or drug treatment program.
The Appellant’s Evidence and Submissions
The Appellant questioned the validity of the initial Medical Condition Report as no blood work or supportive evidence had been obtained by the physician who wrote the report. He stated that he saw her for a head injury at his employer’s request and had said he rarely drinks alcohol except on special occasions and only admitted to smoking 1-2 joints of marijuana per week. He feels there was a conspiracy between the physician and his employer to hide the head injury he sustained at work and instead state that his blackouts were from drug and alcohol use.
The reason his current physician does not provide all the requested blood work is that the physician does not feel he needs blood work and that it is not medically justified, as he does not suffer from alcohol or drug use, and has no signs of such a diagnosis.
He provided the Tribunal with documentation of his current salary at $14.70 per hour based on a 40-hour per week plus overtime from his current employer. He states he could never afford the equivalent of 72 beers plus drugs per week. He admits to smoking marijuana occasionally, but only to very minimal alcohol use. He equates his smoking to that of anyone else, who might go to a bar for a single drink, and that there is no history provided that he is endangering anyone, and he never drives after smoking.
When asked why it has taken so long to deal with the issue, since 2006, he stated that he has lived in several provinces for work and could not really deal with this when not living in Ontario. He now lives in Ontario and has custody of his son and this is affecting his life. Court documentation provided does support the custody claim. He also states that he was fully vetted by Children’s Aid Society during the custody hearing and if the alcohol and drug claims previously made were true, he would have never been granted custody of a minor.
Finally, he made an argument that his doctor has placed an opposing opinion from that of the physician who wrote the original Medical Condition Report and questioned how can one physician’s opinion be more valid than the other.
Several times throughout the hearing, the Appellant made reference to how this whole ordeal is against his human rights. The Tribunal acknowledged this statement as evidence of his frustration, however made it clear that it will only make a decision as it applies to a medical review of the evidence.
The Registrar’s Submissions
In submissions, the Registrar’s Agent stated that there is no documentation to support the Appellant’s claim that the physician who wrote the Medical Condition Report acted in any way other than meeting her professional duty and that the explicit notations of the amount of alcohol and drug consumed would be at a level that would be expected to cause impaired ability to drive. Therefore, her report should be given the appropriate weight in making a medical decision and the Appellant should meet the Canadian Council of Motor Transport Administrators (CCMTA) standard for cases of substance abuse or dependence (Section 15.6.3).
Secondly, at one point, the Appellant stated that marijuana and alcohol are both ‘downers’ and don’t mix well. He also stated that his smoking marijuana is equal to that of going to a bar for a single drink. The Appellant cannot be seen as a toxicology expert and his views of drugs use should not be treated as expert opinion.
Thirdly, the Registrar questions why the Appellant’s current physician added the check-mark on the substance abuse assessment that benzodiazepine use could mimic alcohol use and then not explain.
Lastly, The Appellant admits to still using marijuana.
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 that is 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.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver’s licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
a) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
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
The Tribunal had concerns with several aspects of the history and facts provided during this hearing. Mainly, there appears to be many holes within the history that now spans 10 years in duration.
The original Medical Condition Report is not backed up with any history beyond an acknowledged single walk-in clinic visit over 10 years ago. There is no proof provided that this was not appropriate and in fact the note is so explicit that the Tribunal concludes that it was completed in good faith. Was there a misunderstanding between the Appellant and the physician regarding the facts? The Tribunal will never be able to ascertain an answer to this question.
Based on the Medical Condition Report provided, it was completely appropriate for the MTO to request the information they did regarding drug and alcohol use and the completion of blood work and the substance abuse assessment form.
The Appellant’s current physician completed the form in 2013 and between 2010 and 2013 explicitly wrote twice that there are no concerning drug or alcohol abuse issues and that the Appellant’s drivier’s licence should be reinstated. The substance abuse assessment form that was provided was not completed to the MTO’s satisfaction, nor was it left blank completely. Some blood work requested was provided, and, together with several drug and alcohol dependency scores, lead to the conclusion of no significant issues. However, the blanks are concerning and do allow for appropriate questions by the MTO medical review.
The Tribunal does not accept the Appellant as an expert in the field of drug and alcohol dependence, and thus his opinion that his level of marijuana use is safe is not determinative. However, his testimony that his doctor will not do blood work when there is no indication based on history and physical is consistent with proper evidence based medical practice.
In the opinion of the Tribunal, the most important question brought forth by the Appellant is how can one physician’s opinion matter more than another. The Registrar presents an extremely valid, but 10 year-old, concern, by a physician at a walk-in clinic from a single visit. The Appellant presents a supportive opinion explicitly written, twice over a three-year period, by a recurring family physician. The provided documentation may not be at the level the MTO would like, but is still quite extensive. As a result, the Tribunal concludes that the opinion rendered by the Appellant’s current family physician, who he has been seeing for a period of time is likely more accurate than the report from 2006., and is more persuasive. Thus the MTO has not met their onus to prove on the balance of probability the Appellant is addicted to the use of alcohol or a drug to an extent that is likely to significantly interfere with his ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated December 21, 2006 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
David Borenstein, M.D., Member
Released: June 21, 2016