9981 v. Registrar of Motor Vehicles, 2016 CanLII 9434

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-02-25

9981/MED

9981 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) of that Act - to Suspend a Licence

Appellant

-and-

Registrar of Motor Vehicles

Respondent

David Borenstein, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Kyle M. Biel, Agent

Heard by teleconference:

February 4, 2016

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”).

As a preliminary matter, at the onset of this hearing, the presiding member advised the parties that he was acquainted with the Appellant’s family physician, having been partially trained by him about 13 years ago while in school; however, they have not been in contact in over a decade. The presiding member did not feel this would interfere with his ability to render a fair and impartial decision. Neither party objected to the member hearing this matter.

FACTS

This is the Appellant’s fourth appeal to the Tribunal. His last hearing occurred on August 16, 2010. Prior hearings dealt with the issue of whether the Appellant had a psychiatric disorder which would affect the Appellant’s ability to operate a motor vehicle safely.

At the August 2010 hearing, the Appellant’s issues with alcohol use and his past 22 driving infractions were reviewed. A Medical Condition Report dated January 6, 2005 had mentioned substance abuse. At the time of the hearing, one specific medical report had advised against reinstatement due to lack of insight by the Appellant into his medical problems, difficulty in achieving a stable mental state, and the lack of medical evidence of any kind within 2½ years. Upon review of the documentation at that hearing, it was determined that:

Nothing has been presented today by the Applicant to convince the Tribunal that he no longer suffers from a mental, emotional and medical disability likely to significantly interfere with his driving safely.

Furthermore, the Tribunal was concerned at that time that the Appellant had discontinued his lithium, which was previously used to treat his psychiatric symptoms. Therefore, the decision of the Registrar was confirmed.

The Registrar’s Agent began this hearing with a chronology of events and correspondence that followed the 2010 Tribunal hearing. The Appellant did not object.

On November 28, 2011, the Appellant hired a lawyer to represent his interest and to communicate with the Ministry of Transportation (“MTO”). He asked for a list of the physicians in the Appellant’s city who would be qualified to assess him with respect to reinstating his driving privileges.

The MTO advised, on February 7, 2012, that no such physician list exists.

In January 2014, with the help of his lawyer, the Appellant had a consultation with a medical practice dealing with addictions issues. This included an assessment with a forensic psychiatrist, Dr. C.K. and a rehabilitation psychologist, Dr. W.P. Both are professors at a large university. In their report, they described the Appellant’s background and history as follows. The Appellant was charged in 1999 with dangerous driving. Several other suspensions of his licence occurred between 2000 and 2005. In 2005, his licence was suspended for medical reasons. Despite a diagnosis of bipolar disorder, he used marijuana and had psychotic-like features. He had not used marijuana since 2008. They noted that he drank alcohol but not if he was going to drive. He did not use street drugs. He had not had a hospitalization or a manic episode since 2008.

They reported that in 2010, his family physician, Dr. R.S., provided a note that read “I find this man physically and emotionally able to drive an automobile”. This had been provided to the MTO previously.

The assessment by this medical team was extensive, with 28 neurocognitive tests. The history prior to 2008 described a man who frequently got drunk, took marijuana and ended up disheveled and in the emergency department or in trouble with police.

The medical team cited his records from his family health team between 2009 and 2013 which made no reference to manic features or to clinical depression over that period. The records did note a high ALT (liver enzyme) in 2009, likely related to alcohol use, with several notations of excessive alcohol use. He had been repeatedly warned about his drinking. His lifestyle modifications instead included weight loss and exercise.

The Appellant was provided with education regarding the effects of cannabis on bipolar mania and the effects of alcohol on the brain. Despite this, he found it difficult to abstain and reported still drinking four beers a day on weekends.

Their summary described a man with a history of cannabis and alcohol abuse. All of his previous hospitalizations occurred after a period of extreme alcohol consumption, or when he had admitted to using both alcohol and marijuana. It was recommended that he completely avoid marijuana. Although he was still drinking, there was no evidence of any binge drinking episodes at levels of alcohol associated with his past hospitalizations. Although he still drank more than recommended, he had not had a psychiatric episode in more than five years. Thus, the medical team could not conclude that his drinking was out of control.

Regarding the pharmacological treatment for bipolar disorder, the medical team recommended against treatment as long as he remained mania free.

They described his demeanor as that of a man with motivation to stay healthy and learn from his mistakes. He took their feedback seriously. Neurocognitive tests showed no evidence or observations that gave reason to consider the Appellant to be cognitively incompetent or incapable.

Upon review of the above report in February 2014, MTO asked for confirmation of abstinence from alcohol for a period of one year, with possible reduction in the time if a physician confirmed that he had successfully completed an alcohol treatment program and was supportive of his driving privileges.

On March 6, 2015, the same medical team who did the assessment in January 2014 completed an MTO Substance Abuse Assessment form. However, it seemed to gloss over any of his past history that had been well documented. Accompanied with this form was a typed letter with much more detail. Their follow-up at one year indicated no psychopathology. They stated:

Mentally, he appears to be much more stable than he appeared on initial assessment. His behaviour and thinking appear consistently normal. He does report that he continues to drink 4 beers a day on Saturdays and Sundays.

They compared blood work from 2013 to 2015 that showed elevated but reduced liver enzymes, which will likely not drop any further, despite any improvements he makes in his alcohol consumption. They commented that his diabetes likely contributes to his elevated liver enzymes. They finished their letter with the following statement:

We have no health related reason to consider unsafe to drive.

On May 19, 2015, MTO requested further information from the Appellant, specifically in reference to his diabetes: confirmation of no hypoglycemic reactions, confirmation of a diabetic diary, and blood glucose testing twice daily for 30 days with blood work. Additionally, MTO requested that the Appellant’s alcohol consumption continue within minimal drinking levels of no more than 14 drinks per week, with repeat bio-chemical markers and a clinical explanation for any levels outside the normal laboratory range.

On June 2, 2015, the Appellant’s family physician completed the MTO Diabetes Assessment which revealed a diagnosis of type 2 diabetes, with no medical treatment and no history of hypoglycemic episodes. An attached note mentioned his alcohol intake at 20 beers weekly.

On July 21, 2015, MTO again requested the information pertaining to alcohol consumption.

On August 18, 2015, the family physician completed the MTO Substance Use Assessment noting a diagnosis of alcohol dependence and that the Appellant does not abstain. Bio-chemical markers still showed mildly elevated liver enzymes.

On October 9, 2015, MTO reviewed the file and asked for confirmation of abstinence from alcohol for a period of one year, a period of time that may be reduced if a physician confirmed that he has successfully completed an alcohol treatment program and is supportive of his driving privileges. Additionally, recent bio-chemical markers were requested with clinical explanations for any level outside the normal laboratory range.

The Registrar’s Submissions

Although the Appellant’s psychiatric problems and diabetes have been explained and stabilized, his substance abuse disorder remains. The MTO submits that the Appellant has not met the criteria they have set out for return of his driving privileges. His alcohol use has, in the past, contributed to poor behavior, psychosis, and even police involvement. His physicians still maintain his alcohol intake is excessive and the longest documented period of abstinence is 12 days. Mr. Biel submitted that although, after so many years, it may be tempting to relax the conditions of the Appellant’s suspension, the fact is that he does not meet the Canadian Council of Motor Transport Administrators (“CCMTA”) standards for driving with a diagnosis of alcohol dependence, a diagnosis that is documented several times throughout the extensive medical file and which has been most recently confirmed by the family physician in August 2015.

The CCMTA standards for Substance Abuse or Dependence are:

a) Meets the criteria for remission and/or has abstained from the substance for 12 months.

b) 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.

c) The functional abilities necessary for driving are not impaired.

The Appellant’s Submissions

The Appellant submits that he had not used marijuana in many years. He has had no psychotic episodes in almost six years. These past episodes were brought on by drug use, not alcohol use, and his physicians support this opinion. He drinks alcohol and he has dramatically cut down on the amount he consumes. His physicians have told him that they can do no more to help him, as they cannot understand what MTO would like to see from them. Should he fail in this appeal, he intends to take the matter to the courts. This statement was not taken as a threat or bravado, but as the Appellant expressing his only available recourse. He feels that this is going nowhere in that each time he meets one criteria for re-licensing, another is added.

ISSUES

Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?

In particular:

Does the Appellant have a medical condition, or is he addicted to the use of alcohol 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;

(e) 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:

(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 last reviewed this case in 2010. Since then, documentation has been provided which raises several issues. The Tribunal notes that the MTO keeps changing what they require from the Appellant. First, the Appellant was required to show psychiatric stability. Then, he was required to show proof of stability with alcohol dependence. MTO then requested reasonable alcohol consumption, but subsequently requested proof of abstinence, followed by a request to prove diabetic stability. The requirement then became that he show reasonable alcohol consumption, and finally and lastly, the MTO asked for abstinence again, all the while asking that bio-chemical results be obtained and explained. This is quite confusing. The Appellant has actually done a remarkable job in recent years in trying to provide the MTO with what they required. The issues of psychiatric and diabetic stability have been resolved. Furthermore, the Appellant’s physicians have explained any bio-chemical marker abnormalities and have told the MTO that they no longer expect any further normalization of these values.

The onus lies with the MTO to prove that the Appellant suffers from a condition or an addiction to an extent likely to significantly interfere with his ability to drive safely. In the past, this was about his psychiatric condition and this had clearly been unstable. However, the concerns of the Tribunal in 2010 have been addressed. He has had no hospitalizations or manic episodes for over five years. He is stable. He has sought a lot of medical attention and testing. His medical team has described his insight into his problems. He has provided a medical opinion that he no longer needs to take an antipsychotic medication. Even with his high alcohol consumption, his physicians “cannot conclude that his drinking is out of control”. Thus, there is not enough proof that he is a danger on the road.

The Tribunal finds that the Appellant has actually met the criteria of the CCMTA standards. He has reduced his alcohol consumption at his physician’s urgings (remission). He has favorable recommendations from his family physician, his psychiatrist and his psychologist. The latter two are professors with clearly well versed practices in both addiction and neurocognitive function. The Tribunal has given their opinion a great deal of weight in these proceedings. They have performed extensive testing, they have followed up on their patient over time and they are new to the situation as of the last hearing in 2010, making them independent of any past history. Their opinions would certainly fit the criteria of a “favourable recommendation from an addictions specialist”. They state in one of their letters that the Appellant has no functional deficits. In March 2015, the assessment team stated that they had “no health related reason to consider [the Appellant] unsafe to drive”. They described him as mentally much more stable than he appeared on initial assessment and his behavior and thinking were normal. His family physician, who has been involved in his care since 2008 and who is aware of his alcohol consumption, has been supportive of the Appellant throughout. Therefore, the Tribunal is not of the view that stating that the Appellant has met the CCMTA criteria is a mere relaxation of the guidelines in this case.

The Appellant clearly had significant issues to deal with in the past. He appears to have made tremendous steps to rectify his problems and improve his life. He has spent the last two years accumulating the medical information he believed he needed for reinstatement of his licence, which in and of itself, shows a great deal of patience and cognition. The Tribunal cannot predict the future, nor can the MTO, but the Appellant has satisfied the past requirements of the MTO regarding the medical conditions which had been of concern.

Weighing all of the evidence, on a balance of probabilities, the Tribunal finds that the Appellant is not addicted to the use of alcohol, nor does he suffer from a mental or physical condition, to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.

DECISION

Upon the application by the Appellant to appeal the Registrar’s decision, effective March 17, 2005, 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 subsection 50(2) of the Act that the decision of the Registrar be set aside.

LICENCE APPEAL TRIBUNAL

David Borenstein, M.D., Member

Released: February 25, 2016