Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-01-19
FILE:
9954/MED
CASE NAME:
9954 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
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:
January 12, 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").
FACTS
On August 14, 2007, the Appellant was involved in a motor vehicle accident (MVA), which resulted in a visit to an urban Emergency Department. He claimed he swerved on the road so as to not hit an animal and flipped his vehicle. A psychiatrist saw him during this visit and notified the Ministry of Transport of a concern regarding drug dependence and' mental or emotional illness that is unstable'.
The Medical Condition Report filed by the doctor stated as follows:
"Patient used marijuana and cocaine on Aug12/7 and then drove onto a soccer field (night) because he hallucinated hearing his x-gf having sex with another man in the woods. Then on August 13/7 was very sleep-deprived, very distracted and drove off road, flipped car. Says he saw a raccoon and that's why. Apparently he told Emerg resident that he keeps seeing the same raccoon; he denied this to me".
The Ministry of Transportation (MTO) responded with letter to the Appellant that his licence was suspended and that for the Ministry to reconsider his suspension he was required to provide an up-to-date psychiatric assessment, a description of current treatments and proof of compliance to treatment. They also required an assessment by an addictions specialist regarding drug dependence.
The Appellant sent the MTO blood work from July 2008 that showed a negative drug screen. The MTO assessed the information and notified the Appellant of his need to comply with the initial request.
In August 2009, he saw an addiction specialist at a rehab facility and entered into a treatment program. His physician was clear that there was no psychiatric history and the Appellant did not present any evidence of a psychiatric problem. The physician questioned the need for a psychiatric assessment. However, his history of drug and alcohol dependence was well documented, for which the Appellant did require treatment. His medical assessment clearly described a history of drug and alcohol use, with relapse and questionable behaviour. His physician recommended a year of abstinence from all drugs and multiple blood tests over that year. The physician also told the Appellant what the MTO would demand of him to get his licence re-instated.
The MTO responded in September 2009 with a letter in which they asked for documentation of treatment and a year of abstinence with biochemical blood work confirmation.
The Appellant did not communicate again with MTO until September 11, 2015 at which time the Appellant requested a copy of the MTO's initial letter from 2007 and the substance abuse forms requiring completion. He did not complete this form and instead appealed the licence suspension.
The Appellant's driving record shows multiple violations for driving with a suspended licence since 2014.
The Registrar's Submissions
Application of the CCMTA standards for people with substance abuse or dependence (15.6.3) maintains that:
a) A person must meet the criteria for remission or abstain from substances for 12 months.
b) Earlier re-licencing may be considered upon favorable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority and the successful completion of a drug rehabilitation program.
c) There is no impairment of functional ability to drive.
The MTO had basically no communication from the Appellant since 2009. They have no means by which to judge his current state of health and drug dependency. The most up-to-date information they have is consistent with substance abuse and dependency and thus they must act according to that information. They suggest that the Appellant see his family physician and have the substance assessment form they provided completed. This would go a long way to helping them make a decision based on up to date information.
The Appellant's Submissions
The Appellant's submissions focused on why the original medical team reported him for drug dependence and the fact he felt there were errors in the report surrounding the facts of the MVA. He is upset that he was reported, and he personally knows people that are worse abusers of drugs than him who are still driving, either because they have not been reported or have been given lenient criminal sentences. Furthermore, he is quite upset that he apparently needs a psychiatric assessment when his addictions specialist clearly stated in 2009 that he had no psychiatric problem. He has been clean of drugs and alcohol for years and needs to drive for both employment opportunities and for convenience in his personal life. He feels not being able to drive is costing him financially and in terms of how he is viewed personally, especially by his son.
He never completed the rehabilitation program in 2009 due to life stressors and the fact that his family lawyer had said it would be hard to get visitation and custody of his child while in that type of program. He completed about 6 -7 months of rehabilitation. He believes most rehabilitation programs are much shorter than this amount of time in totality. He admits that there is no way the MTO could know his current status, but just does not understand what they want from him. However, he is amenable to providing the MTO with up-to-date information. His reasons for not providing information for several years and driving anyway are that he was being immature and had "bigger fish to fry" than deal with the MTO requests.
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 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;
d) 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
There appears to be a lot of confusion by the Appellant as to what is required of him by the MTO. This may stem from the discrepancies between the letters that were sent to him requesting information. These are now several years old. The most reasonable approach is to assume they would like that information outlined in their most recent letter, dated September 9, 2009. This requires confirmation of mental and emotional stability; if necessary, treatment details for drug and alcohol dependence, confirmation of alcohol abstinence for one year and biochemical markers that are either normal or explained if abnormal. There is no demand for a psychiatric assessment at this time, as this requirement was apparently dropped following the recommendation of the addiction specialist in 2009.
As for the issue of drug and alcohol dependence, there is no way to judge this accurately given the large gap of information that exists from 2010 until now. The most up-to-date information does support a past problem that would, on a balance of probabilities, reasonably interfere with the Appellant's ability to drive safely. Also of concern to the Tribunal is that despite his suspension, the Appellant has continued to drive and been fined several times since 2014. This does show some disregard for the law. This cannot be justified by the response that other people have done worse and still drive. There is a good chance that the substance dependency problems have been rectified, but as of yet, there is no information to support this conclusion on an objective basis.
In this case, the MTO has met its onus. At the relevant time, there was clear evidence of an addiction which would significantly interfere with his ability to drive a motor vehicle safely. There is no evidence from a physician, in the intervening period, to counter that conclusion. It is reasonable to ask the Appellant to provide current information from his regular physician regarding these issues via the standardized substance abuse assessment form. If his treating physician supports his claims of mental/ emotional stability with no current alcohol or drug dependence, then the Tribunal thinks it would be hard to justify continued licence suspension.
DECISION
Upon the application by the Appellant to appeal the decision dated September 11, 2007 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
David Borenstein, M.D., Member
Released: January 19, 2015```