10429 v. Registrar of Motor Vehicles, 2016 CanLII 98137

Licence Appeal Tribunal

DATE: 2016-10-20

FILE: 10429/MED

CASE NAME: 10429 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

10429 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: Sonia De Santis, Agent

Heard by teleconference: September 26, 2016

DECISION

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").

The Tribunal sets aside the decision of the Registrar, for the following reasons.

FACTS

On April 27, 2016, Dr. C., an emergency room physician, sent a Medical Condition Report to the Registrar. The condition checked on the form was "Seizure secondary to illicit drug use". There were no comments on the form.

On April 27, 2016, the Registrar sent the Appellant a letter advising him that his driving privilege was being suspended for the conditions of "substance abuse and seizure". In order to be considered for re-instatement, the Registrar asked that the Appellant have his physician complete the Substance Use Assessment form and provide further information about his medical condition.

On June 28, 2016, Dr. I., a neurologist, assessed the Appellant.

The following is a summary of Dr. I.'s consultation report from that assessment:

• He drinks one beer a week on average
• He has tried recreational drugs in the past including cocaine. He tells me he has not used any for the past 6 months. At the time, he was using once or twice a week. He has not used I.V. drugs
• At the end of April he was with friends. He had a lot to drink that night. He also had GHB for the first time.
• From the history, I don't get any convincing history of seizure.
• I think this is more likely to be related to intoxication, overdose rather than seizure.

A drug screen from August 17, 2016 was negative for barbituates, benzodiazepines, cocaine, opiates, and cannabinoids.

The Registrar reviewed the letter from Dr. I. and sent the Appellant a letter on August 29, 2016 requesting a Substance Use Assessment Form, the results of recent biochemical markers, the results of a repeat urine drug screen, and confirmation of no further loss of consciousness or seizure.

A Substance Use Assessment Form was completed by Dr. B. on September 12, 2016. Two copies of this form were received by the Registrar. On the first, many of the sections were left blank by Dr. B. The second form appears to be the same form on which Dr. B. had added more comments. The Appellant told the Tribunal that he returned to Dr. B. to ask that the missing sections be filled in when it became clear to him that the form had not been completely filled out. The following was reported in the Substance Use Assessment Form (in its most complete version):

• The condition checked was "other".
• The applicable substances were: alcohol ("reports 2/week") and prescribed medication ("clonazepam").
• The section for illicit substances was initially checked but then crossed out.
• The Appellant had never experienced a seizure.
• The N/A boxes were checked on the questions of whether the Appellant had abstained from drugs and alcohol.
• Under the question about physical dependence on prescription medication Dr. B. wrote "not applicable"
• No formal addictions program was completed.
• For the question "Has the patient been reported for drug misuse, abuse, or dependence?", Dr. B. checked yes.
• It was unknown if there was a positive test for illicit substances or non-prescribed medication.
• All biochemical markers were within normal limits.
• There were no abnormal physical findings or underlying medical conditions.
• The Appellant had been "prescribed clonazepam (which causes drowsiness) and used for a short period of time".

An AUDIT (Alcohol Use Disorder Identification Test) assessment was done and the Appellant scored 5 which indicates mild dependence.

A LEEDS score (a measure of alcohol dependence) was done and the Appellant scored 0 (the lowest possible score).

The Registrar reviewed this information and sent the Appellant a letter asking for further detailed medical information, the results of repeat biochemical markers, and the results of repeat urine drug screening.

On September 17, 2016, the Registrar received another unsolicited Medical Condition Report from Dr. W., an emergency physician. This report contained the following:

• The conditions were Alcohol Dependence and Drug Dependence.
• Dr. W. commented "[The Appellant] is currently without a licence. He presented to the ER with history of alcohol use and drug use. There was a question of seizure but we were unable to verify this. He refuses to stay for the work up and left against medical advice."

On September 21, 2016, the Registrar sent a letter to the Appellant stating that his licence remained under suspension and again asked for further detailed medical information, the results of repeat biochemical markers, the results of repeat urine drug screening, a Substance Use Assessment Form and confirmation of abstinence.

No further information was submitted by the Appellant.

The Registrar's Agent told the Tribunal that the concern was that there had been two unsolicited medical reports in a short span of time related to the Appellant's drinking and drug use. Ms. De Santis stated that there were "a lot of unanswered questions" and that the Registrar needed more information in order to consider re-instatement of the driving privilege.

The Registrar's position is that since the diagnosis of drug and alcohol dependence had been reported by Dr. W. and was supported by the reports surrounding the initial ER visit, there was a need for more information about his drinking and drug use and/or a period of abstinence.

Further, since the use of clonazepam was reported, but few details were provided, more information was needed about the medical condition requiring clonazepam (a sedative medication that is commonly used for episodes of anxiety or insomnia) and the Appellant's response to treatment.

The Appellant, in his testimony, stated that he has not used cocaine in 15 years and did not think that his use of this drug should be considered relevant.

He does not drink to excess on a regular basis. Ms. De Santis asked the Appellant how much he had been drinking on September 17 to which he responded: "a considerable amount" and "5-6 shots". He stated that this was unusual for him.

Ms. De Santis then asked the Appellant whether he tries or used drugs since seeing the neurologist and he responded, "no".

On the night of April 27, 2016, he had been drinking with his friends and someone "slipped GHB in to my drink". This was the first and only time he used this drug.

On the night of September 17, 2016, he had been drinking with his friends, became tired, and intentionally went to his bed and went to sleep. One of his friends discovered him in bed and "I guess because she had heard about what happened the last time" she became concerned that he had overdosed and called the ambulance. The Appellant said that he was awoken in his bed by the paramedics who recommended going to the hospital. The Appellant said that he did not want to go because he didn't see the point but he went anyway. On arrival to the ER, he felt that he was wasting his time there and left.

The Appellant told the Tribunal that he is a recreational user of alcohol and is not addicted to drugs. He said that he never drives while intoxicated and always arranges to stay at someone's house or gets a ride if he is intoxicated.

He does not consider himself to be an alcoholic or a drug addict.

The Appellant also told the Tribunal that he had been prescribed clonazepam by a doctor at a walk in clinic "just once". He said he was given a prescription for 10 pills and has never had another prescription. He says he no longer uses clonazepam and that its use was an isolated incident.

ISSUES

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

In particular, is the Appellant suffering from a medical condition, or addicted to the use of alcohol or drugs to an extent likely to significantly interfere with his ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94 (the "Regulation"), section 14(1), 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.

Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver's licence for any "sufficient reason" not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.

Section 50 of the Act permits the driver to appeal the Registrar's section 47 decision to the Tribunal, and the Tribunal "may confirm, modify or set aside the decision of the Minister or the Registrar."

APPLICATION OF THE LAW TO FACTS

The Registrar submits that there are three reasons why the Appellant's licence should remain under suspension:

1. The reports of alcohol and drug dependence
2. The use of clonazepam and the medical condition requiring that medication
3. The episode of loss of consciousness

It is unclear to the Tribunal if Dr. B. intended to diagnose the Appellant with alcohol or drug dependence as, on the Substance Use Assessment Form, she checked the box for "drug misuse, abuse, or dependence". It is not clear which of these three choices is Dr. B.'s diagnosis.

Dr. W. diagnosed alcohol dependence and drug dependence. It is unclear what she based this assessment on. The Appellant said that he did not stay for a full assessment and this is supported by Dr. W.'s report. It appears in the comments that Dr. W. made that she is referencing the April 27, 2016 ER visit and not making a new assessment. Thus the Tribunal is not convinced that Dr. W.'s diagnosis of drug and alcohol dependence can be relied upon.

The Appellant reports that his drug and alcohol use are recreational and testified that he drinks only occasionally and no longer uses drugs.

The reports of his alcohol use of 1 drink per week from Dr. I. and 2 drinks per week from Dr. B. are consistent with recreational drinking.

Further, Dr. I.'s comments that "he has tried recreational drugs in the past including cocaine", supports the Appellant's report that his drug use is largely in the past.

As well, the Appellant's testimony was that he unintentionally ingested the drug (GHB) that resulted in his first ER admission and that he had never used it before or since. This speaks to isolated use of GHB and not a pattern of dependence.

The Tribunal makes note of the negative urine drug screen of August 17, 2016 and the results of the AUDIT and LEEDS scores which indicate mild or low dependence.

On the issue of drug and alcohol dependence, the Tribunal finds that the evidence supports recreational use of alcohol and past recreational use of drugs and not dependence. The evidence is insufficient to demonstrate that the Appellant is 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.

Regarding the Appellant's use of clonazepam, it appears from the Appellant's testimony this was a one-time therapy and he does not continue to use it. There was no diagnosis provided by any of the Appellant's physicians for which the clonazepam was prescribed. The negative drug screen for benzodiazepines (the class of drugs that clonazepam belongs to) supports the Appellant's report that he does not take this drug. The Tribunal finds no evidence that the use of clonazepam or any associated condition is interfering with the Appellant's ability to drive a motor vehicle safely.

Regarding the Appellant's loss of consciousness, the opinion of the neurologist was that the episode was related to alcohol and GHB use. There is no evidence to support an underlying seizure disorder. It might be argued that the September 17, 2016 ER visit was a second loss of consciousness, but the Tribunal accepts the Appellant's testimony that he intentionally went to bed. The only other information available about that night is the report of Dr. W. which does not comment directly on a loss of consciousness. The Tribunal therefore relies on the uncontradicted report of the Appellant. The Tribunal finds that the episode leading to the ER visit of September 17, 2016 did not represent a loss of consciousness per se but rather that the Appellant intentionally went to sleep.

In summary, the Tribunal finds the evidence to be most consistent with the Appellant being a past recreational (but not dependant) user of drugs and a current recreational drinker of alcohol, having had an isolated loss of consciousness related to accidental ingestion of GHB with no chronic neurological condition or seizure disorder, being free of the use of prescribed sedating medication and having no diagnosed medical condition related to his past use of clonazepam.

Having considered all of the evidence before it, the Tribunal finds that the Registrar has failed to demonstrate that the Appellant has an addiction or medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

DECISION

Upon the Appellant's appeal of the Registrar's decision effective May 7, 2016 to suspend the Appellant's 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: October 20, 2016