Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10599/MED
CASE NAME: 10599 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, / Agent
Heard by teleconference: February 8, 2017
DECISION AND REASONS
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”).
PRELIMINARY MATTERS
The Appellant requested clarification of the Ministry’s position on the treatment program required for alcohol dependence. Ms De Santis in reply, stated that this is an integral part of the Canadian Council of Motor Transport Administrators (CCMTA) Guideline 15.6.3. The Ministry will rely on this guideline in this case.
The Appellant stated that his family physician, Dr. B. recommended reinstatement and
Dr. B. did not refer to the CCMTA Guideline.
The Tribunal asked the Appellant if he wished to adjourn pending completion of the treatment program.
The Appellant informed the Tribunal that he will be on vacation in two weeks, that he has not registered for the program and that he wished to proceed with the hearing today.
Ms De Santis stated that she would agree to an adjournment if requested by the Appellant.
She also agreed to proceed as requested by the Appellant.
FACTS
Evidence for the Respondent
On October 27, 2016, Dr. B., the Appellant’s family physician since 2005, completed a Medical Condition Report on his patient based on an examination conducted on September 29, 2016. The condition reported was: Alcohol Dependence.
Dr. B. sent the Medical Condition Report to the Registrar in compliance with s. 203 of the Act, which requires all medical practitioners to report to the Registrar, any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive.
The Medical Condition Report contained the following optional information by Dr. B.
Having memory issues that I associate with his alcohol use disorder. Additionally, his laboratory values are significantly increased corresponding to recent heavy ETOH (alcohol) use; threat to road safety is unknown as patient reports drinking only at night at which time he doesn’t drive; his alcohol use disorder is not well controlled; there are no reports of seizure or blackouts; I think his case could best be managed by mandating a monitoring agreement with me with specific targets.
The patient is aware of this report.
The Registrar wrote to the Appellant on October 28, 2016 stating that a report of alcohol dependence had been received and considering all relevant facts available, it has been decided to suspend his driving privilege under section 47(1) of the Act effective November 7, 2016.
He was requested to take the letter of suspension to his treating physician, specialist or nurse practitioner when his condition improves and have the following information sent to the Medical Review Section.
If his physician confirms a diagnosis of alcohol dependence, the Ministry will require confirmation that he has remained abstinent from alcohol for a period of one year. This period may be reduced if his physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.
The enclosed Substance Abuse Assessment form completed in full and all questions answered.
Dr. B. completed the Substance Abuse Assessment on his patient on November 21, 2016.
In summary, the assessment stated:
- The diagnosis is Alcohol Dependence
- There was no history of seizure
- The period of abstinence was less than six months
- He has not completed a formal addictions treatment program
- He has not been reported for drug misuse
- Results of biochemical markers within the last three months, MCV, GGT, ALT, AST have been elevated due to alcohol and prescribed medication
- Abnormal physical findings or underlying medical conditions: (checked ‘Yes” but no explanation was provided).
- The patient has been prescribed medication, but the medications have not resulted in side effects that may impair his ability to safely operate a motor vehicle
- The patient has reported adherence to the recommended treatment regimen
- The patient has not demonstrated any pattern of non-adherence.
- Refer to the attached letter dated November 21, 2016 (by Dr. B.) with recommendation.
The letter by Dr. B. dated November 21, 2016 stated as follows:
This letter is to confirm that [the Appellant] has been a regular patient of mine since 2005. He has been seen in the office recently in follow up with regard to his driver’s licence suspension.
[The Appellant] had a recent significant increase in alcohol use and reported neurocognitive side effects that could be attributed to his alcohol use. As such, I filed the report to the MTO on October 27, 2016. Since having his driver’s licence suspended, [the Appellant] has reported reducing his drinking first to less than one standard drink per day and now, no drinks per day for seven days.
His blood work (MCV, AST, ALT, GGT) has already significantly improved.
The blood work results are confounded by medications used to treat another medical condition; these medications can affect all of the values of MCV, AST, ALT, GGT. Therefore, we are changing his medications so there is no confusion as to the cause of an elevated ALT, AST, GGT or MCV.
The improvement from October 25, 2016 to November 14, 2016 is as follows:
AST from 294 to 52
ALT from 172 to 48 (normal)
GGT from 451 to 313
MCV remains at 104.
At this time, I am supportive of an immediate reinstatement of a driving privilege for [the Appellant] based on the following treatment plan:
Monthly blood work including MCV AST ALT GGT, and
Monthly reporting by email, phone or in person (he lives far from Toronto) to update me on his drinking and treatment program status, and
Monthly reporting by his partner, who is also my patient, for corroboration of [the Appellant’s] drinking status, when requested, and
Attendance at an alcohol treatment program.
Because of the location of [the Appellant’s] home, he requires driving privileges to attend a treatment program. I am supportive of a reinstatement of [the Appellant’s] driving privileges because treatment program success requires it, and he has demonstrated an immediate willingness to change. This reinstatement would be for as long as he adheres to the above-noted treatment plan. He is agreeable that if he does not adhere to the plan, or if I have any concerns about a return to problem drinking that would impact his driving, then I will report him again to the Ministry of Transportation. I would expect him to follow the blood work and reporting requirements for twelve months.
I believe the treatment plan is in the best interest on [the Appellant’s] health and ability to be a safe, productive citizen.
Please contact me if this plan does not meet with your approval.
The Registrar responded to the above reports by letter dated December 1, 2016, stating that further information is required. He was requested to take that letter to his treating physician, specialist or nurse practitioner and have the following information sent to the Medical Review Section:
Confirmation that he has remained abstinent from alcohol for a period of one year. This period may be reduced if his physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege
The results of recent bio-chemical markers (MCV, GGT, AST & ALT) with a clinical explanation for any level outside the normal laboratory range.
A second letter from the Registrar dated December 5, 2016 added the following requirement:
- The results of all investigations, a diagnosis, treatment, current status, confirmation that the condition is controlled.
The Appellant’s Notice of Appeal was received on January 9, 2017.
Ms De Santis cited the Canadian Council of Motor Transportation Administrators, (“CCMTA”) Guideline 15.6.3 that applies to all drivers who are under the influence of alcohol and illicit drugs.
The Standard is:
All drivers are eligible for a licence if;
Meets the criteria for remission and/or has abstained from the substance for 12 months
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
The functional abilities necessary for driving are not impaired
Where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.
Evidence by the Appellant
The Appellant’s Notice of Appeal stated:
Doctor has requested my licence be reinstated.
Going to AA almost daily.
The Appellant stated in Evidence in Chief, that he began to consume alcohol at age 16 and began to overuse alcohol ten years ago. He was drinking spirits about 26 ounces a week and occasionally was binge drinking, but sometimes could abstain for a week.
He stated that he went to see his family physician when he realised that he had a drinking problem and Dr. B. sent him for laboratory tests. When the results of the laboratory tests were abnormal, Dr. B. informed him that he was obliged to make a report to the Ministry of Transportation. At that time, he agreed to a plan designed by Dr. B. to stop drinking and to monitor his alcohol use and to undergo a treatment program. He discovered that a formal treatment program that would be accepted by the Ministry of Transportation, in order to reduce the period of suspension, would last twenty eight days.
Under cross examination, the Appellant stated that he has never driven after drinking and has never had a legal problem due to alcohol. He acknowledged that he had been forgetting things, such as turning off the kitchen stove.
He began to attend Alcoholics Anonymous three times a week after his doctor began to counsel him. He learned that there are two treatment programs in his town, but has not registered yet for a program. He stated that he does not use illicit drugs.
He acknowledged that his family doctor had a legal duty to report him to the Ministry.
His occupation is at horticulture. He lives a long distance from his family physician whom he has known for about eleven years.
When asked by the Tribunal what medications were prescribed by Dr, B. that affected his bio-chemical markers, he listed medications for blood pressure, gastric problem and two medications for immune deficiency. His laboratory tests improved when these medications were changed by his doctor.
He stated that his last drink was one week ago when he had one drink of Vodka Caesar.
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
The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) relate to misconduct, criminal convictions, and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver is addicted to the use of alcohol to an extent likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:
An applicant for or a holder of a driver’s licence must not,
(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.
In determining whether the requirements of s. 14(1) are met, the Minister of Transportation may, pursuant to s. 14(2) of the Regulation, take into consideration the CCMTA Medical Standards for Drivers, which is published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.
The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities.
Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision of the Minister or Registrar.
Submissions by the Parties
Ms De Santis, on behalf of the Registrar of Motor Vehicles, submitted that the receipt of a Medical Condition Report of Alcohol Dependence, completed by a physician in compliance with section 203 of the Act, justified the licence suspension under section 47(1) of the Act.
Confirmation of alcohol dependence, by the Substance Abuse Assessment and the attached letter submitted by the family physician, Dr. B. on November 21, 2016 together with elevated bio-chemical markers for alcohol use disorder, justified the requirement for a period of twelve months abstinence from alcohol. In addition, successful completion of an alcohol treatment program was required in order to reduce the period of abstinence to six months.
The Ministry would also require continuation of the bio-chemical markers before consideration can be given to reinstatement.
The Appellant elected not to make a final submission.
APPLICATION OF THE LAW TO FACTS
The Tribunal has carefully reviewed the evidence and submissions of the parties, and also of the relevant legislation and guidelines.
The family physician in this matter has shown a deep understanding of the issues as shown in his letter of November 21, 2016 that accompanied his completion of the substance abuse assessment.
He has known the Appellant as a patient for eleven years even though there is a considerable distance between them. The Appellant recognised that his abuse of alcohol was having a deleterious effect on him and he sought help from his physician.
Dr. B. recognised the significance of abnormal bio-chemical markers in the context of alcohol abuse and also recognised that prescribed medications for a condition other than alcohol dependence could affect these tests.
Upon changing his patient’s medications Dr. B. reported that three weeks later, the relevant laboratory tests returned to normal. These changes also coincided with counselling his patient to cease drinking.
In addition, Dr. B. instigated a detailed treatment plan that allowed him to closely monitor his patient’s alcohol use for twelve months and even enlisted the Appellant’s partner in this plan.
The Tribunal finds that the elevated bio-chemical factors initially reported were due mainly to the effect of medications prescribed for a condition separate from alcohol abuse. The Tribunal also finds, based on the Appellant’s testimony and the absence of any report of impaired driving incidents that the Appellant does not drink before driving.
The Tribunal also finds that the treatment plan outlined by the family physician and the support by him for reinstatement are sufficient to mitigate the risk that the Appellant’s use of alcohol may affect his driving.
The Tribunal compliments Dr. B. for his intervention and has confidence that the treatment plan will be effective at protecting public safety. Although the Appellant lacks confirmation of abstinence for a period of twelve months, as set out in the CCMTA guideline 15.6.3, the close monitoring by the family physician ensures that public safety is protected by the period of monitoring for twelve months established by Dr. B.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition or addicted to the use of alcohol to an extent likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon appeal of the decision effective November 7, 2016 of the Registrar 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
Kevin Flynn, M.D., Member
Released: February 17, 2017