10376 v. Registrar of Motor Vehicles, 2017 CanLII 17566

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2017-01-31

FILE:

10376/MED

CASE NAME:

10376 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 in by teleconference:

January 18, 2017

DECISION AND ORDER

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”).

FACTS

Documentary Evidence from the Respondent

In compliance with section 203 of the Act, a Medical Condition Report was completed on July 31, 2015 by Dr. F., Emergency Room physician. The condition reported was “Alcohol Dependence.”

Under Section 203 of the Act all medical practitioners are required to report to the Registrar of Motor Vehicles, any person under their care who is suffering from a medical condition that may make it dangerous for that person to operate a motor vehicle.

On August 3, 2015, the Registrar informed the Appellant that considering all relevant facts available, his driving privilege was suspended under section 47(1) of the Act.

In order for consideration can be given to reinstatement, he was requested to take the letter of suspension to his 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 twelve months. 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.

• A Substance Abuse Assessment Form.

He was also informed of his right to appeal.

The effective date of suspension was August 12, 2015. Ms. De Santis, representing the Registrar of Motor Vehicles, stated that there is frequently an administrative interval between the letter of suspension and the effective date on the driver’s record.

On August 11, 2015, Dr. R., the Appellant’s family physician since 1992, completed the Substance Abuse Assessment, indicating as follows:

• Diagnosis: alcohol dependence
• No seizures.
• Has not abstained from alcohol and has not been dependent on drugs
• He has successfully completed a formal addictions program. A certificate of completion was attached.
• Biochemical markers for alcohol abuse show elevation of MCV, GGT and AST. A liver test, ALT, was reported normal.
• Abnormal physical findings show cardiac arrhythmia and he has a pacemaker
• Current medication prescribed has no side effects that might affect his driving ability.

On November 4, 2015, the Registrar informed the Appellant that following review of the information submitted, it had been determined that his suspension would continue. He was informed that the following information was required:

• Confirmation that he has remained abstinent from alcohol for a period of one year. This period may be reduced to six months if his physician confirms that he has successfully completed an alcohol treatment program (during his period of abstinence) and is supportive of his driving privilege.

• Results of recent bio-chemical markers (MCV, GGT, AST and ALT) with a clinical explanation for any levels outside the normal laboratory range.

Dr. R. wrote a letter on July 6, 2016 to support of the Appellant’s appeal, which the Appellant made a month later. In summary, Dr. F. stated as follows:

• The Appellant has been unsuccessful in his attempts to stop drinking on multiple occasions.
• He has attended a Day program for a number of months but started to drink again.
• He has intermittently attended his counsellor at Addictions Services.
• He has applied to attend the inpatient program at the Centre for Addiction and Mental Health (CAMH).
• The doctor has been informed by the Appellant and various individuals who know the Appellant, including his wife, that he continues to drink
• On June 8, 2016, the Appellant had been to a wedding where he was drinking after a period of abstinence for 5 weeks.
• Regular blood tests for alcohol and liver function performed weekly were negative.

The Appellant filed a Notice of Appeal on August 5, 2016. The reasons for appeal were stated as follows:

• No assessment was done to diagnose alcohol dependence.
• He was taken to hospital by ambulance
• The E.R. doctor called him a drunk and walked away without discussion
• He does not drive after drinking and does not drink during working hours
• As a sales person, he cannot afford to drink during work.
• He has been diagnosed with stomach cancer and wishes to return to work
• He will commence treatment at CAMH on August 6, 2016.

A certificate of completion of Intensive Stay in the Addictions Inpatient Treatment Service at CAMH confirmed that the Appellant was admitted to the program on August 4, 2016 and he completed it on August 23, 2016.

This program was described as covering assertiveness, relationships, stress management, nutrition, relapse prevention, self-esteem, leisure and coping with feelings. In addition to teaching clients new skills, the sessions are designed to provide a better understanding of addiction and the factors that might contribute to its development. The group therapy program offers an opportunity to explore some of their struggles in greater depth and to develop coping strategies. Follow-up with Aftercare was also discussed.

On October 12, 2016, another Medical Condition Report was completed by Dr. F., the same E.R. physician who had seen the Appellant a year earlier, in compliance with section 203 of the Act and based on examination the same date. The condition reported was “Seizure(s) – Alcohol related.”

On December 11, 2016, Dr. R. wrote to the Registrar and to the Tribunal. The following is a summary:

• Since my last letter of July 6, 2016, the Appellant had five office visits, the most recent on December 7, 2016
• In the last two months, two blood samples were negative for alcohol
• He has attended an inpatient program for substance abuse at CAMH.
• At his last visit to me, he stated that it has been about six weeks since last consuming alcohol
• He suffered a seizure and was taken to hospital by ambulance on October 12, 2016
• I have the hospital record of his visit to the E.R. where the attending physician, Dr. F., elected to call this an “Alcohol Withdrawal Seizure”. I corroborated the events of that night with the Appellant’s wife
• Dr. F. notified the Ministry by a Medical Condition Report the same day
• No referrals were made in follow up and I have instituted a referral to a neurologist
• Laboratory tests for alcohol on October 13 and November 25, 2016 were negative.

On December 14, 2016 the Registrar informed the Appellant that a report of “Seizure - alcohol-related” had been received. The Appellant was requested to take the letter to his physician and have the following information sent to the Medical Review Section:

• If the physician confirms a diagnosis of alcohol dependence and/or that an alcohol withdrawal related seizure had occurred, the ministry will require confirmation that the Appellant has remained seizure free and is abstinent from alcohol for a period of one year. This period may be reduced to six months if the physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.

• A Substance Abuse Assessment Form.

A report of an Electroencephalogram (EEG) dated December 16, 2016 was reported to Dr. R. the same date. The report received by the Tribunal on January 18, 2017 was interpreted and signed by a Dr. L., a neurologist, and it stated:

The reason for the EEG was: alcohol withdrawal seizures in October, on gabapentin

Unremarkable EEG during wakefulness, drowsiness and brief stage 11 sleep.

Hyperventilation 3 minutes activates no epileptiform discharges in the background

Following review of the EEG report by the Medical Review Section, the Registrar informed the Appellant on January 16, 2017 that the suspension will continue under the same conditions as stated on December 14, 2016.

Evidence by the Appellant

In his testimony at the hearing, the Appellant stated that regarding the incident on October 12, 2016 there was no seizure. He stated that at about 2:30 a.m. he felt sick. He believed at that time that his pacemaker was malfunctioning as it had been, and that it had required hospital monitoring every three months. He got up from bed and went to the bathroom. He felt nauseated and light headed and tried to induce vomiting. His wife called for an ambulance. He did not bite his tongue, and there was no foaming at the mouth, and no incontinence. He was also on a CPAP machine for sleep apnea.

On arrival, the EMS did not administer medication, and on arrival at the E.R., an intravenous was started. He was seen by the E.R. physician, Dr. F., who had seen him on a previous admission. He stated that Dr. F. called him a drunk and walked away without examination. He did not order a CT scan or other investigations.

The Appellant informed the Tribunal that he has complained to the hospital about Dr. F.’s manner but has not received an acknowledgement. He was not referred to a neurologist by Dr. F. regarding the diagnosis of “alcohol withdrawal seizure.”

Dr. R., his family physician since 1992, referred him to a neurologist who, the Appellant stated, questioned the lack of diagnostic CT or EEG at the E.R. visit. The EEG, interpreted by a neurologist Dr. L., was reported to Dr. R.

The Appellant informed the Tribunal that after the EEG was reported, he requested an appointment with the neurologist during a hearing adjournment and he was informed by the neurologist’s office that he did not wish to see him.

He stated that he has been dealing with alcohol since the age of 18. He stated that his last drink was in September 2016, and that he has been attending the Addiction Service at his local hospital for group meetings.

He usually consumed alcohol at home before and after dinner, up to 12 ounces of liquor a day, and never at work. He also stated that he does not take drugs. He stated that following the diagnosis of gastric cancer in 2015 he started to drink more, and that he saw a psychiatrist twice when he was at CAMH and was prescribed a benzodiazepine to deal with the triggers that make him drink.

He stated that his wife has recently been diagnosed with breast cancer, which has added to the triggers for drinking.

The Tribunal notes that a consultation report by a neurologist was not submitted other than the EEG report.

ISSUES

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

In particular:

Does the Appellant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to drive a motor vehicle safely?

or

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

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 14(2) of the Regulation permits the Minister to take into consideration the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.

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.”

Submissions by the Parties

Ms. De Santis, on behalf of the Registrar, submitted that upon receiving a Medical Condition Report of alcohol dependence by a physician in compliance with section 203 of the Act, on July 31, 2015, the suspension of the Appellant’s driving privilege under section 47(1) of the Act was justified.

Upon completion of a treatment program by the Appellant at CAMH in August 2016, the Appellant continues to consume alcohol, according to his family physician.

In October 2016, the Appellant attended at the local Emergency Room and was seen there by the same physician who completed a Medical Condition Report of alcohol dependence in July 2015. In the second Medical Condition Report in October 2016, this physician made a diagnosis of alcohol withdrawal seizures.

The Appellant’s family physician reported that the last consumption of alcohol by the Appellant was about six weeks prior to December 7, 2016, which would be estimated during the last week of October 2016 or the first week of November. The Appellant does not have an accurate date of his last drink.

The Registrar requires confirmation that the Appellant has been abstinent from alcohol and seizure free for a period of twelve months along with a physician’s support for reinstatement. This period may be reduced to six months with confirmation of successful completion of a treatment program.

The Appellant submits that he has not been drinking since October 2016 and that he completed an alcohol dependence program at CAMH in August 2016. While undergoing the inpatient program at CAMH he was able to counsel other patients on dealing with addiction.

He submits that he has difficulty dealing with the diagnosis by Dr. F. of alcohol withdrawal seizure, which was made without adequate assessment of the facts and may show bias from the previous contact in July 2015 when he reported the Appellant for alcohol dependence.

He submits that he needs a driving licence in order to hold a job and is dealing with a diagnosis of gastric cancer. He also is trying to support his wife who is also a cancer patient. He feels that he should be allowed to take an occasional drink without excess.

APPLICATION OF THE LAW TO FACTS

The Tribunal has carefully reviewed the evidence by the Parties, exhibits, submissions and the relevant law.

The Registrar was justified in issuing the initial suspension of the Appellant’s driving privilege upon receipt of a medical report of alcohol dependence made in compliance with section 203 of the Act in July 2015. This report was corroborated by reports from the Appellant’s family physician who has attended the Appellant since 1992 and has been carefully monitoring the reports of the Appellant’s alcohol consumption through frequent laboratory monitoring.

The report under section 203 of the Act of alcohol withdrawal seizures was made by the same physician who submitted the first Medical Condition Report of alcohol dependence in July 2015. This second interaction between the Appellant and the E.R. physician is the subject of dispute by the Appellant, who claims that the physician was influenced by the previous incident.

He submitted that the diagnosis of seizures was not supported by the usual diagnostics of imaging, laboratory confirmation of alcohol dependence, or referral for neurological assessment. Subsequent report of a normal EEG performed in December 2016 shows no evidence of epileptiform activity.

The Tribunal finds that there is little, if any, evidence for alcohol withdrawal seizures, and alcohol withdrawal seizures is not an issue in this appeal.

Therefore, the only issue is whether the Appellant’s dependence on alcohol meets the legislative test in section 14(1)(a) or (b) as being a condition or disability, or an addiction, that is likely to significantly interfere with his ability to drive safely.

The Glossary of Substance Abuse Terms for the Purpose of Assessing Driver Fitness is a document that the Ministry provides to physicians, and it is contained in the Appendix of the Registrar’s evidence. It states as follows:

Alcohol Dependence is defined as the inappropriate use of alcohol associated with loss of control, inability to abstain, a preoccupation with obtaining alcohol and withdrawal symptoms.

The Glossary also has a statement that Drug Dependence (addiction) is the repetitive inappropriate use of any psychoactive substance associated with loss of control, inability to abstain, a preoccupation with obtaining the substance and withdrawal symptoms,

The Tribunal finds that the medical evidence in this appeal clearly supports a finding that the Appellant has alcohol dependence. Medical diagnoses involving the abuse of alcohol may refer to dependence and not explicitly to addiction. In some cases, a finding of addiction is still possible, which would bring a driver within section 14(1)(b) of the Regulation. But in many cases, there is no need to make a specific finding of addiction if the driver’s dependence on alcohol is enough to support a finding that the driver has “a mental, emotional, nervous or physical condition or disability” within the wording of section 14(1)(a). In this case, the evidence is clear enough that the Appellant’s dependence on alcohol means that he has a condition (which has mental, emotional and physical aspects) that is likely to significantly interfere with his ability to drive a motor vehicle safely.

The risks associated with driving while impaired by drugs or alcohol are well known. The Canadian Council of Motor Transport Administrators (CCMTA) guidelines, at Section 15.6.3, refer to alcohol dependence, and this section sets out the same standards that the Registrar has sought to apply in this case. The suspended driver should have abstained from the alcohol or drug use for at least 12 months, but this can be shortened to six months if the person has successfully completed a rehabilitation program and also been recommended for licence reinstatement by their physician.

The Appellant has taken steps to obtain professional help towards rehabilitation of his alcohol dependence, and his completion of a treatment program was certified on August 23, 2016. He is well motivated for personal and family reasons, as well as for return to his employment. The Appellant has good rapport with his family physician. However, he has failed to obtain this physician’s support for reinstatement, and also has not been abstinent from alcohol for more than a few months. The Tribunal is concerned that the Appellant does not fully accept the diagnosis of his alcohol dependence, as shown by his belief that he can still drink occasionally. The Tribunal finds that there are good reasons in this case to follow the CCMTA guidelines even though they are not binding on the Tribunal. There is not a long enough period of abstention from alcohol to reduce the concerns raised by the evidence of alcohol dependence in this case.

The Tribunal notes that the burden of proof is on the Registrar. Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant has a condition that is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the appeal of the Registrar’s decision to suspend the Appellant’s driver’s licence effective August 3, 2015, 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

Kevin Flynn, M.D., Member

Released: January 31, 2017