Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2017-01-04
FILE:
10541/MED
CASE NAME:
10541 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:
Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant:
Self-Represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
December 16, 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” or “Ministry”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). For the reasons provided below, the Tribunal is confirming the decision of the Registrar.
FACTS
In September 2016, the Appellant visited the Emergency Room ("ER"). There was some conflicting information about whether the date was September 6 or 11, and the reason for the ER visit was unclear, but none of this affected any findings by the Tribunal.
Dr. F (a resident physician in the ER) filed an unsolicited Medical Condition Report, under section 203 of the Act, which requires physicians to report to the Registrar any patient conditions which may make it dangerous for that person to operate a motor vehicle. In that report, she checked the box for alcohol dependence as the reason for filing the report.
In the comment section, she wrote: “Alcohol use disorder, has driven short distances in the past. Two accidents with unclear etiology. Currently contracting to use safe modes of transportation when drinking and to quit drinking.”
On September 22, 2016, the Registrar suspended the Appellant’s driver’s licence for medical reasons based on this report per section 47(1)(b) of the Act.
The Registrar’s Agent, Mr. Kapur, told the Tribunal that the licence was suspended based on this Medical Condition Report and not because the Appellant had been charged with any offence or because of any specific event.
At the time of the suspension, the Ministry informed the Appellant that a period of abstinence of 12 months would be required before reinstatement of the licence, and that this period could be reduced if he completed a treatment program and if his physician was supportive of his driving privilege being reinstated.
The Ministry sent the Appellant a Substance Use Assessment form to be completed by his physician. This form was filled by Dr. C (the Appellant’s family physician) on October 10, 2016. On that form, alcohol dependence was checked as the applicable diagnosis. Alcohol was checked as the applicable substance. Beside the check box for alcohol dependence, Dr. C hand wrote the following: “Mild. (Leeds 6). AUDIT = 16 = Alcohol related harm.”
The Tribunal noted that in the original Substance Use Assessment form provided by the Ministry, there are additional pages (not submitted by Dr. C) that allow the physician to score the patient’s alcohol use pattern on two screening tests. These tests are the LEEDS and AUDIT tests, and the scores can be used to quantify risk from alcohol use. The Tribunal interprets the handwritten information from Dr. C to mean that he scored the Appellant on the two tests and found that he had mild alcohol dependence (from the LEEDS score) and alcohol related harm (from the AUDIT score). This was also the interpretation of the Registrar. The Appellant confirmed that Dr. C had asked him many questions about alcohol use during the visit where the form was filled.
The form also reported that:
- There had been no seizures.
- The Appellant had not abstained from alcohol or drugs.
- There was no formal addictions counselling completed.
- GGT, AST and ALT (liver function tests) were all normal.
- The MCV (another indirect liver function test) was abnormal and the reasons listed were alcohol use and B12 and/or Folate deficiency (there was a question mark written beside this section).
- There was no medication prescribed.
- There were no comments in the available section.
The Registrar reviewed the Substance Use Assessment form and sent the Appellant a letter on November 23, 2016 repeating the abstinence requirement and treatment program requirements of the previous letter. In addition, this letter requested the results of recent blood tests and an explanation for abnormal results.
A second Substance Use Assessment form was filled by Dr. C. on December 9, 2016. On this test, Dr. C. stated the condition was “alcohol misuse”. Other than that change the rest of the information was unchanged. The Appellant told the Tribunal that he had taken this second form to Dr. C. because the Ministry had sent it to him. He said that Dr. C. told him “just leave the forms with me”. When asked by Mr. Kapur, the Appellant confirmed that Dr. C did not ask him any further questions or re-administer the alcohol screening tests in preparation for filling the second form.
There were no other medical records from Dr. C’s office or the September ER visit available at the hearing.
SUBMISSIONS OF THE PARTIES
The Appellant provided information about his September 2016 ER visit to the Tribunal. He stated that he had been drinking at a wedding and that he had gone home to bed. His son (who lives with him) had become concerned about his alcohol intake and insisted that the Appellant go to the ER to be assessed. The Appellant told the Tribunal that his son had called the police to take him to the hospital.
Mr. Kapur extensively cross-examined the Appellant about why his son was so concerned on that particular night, and why he called the police. Mr. Kapur questioned why his son was so concerned given that he lives with the Appellant and would reasonably know his usual routine of drinking before bed. Mr. Kapur also noted that it does not seem logical that the police should be the first step.
The Appellant repeatedly answered that his son thought he was drinking too much and also, he was probably “afraid I might not go”.
The Appellant told the Tribunal that the person who checked him at the ER (he was not sure of the profession of that person) told his son that “everything was satisfactory” and that he was “fine”. According to the Appellant, his son then told the ER staff of a single incident in 2010 when the Appellant had driven after drinking. The ER staff then apparently said that she would report the Appellant to the Ministry of Transportation.
The Appellant reported both in oral testimony and a letter addressed to the Tribunal on November 16, 2016 that on April 24, 2010, he had driven after having some drinks with a client. The Appellant said that this was the only time that he had driven after drinking.
The Appellant admitted to drinking frequently in the evenings. He said that he generally has a few drinks after supper and that his doctor had advised him to do this because of insomnia. He said that his doctor told him that it was better to drink than to take sleeping pills. He said he only drinks when he is ready to go to bed.
The Appellant said that he is having great difficulty working as a real estate agent since losing his licence and is currently in danger of losing his house. He feels that his licence is being suspended because of one episode in 2010, when he drove after drinking.
Mr. Kapur explained that the current licence suspension was not as a result of the 2010 incident, but rather the report of alcohol dependence.
The Registrar’s position was that, based on the ER report and the original Substance Use Assessment form from Dr. C., a diagnosis of alcohol dependence had been established. Under the guidelines of the Canadian Council of Motor Transport Administrators (CCMTA), at section 15.6.3, his licence should remain suspended as he is not abstinent from alcohol. The Registrar does not accept the change in diagnosis from “alcohol dependence” to “alcohol misuse” as noted in the most recent Substance Use Assessment form from Dr. C. The Registrar noted that “there is no explanation made for the sudden change in diagnosis” and that there was no repeat exam, history, or LEEDS/AUDIT scores done between the two forms. Since the Substance Use Assessment form from October 10, 2016 was based on a clinic visit and the screening tests administered at that visit, the Registrar relied on the first Substance Use Assessment form.
The Appellant asked the Tribunal rule in his favour as he is unable to work without his driver’s licence. He does not feel that his drinking is dangerous since he does not, as a rule, drive after drinking.
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
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 CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met.
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
Alcoholism can interfere with a person’s ability to safely drive if it increases their probability of driving while impaired or causes other mental or physical changes that occur even when a person is not impaired.
Given the impairment in judgment and insight that can result from being addicted to alcohol or illicit substances, people who are addicted to these substances may also be impaired in their ability to decide when it is safe to drive.
Driving while impaired by alcohol causes deficits in consciousness, awareness, judgement and reflexes (among other things). This makes driving while impaired dangerous to drivers and the public.
The CCMTA Medical Standards for Drivers recommend that, before licence reinstatement, people who are found to be addicted to drugs or alcohol should demonstrate a period of abstinence of 12 months, or undergo a treatment program and obtain the support of their health care professionals to shorten the abstinence recommendation. The Tribunal is not bound by these Guidelines but may consider them.
The Tribunal finds that a diagnosis of alcohol addiction has been proven in this case, based on:
The results of the LEEDS and AUDIT tests;
The ER report of Dr. F. indicating alcohol dependence;
The ER report of Dr. F. noting a plan to quit drinking;
The first Substance Use Assessment form of Dr. C which, based on a history, exam and screening tests, reported a diagnosis of alcohol dependence; and
The Appellant’s self-reported alcohol use.
In light of the above evidence, the Tribunal is not persuaded of the “alcohol misuse” diagnosis on the Substance Use Assessment form of December 9, 2016. The Tribunal agrees with the Registrar that the second form carries less weight given that there was no further assessment of the condition and no reason given for the change.
The Tribunal finds that the Registrar has proven that the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.
The ER report mentions “two accidents of unknown etiology” and there was no further information given about those accidents. While there is no evidence that those two accidents were related to alcohol use, they were mentioned in the context of concern about alcohol use by Dr. F. Without further explanation as to their cause, this raises a concern about safe driving, especially since there has also been at least one confirmed incident of driving after drinking, in 2010.
The involvement of the police in the Appellant’s presentation to ER in September 2016 also raises concerns. The Tribunal is not satisfied with the Appellant’s explanations about why his son called the police that night. The Appellant’s son was concerned enough to send his father to ER, and he was afraid that his father would not willingly go.
There are enough unanswered questions and concerns about the Appellant’s ER visit and previous accidents or incidents that the Tribunal cannot rely upon the Appellant’s submission that he only drinks at night to help go to sleep, and that he has enough judgment even after heavy drinking to know not to drive.
The Appellant’s need for his vehicle is not a relevant factor that the Tribunal can consider when assessing the danger of the Appellant being permitted to drive.
The Tribunal finds that the circumstances of this case do not justify departing from the CCMTA guidelines regarding when a driver who is addicted to alcohol should have their licence reinstated. The Appellant has not been abstinent for at least 12 months; nor has he been abstinent for a shorter period of time after completing a treatment program and obtaining his doctor’s support for his driving privilege being reinstated.
DECISION
Upon the appeal of the Registrar’s decision effective September 22, 2016 to suspend the Appellant’s driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence provided to 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
Katherine Whitehead, M.D., Member
Released: January 4, 2017