LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-03-31

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

Appellant

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Katherine Whitehead, M.D.

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing:

By Teleconference March 10, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1On September 18, 2015, the Appellant attended the office of Dr. B. for a consultation regarding his use of alcohol, as the Appellant wished to start drinking less. Based on that consultation, Dr. B. filed a Medical Condition Report with the Registrar of Motor Vehicles, pursuant to section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The condition reported was alcohol dependence. As a result of the report, the Registrar suspended the Appellant’s driver’s licence under s. 47(1) of the HTA. The Appellant has appealed the suspension of his driver’s licence to this Tribunal under s. 50 of the HTA.

2For the reasons that follow, I find that the Registrar has not established that the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive safely. Accordingly, I set aside the Registrar’s decision to suspend the Appellant’s driver’s licence.

B. ISSUES:

3The issue in this appeal is whether 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. In order to answer that question, I will address the following issues:

• Is the Appellant addicted to the use of alcohol?

• Is the Appellant’s addiction, if any, likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

Registrar’s Evidence

4The Registrar suspended the Appellant’s driver’s licence under s. 47(1) of the HTA based on a Medical Condition Report submitted on September 18, 2015 by Dr. B. This report was based on Dr. B.’s consultation with the Appellant on that date, and the reported condition of alcohol dependence. No further information was included in the report.

5The Registrar notified the Appellant of the decision to suspend his licence by letter dated September 22, 2015. The letter enclosed a Substance Use Assessment Form and stated that in order to be reinstated, the Appellant should take the letter to his physician and have the enclosed form completed. The letter stated that if his physician confirms the diagnosis of alcohol dependence, the Ministry will require confirmation that he has remained abstinent from alcohol for a period of one year, which may be reduced if the physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.

6The Appellant had the Substance Use Assessment Form completed by his family physician, Dr. M., on February 21, 2017. This form stated that the Appellant was diagnosed with alcohol dependence and noted that it was “mild”. It stated that the Appellant had neither abstained from alcohol nor completed a formal addictions treatment program. It stated that of four biochemical markers, three were in normal laboratory range and one – GGT – was elevated. It stated that the elevated GGT levels may be due to alcohol use. Dr. M. had been involved in the ongoing management of the Appellant’s condition since 2009.

7On March 3, 2017, the Registrar sent a second letter to the Appellant informing him that the Substance Use Assessment Form had been received and that it had been determined that his driving privilege should remain under suspension.

8The Registrar relies on the Medical Condition Report and the Substance Use Assessment Form as evidence that the Appellant is addicted to alcohol to an extent likely to interfere with his ability to drive safely.

Appellant’s Evidence

9The Appellant gave oral evidence and also relied on the written submissions included in his Notice of Appeal to the Tribunal.

10The Appellant testified that he does not drink on a daily basis. He drinks alcohol approximately every couple weeks and does not depend on alcohol in any way. He can go 7 days without drinking alcohol. He stated that when he gets a couple days off work, he may spend the day drinking. He estimated that he might have 10 drinks on one of these days.

11The Appellant also testified about the context surrounding his visit to Dr. B. The Appellant explained that during a group counselling session for a gambling problem, a participant in the group mentioned a type of medication that can be prescribed to reduce alcohol cravings. The Appellant thought that he wouldn’t mind drinking less, and he discussed this with his gambling counsellor. The gambling counsellor referred the Appellant to Dr. B. for alcohol counselling. The Appellant met with Dr. B. for a consultation. Based on that consultation, Dr. B. submitted the Medical Condition Report to the Registrar.

12The Appellant testified that he continues to use alcohol and does not see a problem with that. He stated that he does not experience withdrawal symptoms and does not depend on alcohol for anything in his daily life. He also testified that he has never driven while drunk and that his driving record is free of alcohol-related issues.

D. LAW:

13The 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) are not applicable to this appeal as they relate to misconduct, 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).”

14One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction 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:

(1) 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.

15Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

16Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

17The 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 HTA, confirm, modify or set aside the decision or order of the Registrar.

E. SUBMISSIONS:

Registrar’s Submissions

18The Registrar submits that the Tribunal should confirm the suspension. The Registrar states that the Appellant must provide the Registrar with evidence of 12 months of abstinence or 6 months of abstinence if a physician confirms that the Appellant has completed an alcohol treatment program and is supportive of the Appellant’s driving privilege.

19The Registrar relies on standard 15.6.3 of the CCMTA Medical Standards for Drivers, which sets out the standards applicable to drivers who are under the influence of alcohol and illicit drugs. This standards states that 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.

20The Registrar submits that based on the Medical Condition Report and the Substance Use Assessment Form, the evidence is clear that the Appellant has been diagnosed as dependent on alcohol, and that a “mild” dependence is nevertheless a dependence on alcohol. There is no evidence of abstinence whatsoever and his biochemical markers remain elevated. The Appellant exhibits unhealthy patterns of drinking, as he sets aside an entire day for drinking. The Registrar submits that confirming the suspension would be consistent with the HTA and the CCMTA Medical Standards for Drivers.

Appellant’s Submissions

21The Appellant submits that his licence should be reinstated. He submits that he does not pose a threat in terms of drinking and driving. The Appellant understands that drinking and driving is a problem for society, but states that he does not drink and drive. The Appellant also submits that if his family physician believed his drinking was a problem, he would have submitted a Medical Condition Report to the Registrar. The Appellant relies on the evidence that his family physician reported his dependence as “mild” and that of the four biochemical markers, only one is slightly elevated.

F. Analysis:

22I am satisfied that the Appellant is addicted to alcohol. However, the Registrar has not established in this case that the Appellant’s alcohol addiction is likely to significantly interfere with his ability to drive safely.

23I accept the evidence in the reports of two physicians – Dr. B. and Dr. M. – that the Appellant has been diagnosed with alcohol dependence. The Appellant’s testimony is that he does not depend on alcohol, that he can go 7 days without drinking alcohol, and that every two weeks or so he sets aside a full day for drinking. The Appellant acknowledged that he continues to drink alcohol and that he would like to drink less. Although the Appellant appears to truly believe that he is not dependent on alcohol, I prefer the evidence of the medical professionals, who are better qualified to identify and diagnose alcohol dependence.

24Although I am satisfied that the Appellant has an alcohol addiction, the Registrar has not established that the Appellant’s alcohol addiction is likely to significantly interfere with his ability to drive safely.

25Any individual who is addicted to alcohol presents some risk that the addiction may interfere with their ability to drive safely. Alcohol is known to impair the ability to operate a motor vehicle safely. Alcohol addiction increases the probability that a person will drive while impaired and may cause 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.

26However, each driver must be assessed individually with respect to whether their medical condition or addiction is likely to significantly interfere with their ability to drive safely. Based on the clear wording of section 14(1)(b) of the Regulation, which states that a holder of a driver’s licence must not “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” (emphasis added), proof of an alcohol addiction alone is not sufficient to meet that standard.

27The Registrar has not led any evidence linking the Appellant’s use of alcohol to his ability to drive safely. The only evidence on the “extent” of the Appellant’s alcohol addiction is that it is “mild”. It is unfortunate that Dr. B. did not include on the Medical Condition Report any detail regarding the extent of the Appellant’s alcohol dependence or why she was of the opinion that it may interfere with his ability to drive safely. Whatever the Appellant may have reported to Dr. B. or Dr. M. regarding his drinking habits is not in evidence before me and I cannot consider it.

28The Appellant’s oral evidence is that when he has a few days off work, he sets aside a day for drinking and may consume approximately 10 alcohol drinks on those days. His evidence is that he stays home and does not drive during his “drinking days”. The Registrar has presented no evidence to the contrary. While the Appellant’s alcohol consumption may present a health concern, I am unable to find that it presents a significant risk to road safety.

29Based on the evidence heard by the Tribunal, the Registrar has not established on a balance of probabilities that the Appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive safely.

ORDER:

30For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is set aside.