LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-03-21

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:

10641 Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn M.D.

Appearances: For the Appellant: Self-represented For the Respondent: Kyle Biel, Agent

Place and date(s) of hearing: By Teleconference March 6, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1The Appellant is a 74-year-old man. The Appellant’s driver’s licence was suspended after a neurologist filed a medical 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 report noted that the Appellant had been diagnosed as having alcohol dependence. The report also noted that the Appellant suffered from alcohol withdrawal and Wernicke’s encephalopathy. Wernicke’s encephalopathy is indicative of alcohol-related brain damage.

2As a result of the report, the Registrar suspended the Appellant’s driver’s licence on February 19, 2016 under s. 47(1) of the HTA.

3The Appellant filed Notice of Appeal on February 8, 2017

4The Appellant was self-represented. The agent for the Registrar was Mr. Kyle Biel.

B. ISSUES:

5The question that has to be decided is whether the decision of the Respondent should be confirmed, modified or set aside. The Tribunal must determine:

a. does the Appellant have an addiction to alcohol?

b. is the Appellant addicted to the use of alcohol to an extent likely to significantly interfere with his ability to operate a motor vehicle safely?

C. EVIDENCE:

Evidence for the Registrar

6The Respondent’s evidence is that the Appellant was taken to his local Emergency Room by ambulance on June 13, 2016 in a state of stupor following an episode of binge drinking. He was seen by a neurology specialist, Dr. G. and was admitted to the hospital for three days. The neurologist completed the Medical Condition Report; the condition reported was Alcohol Dependence with the added note of alcohol withdrawal and Wernicke’s encephalopathy. As a result, the Registrar of Motor Vehicles issued a suspension of his driving privilege for a period of twelve months. In order to be considered for reduction of this period, he was informed by the Registrar that he must arrange for completion of a Substance Abuse Assessment form to be completed in full and sent to the Medical Review Section. He was also informed that he must provide confirmation of completion of an alcohol treatment program.

7The Appellant’s family physician, Dr. B., completed the Substance Abuse Assessment on July 5, 2016. This confirmed the diagnosis of alcohol dependence and alcohol withdrawal, without seizure. It also confirmed that he has not been abstinent for six months and that he was just starting an alcohol treatment program.

8Laboratory tests were consistent with the effects of alcohol.

9Ten days after his discharge from the hospital, a second Medical Condition Report was completed, on July 15, 2017 by Dr. F., an Emergency Room physician. The diagnosis was alcohol dependence. Dr. F. also stated that the Appellant was still driving under the influence of alcohol, as reported by the spouse.

10The Appellant’s testimony is that he does not remember being in the E.R. on July 15, 2017.

11The Registrar informed the Appellant on July 18, 2017 that the suspension will continue and requested that he have his physician complete another Substance Abuse Assessment and sent to the Medical Review Section. He was also requested to have his physician confirm that he has remained abstinent from alcohol for a period of twelve months and to submit results of recent bio-chemical markers with an explanation for any levels outside the normal laboratory range.

12In addition, he was reminded that the period of suspension may be reduced if his physician confirms that he has successfully completed a treatment program and is supportive of reinstatement.

13A second Substance Abuse Assessment was completed on December 12, 2016 by the Appellant’s family physician, Dr. D. who shared an office with Dr. B. Dr. D. was the attending physician since March 2014.

14The diagnosis was alcohol dependence and alcohol abuse. The Assessment reported that the Appellant had completed a formal treatment program and included a Certificate of Achievement as a graduate of the ADAPT Phase One Group, commencing on October 6, 2016 and ending on November 24, 2016.

15An attached description of ADAPT described it as a program offered to Adults with Substance Use and Problem Gambling, and is an eight to twelve week psycho-educational group for people in the early stages of change with their substance use.

16The Registrar informed the Appellant on December 29, 2016 that he must complete the full treatment program that includes Phase Two of the ADAPT program. Phase Two includes weekly support groups directed at relapse prevention.

Evidence by the Appellant

17The Appellant stated that he first used alcohol in his late teens and early twenties.

18He retired ten years ago from a health and safety teaching position which he held for over thirty years. As such, he was quite mindful of the danger of operating heavy equipment while under the influence of alcohol.

19After a few years following retirement he became bored and began to consume alcohol more frequently. He would drink about twenty six ounces of vodka a week, often taking double vodkas to help him to sleep. On the first Emergency Room visit on April 13, 2016 he had been binge drinking and after he passed out, his wife called for an ambulance.

20He was kept in hospital for three days and was given information for help with alcoholism. Ten days after that event, he was seen again at an Emergency Room but does not remember how he got there.

21He stated that his family physician has not been counselling him on a regular basis on alcoholism. Upon completion of Phase One of ADAPT, he did not register for Phase Two because he felt that it did not suit his needs although he agreed that relapse prevention was an important means of dealing with his alcoholism.

D. LAW:

22The 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 case 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).”

23One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver has an alcohol addiction likely to significantly interfere with the ability to drive safely. Subsection 14(1)(b) 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.

24According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the CCMTA Medical Standards for Drivers, which are 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.

25Under 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.

26The 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 by the parties

Submissions by the Registrar

27Mr. Biel on behalf of the Respondent submitted that the Registrar had the authority to issue a suspension of the Appellant’s driving licence under s. 47(1)(g) of the HTA upon receiving a medical report of alcohol dependence and encephalopathy.

28Mr. Biel submitted that the medical evidence by two separate physicians is that the Appellant’s alcohol dependence or addiction is such that it is likely to significantly affect the Appellant’s ability to operate a motor vehicle safely.

29In addition, the neurologist who submitted the Medical Condition Report on June 13, 2016 stated that the patient had alcohol withdrawal and Wernicke’s encephalopathy.

30The Canadian Council of Motor Transport Administrators, (CCMTA) section 14.6.3 sets out the guideline applicable to drivers who are under the influence or alcohol:

31The Standard is that the driver is eligible for a licence if:

a. he meets the criteria for remission and/or has abstained from alcohol for twelve months

b. earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognised by the licensing authority and the successful completion of an alcohol rehabilitation program

c. the functional abilities necessary for driving are not impaired.

32Mr. Biel stated that the Registrar requires confirmation that the Appellant has successfully completed the full ADAPT program, with up-to-date biochemical factors, before consideration can be given to reinstatement.

33The Registrar requests confirmation of the licence suspension.

Submissions by the Appellant

34The Appellant submits that he will complete the components of Phase Two of ADAPT assessment and completion of the bio-chemical markers requested by the Registrar.

35He stated that he will also contact Mr. Biel when he is ready to submit new information.

F. ANALYSIS:

36The Tribunal has carefully reviewed the evidence and submissions by the parties and has considered the relevant legislation and national medical standards.

37The Tribunal concludes that the Appellant does have an addiction to alcohol to an extent likely to significantly affect his ability to operate a motor vehicle safely. This conclusion is based on the medical reports by two physicians pursuant to section 203 of the HTA that reported that the Appellant was admitted to hospital on two separate occasions ten days apart with loss of consciousness due to alcohol and on the first occasion, an additional diagnosis of alcohol withdrawal and Wernicke’s encephalopathy, as well as the Substance Abuse Assessments completed by two other physicians, confirming the diagnosis of alcohol dependence. The Appellant does not deny the diagnosis of alcohol dependence and encephalopathy and his abuse of alcohol that led to two hospital admissions in ten days. The Appellant’s testimony is that he does not remember being in the Emergency Room on the second occasion.

38Alcohol is known to impair the ability to operate a motor vehicle safely. The Tribunal finds that the Appellant’s consciousness, awareness and judgment have been affected by his alcohol addiction, having lost consciousness due to alcohol consumption, arrived at the hospital in a state of stupor and could not recall one hospital visit. The Appellant’s ability to judge when it is safe to drive also appears to be impaired by his alcohol addiction, as his wife reported to Dr. F. that the Appellant continued to drive while impaired. Accordingly, the Tribunal finds that the Appellant’s alcohol addiction is likely to significantly interfere with his ability to drive safely.

39There is an opportunity for the Appellant to have the Registrar reduce the period of abstinence required for reinstatement to six months upon confirmation by his physician of successful completion of the full ADAPT program with up-to-date biochemical factors and support for reinstatement. The Appellant’s testimony is that he has been abstinent from alcohol for only two months. Although the Appellant has completed Phase One of the ADAPT Program, he has yet to complete Phase Two which is directed at relapse prevention. He appears to be well motivated to complete the rehabilitation program offered by ADAPT and to seek further assistance in this regard from his family physician.

40There is no evidence to indicate that a follow-up assessment took place for the Wernicke’s Encephalopathy diagnosed by the neurologist.

41The Tribunal is concerned that the diagnosis of Wernicke’s Encephalopathy (WE) did not result in a request by the Ministry for a full neurological assessment. The Tribunal is aware that this condition often occurs in persons with chronic alcoholism and may be accompanied by vitamin deficiency. The Tribunal also notes that the condition may result in a transient impairment of brain function that may have contributed to the fact that the Appellant does not remember being seen at the ER on July 15, 2016.

ORDER:

42For 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 confirmed.