Appellant v. Registrar of Motor Vehicles, 2017 CanLII 23890

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: Kyle Biel, Agent

Place and date of hearing: By Teleconference March 20, 2017

REASONS FOR DECISION AND ORDER

A. Overview:

1The Appellant was employed as a truck driver and load operator. Because he held a commercial driver’s licence, he was required to submit a medical report to the Ministry of Transportation periodically. A Medical Report completed by the Appellant’s family physician on August 21, 2014 stated that he had been drinking regularly but had recently reduced his alcohol consumption. Following several requests from the Registrar of Motor Vehicles (the “Registrar”) for additional information about the Appellant’s alcohol consumption, the Registrar received a letter from the Appellant’s family physician confirming a diagnosis of alcohol dependence. As a result of that diagnosis, the Registrar suspended the Appellant’s driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The Appellant has appealed the suspension of his driver’s licence to this Tribunal under s. 50 of the HTA.

2The Appellant’s family doctor has now provided her support for the reinstatement of the Appellant’s licence. The Appellant advises that he has been abstinent from alcohol for approximately six months and is attending an alcohol addiction support program.

3For the reasons that follow, I find that the Appellant is not 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:

4The 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. facts and EVIDENCE:

Registrar’s Evidence

5On August 21, 2014, the Appellant’s family physician, Dr. K., completed a Medical Report, which the Appellant is required to submit to the Ministry of Transportation in order to maintain his licence as a commercial driver. The Medical Report checked a box for “addictions” and stated:

This patient was previously drinking regularly, at times large quantities. He has been advised to cut down and has been able to do this since July 18, 2014.

6On November 10, 2014, the Registrar sent a letter to the Appellant requiring the Appellant to have his treating physician complete the Substance Use Assessment Form, which was enclosed in the letter. The letter stated that if the required information was not received by January 9, 2015, the Appellant’s commercial licence would be changed to a Class ‘G’ licence.

7The Appellant’s family physician, Dr. K. completed the Substance Use Assessment Form on December 29, 2014. The form did not specify a diagnosis, but indicated that two out of four biochemical markers were elevated due to alcohol use, and that the Appellant had not abstained from alcohol.

8On June 4, 2015, the Registrar sent a letter to the Appellant requiring confirmation that he was consuming no more than 14 alcoholic drinks per week, as well as the results of recent bio-chemical markers.

9The Registrar received a report from Dr. K. dated July 29, 2015 which included the results of his blood work as of April 29, 2015. It attached a letter which stated that although “his liver enzymes are not normal, they are improved from previous.” It stated that the Appellant drinks 2 standard cans of beer per weekday and 4-5 standard cans of beer on a weekend.

10On September 16, 2015, the Registrar requested further information from the Appellant, including a diagnosis regarding his alcohol consumption. The Appellant then sent a letter to the Registrar stating that he has a couple of beers after he gets home from work, but he does not show up to work drunk, does not drink at work, and does not drink and drive. Attached to the Appellant’s letter is a letter from Dr. K. dated October 3, 2015 which attaches additional blood work and states that the Appellant reports drinking 2 beers per day on weekdays and sometimes none. It states that he may drink up to 4-5 beers on a Saturday night.

11On December 17, 2015, the Registrar once again requested a diagnosis with respect to the Appellant’s alcohol consumption. Dr. K. reported on January 4, 2016 that the Appellant’s diagnosis was alcohol dependence. She reported that three out of four bio-chemical markers were elevated, and that she suspected that this was “secondary to his continued alcohol use”.

12On January 31, 2016, the Registrar advised the Appellant of its decision to suspend his driver’s licence under s. 47(1) of the HTA due to the reported condition of alcohol dependence. The letter stated that in order to be reinstated, the Registrar required confirmation that the Appellant has been abstinent for one year, which may be reduced if a physician confirms that he has successfully completed an alcohol treatment program and is supportive of his driving privilege.

13The Appellant appealed the suspension of his driver’s licence to the Tribunal on February 21, 2017. He submitted the following additional documents:

• A letter from Dr. K. dated February 14, 2017, which states that the Appellant has been mentally stable for the last 6 months, that his bio-chemical markers have improved, and that the Appellant reduced his alcohol consumption dramatically over the last three months. The letter states that the Appellant had positive emotional supports in place to help him stay out of a pattern of alcohol abuse.

• Three positive employment references.

• A letter from Dr. K. dated March 8, 2017, in which she states that she supports the reinstatement of the Appellant’s driver’s licence.

• A letter from a friend and sponsor of the Appellant dated March 10, 2017 confirming that they have attended a few dozen AA meetings together since the summer of 2016.

14The Appellant has two impaired driving convictions on his driving record from 1980.

Appellant’s Evidence

15In addition to the documentary evidence, the Appellant gave oral testimony. The Appellant testified that a couple of years ago he used to drink to excess. However, he stated that his drinking never jeopardized his job, as demonstrated in the letters from his employers. He testified that he took a course for anxiety and depression in 2016, as his doctor believed that his depression was related to his drinking. Since then, he has been attending Alcoholics Anonymous (“AA”), and has the support of a sponsor and friend.

16The Appellant testified that his biochemical markers have dropped significantly, and he believes they are all in the normal range.

17He says that although he has not attended a full-length alcohol addiction program, which would have required him to quit his job, he is attending AA and is doing self-help. He testified that it seems to be working.

18The Appellant testified that he is not drinking at all now and has been abstinent since approximately August 2016. He stated that prior to that, he ceased drinking hard liquor and was drinking approximately one wine spritzer per day.

19The Appellant admitted that he was still drinking some alcohol when he began AA, but was on the road to recovery. He stated that he gets lots of sleep and eats well.

D. LAW:

20The 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).”

21One 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.

22Section 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.

23Under 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.

24The 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

25The Registrar submits that the Tribunal should confirm the suspension. The Appellant’s physician confirmed the diagnosis of alcohol dependence in January 2016. Alcohol dependence can impair judgment, motor skills and the ability to operate a motor vehicle safely.

26The Registrar relies on standard 15.6.3 of the CCMTA Medical Standards for Drivers (the “Standards”), 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.

27The Registrar submits that based on the Standards, once there is a diagnosis of alcohol dependence, a 12-month period of abstinence is required. The Appellant’s oral evidence is that he has been abstinent for six or seven months. However, Dr. K.’s report at most confirms a reduction in alcohol consumption. The Registrar submits that if there was total abstinence, it would be stated in Dr. K.’s report. The Registrar submits that all of the standards must be met before the licence can be reinstated.

28The Registrar submits that the last report of Dr. K. should be considered with caution, as Dr. K. gives her support for reinstatement without revising her diagnosis of alcohol dependence. The Registrar submits that given the lack of clear evidence in favour of reinstatement, the suspension should continue.

Appellant’s Submissions

29The Appellant submits that his licence should be reinstated. He states that he is abstaining from alcohol and attending AA. He submits that because his licence was suspended based on Dr. K.’s report, Dr. K.’s support for reinstatement should be sufficient.

F. Analysis:

30I 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.

31Based on the letter from Dr. K. dated January 4, 2016, I am satisfied that the Appellant has alcohol dependence. Dr. K.’s subsequent letters do not alter this diagnosis and the Appellant’s testimony does not contradict a finding of alcohol dependence.

32However, the Registrar has not established that the Appellant’s alcohol dependence is likely to significantly interfere with his ability to drive safely. This is not a case in which a medical professional has notified the Registrar of a medical condition which, in their opinion, may make it dangerous for the Appellant to drive. The only medical opinion before me with respect to the Appellant’s ability to drive safely is the letter from Dr. K. dated March 8, 2017 in which she states that she is supportive of the reinstatement of the Appellant’s driver’s licence. The Registrar has submitted that I should treat that letter with caution, as Dr. K. does not revise her diagnosis of alcohol dependence. However, there is no contrary medical evidence with respect to the effect of the alcohol dependence on the Appellant’s ability to drive safely.

33Further, I accept the Appellant’s evidence that he has abstained from alcohol since August 2016. Although the letter from Dr. K. dated February 14, 2017 states that the Appellant had “reduced his alcohol consumption dramatically for the last 3 months”, and does not say that the Appellant abstained from alcohol entirely, I am more persuaded by the Appellant’s direct evidence of his own alcohol consumption. The Appellant was able to provide the approximate date of his last drink when pressed on cross-examination. He was also able to explain that he did not become abstinent immediately upon starting AA. I find that the Appellant has abstained from alcohol for at least six months.

34I place little weight on the Appellant’s convictions from 1980 for impaired driving, given the passage of time.

35The Appellant has his physician’s support for reinstatement. He has abstained from alcohol for over six months. Although he has not attended a full-time treatment program, he is attending AA and has the support of a sponsor.

36Based 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:

37For 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.