LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-06-27

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:

J.W.

Appellant

• and -

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Kevin Flynn

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, agent

Place and date(s) of hearing:

By teleconference

June 7, 2017

REASONS FOR DECISION AND ORDER:

A. Overview:

1The appellant is a 58-year-old male. On January 25, 2017, his psychiatrist, Dr. D., reported to the Registrar of Motor Vehicles (the “Registrar”) that he had alcohol dependence as well as opioid dependence and abuse. That report was completed in compliance with s. 203 of the Highway Traffic Act, RSO 1990, c H.8 (the “HTA”), which requires all physicians in Ontario to report to the Registrar any patient 16 years of age or over who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.

2As a result of that report, the Registrar suspended the appellant’s driver’s licence on February 2, 2017 pursuant to s. 47(1) of the HTA. The appellant appeals from that decision.

3The Registrar submits that the suspension should be confirmed, as the appellant has not abstained from alcohol or drugs, his family physician is not supportive of licence reinstatement, the appellant has not completed a drug rehabilitation program, and he has not been assessed by an addictions specialist. The appellant states that he is not a heavy drinker and his use of narcotics does not affect his ability to drive.

B. ISSUES and result:

4The issue in this appeal is whether the appellant suffers from a medical condition or addiction 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:

• Does the appellant suffer from alcohol dependence?

• Does the appellant suffer from dependence on opioids?

• Are the appellant’s medical conditions or addictions, if any, likely to significantly interfere with his ability to drive safely?

5For the reasons that follow, I find that the appellant’s combined use of alcohol and opioids are likely to significantly interfere with his ability to drive safely. Accordingly, I confirm the suspension of his driver’s licence.

C. LAW:

6The 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).”

7One 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,

(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.

8Section 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 s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

9Under 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.

The Registrar has the burden of establishing 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.

D. ANALYSIS:

10The Tribunal has carefully reviewed the evidence and submissions of both parties and has considered the relevant legislation and the applicable medical standards to be considered in order to determine if the Appellant suffers from a condition that is likely to significantly interfere with his ability to operate a motor vehicle safely.

Is the Appellant Dependent on Opioids?

11I am satisfied that the appellant suffers from opioid dependence.

12The appellant testified that, as a result of a work-related injury in 1980 when he was an iron worker, he had several surgical operations that involved the insertion of hardware in his lower limbs and spine. During recovery, he was prescribed hydromorphone for pain relief and he continued to use this opioid over the years up to the present with increasing doses.

13This medication belongs to the opioid narcotic group and is known by the brand names of Dilaudid or Hydromorph Contin. The medical use of this painkiller is generally reserved for treating moderate or severe pain. Other prescribed pain killers in this group include codeine, fentanyl, morphine, Demerol, methadone, Talwin, Percocet, and Percodan. All of the above narcotics have the potential for abuse and addiction.

14Hydromorphone is much stronger than the equivalent dose of morphine. The recommended starting dose of hydromorphone is typically 2 mg every four hours. Any increase in dosage must be authorised by the patient’s physician.

15The appellant stated in testimony that he has been using two strengths of hydromorphone, 8 mg and 12 mg, every four hours for the past two years. The narcotic has been prescribed by his family physician, Dr. G.

16On December 16, 2016, the appellant was admitted to hospital for a knee replacement and he states that he developed pneumonia. He was placed under the care of a psychiatrist, Dr. D., for a narcotic addiction. Dr. D. completed the Medical Condition Report that led to the suspension of his driving privilege. The appellant testified that while he was in the hospital, the psychiatrist attempted to switch the narcotic to a different drug, which the appellant stated he threw in the garbage. When he attempted to leave the hospital, he was physically restrained.

17The appellant stated that he saw his family physician, Dr. G., two weeks prior to the hearing and his dose of hydromorphone was reduced to 8 mg four times daily when needed. He states that Dr. G. is aware of his opioid dependence.

18The appellant does not directly admit or deny that he is dependent on opioids. I find that he is dependent on opioids based on the diagnosis recorded on two medical forms.

19The first is the Medical Condition Report completed by Dr. D. on January 25, 2017, which states that the appellant has opioid dependence and abuse.

20The second is the Substance Use Assessment form, which the appellant had completed by his family physician, Dr. G., on February 21, 2017. This is a form that the Registrar required the appellant to complete for the purpose of assessing whether his licence may be reinstated. Dr. G. indicated on the form that the appellant has both alcohol and drug dependence. The applicable drug was stated to be “prescription medication”. The form states that the appellant had never had a seizure, had not abstained from alcohol or the drug, and had been taking the medication at the dosage prescribed for at least six months. The form states that the appellant had not completed an addiction treatment program. It also states that the appellant has demonstrated a pattern of non-adherence to his recommended treatment regimen, such as misuse of medication or missed appointments. The form does not specify the nature of the appellant’s non-adherence to the treatment regimen.

21Drug abuse is defined by the Ministry of Transportation as the “recurrent inappropriate use of any psychoactive substance despite negative consequences”. Drug dependence (or addiction) is defined as 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”. I accept that these are accurate definitions of dependence and abuse.

22Based on the reports of Dr. D. and Dr. G., which state that the appellant has a drug dependence, as well as the evidence of the appellant’s long-term use of hydromorphone at relatively high dosages, I am satisfied that the appellant is dependent on opioids.

Is the appellant dependent on alcohol?

23I find that there is insufficient evidence to conclude that the appellant suffers from alcohol dependence. Nevertheless, I find that he is misusing alcohol by consuming it in combination with hydromorphone.

24The appellant states that he does not abuse alcohol. He states that he drinks alcohol in moderation, and that his last alcoholic drink was two days prior to the hearing, when he had two beers.

25The Medical Condition Report of Dr. D. states that the appellant has alcohol dependence. By contrast, the Substance Use Assessment form by Dr. G. states that the applicable condition is alcohol “misuse”. Dr. G. did not check the box for alcohol dependence or alcohol abuse.

26There is insufficient evidence to conclude that the appellant is dependent on or abusing alcohol. Particularly in light of the Substance Use Assessment, which does not indicate alcohol dependence or abuse, I put limited weight on the diagnosis of alcohol dependence in the Medical Condition Report completed by Dr. D.

Dr. G. has been the appellant’s physician since 2011, and would have a better understanding of the appellant’s alcohol habits and medical history. Further, the testimony of the appellant that he drinks in moderation is consistent with the Substance Use Assessment completed by Dr. G., which indicates no alcohol dependence or abuse.

27Nevertheless, the appellant continues to consume alcohol despite taking relatively high doses of hydromorphone every four hours. I find that this is a misuse of alcohol. The protocol for prescribing and dispensing hydromorphone requires the prescribing physician and dispensing pharmacist to advise a patient not to take alcohol with hydromorphone. As set out below, the appellant’s alcohol consumption exacerbates the effect of the appellant’s opioid use on his ability to drive safely.

Is the appellant’s use of opioids and alcohol likely to significantly interfere with his ability to drive safely?

28I am satisfied that the appellant’s use of and dependence on opioids is likely to significantly interfere with his ability to drive safely. The risk to road safety is increased by the combination of alcohol and opioids.

29Opioids are a psychotropic drug, which means that it is capable of affecting the mind, emotions or behaviour. The Canadian Centre on Substance Abuse in Ottawa in a 2011 publication entitled Drug Use by fatally injured drivers in Canada (2000-2008) stated that approximately 35% of people killed in accidents in Canada had drugs (including legal and illicit drugs) in their system, as referenced in section 15.1 of the CCMTA Medical Standards for Drivers.

30The CCMTA Medical Standards for Drivers explain how the use of opioids can affect the ability to drive safely:

Research indicates that the use of opioids can adversely affect driving performance, with the degree of impairment dependent on the particular opioid used, dosage, previous use and developed tolerance, time of day taken.

The use of opioids results in depression of the central nervous system. Possible effects on the functions necessary for driving include:

• blurred vision

• poor night vision

• slowed reaction times

• sedation

• tremors

• muscle rigidity

• impairment of short term/working memory and attention, and

• disorientation or hallucinations.

The effects of opioids on an individual depend on a number of factors, including the length of use, dosage and propensity for abuse or addiction. Tolerance is an important consideration in that adverse effects may be evident during acute use but diminish as tolerance develops.

31The appellant is taking hydromorphone, which is a relatively strong opioid, and the appellant’s dosage is between four and six times the recommended starting dose. Although there is insufficient evidence to establish that the appellant exceeds the prescribed dosage, based on the dosage that the appellant reports that he is taking, it is likely that the functions necessary for driving are at times impaired in the manners listed above. The appellant’s dependence on opioids makes it likely that he will continue to take them at current dosages. The combination of alcohol with hydromorphone increases the risk of impairment of those functions.

32An assessment by an addictions specialist and rehabilitative treatment in a narcotic addictions program would likely assist the appellant to reduce his reliance on opioids and the resultant impairment of the functions necessary for driving. However, the appellant indicated that he is not interested in entering a rehabilitation program for narcotic addiction.

E. Conclusion

33I appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While I understand the appellant’s concerns about the practical challenges that result from a licence suspension, I must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

34After considering the evidence and submissions of the parties, I find on a balance of probabilities that the appellant suffers from a medical condition or addiction that is likely to significantly affect his ability to drive a motor vehicle safely.

35Pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s licence.