LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
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:
S.D.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Kevin Flynn, M.D., Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and date(s) of hearing:
Teleconference
June 5, 2017
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant appeals from the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend her driver’s licence pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The Registrar suspended her licence on May 12, 2017 after receiving a Medical Condition Report from an emergency room physician that reported the conditions of “Alcohol Dependence” and “Seizure(s)-Cerebral”. That report was sent to the Registrar in compliance with s. 203 of the HTA, which requires all medical practitioners to report any person older than sixteen who is suffering from a condition that may make it dangerous for the person to drive.
2The appellant acknowledges that she has had a problem with alcohol dependence in the past and that she presented at the hospital with alcohol withdrawal symptoms. However, she denies having a seizure and states that her dependence on alcohol was temporary and does not impair her ability to drive safely.
3The respondent submits that the suspension should continue until there is confirmation that she has remained seizure-free and abstinent from alcohol for 12 months, which may be reduced to six months if she successfully completes an alcohol treatment program and has the support of her physician for reinstatement.
4For the reasons that follow, I find that the appellant has alcohol dependence, but that the Registrar has not established that it is likely to significantly interfere with her ability to drive safely. Further, I find that there is insufficient evidence to conclude that she had a seizure. Accordingly, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
B. ISSUES:
5The issue in this appeal is whether the appellant suffers from a medical condition or addiction likely to significantly interfere with her ability to drive a motor vehicle safety. In order to answer that question, I will address the following issues:
i. Is the appellant addicted to the use of alcohol?
ii. Did the appellant suffer from an alcohol withdrawal seizure?
iii. Is the appellant’s condition or addiction, if any, likely to significantly interfere with her ability to drive safely?
C. EVIDENCE:
6The appellant testified that she significantly increased her alcohol consumption in April 2017 after learning that she lost her employment after her first day on the job. This was the first job she was able to find after moving to a new city because her husband’s job was relocated. After her first day, she received a phone call in which her employer advised that she was unable to keep up with the work. She states that this was in part due to previous back and hip problems. She began to consume between three and five bottles of wine a week.
7The appellant had previously agreed with her husband to reduce her use of alcohol to one drink every other day. She had arranged with her nurse practitioner, Ms. A., to start alcohol counselling with the local addictions and mental health unit.
8On the night of April 25, 2017, she awoke vomiting blood. She states that she had a black-out but that her husband did not observe evidence of seizures. Her husband said that she should go to the hospital because of the blood in her vomit.
9She went to the Emergency Room (ER) at their local hospital, where she was seen by the ER physician, Dr. M. The appellant states that at no time was there a discussion of any seizure, either with the nursing staff or a physician, while in hospital. She states that she did not have tests for seizure activity. Some laboratory tests were conducted, and she was told that she had a falling haemoglobin level due to gastric bleeding for which she received blood transfusions.
10The appellant states that she had very little interaction with Dr. M. but remembers that, when she was being discharged on April 28, 2017, Dr. M. advised her that “one or two drinks a day would be OK.” She was not given any follow-up instructions or appointments. Dr. M. asked her if she drives but he did not tell her that he would be reporting her to the Ministry of Transportation.
11On April 30, 2017, Dr. M. sent a Medical Condition Report to the Registrar, which reported the conditions of “Alcohol Dependence” and “Seizure(s)-Cerebral”. The report did not include any other comments or information.
12As a result of that report, the Registrar notified the appellant by letter dated May 2, 2017 that a decision had been made to suspend her licence under s. 47(1) of the HTA. That letter enclosed two forms – a Substance Use Assessment form and an Epilepsy and Seizures form – for the appellant to have completed by her medical practitioner. The letter stated that the completed forms would be considered by the Registrar to determine whether her licence can be reinstated. The suspension took effect on May 12, 2017.
13The appellant had both forms completed by her nurse practitioner, Ms. A., on May 12, 2017. Ms. A. had been involved in the ongoing management of the appellant since March 2017.
14The Substance Use Assessment form included the following information:
the appellant was diagnosed with alcohol dependence and alcohol abuse;
the appellant had an alcohol withdrawal seizure less than three months before the date of the report;
the appellant has not abstained from alcohol or successfully completed a formal addictions treatment program;
out of four biochemical markers that were tested, one was elevated, which may be due to alcohol use;
the appellant has been prescribed medication, but that medication does not result in side effects that may impair her ability to drive; and
the appellant “has been actively trying to quit drinking. She has always been careful to avoid driving motor vehicles of any kind e.g. car, boat when drinking. [The appellant] is awaiting addictions services.”
15Attached to the Substance Use Assessment form were two questionnaires relating to the appellant’s alcohol consumption habits. The forms indicate that she has an alcoholic drink two to three times a week and has one or two drinks on a typical day when she is drinking. A number of answers on the form are crossed out and corrected, with a handwritten annotation of “error”.
16The Epilepsy and Seizures form includes the following information:
the appellant had a generalized tonic clonic or grand mal seizure less than three months ago;
this was the appellant’s first seizure;
the appellant has not had an EEG or imaging test within the last 12 months;
the cause of the seizure was alcohol withdrawal;
the appellant has been diagnosed with substance dependence and substance abuse and has not abstained;
the appellant is attending counselling for addiction treatment, but not a relapse prevention program;
the results of a urine toxicology screen for drugs other than alcohol were negative;
the appellant has a moderate anxiety disorder which is stable with ongoing symptoms;
anti-seizure medication has not been prescribed;
the provoking factor for the seizure has been resolved or corrected; and
the appellant “is currently awaiting addictions services. She has reduced her alcohol intake with ultimate goal of complete abstinence.”
17There is also a discharge report from the hospital dated April 28, 2017. The comment on the form states that Dr. M. spoke with the appellant regarding discharge instructions. It does not provide any information about the appellant’s medical condition or diagnosis.
18The appellant acknowledged that in the past she abused alcohol and was alcohol dependent. However, she states that this issue was only temporary and that she does not feel that she is currently dependent on alcohol. She states that her last alcoholic drink was on May 25, 2017 and that she began alcohol addictions counselling on May 29, 2017. She will be meeting with the counsellor weekly for six months with the goal of achieving long-term abstinence from alcohol.
19The appellant states that she felt anxiety when she received notice of her licence suspension, but that it has since resolved.
20The appellant states that she has a clean driving record after 46 years of driving. The copy of the appellant’s driving record provided by the Registrar shows no convictions or other incidents, other than the current suspension for medical reasons.
21The appellant also relies on a letter from Ms. A., nurse practitioner, dated May 29, 2017, which states that the appellant lost her licence due to seizure activity from alcohol withdrawal and that it is unlikely she will ever experience seizure activity again.
22With respect to the changes that were made to the answers on the alcohol use questionnaire, the appellant testified that it was Ms. A., the nurse practitioner, who completed those forms and made the changes.
D. LAW:
23The 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).”
24One 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.
25Section 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.
26Under 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.
27The 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. ANALYSIS:
Is the appellant addicted to alcohol?
28There is no dispute that the appellant has a history of alcohol abuse and alcohol dependence prior to her admission to the hospital on April 25, 2017. The appellant states that she does not feel that she has alcohol dependence any longer. Although the appellant has recently started an addictions treatment program and appears to be having some success, I find that the diagnosis of alcohol dependence remains at this time.
Did the appellant have a seizure?
29I find that there is insufficient evidence to establish that the appellant had a seizure.
30The Medical Condition Report completed by Dr. M. on April 30, 2017 states that the appellant’s seizure was “cerebral”, rather than alcohol-related. Dr. M. does not include any explanatory notes in the optional comments section on the Medical Condition Report.
31The discharge summary from the hospital makes no mention of a seizure, and I accept the evidence of the appellant that the medical practitioners who treated her at the hospital did not mention to her that she might have had a seizure. There are no supporting diagnostic tests such as EEG, or MRI or CT scan. Nobody witnessed a seizure.
32The Substance Use Assessment form and the Epilepsy and Seizures form completed by the nurse practitioner, Ms. A., indicate that the appellant had an alcohol withdrawal seizure. Ms. A. does not indicate the medical evidence for that diagnosis. She did not complete a post-seizure assessment or request a neurological assessment. One piece of information that Ms. A. would have had was the letter from the Registrar that the appellant’s licence was being suspended based on the reported conditions of “Alcohol Dependence” and “Seizure”.
33I find it likely that Ms. A.’s source of information that the appellant suffered a seizure was the Registrar’s letter itself. Ms. A. would not have had access to the Medical Condition Report of Dr. M., and therefore would not have known that a doctor had reported that the seizure was “cerebral”. It would have been logical for Ms. A. to assume that, based on the circumstances explained to her by the appellant, the reported seizure would have occurred due to alcohol withdrawal. I find that Ms. A. did not make an independent diagnosis that a seizure had occurred, and I place no weight on that evidence.
34As the diagnosis of seizure has been reported with no supporting documentation, no follow-up assessments, no indication of the basis for that diagnosis, and no observation of a seizure, the evidence is insufficient to establish that a seizure occurred.
Is the appellant’s alcohol dependence likely to significantly interfere with her ability to drive safely?
35The Registrar has not proven that the appellant’s alcohol dependence is likely to significantly interfere with her ability to drive safely.
36Any 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. It may also 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.
37However, 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. Proof of alcohol dependence alone is not sufficient.
38The Registrar has not led any evidence linking the appellant’s alcohol dependence with her ability to drive safely. The only evidence on the appellant’s ability to drive safely is the Substance Use Assessment form completed by Ms. A. which states that the appellant “has always been careful to avoid driving motor vehicles…when drinking.”
39Although Dr. M. must have had some concern about the appellant’s ability to drive safely when he submitted the Medical Condition Report to the Registrar, the obligation on physicians under s. 203 of the HTA is to report a medical condition that “may make it dangerous for the person to operate a motor vehicle” (emphasis added). The mere fact that the form was completed does not prove that the condition is likely to significantly interfere with the appellant’s ability to drive safely.
40Although not determinative, I note that the appellant appears to be taking positive steps to treat her alcohol dependence. She has been abstinent from alcohol since May 25, 2017, she is completing an addiction treatment program which will last six months, and she has the support of her husband and Ms. A.
41I have also considered the fact that the Epilepsy and Seizures form indicates that the appellant has moderate anxiety disorder. I see no evidence that this has any effect on her ability to drive.
42Based on the evidence and submissions of both parties, I find that the Registrar has not established on a balance of probabilities that the appellant’s alcohol dependence is likely to significantly interfere with her ability to drive safely.
ORDER:
43For 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.
Kevin Flynn, M.D., Member
Released: June 23, 2017