LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-05

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

and

Registrar of Motor Vehicles, Respondent

DECISION AND ORDER

Panel: Katherine Whitehead, M.D., Member

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

Place and date of hearing: By teleconference: May 10, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1On June 24, 2016, the Appellant’s driver’s licence was suspended by the Registrar of Motor Vehicles (the “Registrar”) under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) for alcohol dependence. This is the Appellant’s second appeal in relation to that suspension.

2In the first appeal, the Tribunal confirmed the suspension in a decision released on March 21, 2017. Two days later, the Registrar received a new Substance Use Assessment Form completed by the Appellant’s family physician. The Registrar reviewed that form and decided on March 29, 2017 that the licence should remain under suspension despite this new medical information. The Appellant appeals from the Registrar’s new decision that the Appellant’s licence should remain under suspension.

3For the reasons that follow, I find that the Appellant is addicted to alcohol to an extent likely to significantly interfere with his ability to drive safely. Accordingly, I confirm the Registrar’s decision to maintain the suspension of the Appellant’s driver’s licence.

B. ISSUES:

4The issue in this appeal is whether the Appellant is addicted to 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:

1. Does the Appellant suffer from alcohol dependence?
2. Is the Appellant’s alcohol dependence likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

5The Appellant first had his driver’s licence suspended based on a medical report sent to the Registrar on June 13, 2016 indicating that he had a condition of alcohol dependence. The Appellant appealed that suspension and attended a hearing at the Tribunal on March 6, 2017. In its decision released on March 21, 2017, the Tribunal confirmed the Registrar’s decision to suspend the Appellant’s licence.

6I note the following facts found by the Tribunal in its March 21, 2017 decision:

• The Appellant presented twice in 10 days to hospital for reasons related to alcohol dependence.
• On the second occasion, the Appellant’s spouse reported to the emergency room physician that the Appellant continued to drive while impaired.
• The Appellant had alterations in the level of consciousness to the point that he could not recall one of his ER visits at all.
• A neurologist reported that the Appellant had alcohol withdrawal and Wernicke’s Encephalopathy (an alteration in mental function related to alcohol use).
• The Tribunal found that the Appellant had an addiction to alcohol to an extent likely to significantly interfere with safe driving.

7Dr. D., the Appellant’s family physician since 2014, filled out a Substance Use Assessment Form on March 16, 2017, which was after the hearing but before the release of the Tribunal’s decision. That form was sent to the Registrar on March 23, 2017. The Substance Use Assessment Form contained the following information:

• The diagnosis was alcohol dependence.
• There had been a seizure over 12 months ago which was related to alcohol withdrawal.
• An assessment had been done post-seizure and epilepsy was not diagnosed.
• The Appellant was abstinent from alcohol for a period of less than 6 months.
• The Appellant had completed a formal addictions program 3-6 months ago, the lab tests were within normal range.
• There were no abnormal physical findings or underlying medical conditions. The Appellant was adherent to the recommended treatment regimen and has not demonstrated any pattern of non-adherence.
• In the comment section, Dr. D. wrote “Recent fracture of right foot secondary to alcohol intoxication Jan., 30, 2017. Reports abstinence from alcohol since Feb. 11, 2017. Currently involved with Alcohol treatment program. No legal consequences in the past.”

8The Appellant stated that he is not alcohol dependent as he no longer drinks. He stated that he originally began drinking because he was bored in his retirement.

9The Appellant has completed Phase One of an alcohol treatment program called ADAPT. He has also completed portions of Phase Two of that program. He provided a certificate, dated November 24, 2016, which confirms completion of Phase One of the program. The Appellant does not wish to complete Phase Two of the ADAPT program as he does not feel that it will benefit him specifically. He testified that he meets with a social worker regularly, and that his family physician counsels him on alcohol dependence.

10The Appellant testified that he has been abstinent from alcohol since February 11, 2017. The Appellant testified that he does not drive while impaired, and that he is experiencing hardship by not being able to drive.

11The Respondent’s position is that nothing much has changed since the original appeal. The Appellant still has convincing evidence of alcohol dependence and has only been abstinent for three months. The Appellant has not completed any alcohol treatment program in its entirety and has not demonstrated a long enough period of abstinence.

12The Respondent cited section 15.6.3 of the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) which states that a person with alcohol dependence is eligible for a licence if they demonstrate a period of abstinence of 12 months and can be considered for earlier licensing if they have a favourable recommendation from their physician/addictions specialist and successful completion of a rehabilitation program.

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,

(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.

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. ANALYSIS:

18As set out below, I find that the Appellant suffers from alcohol dependence, and that this condition is likely to significantly interfere with his ability to drive safely.

19I accept that the Appellant suffers from alcohol dependence. The Appellant denies that he is dependent on alcohol, as he states that he has stopped drinking and only drank in the first place because he was bored. This Tribunal found in its decision released March 21, 2017, based on the evidence available at the time, that the Appellant was addicted to alcohol. The Substance Use Assessment Form sent to the Registrar on March 23, 2017 confirms the diagnosis of alcohol dependence.

20I also accept that the Appellant’s alcohol dependence is likely to significantly interfere with his ability to drive safely. I adopt the findings of this Tribunal as they relate to the effect of the Appellant’s alcohol dependence at the time of the Tribunal’s first decision:

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.

21I find that the concerns referred to by the Tribunal on March 21, 2017 still remain. In addition, there is new evidence in the March 16, 2017 Substance Use Assessment Form that the Appellant suffered an injury to his right foot that was secondary to alcohol intoxication on January 30, 2017, which was after he completed Phase One of the ADAPT program.

22The Appellant reports being abstinent since February 11, 2017. I accept his testimony in that regard. However, I find that a 3-month period of abstinence is not sufficient to decrease the risk to driving, in consideration of:

• the Appellant’s history of driving while impaired;
• the lack of judgment and impaired level of consciousness resulting from the Appellant’s alcohol dependence; and
• the lack of completion of a treatment program.

23The Appellant has completed Phase One of the ADAPT program, but not Phase Two, which is directed at relapse prevention. He testified at both hearings that he does not feel that Phase Two is appropriate for him. The Appellant states that he is pursuing individual counselling, outside of a formal treatment program. Although the Appellant is taking steps to pursue what he feels is appropriate treatment for his personal circumstances, I find that a greater period of abstinence from alcohol is required in the circumstances in order to reduce the risk to road safety.

24I 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.

25After considering the evidence and submissions of the parties, I find on a balance of probabilities that the Appellant is addicted to alcohol to an extent likely to interfere with his ability to drive a motor vehicle safely.

F. ORDER

26For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the Appellant’s licence.