K.W. v. Registrar of Motor Vehicles, 2017 CanLII 72622

K.W. v. Registrar of Motor Vehicles

Date: 2017-10-17

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:

K.W. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: K.W. For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: September 6, 2017

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is a 39-year-old man who voluntarily sought medical treatment at a hospital for alcohol and drug use. The Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence June 4, 2017 after receiving a medical report from a psychiatry resident at the hospital dated May 19, 2017 diagnosing alcohol dependence and drug dependence.

2Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. After receiving the report that the appellant had been diagnosed as having alcohol dependence and drug dependence the Registrar suspended the appellant’s driver’s licence on June 4, 2017, under s. 47(1) of the HTA due to the appellant’s medical condition.

3The appellant appealed the suspension on the grounds that he has entered a drug and alcohol treatment program and has been abstinent from alcohol and drugs since May 18, 2017.

4For the reasons that follow, we find that the appellant no longer suffers from alcohol dependence and drug dependence and that his medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUE:

5The issue in this appeal is whether the appellant suffers from alcohol and drug dependency likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

1. Does the appellant suffer from alcohol dependence and drug dependence?
2. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

6The appellant’s past dependence on alcohol and cocaine is not in dispute. The appellant admitted that he voluntarily went to a hospital on May 18, 2017 with his wife to seek help for his alcohol and drug use. He was admitted to the hospital, discharged the following day and he immediately registered with an addiction treatment centre. The appellant testified that he started to use alcohol and drugs in high school and that his use increased as he got older until he was consuming 35 beers a week and cocaine daily at the time he sought help. He stated that because he is employed in the pharmaceutical industry he was aware of the prevalence of and consequences of addiction. He stated that he has not touched either alcohol or cocaine since May 18, 2017 which he counted as some 112 days of abstinence at the time of the hearing.

7The appellant testified that he and his wife discussed his alcohol and drug use and made the decision that he needed help. His wife went with him to the hospital. His family and friends are supportive of his treatment and decision to abstain. His last alcohol and drug use was May 18, 2017, is now clean and in treatment and will not use alcohol and drugs again. The appellant stated that he used to drink and use drugs socially but has never had a motor vehicle accident or driving charge related to drugs or alcohol and his medical condition did not affect his employment. He attends Alcoholics Anonymous meetings daily.

8A letter dated August 9, 2017 from the treatment facility confirmed that the appellant had entered the three phase treatment program on June 27, 2017 and completed phase one on August 1, 2017, had completed phase two on August 1, 2017 and would complete phase three on October 4, 2017.

9The appellant’s family physician since 2013 (“Dr. K.”) sent a report dated June 29, 2017 diagnosing alcohol abuse and drug dependence. At the time of the hearing, the appellant testified that he was present in Dr. K.’s office and offered to have Dr. K. testify at the hearing. The panel found it unnecessary to have the family physician testify given that Dr. K. wrote a letter dated July 26, 2017 in support of the appellant’s appeal which corroborated the testimony of the appellant. Dr. K. wrote that the appellant is “engaged and completely compliant with therapy to date. He was recently discharged from his rehabilitation program at… and has had regular follow-ups with myself and his counsellor…Based on his response to therapy, keen insight, openness, motivation and extensive family support…(his) risk of relapse is very low. He is at very low risk for impaired driving at this stage…I recommend your consideration for reinstatement of his licence.” In a letter dated August 30, 2017 Dr. K. wrote clarifying lab test results “…minor AST elevation is not indicative of any alcohol abuse or drug use.”

10The respondent’s agent did not cross examine the appellant.

11The respondent filed the medical report from the hospital physician, who had been his physician for one day, dated May 19, 2017 which diagnosed the appellant with alcohol dependence and drug dependence.

D. LAW:

12The 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).”

13One 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.

14Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

15Under 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.

16The 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.

E. ANALYSIS:

Does the appellant have alcohol dependence and drug dependence?

17We find that the appellant does not have alcohol dependence nor does he have a drug dependence. As such, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

18The appellant’s family physician Dr. K., who has been the appellant’s physician for four years, is supportive of the appellant’s appeal. The Tribunal attributes significant weight to this because the family physician has a multi-year history of treating the appellant and is likely to be familiar with the appellant’s current medical condition. The treatment records submitted by the appellant show that the appellant has entered treatment, is compliant with the program and will complete the program shortly.

19With respect to the appellant’s diagnoses, we prefer the current medical evidence of the family physician and the comments of the treatment facility as to the appellant’s current medical condition over that of the hospital physician whose diagnosis is now out of date. Accordingly, we find, based on the totality of the evidence, that the appellant no longer has alcohol dependence.

Is the appellant’s medical condition likely to significantly interfere with his ability to drive safely?

20Given that we find the appellant does not have a medical condition, there is no need to address the second part of the issue. In any event we also find that the appellant’s prior medical condition is not likely to significantly interfere with his ability to drive safely.

21The Registrar submits that the appellant’s medical condition is severe enough that he should not be permitted to drive. The Registrar’s position is that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to substance abuse or dependence (chapter 15).

22Chapter 15 of the Standards indicates that individuals who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines are at a higher risk for adverse driving outcomes.

23Guideline 15.6.3 states that an individual who is under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines is eligible for a licence if he or she:

• Meets the criteria for remissions and/or has abstained from the substance for 12 months.

• Earlier re-licencing may be considered upon favourable recommendation from an addiction specialist and/or treating physician and 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 the functional abilities for driving are not impaired

24The Registrar submitted that more time than four months is required for consideration of reinstatement and that a letter from the appellant’s physician in support of return to driving is required at that time.

25The Tribunal is not bound by CCMTA Guidelines and in this particular case chooses not to follow them. The appellant voluntarily sought help for his alcohol and drug dependence, is successfully undergoing treatment and attends Alcoholics Anonymous meetings daily. Except for one speeding ticket, his driving record is clean. The four months of abstinence from alcohol and drugs are sufficient for relapse prevention in view of the close monitoring undertaken by Dr. K. who has also stated that the appellant is compliant, with no pattern of non-adherence and has good insight into the consequences of his addiction. We accept the evidence of Dr. K that the risk of relapse and risk of impaired driving are both “very low.”

Conclusion

26After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant no longer suffers from a medical condition that is likely to interfere with his ability to drive a motor vehicle safely.

F. ORDER:

For 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.