Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O.1990, c. H.8, from a decision of the Minister of Transportation to suspend a driver's licence under subsection 47(1) of the Act
Between:
A.T.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Peter Savage, Member Harriet Lewis, Member
Appearances:
For the Appellant: A.T. (Appellant)
For the Respondent: Sonia DeSantis (Agent)
Place and date(s) of hearing:
Teleconference September 20, 2017
REASONS FOR DECISION AND ORDER
A. Overview:
1The Appellant, A.T., is a 37 year old man who on June 9, 2017 attended at the CAMH emergency clinic to enquire about an in -patient program for alcohol abuse. Following a brief discussion, the emergency room physician provided the Appellant with information on outpatient programs and filed a medical report with the Registrar of Motor Vehicles. The report was filed on June 9, 2017 pursuant to Section 203 of the Highway Traffic Act R.S.O. 1990 c. H.8 (the HTA) which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive.
2The physician’s report noted that the Appellant was dependent on alcohol, based on the Appellant's self report of that condition, and as a result, on June 22, 2017, the Registrar of Motor Vehicles suspended the Appellant’s driver’s license requiring a one year period of abstinence from alcohol for reinstatement. On August 22, 2017, following receipt of further information, the Registrar reduced the period of suspension to six months providing that the results are supported by biochemical markers.
3For the reasons that follow, we find that the Appellant has addressed his alcohol dependence such that he is not in a mental or physical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we allow the appeal, and set aside the decision of the Registrar.
B. PRELIMINARY ISSUES:
4At the outset of the hearing it was noted that the Mental Health Form requested by the Registrar had not been filed with the materials. The Appellant undertook to have the form completed and submitted to the MTO within the next few days, and the MTO's agent agreed to receive it as part of the file and to have an expeditious medical review. On that basis the Appellant elected to continue with the hearing, and the Tribunal agreed to await the medical report and any subsequent decision of the MTO as to whether or not to lift the suspension before making its decision in this appeal. The form was received but the MTO decided to proceed with the appeal.
C. ISSUES:
5The issue in this appeal is whether the Appellant suffers from mental, emotional, nervous or physical condition, (in this case alcohol dependence, anxiety and depression) that is likely to significantly interfere with his ability to drive a motor vehicle safely.
6In order to answer the question, the Tribunal has addressed the following issues:
i) Is the Appellant abusing alcohol?
ii) Does the Appellant suffer from anxiety and depression?
iii) If either of these conditions exists, do they impair or interfere with the Appellant's ability to drive a motor vehicle safely.
D. EVIDENCE:
7The Appellant gave evidence that he had been suffering from a stressful and toxic work environment, such that at or about Christmas of 2016 he began to use alcohol regularly as a way to “self medicate”. Some months later, realizing that he had been doing so, he discussed the matter with his employer who agreed to put him on short term disability so he could seek in-patient treatment to stop drinking.
8After consulting his sister who is a social worker, on June 6, 2017 he attended at the emergency department of CAMH, in the hope of being admitted to what he understood was an in-patient program. He explained his circumstances to the attending physician, but had no medical examination at that time. The physician provided him with a pamphlet and recommended he consider outpatient treatment. After confirming that the Appellant sometimes stopped for a drink after work, the physician filed a Medical Condition Report with the MTO, noting “alcohol dependence” which resulted in a suspension of licence.
9The Appellant was of the opinion that in order to be successful in overcoming his work stress and accompanying alcohol dependence, he should participate in an in- patient program, and on July 6, 2017 at his own expense, he was able to enter a live-in addiction treatment program at Hope Place Centres, where he remained until completion of the program on August 3, 2017.
10A Certificate of Completion and Discharge Summary from Hope Place Centres were filed with the materials. The Discharge Summary indicated a recovery plan which included self help support through A.A. and a continuing care group at Hope Centres.
11The Appellant testified that he has a sponsor through A.A and continues to attend regularly at the continuing care group. He had his last drink on June 6, 2017 the day he attended at CAMH. He had no physical symptoms (such as DTs, tremors or hallucinations) when he stopped drinking.
12The Appellant also testified as to the insight he has gained through the treatment program. He recognizes the need to make life changes, to obtain less stressful employment, and to avoid certain situations and certain individuals. He has strong family support: he lives with his brother who is a non drinker, and has had particular support from both his sister and his mother. He is back at work.
13The Appellant's family physician has overseen his health since 1970. He had prescribed an antidepressant/anxiety medication (Ciprolex 20 mg daily) which the Appellant has taken for approximately a year and a half. In the medical report of August 15, 2017 from his family physician, the Appellant was described as having “mild depression which is improving”.
14His physical condition is very good, notwithstanding a fatty liver. He has lost 25 pounds and the report of his hematology, urinalysis, and general chemistry tests reported as of August 3, 2017 was excellent. The Appellant had drug testing on September 13, 2017 and the drug test report issued on September 14, 2017 (both General Chemistry and Urine Drug Screen) was completely clear with no drugs of abuse detected.
15The further report from his family physician dated September 20, 2017 and filed as agreed after the hearing, indicated a stable condition, a resolution of symptoms of anxiety, and an opinion that no current medication will impair the patient's ability to operate a motor vehicle safely.
16The Appellant testified that he has an opportunity to change his employment, but in his field as a mechanical technologist, he is required to visit job sites and factories which cannot easily be reached without the use of a motor vehicle.
E: LAW
17The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence on a number of grounds. In this case, the relevant ground is listed in s. 47(1)(g), and that is that the driver suffers from a medical condition or addiction likely to interfere with his or her ability to drive safely. More specifically, Ontario Regulation 340/94, 14(1) (the ‘Regulation”) provides that the holder of a driver's license must not “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”.
18Section 14(2) 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.
19The CCMTA Standard 15.6.3 on Substance Abuse or Dependence, recommends an abstinence period from alcohol or illicit drugs of 12 months. This period is subject to reduction “upon favorable recommendation from an addiction specialist and/or treating physician ...and the successful completion of a drug rehabilitation program”.
20The Respondent has the burden of establishing the grounds for continuing the suspension of the licence. The Appellant has the right to an appeal, and the Tribunal may under s. 50(2) of the Highway Traffic Act confirm, modify or set aside the decision or order of the Registrar.
E. ANALYSIS:
21The Respondent submits that the Tribunal should confirm the suspension on the basis of the CCMTA Standard. The Respondent first took the position that the Appellant must have abstained from alcohol for a period of one year. That has been reduced to six months on the condition that abstinence must be supported by the results of bio-chemical markers.
22The Appellant's position is that his abuse of alcohol has not been chronic and he sought treatment of the abuse of his own volition. He has attended and successfully completed a residential alcohol treatment program and is engaged in a routine of follow-up support. He has an AA sponsor and supportive family members. He is no longer abusing alcohol, having had his last drink on June 6, 2017.
23His bio-markers are clear. His long time family physician sees him regularly and states that he is currently on no medication which would impair his ability to drive safely.
24In addition to the foregoing, the Appellant has returned to work and is currently employed by the firm from which he took a medical leave. He believes that the inability to drive for work impairs his ability to meet the responsibilities of his current and any future employment and creates some additional and ongoing stress.
25We are of the view that having heard and seen the evidence presented in the hearing, the Appellant does not have any existing medical condition which impairs his ability to safely operate a motor vehicle. The Respondent did not provide or elicit in cross-examination any contrary evidence on the issue of treatment, follow-up and support, or biochemical status.
26For all of the reasons and on the basis of the evidence noted above, we allow this appeal.
F. ORDER:
27For the reasons set out above, pursuant to subsection 50(2) of the HTA, the appeal is allowed and the Registrar's decision to suspend the Appellant's driver's license is set aside.
Released: October 16, 2017
____________________________ Peter Savage
____________________________ Harriet Lewis