Licence Appeal Tribunal
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles pursuant to section 47(1) of the Act to Suspend a Driver’s Licence
Between:
P.F. Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Katie Awad, M.D., Member Asad Moten, Member
Appearances:
For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: April 25, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1P.F. appeals the suspension of his driver’s licence. His licence had been suspended once before after he was admitted to the hospital for heavy drinking and acute liver failure. After a significant period of treatment and abstinence, his licence was re-instated and he was required to provide reports with respect to his medical condition. In 2017, P.F. suffered the loss of his wife and relapsed. His licence was suspended for the second time, and this suspension is the subject of the current appeal.
2An oral hearing by teleconference was held on April 25, 2018 with respect to the appeal. At the hearing, P.F. submitted that he is no longer addicted to alcohol use and is complying with all treatment and testing ordered by his doctor. Therefore, his licence should be re-instated.
3The Registrar submitted that P.F.’s relapse and continued elevated biomarker levels indicate that he continues to abuse alcohol. This, in the Registrar’s submission is the reason for the suspension and the application of medical standards requiring twelve months of abstinence or proof of an additional successful treatment program. The Registrar seeks to have the suspension confirmed.
4The issues that the Tribunal must consider in this case are whether P.F. currently suffers from an addiction to alcohol; and if so, whether that addiction is likely to significantly interfere with his ability to safely drive a motor vehicle such that his licence should remain under suspension.
5For the reasons that follow, the Tribunal concludes that P.F. does not currently suffer from an addiction to alcohol, and that the suspension of P.F.’s licence should be set aside.
B. ISSUES
6The issues to be determined in this appeal are:
a. Whether P.F. is addicted to the use of alcohol or a drug; and,
b. If P.F. is addicted to the use of alcohol or a drug, is it likely to significantly interfere with his ability to drive a motor vehicle safely?
THE LAW
7Section 47(1) of the Highway Traffic Act (the Act) allows the Registrar of Motor Vehicles to suspend or cancel a driver’s licence where there is a sufficient reason to do so.
8Some of the reasons that the Registrar may suspend or cancel a licence are described in section 14 of Ontario Regulation 340/94 (the Regulation), which states that a person holding 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.
9In determining whether a person meets the above requirements, the Minister of Transportation may, under section 14(2) of the Regulation, take into consideration the standards as described in the CCMTA Medical Standards for Drivers (the CCMTA Standards), and require the driver to provide reports of medical examinations or additional medical information to provide that they can drive safely.
10In both subsections of section 14(2), the authors of the Regulation have used the word ‘may’, indicating that the Minister can, but is not obligated to, require evidence from a person or consider the CCMTA Standards. Similarly, the Tribunal is not bound to these provisions, though it may take them in to consideration.
11The Registrar has the burden of establishing the grounds for suspending a licence on a balance of probabilities. Following a hearing, the Tribunal may, under section 50(2) of the Act, confirm, modify, or set aside the decision or order of the Registrar.
C. EVIDENCE
P.F.’s Medical History
12P.F. has a complex medical history. At the time of the hearing he was 60 years old. He testified that he suffers from depression, heart issues, and liver disease. The discharge documents from his admission to Local Health Centre indicate that he also suffers from alcohol use disorder (severe), hypertension, hyperlipidemia, sleep apnea, and gastroesophageal reflux disease. He has been on a variety of medications for several years to treat his conditions, including vortioxetine, amlodipine, pantoprazole, trazodone, and urisec.
13For most of P.F.’s life, he did not have an alcohol use problem. He testified that it was only since his wife was diagnosed with cancer that he began to drink. That period was, in his words, very tough on him, and he used alcohol as a means to cope. His testimony with respect to the fact that he had never driven after drinking was credible, in the Tribunal’s opinion, and he appeared genuine in his description of the root cause and extent of his drinking. In all, according to P.F., he drank for the two years his wife was in hospital.
The Suspension of P.F.’s Licence
14P.F. was hospitalized in December 2016 with acute alcoholic hepatitis and liver failure after a trip to Cuba. A Medical Condition Report about P.F. was submitted to the Ministry of Transportation (the Ministry) on December 4, 2016. The report indicated that P.F. suffered from alcohol dependence. P.F.’s evidence is that he ceased drinking in December 2016, following his hospitalization.
15In response, the Registrar sent him a letter on December 7, 2016 stating that P.F.’s licence was suspended. The letter advised P.F. as to what would be required to re-instate his licence, namely that he abstain from alcohol use for one year, or where he completes an alcohol treatment program the suspension period could be reduced. The letter also included a Medical Review form to be completed by P.F.’s doctor.
16P.F.’s primary care physician completed the Medical Review form on April 11, 2017. P.F.’s physician noted that P.F. had alcohol dependence, but was in full remission, and a history of transient hepatic encephalopathy. From this completed form the Tribunal also gathers that:
P.F. had abstained from alcohol for less than five months;
He completed an alcohol treatment program less than three months before the date of the report;
He had elevated GGT levels, which were dramatically decreased compared to his last check up in March 2016;
These elevated GGT levels are unlikely the result of alcohol dependence given P.F.’s abstention, and may be linked to diseases of the liver;
P.F. had acute alcoholic hepatitis, as of January 19, 2017, but the hepatitis had resolved;
He also has mild to medium fatty liver disease;
He also suffered from major depression, which was in remission; and
P.F. was adherent to medication prescribed to him for these illnesses.
17On April 28, 2017 the Registrar sent a letter in response to the completed Medical Review form. The Registrar advised P.F. that they required further information, namely confirmation of continued abstinence for six months or longer, and the results of any recent repeat bio-chemical markers test with clinical explanation.
18P.F.’s primary care physician completed an addendum to the original Medical Review form on June 20, 2017, advising the Ministry that P.F. had remained abstinent since the last report. She also included a copy of P.F.’s bio-markers test done in April 2017.
19Based on this information, the Registrar sent a letter to P.F. on July 4, 2017 advising him that the medical report was approved. His licence would be re-instated. It also advised that he would be required to file a further medical report after December 20, 2017 that showed continued abstinence.
20On February 26, 2018, the same family physician completed this follow-up report. From the completed report, the Tribunal can gather that:
P.F. was suffering not from alcohol dependence, but as indicated on the form this time, alcohol abuse;
His period of abstinence had reset, and at the time of this report, he had been abstinent for less than six months;
P.F. had elevated GGT and AST bio-marker levels;
These increased levels may be due to alcohol use and diseases affecting the liver;
P.F. remained adherent to medication;
In the past year, when he drank, he had one to two drinks per day;
P.F. scored very low on the Alcohol Use Disorders Identification Test, and did not register a score on the Leeds Dependence Questionnaire.
21So what changed for P.F. between the re-instatement of his licence in July 2017 when he was doing so well, and the February 2018 report? P.F., simply put, relapsed. His wife passed away on November 9, 2017. He testified that he began drinking again out of sadness. He would drink every day, approximately one to two drinks per day. This drinking continued, interrupted by brief periods of abstinence, until the end of January 2018.
22P.F.’s testimony, and a letter from his primary care physician suggest that P.F. resumed his abstinence as of February 1, 2018. The letter from the primary care physician was written as an additional comment for the follow-up report, and was included in the package sent to the Ministry, along with bio-marker test results from February 12, 2018.
23On March 9, 2018, the Registrar sent a letter to P.F. advising him that his licence was again suspended. Similar to the letter received in 2016, this letter advised P.F. that he must remain abstinent for one year, or where he has completed a “recent alcohol treatment program” [emphasis in original] the period of abstinence could be reduced to six months. In addition, test results for a recent bio-markers test with clinical explanation must be included.
24On March 26, 2018, P.F.’s primary care physician wrote a letter advising the Ministry that P.F. was continuing to receive active monitoring and treatment for alcohol-related liver disease, and will be monitored by blood work every three months, and that he remains motivated to pursue sobriety despite recent setbacks. Along with this letter, the primary care physician attached several bio-marker test results from 2017 and 2018, and a report from a Local Health Centre completed upon P.F.’s discharge.
25The Registrar sent P.F. a letter on April 10, 2018, and re-stated the requirements from the March 9, 2018 letter, emphasizing that the treatment program and bio-markers test must be recent.
P.F.’s Time at Local Health Centre
26P.F. was admitted to a Local Health Centre for addictions treatment on February 17, 2017. This admission was based on a referral done by the inpatient social worker who attended to P.F. while he was in hospital in December 2016. P.F.’s primary care physician, in her letter dated March 26, 2018, stated that P.F. voluntarily sought admission into a Local Health Centre. This is supported by P.F.’s testimony. He stated that he sought out this treatment voluntarily and paid approximately $11,000 for the five-week program.
27The report from a Local Health Centre is particularly detailed. According to the report, while in the program, P.F. was motivated and engaged in treatment. He participated in all parts of the program, and completed many modules. He developed good insights and even cancelled an all-inclusive vacation that he had booked. By the time P.F. was discharged on March 24, 2017, he was hopeful and forward thinking.
The recommendations in the Local Health Centre report state:
“Addiction recovery needs to be [P.F.’s] first priority. I recommend complete abstinence from alcohol and all other mind-altering substances.”
D. ANALYSIS
Is P.F. Addicted to the Use of Alcohol or a Drug?
28The Tribunal is of the opinion that P.F. is not addicted to the use of alcohol at this time. During the hearing, P.F. was forthcoming about the extent of his alcohol use, and the causes for it. By his own admission, he was at one time addicted to using alcohol as a way of coping with his wife’s illness. Being admitted to the hospital in December 2016 was a wake-up call for him.
29P.F. then sought help, and paid a significant sum from his own pocket for that treatment. All of the reports from a Local Health Centre indicate that the applicant was successful throughout the programming, though the reality is, and this is reflected in the language of the report, alcohol dependence or use disorder is not cured overnight or even in five weeks.
30From the end of the program until November 2017, P.F. continued to employ the skills he learned in order to stay sober. All told, he remained abstinent for nearly ten months after his licence was suspended. It was only after the death of his spouse, a remarkable change in one’s life, that he relapsed into using alcohol again. He used alcohol again from November 2017 until the end of January 2018 – a period of three months – and has been abstinent until this hearing. There is no evidence to contradict these assertions, and the Tribunal finds no reason to discredit P.F.’s testimony.
31All told, since December 2016 P.F. has been abstinent for 13 months and used alcohol intermittently for three months after his wife passed away. This, combined with the fact that P.F. has been compliant with all treatments and continues to be monitored every three months by his primary care physician lends to the conclusion that P.F. does not have an addiction to alcohol at this time.
32The Registrar argues that the February 26, 2018 report is evidence of continuing alcohol use because GGT and AST levels are indicated as elevated. In making this argument, the Registrar is ignoring two important facts: first, that P.F. has a history of elevated GGT levels due to his liver issues, as indicated on the April 2017 Medical Review form, and as such elevated GGT levels in and of themselves cannot be evidence of continued alcohol use; and second, the bio-marker test was completed February 12, 2018, less than two weeks after the letter from the physician stating that P.F. ceased drinking for the second time, and as such it is reasonable to expect that there would still be some residual GGT elevation.
33The Registrar also argues that the physician completing the report contradicted herself by checking off ‘alcohol dependence’ as a possible cause for the elevated GGT levels, but then including a handwritten notation that alcohol dependence was unlikely a cause given his abstinence. The Tribunal finds this argument unconvincing. There is nothing contradictory about indicating a possible cause, and then explaining how it is unlikely to be the cause.
34In sum, the Tribunal finds that the Registrar did not discharge its onus to prove that P.F. currently has an addiction to alcohol or any other substance.
35With this finding, it is unnecessary for the Tribunal to examine the question of whether an addiction to alcohol use by P.F. would significantly interfere with his ability to drive. However, for the sake of completeness, the Tribunal has answered that question below.
If addicted, is P.F.’s addiction likely to significantly interfere with his ability to drive a motor vehicle safely?
36Even if P.F. does suffer from an addiction, the Tribunal is of the opinion that his addiction would not be likely to significantly interfere with his driving ability.
37As a starting point, P.F. testified that he has never driven while intoxicated. He understands the consequences of doing so, and has sufficient support around him to not feel like he would have to drive while intoxicated. Further, P.F.’s driving record supports this assertion. There is no indication in the driving record that he has ever been convicted for an alcohol-related driving offence.
38The Registrar argues that the CCMTA Standards, namely the requirement that a driver be abstinent from alcohol for 12 months, apply in this case and thus the Registrar’s suspension should be confirmed. Further, the Registrar argues that P.F. has not met the alternate requirements under the CCMTA, specifically a favourable recommendation from a treating physician and the successful completion of a drug program.
39The Tribunal disagrees with this argument. The Registrar must lead evidence showing an effect of the addiction on the ability to drive safely. This is the test the Registrar must meet, regardless of what is contained in the CCMTA Standards.
40Further, the application of the CCMTA Standards is a permissive application, as per the Regulations, and not a mandatory one. The Minister, or their delegate, has the discretion to choose not to strictly apply them in any given instance, or to even apply them at all. The Registrar could not point the Tribunal to any requirement that they must be strictly applied in this case. Given the circumstances of this case, the great lengths to which P.F. went to become sober, and the significant reason for his relapse, it is unreasonable for the CCMTA Standards to be strictly applied.
41Even if the Registrar could support that application, the language of the CCMTA Standards makes clear that “all drivers [are] eligible for a licence if [they meet] the criteria for remission and/or [have] abstained from the substance for 12 months” [emphasis added]. Counsel for the Registrar in this case could not tell the Tribunal what ‘meets the criteria for remission’ meant, or where such criteria could be found. In the Tribunal’s opinion, the Registrar has not given P.F. the opportunity to satisfy that former part of the clause, and instead required compliance with the latter part, despite the ‘and/or’ that would permit P.F. to comply with either clause.
42The Registrar also argues that P.F. cannot submit the same treatment program twice in trying to have the suspension period reduced. It is the Registrar’s position that P.F.’s licence was re-instated in July 2017 based on his attending a treatment program, and that once P.F.’s licence was re-suspended in March 2018 for the same reason, the first treatment program was no longer satisfactory evidence of his progress.
43The Tribunal disagrees with this argument. There is no mention in any of the letters from the Registrar, or in the CCMTA Standards, that the same treatment cannot be submitted again. The wording in the March 9, 2018 and April 10, 2018 letters contains reference to a “recent” treatment program.
44This departs from the biomarker test requirement in the April 10, 2018 letter which states that P.F. must submit the results of a “repeat” [emphasis in original] test. Both ‘recent’ and ‘repeat’ do not appear in the original December 2016 suspension letter, indicating that they had been added by the authors of the later letters. Had the authors intended for P.F., given his relapse, to ‘repeat’ an alcohol treatment program, they could have indicated as such.
45In sum, the Registrar has not established that P.F.’s addiction would be likely to significantly interfere with his ability to safely drive a motor vehicle, or that the requirements imposed on P.F. in order to re-instate his licence are reasonable in the circumstances.
E. CONCLUSION
46The Tribunal is mindful of the safety of both P.F. and the public. Based on the evidence before the Tribunal, P.F. does not suffer from an addiction to the use of alcohol or drugs. P.F. has had long periods of sobriety, voluntarily enrolled in and successfully completed a treatment program, continues to abide by all treatment and testing by his physician, and his period of relapse was tied to a profound change in life circumstance.
47Additionally, even if P.F. was currently addicted to the use of alcohol, the Registrar has not shown on a balance of probabilities that his addiction would be likely to significantly interfere with his ability to safely drive, or that the requirements imposed upon P.F. in order to re-instate his licence are reasonable.
ORDER:
48For the reasons set out above, pursuant to s. 50(2) of the Highway Traffic Act, the Minister’s decision to suspend P.F.’s licence is set aside.
LICENCE APPEAL TRIBUNAL
Katie Awad, M.D., Member
Asad Moten, Member
Released: June 19, 2018