M.C. v. Registrar of Motor Vehicles, 2018 CanLII 100194

Licence Appeal Tribunal

Date: 2018-06-04

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:

M.C. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dr. Dimitri Louvish M.D., Member Joanne E. Foot, Member

Appearances: For the Appellant: M.C., Self-represented For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference May 2, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 41-year-old woman whose driver’s licence was suspended after an emergency room physician filed a Medical Condition Report dated October 29, 2017 with the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). This section of the HTA 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. By letter dated November 1, 2017, the Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA on the basis of “substance use/abuse”.

2The question for our determination is whether the appellant suffers from a drug addiction that is likely to significantly interfere with her ability to drive safely.

B. RESULT

3For the reasons set out below, we find that:

a. the appellant is addicted to opiates; and

b. the Registrar has not established that the appellant is affected by her drug addiction to an extent likely to significantly interfere with her ability to drive safely.

4For these reasons, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

C. ISSUES

5The issue in this appeal is whether the appellant is addicted to drugs to an extent that is likely to significantly interfere with her ability to drive safely.

6To answer that question, we will consider the issues stated below separately:

a. Is the appellant addicted to drugs?

b. Has the Registrar established that the appellant is affected by her addiction to drugs to an extent likely to significantly interfere with her ability to drive safely?

D. LAW

7The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

8One 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 disability likely to significantly interfere with her or her ability to drive safely. Subsection 14(1)(b) 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) 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;

9According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers, which are published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

10The Registrar has the burden to establish the grounds 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

a. Is the appellant addicted to drugs?

11The appellant has a history of drug dependence, use and abuse. In oral testimony, the appellant confirmed her history of opiate dependence and her current enrollment in a methadone program. The Discharge Summary Report dated October 30, 2017 reports that the appellant has a history of narcotic dependence and abuse and is currently a patient at the methadone clinic in town about 30 kilometers from her home, confirming the appellant’s oral testimony. As well, the appellant states in her Notice of Appeal that she has attended the methadone clinic for about five years.

12Methadone is a drug prescribed for pain but also for the treatment of opioid drug addiction. The appellant’s testimony and the information contained in the Medical Condition Report and the Discharge Summary Report are sufficient for us to find that the appellant suffers from an opioid dependency or addiction which is being treated with – or controlled by – methadone.

13The more difficult issue in this case is the proper characterization of the overdose that gave rise to the emergency room visit which is considered below.

b. Is the appellant’s addiction to drugs likely to significantly interfere with her ability to drive safely?

14The Registrar has the burden to establish that the appellant’s addiction to drugs will interfere with her ability to drive safely.

15The appellant and her mother, J.C., testified about the events that occurred on the morning of Sunday, October 29, 2017 that led to the emergency room visit and culminated in the issuance of the Medical Condition Report. The appellant testified that she and her mother went to the methadone clinic so that the appellant could take her daily dose of methadone and obtain her six take-home doses for the week. Following the clinic visit, they had breakfast and were planning to go grocery shopping. J.C. was driving that day. At some point the appellant started to feel very unwell and the decision was made to go to a hospital rather than grocery shopping. They attended a hospital in a town about 60 kilometres away.

16At this town hospital, the appellant was administered a drug to reverse the effects of an opioid overdose. J.C. also explained that the appellant was transferred to a hospital in a nearby city later that day, the city hospital being better able to provide the appellant with the specialized care needed.

17The appellant maintains that the overdose was accidental or inadvertent. The Agent submits that either (i) the appellant used an illicit substance that caused the overdose, or (ii) the overdose was a deliberate misuse of the prescribed methadone which amounts to use of an illicit substance. The Agent also referred to the Patient Note dated April 13, 2018 made by Dr. S.L., the physician who prescribes methadone to the appellant and is associated with the methadone clinic, which relates to a relapse by the appellant a week or two before the emergency room visit.

18The Agent submits that there are three circumstances to be considered in relation to the ability of the appellant to drive safely. These are (i) whether the appellant’s overdose was caused by the ingestion of an illicit substance, (ii) whether the overdose was caused by a misuse of methadone and, (iii) the occurrence of a relapse in the past 12 months which was reported about three weeks prior to the hearing. Each is considered below.

i. Was the overdose caused by the use of an illicit Substance?

19In the Medical Condition Report dated October 29, 2017, Dr. E.W., the emergency room physician in town hospital, ticked the box for “Drug Dependence”. Dr. E.W. also wrote in the “Optional” portion of this form:

“as per family

patient operates truck for employment and has overdosed on narcotics/methadone buying drugs off street”

20The Agent refers to the words written by the town hospital emergency room physician: “as per family … buying drugs off street” to support the view that the appellant used an illicit substance. The appellant’s mother testified that she was the only family member with the appellant at the town hospital and firmly denies making that statement, although she does acknowledge that a nurse did ask her questions of this nature.

21The appellant submitted a copy of a Patient Note dated April 30, 2018 from Dr. S.L., the methadone prescriber which states, in part, that “The urine drug screens for [the appellant] for October 22 and 29 and November 1 and 5, 2017 were negative for illicit substances.” This covers the period of time in which the overdose took place and is, in our view, definitive in ruling out ingestion of other illicit drugs by the appellant. We note, as well, that no blood tests were taken at either hospital where she was treated which could have provided definitive evidence.

22We find that the overdose was not caused by use of an illicit substance.

ii. Did the overdose result from a deliberate misuse of Methadone?

23We requested the appellant to explain how she inadvertently or accidentally overdosed on methadone. She testified that on the evening before her emergency room visit, she fell asleep watching television and forgot to take her methadone which, at that time, she customarily ingested in the early evening. When she awoke at about 2:30 or 3:00 a.m., she remembered that she had not taken that day’s dose, which she then took. The methadone clinic is open from 9:00 a.m. to noon on Sundays. She attended during that time and took a further dose under supervision, as is required procedure. She believes that the ingestion of two doses in a time period of less than 10 hours caused the overdose.

24The Pharmacist-Patient Methadone Treatment Consent and Agreement clearly states “I realize it is best to spread the time between methadone doses by at least 16 hours. There will be no twice daily dosing“. The appellant acknowledged that she knows she is not supposed to double up on missed doses. By way of explanation, she offered that she was not fully awake and thinking clearly when she took the dose of methadone in the middle of the night and further that the ingestion of the dose at the methadone clinic was mandatory.

25We accept that it is possible to make an error of this nature and find that she did make an error, that the overdose was accidental. Opioid dependency is a serious condition and treating this condition effectively with methadone requires diligent management; it must be a priority on an ongoing basis. Our impression is that she is somewhat too casual in this respect.

iii. Relapse in the past 12 months

26The Agent referred to the Patient Note dated April 13, 2018 made by Dr. S.L. which states only that “[The appellant] had a relapse on illicit drugs from Oct 8 2017 to Oct 17, 2017.” The Agent indicated that this further Patient Note had been obtained by the medical review section of the Ministry, but that he had no further information regarding details the relapse referenced.

27The appellant indicated that she had no recollection of what drug was identified in the positive urine tests but thought she may have taken Tylenol, which contains a small amount of codeine, another opiate. The appellant also testified that none of her “carries” were taken away from her as a result of the reported relapse, being the customary consequence for a serious relapse.

28We consider the appellant’s evidence weak on this point and are troubled by the references to “illicit substances” in the Patient Note. Dr. S.L. made this Patient Note in response to a direct enquiry by the Ministry and knowing that the appellant was seeking reinstatement of her driver’s licence (Dr. S.L. refers to driving in the March 6, 2018 Patient Note). In these circumstances, we would have expected Dr. S.L. to have provided more information if the “illicit drugs” identified in the tests had actually been of the benign nature suggested by the appellant.

29The Agent put into evidence a true copy of the appellant’s driving record extracted from the records of the Ministry of Transportation. There are several items of concern to us in this document. The appellant has two impaired driving convictions dating from 1996 and 1999. Each conviction resulted in licence suspension. We note that these are well in the past and accept the appellant’s testimony that she has not ingested alcohol for about seven years. However, in the past three years she has been charged with five offences, including one for “racing/contest/stunt” for which her licence was suspended. Taken together, these offences come close to showing a pattern of disregard for public safety and respect for the law. We remind the appellant that driving is not a right but rather a privilege and that she needs to take more responsibility for her actions and behave to protect this privilege. Again, it appears to us that she takes these matters somewhat too lightly.

30Our final concern arose from our questioning of the appellant in relation to her current medications. In addition to her daily dose of methadone, she takes Clonazepam twice daily and Cipralex daily. Methadone is a central nervous system (CNS) depressant, as is Clonazepam. Opioids can adversely affect driving performance, with the degree of impairment dependent on a number of factors including the tolerance to the drug developed. Sedatives such as Clonazepam can have a similar effect on driving. No evidence was provided as to the functional driving ability of the appellant while taking this combination of medications and, as such, we are not in a position to find that these heavy doses of medication are linked to the ability of the appellant to drive safely. We note with approval that the appellant has tapered her dose of methadone to 55 mg per day, with plans to reduce it further in near future.

31Dr. M.M., the doctor treating her for the overdose at the city hospital wrote in the Medical Condition Report dated October 30, 2017 “I personally think she is fine to drive”. In a letter dated February 2, 2018, Dr. M.M. wrote “this patient does not look like she is drug-seeking, does not look like a problematic patient that would be of concern on the road at least from my limited exposure to her …” We give limited weight to these documents as Dr. M.M. has only been involved with the appellant on the occasion of her overdose.

32In the March 6, 2018 Patient Note from Dr. S.L. referred to above, she writes that “[The appellant] comes to the clinic as required, follows all of the clinic rules and has urine drug screens negative for all illicit substances from January of this year. I feel that she is stable for her licence again”. The Patient Note dated April 30, 2018 confirms negative urine screens for the month of April, 2018.

33No evidence has been presented suggesting anything other than that the appellant has been abstinent from illicit drugs for the six months since the date of the overdose. This shows a degree of stability and commitment. In addition, her physician is supportive of her return to driving. These two factors, together with her enrollment in a methadone program, are in line with the CCMTA Medical Standards for Drivers which suggests that the one-year period of abstinence generally recommended for addiction can be reduced to six months. We found that the appellant did not ingest an illicit substance and took the methadone overdose inadvertently. Her relapse in October 2017, while troubling, is more than six months in the past. As such, we do not find that there is sufficient evidence linking the appellant’s drug addiction to an inability on her part to drive a motor vehicle safely.

34After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant is addicted to drugs, but not to an extent that is likely to interfere with her ability to drive a motor vehicle safely.

F. ORDER

35For 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.