Date: 2018-06-20

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:

T.F.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Erica Weinberg, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: Teleconference

June 7, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant was taken to the hospital via ambulance on April 13, 2018 complaining of feeling faint. As a result of that hospital visit, the emergency doctor who treated him submitted a form to the Ministry of Transportation advising of driving under the influence of marijuana. Shortly thereafter, the Registrar of Motor Vehicles (the Registrar) suspended his driver’s licence on the basis of substance abuse.

2The appellant appeals this decision on the basis that he attended the hospital for an anxiety attack and had not consumed any marijuana. Although he is an occasional marijuana user, he denies substance abuse. He also denies he would drive after using marijuana.

3The question we had to determine was whether the appellant abuses substances to the extent that is likely to significantly interfere with his ability to drive safely.

4For the reasons that follow, we find that the respondent has not established that the appellant abuses marijuana to an extent likely to significantly interfere with his ability to drive safely.

5Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

6The issue in this appeal is whether the appellant abuses marijuana such that is it likely to interfere with his ability to drive safely.

C. LAW:

7The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities.

8The Registrar has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1)(b) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not be addicted to the use of a drug to an extent likely to significantly interfere with his ability to drive safely.

9Section 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 on us.

10The CCMTA Standards at s. 15.6.3 states that a person who suffers from a substance use disorder can have their licence reinstated after a period of abstinence of 12 months or sooner if a drug rehabilitation program is completed and there is support from a treating physician or addiction specialist.

11Section 15.6.4 of the CCMTA Standards states that impaired individuals are not permitted to drive any class of motor vehicle. In such cases, reinstatement is at the discretion of the licensing authority.

D. EVIDEnCE AND Analysis:

12The relevant documentary evidence before the Tribunal consisted of the following:

a. Two Medical Condition Reports by Dr. K.M. for the hospital visit on April 13, 2018. The first report is dated April 13, 2018 and states “drug dependence” and “driving while high”. The second is dated April 30, 2018 and states “drug dependence” and “driving under influence.”

b. One very poor copy of the Rouge Valley Health System (RVHS) Emergency Record by Dr. K.M, dated April 13, 2018.

13The appellant recently re-located to Newfoundland. He was unable to get his previous Ontario family doctor to fill out any of the forms provided by the Registrar as he is no longer a patient. He has not found a family doctor yet in Newfoundland.

14The appellant stated that he has suffered from an anxiety disorder for a number of years. This disorder was diagnosed by his family doctor in Ontario. As a result of his diagnosis he was prescribed Cipralex and has used it daily for the last two years. He stated that he usually takes it in the morning and tries to carry around a second pill in case of emergency. He did not have a second pill with him on April 13, 2018. He also stated that while he occasionally misses a dose, he had not missed a dose on April 13th, nor that week.

15The appellant stated that on the morning of April 13th he was being driven to a construction work site by a co-worker. Both the driver and the appellant were smoking cigarettes.

16He began to feel an anxiety attack. He asked his co-worker to pull the car over in an attempt to take control of the ‘situation’ (i.e. the anxiety attack). He felt overwhelmed, chest tightness, light headedness, weak and drained. The co-worker asked if he should call an ambulance and the appellant agreed.

17He was taken to RVHS hospital by ambulance. His intake form says his chief complaint was syncope or pre-syncope. The form states he was stable on discharge. No blood work or urine tests were ordered, including urine for drugs of abuse. The appellant stated that his blood sugar was checked with a finger prick test, however neither that test nor its results appear on the forms. The appellant was advised by the doctor that his blood sugar was normal.

18The appellant stated that after his release he got a lift home and did not go to work.

19Dr. K.M. submitted two Medical Condition reports to the Ministry of Transportation. The first reported drug dependence and “driving while high”. The second reported drug dependence and “driving under the influence”. Both reports were for the same hospital visit, but were submitted on different dates (April 13 and April 30 respectively). Dr. K.M. did not provide an explanation as to why two reports were submitted.

20The appellant now lives in Newfoundland and does not yet have a family doctor. As a result of his licence suspension, the appellant went to a local hospital to have a urine test for substances of abuse done. He does not have the paperwork but was advised verbally that his test came back clean for everything.

21The co-worker was not someone the appellant knew well and he has been unable to contact to confirm the events of April 13.

22The appellant testified that he in general he has about 15 to 20 minutes warning that an anxiety attack is coming on. He is familiar with the signs and he stated that they would give him enough time to pull over if he was driving.

23The appellant was asked about his use of alcohol and drugs. He testified that he uses alcohol on the weekends and may occasionally drink as much as six beers on a weekend but does not drive afterwards. He also admitted that he uses marijuana recreationally, perhaps once or twice per month. However, he does not drive afterwards. He stated the last time he used marijuana was in March 2018.

24The appellant denied that he uses marijuana to treat his anxiety. He spoke to his family doctor about the possibility of obtaining a prescription for medical marijuana but decided he did not want to go forward with that option.

25Besides a prescription for Tecta (pantoprazole) for stomach acid/reflux, and being a regular cigarette smoker, the appellant denied using any other drugs whether legal or not.

26The appellant also testified that he is a single parent to two children. He currently works at a fish farm. He moved to Newfoundland to have better family support. He stated that he needs his licence to care for his children and for work.

Analysis

27The test the Tribunal must consider is whether the appellant has a substance abuse problem, and if so, whether his condition affects his ability to drive safely.

28The appellant testified in a consistent manner. He said he would not jeopardise his driver’s licence due to his need to care for his children and because he needed it for work. He was also consistent in his statements that he did not use marijuana on April 13 and that he uses it only recreationally on the occasional basis. Finally, he stated consistently that he did not even drive on the day of the hospital admission. We believe the appellant’s version of events.

29Although Dr. K.M. noted drug dependence, on the submitted form, he did not order any urine or blood test to confirm any drug use. In addition, a significant portion of his notes are unreadable. Given the strength of the appellant’s testimony, we preferred his viva voce evidence over the forms submitted by Dr. K.M.

30The medical documentation submitted is insufficient to determine that the appellant is addicted to or abuses marijuana. The appellant had a drug test done at his local hospital and it came back clean even though marijuana can show up in urine drug tests for quite a while after use because it is fat soluble. Together with the appellant’s candid admission of using marijuana only on an occasional basis, we find that the appellant does not abuse marijuana.

31The medical documentation is also insufficient to confirm that the appellant was driving under the influence, or at all, on April 13. The appellant stated he did not drive that day. There are no blood or urine tests that support a finding of driving under the influence of marijuana. There was no Highway Traffic Act charge. The appellant was transported to hospital by ambulance. There is no explanation as to why Dr. K.M. believed the appellant was driving. Together with the appellant’s consistent statements that he does not drive after using marijuana, we find that evidence insufficient to find that the appellant was driving under the influence of marijuana on April 13.

32In addition to the above, we accept that the appellant has an anxiety disorder and that is why he went to the hospital on April 13. This is supported by the chief complaint noted on the RVHS emergency room as syncope/pre-syncope. The appellant testified that these were symptoms he recognized as symptoms of an anxiety attack.

33We find that under the circumstances, the Registrar has not proven on a balance of probabilities that the appellant is addicted to marijuana, nor is there enough evidence to conclude that on the day in question he drove while under the influence of marijuana. Therefore, the respondent has not met its burden to show that the appellant abuses marijuana such that is likely to significantly interfere with his ability to drive safely.

34As a result, we set aside the Registrar’s decision to suspend his licence on the basis of substance use or abuse.

E. CONCLUSION:

35After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not abuse marijuana such that it is likely to interfere with his ability to drive a motor vehicle safely.

F. ORDER:

36For 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.