Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-01-25

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:

C. J. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Joanne E. Foot, Member

Appearances: For the Appellant: C. J., Appellant For the Respondent: Sonia De Santis, Agent

Place and date of hearing: By teleconference: December 18, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant is a 38-year-old man. The appellant’s driver’s licence was suspended after an emergency room physician filed a medical report with the Registrar of Motor Vehicles, 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. The report noted that the appellant had been diagnosed as having suffered a seizure or syncope. As a result of the report, the Registrar suspended the appellant’s driver’s licence on January 14, 2016, under s. 47(1) of the HTA.

2The appellant underwent neurological tests and a neurological consultation in March and April of 2016. The neurologist concluded that the seizure was likely provoked by the use of alcohol and/or drugs.

3The question for our determination is whether the appellant suffers from a mental or physical condition, or an addiction to alcohol or a drug, in either case, that is likely to significantly interfere with his ability to drive safely.

4For the reasons set out below, we find that:

a. the appellant is not addicted to alcohol or a drug and does not use drugs;

b. the appellant continues to use alcohol, although to a lesser degree; and

c. the Registrar has not established that the appellant is affected by the use of alcohol to an extent likely to significantly interfere with his ability to drive safely.

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

B. PRELIMINARY ISSUES

6Mr. S. M. attended the teleconference hearing with the appellant, though his appearance at the hearing had not been previously disclosed to the Tribunal or the respondent. S. M. stated that he was attending to support the appellant and to provide us with information about the appellant. The Agent for the Registrar (the “Agent”) consented to S. M. participating in the hearing as a witness.

7The appellant received bloodwork results which were submitted to the respondent on the business day prior to the hearing. The Agent indicated that there had not been sufficient time to submit these results to the Medical Review Section of the Ministry of Transportation (the “Ministry”). We stood the hearing down for 30 minutes in order to permit the Agent to submit the results to the Medical Review Section for review. The Agent was unable to have the results reviewed during that time, but consented to the document being considered by the Tribunal as evidence.

C. ISSUES:

8The issue in this appeal is whether the appellant suffers from a mental or physical condition, or is addicted to alcohol or a drug, in either case, that is likely to significantly interfere with his ability to drive safely.

9To answer that question, we will address the following issues:

a. Is the appellant addicted to the use of alcohol or a drug?

b. Does the appellant use or abuse alcohol or a drug?

c. Is the appellant’s use or abuse of alcohol or a drug, if any, likely to significantly interfere with his ability to drive safely?

D. LAW:

10The 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) 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).”

11One 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 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,

(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;

(b) be addicted to the use of alcohol or a drug to an extent likely to interfere with his or her ability to drive a motor vehicle safely;

12According 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 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.

13The 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 Act, confirm, modify or set aside the decision or order of the Registrar.

E. evidence:

14The evidence in this case consists of the completed forms of results of medical examinations submitted under s. 15 of the Regulation, laboratory reports, a consultation report and letters of two doctors. In addition, the affirmed testimony of C.J. and S.M was received by the Tribunal.

15The Medical Condition Report of the emergency room doctor states that the appellant was diagnosed as having had a seizure or syncope on January 1, 2016. In the consultation report of Dr. D.G., a neurologist, who examined the appellant and ordered various neurological and other tests performed in early 2016, Dr. D.G. concluded that the appellant had suffered a seizure and that the seizure was likely provoked by excess use of alcohol and drugs.

16The letter from the Ministry to the appellant dated two business days prior to the hearing, contained no further requirements of the appellant in relation to the occurrence of seizures. At the hearing, the Agent confirmed that the appellant's neurological condition was no longer an issue for the Ministry, but that it viewed his use and/or abuse of alcohol and drugs as an outstanding issue.

17The Health History section of the Medical Report dated April 18, 2016 completed by Dr. D.G, the neurologist, indicated the tick box “Addictions”. In the Medical Examination portion of that form, the tick boxes “Alcoholism” and “Drug Habituation” were indicated with a handwritten note in two places that the appellant had indicated that he had stopped using alcohol and drugs.

18The Substance Use Assessment Form dated September 28, 2016 and completed by the appellant’s family doctor indicated alcohol and substance misuse. The tick box for a diagnosis of alcohol dependence was not indicated. In the Alcohol Use Disorders Identification Test accompanying this form, the appellant scored 2, well below the 8-11 score that is indicative of the lowest level of hazardous consumption of alcohol. Likewise, the appellant scored zero on the LEED Dependence Questionnaire, indicating no dependence.

19The Mental Health Assessment Form dated December 23, 2016 completed by Dr. D.G., indicated “substance abuse” as the appellant’s primary mental health concern, but did not indicate a diagnosis of alcohol dependence. In another portion of the form, Dr. D.G. indicated that C.J. has insight into and understanding of his condition and the impact of that condition on his functional ability to drive.

20The Agent highlighted the various indications contained in the documents included in the Registrar’s disclosure that the appellant had used or misused alcohol and cocaine during the time leading up to the seizure and for some period of time thereafter. These included Dr. D.G.’s conclusion that the seizure occasioning the appellant’s visit to the emergency room on January 1, 2016 was likely provoked by misuse of alcohol and cocaine. In that report, Dr. D.G. also noted the large amounts of alcohol consumed by the appellant on a daily basis, that the appellant used cocaine on a regular basis and that he had, in the past, suffered acute pancreatitis as a result of excessive alcohol consumption. The Substance Use Assessment Form dated September 28, 2016 referred to above disclosed elevated liver enzyme levels, MCV, GGT, ALT and AST, resulting from alcohol misuse or liver disease. Also referenced above, the Mental Health Assessment Form indicated “substance abuse” as the appellant’s primary mental health concern.

21Further laboratory tests were run in early June, 2017. The bloodwork results again showed elevated levels for the appellant’s liver enzymes, MCV, GGT, ALT and AST. Although elevated, the results were improved from the tests run in September, 2016. The Broad Spectrum Tox Panel (urine test) was negative for all substances tested, including cocaine and its metabolites. The appellant reported to his family doctor that he was drinking about 15 drinks per week at that time.

22On December 13, 2017, the appellant’s family doctor prepared a letter to the Ministry supporting the reinstatement of C.J.’s driver’s licence. The family doctor also ordered further bloodwork which showed a further improvement of the appellant’s liver enzyme levels from the tests run in June 2017.

23It is the Registrar’s position that the appellant’s driver’s licence should remain suspended until he has demonstrated abstinence from alcohol for a full year in accordance with the CCMTA Medical Standards for Drivers. The Agent requested that the Registrar’s decision to suspend the appellant’s driver’s licence be confirmed.

24The appellant testified that he has not ingested cocaine for more than a year and that he has been abstinent from alcohol for a number of months. Both points were supported by the testimony of S.M.

25C.J. lives in a house in a rural area with his girlfriend. His friend, S.M., lives in the basement of his house. These individuals provide on-going emotional support to the appellant and each is supportive of the appellant’s abstinence from drugs and alcohol. S.M. reported that there is rarely alcohol in the house, any such alcohol belonging to S.M. or C.J.’s girlfriend.

26C.J. has stable employment, having been recently recalled to work at the nearby nuclear power plant where he is a construction craft worker. When he is on layoff from that job, he works as a supervisor at a roofing company. C.J. also testified that there are strict drug policies in place for employees of the nuclear power plant. S.M. testified that C.J. attends work regularly and in a punctual manner.

27C.J. explained that he had stopped taking body building supplements several months ago and, when asked, stated that he had never taken anabolic steroids. He also indicated that he had cut off contact with his old group of friends. S.M. indicated that C.J. has healthy eating habits, observes a regular sleep routine and looks much better since he has stopped using body building supplements.

28The appellant described the seizure and the subsequent suspension of his driver’s licence as a life lesson. His testimony demonstrated insight into the difficulties that his lifestyle had caused him. He submitted that the ongoing suspension of his driver’s licence is now, nearly two years later, “doing more harm than good”. The rural area in which he lives is unserved by public transit and not having a driver’s licence creates practical challenges for the appellant and his family.

29S.M. testified that the impact to C.J. of losing his driver’s licence was a “life changing experience” for C.J., and that C.J. has changed his behaviour markedly from when they met four to five years ago. S.M. further expressed that, at this point, the absence of a driver’s licence creates anxiety for C.J. in his day-to-day life.

30The appellant takes the position that he has taken steps to “get on the right track” as demonstrated by his clean Broad Spectrum Tox Panel (urine test), improved bloodwork, supportive letter from his family doctor, and improved overall health. As such, he is of the view that it is appropriate that his driver’s licence be reinstated at this time.

31We enquired as to whether the appellant had attended an alcohol treatment program or support group. He testified that the rural location of his home made it extremely difficult for him to do so without being able to drive. There was also some indication that the appellant is shy and/or anxious and that attendance at a program or support group would cause him significant discomfort.

32We note that C.J.’s driving record submitted by the Registrar disclosed no alcohol-related offences and includes only a single offence dating back to July, 2015.

F. ANALYSIS

a. Is the appellant addicted to the use of alcohol or a drug?

33The evidence contained in the various forms submitted to the Tribunal on this point is inconsistent. The only form identifying “Addiction” is the form of Dr. D.G., the neurologist, on his initial meeting with the appellant. We note, as well, that this form does not contemplate any lesser diagnoses such as “abuse” or “misuse”. The other forms described above indicate alcohol or drug “use” or “misuse” by the appellant and do not indicate “addiction” or “dependence”. In particular, the Mental Health Assessment Form, also prepared by the appellant’s neurologist, did not indicate a diagnosis of alcohol dependence and further indicated that the appellant had insight into and an understanding of his condition and the impact of that condition on his functional ability to drive.

34For these reasons, we are not satisfied that the appellant is addicted to alcohol or drugs.

b. Does the appellant use or abuse alcohol or a drug?

35As described above, there was ample evidence put before us that the appellant has, in the past, used or misused alcohol and cocaine.

36We accept the testimony of C.J. and S.M. that C.J. has not used cocaine for more than a year. This is supported by the Broad Spectrum Tox Panel (urine test) conducted in June, 2017. Accordingly, we find that C.J. does not currently use cocaine.

37The evidence with respect to the appellant’s use of alcohol is less cogent. In his testimony, the appellant was somewhat unclear as to how long he had been abstinent from alcohol. As well, one of the more recent medical reports (June 2017) contained an indication that C.J. was continuing to drink at that time.

38On the other hand, it is clear that the appellant has taken many positive steps to establish a healthy lifestyle. Also positive are the recent letter of the appellant’s family doctor supporting reinstatement of his driver’s licence and the most recent bloodwork results. While his liver enzymes remain elevated, they are markedly improved and it is known that it can take some time for these levels to return to normal.

39Based on the foregoing, we find that C.J. has significantly decreased his consumption of alcohol but it is likely that he continues to use alcohol.

c. Is the appellant’s use or abuse of alcohol or a drug, if any, likely to significantly interfere with his ability to drive safely?

40Having found that the appellant no longer uses cocaine, it is only necessary for us to consider whether the appellant’s use of alcohol is likely to significantly interfere with his ability to drive safely.

41The Registrar has the burden to establish how the appellant’s medical condition will interfere with his ability to drive safely. The Registrar did not lead any evidence linking the appellant’s use of alcohol to his ability to drive safely.

42We view that there are a number of factors favouring the view that the appellant is in a position to drive safely and not endanger public safety. In particular, we were impressed by the insight shown by the appellant of the difficulties his lifestyle had caused and with the improvements he has made to his health and life. Again, this is reflected in his family doctor’s letter supporting reinstatement of the appellant’s driver’s licence. He has the emotional supports in place to assist him in continuing with this course. We do not view that any further good would be achieved by delaying the reinstatement of the appellant’s driver’s licence for a further number of months.

After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not suffer from a physical or mental condition, or an addiction to alcohol or a drug that is likely to interfere with his ability to drive a motor vehicle safely.

G. ORDER:

43For 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.