A. P. v. Registrar of Motor Vehicles, 2018 CanLII 107933

A. P. v. Registrar of Motor Vehicles

Date: 2018-08-28

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:

A. P.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, M.D. Barbara Hicks, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sonia De Santis, Agent

Place and date of hearing: By Teleconference July 24, 2018

REASONS FOR DECISION AND ORDER:

A. OVERVIEW

1On September 22, 2017, the appellant attended the emergency department as a result of a drug overdose. Based on that emergency department visit, the emergency physician, Dr. K, filed a Medical Condition Report with the Registrar of Motor Vehicles, pursuant to s. 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 the age of sixteen who is suffering from a condition which may make it dangerous for that person to drive. The conditions reported were: alcohol dependence, cerebral seizures and alcohol-related seizures. As a result of the report, the Registrar suspended the appellant’s driver’s licence pursuant to s. 47(1) of the HTA. The appellant appeals the suspension of his driver’s licence to the Tribunal under s. 50 of the HTA.

2For the reasons that follow, we do not find that the Registrar has established that the Appellant is alcohol dependent or has had any seizures of any kind. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES

3The issue for the appeal is whether the appellant has an alcohol dependence that is likely to significantly interfere with his ability to drive a motor vehicle safely or whether he has seizures that are likely to significantly interfere with his ability to safely drive a motor vehicle. In order to answer these questions, we will focus on the following:

• Is the appellant’s addiction to alcohol, if any, likely to significantly interfere with his ability to drive safely?
• Does the appellant’s seizure disorder, if any, significantly interfere with his ability to drive safely?

C. EVIDENCE

Registrar’s Evidence

4The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA based on a Medical Condition Report submitted on November 03, 2017 by Dr. K. This report was based on Dr. K’s examination of the appellant on September 22, 2017 and the reported conditions of alcohol dependence and seizures. There was a handwritten notation by the doctor on the Medical Condition Report that the alcohol-related seizure was due to “alcohol or benzodiazepine withdrawal.”

5The appellant was notified that his licence was suspended by letter from the Registrar dated November 14, 2017. The letter enclosed a Substance Use Assessment Form and an Epilepsy and Seizures Form. The letter explained that in order to have his driver’s licence reinstated, the appellant should take the letter and the accompanying forms to his physician for completion. The letter indicated that if the physician confirmed the diagnosis of alcohol dependence, the Ministry would require confirmation that the appellant has remained abstinent from alcohol for a period of one year. This period may be reduced if the physician confirmed that an alcohol treatment program had been successfully completed and the physician was supportive of the appellant’s driving privileges being reinstated.

6The appellant provided the Substance Use Assessment form to Dr. W., his physician. Dr. W. completed the form on March 29, 2018 and indicated “drug misuse” of prescription medication rather than alcohol dependence or any kind of dependence at all. Question #3 asks: “Has the patient ever experienced a seizure?” to which the doctor checked both boxes marked “yes” and “no” and placed his initials nearby. At question #4, Dr. W. indicated that there had been a seizure related to drug withdrawal in the previous 6 – 12 months. Dr. W indicated on the form that the appellant is physically dependent on prescription medication and has been taking the prescription medication for at least 6 months. On the form, Dr. W. indicated that the appellant had been reported for drug misuse, and attached the results of the requested biomedical markers (done on May 7, 2018). The markers were within normal ranges except GGT, which was elevated. GGT is a liver enzyme whose elevation may be caused by a number of conditions and/or drugs, including alcohol overuse. No explanation was provided by Dr. W for the elevation of this marker. Dr. W. indicated that the current medication regime would not impair the appellant’s ability to safely operate a motor vehicle. Dr. W. indicated that other than this one overdose event, the appellant adheres to the recommended treatment regime and does not demonstrate any pattern of non-adherence. Dr. W. has been involved in the ongoing management of the appellant’s health for a long time.

7Dr. W. also forwarded lab results for blood previously drawn on February 14, 2018. The biomedical markers on this occasion were normal, except for GGT which was elevated at 196.

8The Epilepsy and Seizures form was also completed by Dr. W. on March 29, 2018. On this form, Dr. W indicated that the appellant’s seizure was due to a drug-related withdrawal from lorazepam 6 – 12 months earlier. At question #4, Dr. W. indicated that this was the appellant’s first and only seizure. Dr. W. indicated that the appellant had not been assessed for substance dependence, had not abstained from drugs or alcohol and was not attending counselling or an addiction treatment program. As per the Substance Use Assessment form, the biochemical markers were normal except for GGT, which was elevated. The reason for the elevated GGT result was once again stated as being unknown. Section C contained questions about psychological/pseudoseizure. Here, Dr. W. indicated that the appellant had been diagnosed with anxiety disorder, which was stable. He was being treated with medication, which, in Dr. W’s opinion, did not impair his ability to safely operate a motor vehicle. The appellant was not on any seizure medication.

9The Registrar wrote to the appellant on April 23, 2018 indicating that the Ministry had reviewed the case based on the recent information that was received. The Ministry then requested that the appellant have the enclosed Mental Health Assessment Form completed by a physician.

10Dr. W. completed the Mental Health Assessment on May 8, 2018 and provided updated lab results. Dr. W. indicated that the primary mental illness is anxiety disorder. Dr. W. had the option at question 1 to indicate that the patient was suffering from “pseudoseizures/somatoform disorder” but this option is not checked. The appellant’s anxiety disorder had been stable for 6 – 12 months with mild ongoing symptoms. To the best of Dr. W’s opinion, the patient did not have any difficulties with judgment and had not been admitted to hospital in the last 12 months due to psychiatric illness. The patient “misused” a substance in the last 12 months. On the Mental Health Assessment, Dr. W. indicated that the appellant adheres to the treatment regimen that is in place for him and that he is seen monthly. Dr. W. was of the opinion that the appellant has appropriate insight into his medical condition and its impact on his functional ability to drive. Dr. W. wrote in the “additional comments” section of the form the appellant “does not abuse alcohol in my opinion.” The lab report provided information on blood collected from the appellant on May 7, 2018. The biochemical markers were all within the normal range except for the GGT result, which was elevated at 114. The explanation provided by Dr. W for this is “GGT is elevated. Improved from last results reported. No explanation. All other LFT’s and MCV are normal.”

11On June 5, 2018, the Registrar wrote to the appellant informing him that his driving privilege should remain under suspension as a longer period of stability was required.

12Two further medical documents were received by the Registrar which strengthened the Registrar’s view that the appellant’s licence should remain suspended. The first document, the nursing record triage assessment dated September 22, 2017, indicated that the appellant had taken a taxi to the Emergency Department (ED). The ED physician’s (Dr. K’s) clinical notes indicated that the patient had taken 30 Ativan two days earlier. He came to hospital because he felt terrible and believed it was because he was withdrawing from the Ativan. The appellant indicated that he felt nauseous and was hallucinating. Dr. K’s examination indicated normal vitals, no tremor, normal central nervous system (CNS) and appears well. There is no reference in the physician’s report to any seizure. The Clinical Institute Withdrawal Assessment – Alcohol Revised (CIWA-Ar) protocol was applied and the appellant was given Diazepam one time while in the ED. The appellant was discharged with Clonidine 0.1 mg and was instructed to speak with his doctor and pharmacist if he needed more Ativan.

13Two days earlier, the appellant had been taken by ambulance to a local hospital. He had taken a “full bottle of Ativan” and had been drinking alcohol however the appellant stated that it was not his intention to kill himself. The Toronto Paramedic Services report was entered by the respondent as evidence.

14The Emergency Department (ED) record from the hospital dated September 19, 2017 was also admitted into evidence by the respondent. This report indicates that the appellant had taken 40 Ativan tablets early that morning as well as already consuming alcohol and cocaine. The appellant was observed in the ED and was reassessed by the same ED physician when more sober, 3½ hours later. The ED physician’s diagnostic impression at this time was stated as “overdose – lorazepam”. The appellant requested Ativan, which was declined. An addictions consult was offered however the appellant declined it, as a psychiatry consult had been previously requested by Dr. W for the appellant’s anxiety. Nothing on this ED medical record indicates anything about a seizure or alcohol addiction.

15The second document that caused concern for the Registrar was the 5-page Assessment Report dated October 12, 2017 from Dr. H, a staff psychiatrist and Dr. T, a resident in psychiatry at a local hospital. The appellant was assessed as requested by Dr. W. for confirmation of the diagnosis and medical treatment of the appellant’s anxiety. The respondent identified several items of concern in this assessment, being:

(a) DSM diagnoses of alcohol use disorder and substance use disorder. (page 4)

(b) Although there were no imminent safety concerns with respect to suicidal ideation, the appellant’s mood and substance disorders and personality structures leave him vulnerable to chronic risk, particularly in view of his impulsivity and affective dysregulation as exemplified by his recent impulsive overdose. Safety monitoring should be an ongoing consideration in his primary care. (page 4)

(c) Concerns about the appellant’s driving safety, both in terms of his ongoing substance use disorders and his possible recent seizure in context of abrupt withdrawal from lorazepam and alcohol. Though they were not able to confirm if the appellant did in fact have a seizure or not, they were sufficiently concerned about driving safety risk that they felt they needed to notify the MTO of their concerns. (page 4)

(d) The appellant has a “significant substance use disorder” and they recommended that his GP refer him to CAMH Addiction Services for concurrent disorders treatment. (page 5)

16The Ministry provided a copy of the Extended Driver Record Search for the appellant dated July 3, 2018. It indicates that the earliest licence date available is February 23, 2000. The only entry on the driving record is the suspension for medical reasons beginning on November 24, 2017.

17On July 12, 2018, the respondent wrote to the appellant and advised that the case had been reviewed again but further information was required. Since the reported conditions were drug seizure withdrawal and elevated biochemical marker for GGT for alcohol, the Ministry requested that the appellant’s physician confirm that the appellant has been seizure free and abstinent from all illicit drugs for a period of one year, and confirm that alcohol consumption is within minimal risk drinking levels, supported by recent bio-chemical markers and results of urine toxicology screen for drugs, with a clinical explanation if the results are outside the normal range.

18The appellant submitted a lab report to the respondent dated July 20, 2018 for blood and urine collected on July 19, 2018. Once again, this report shows biochemical markers in the normal range except for GGT which is elevated at 130. In addition, the urine drug screen analysis indicated cannabinoids were detected. No other illicit drugs were detected.

19In summary, the Ministry relies on the Medical Condition Report, the various lab reports, the psychiatric assessment report and the numerous other documents received to support the licence suspension and requests that the Tribunal affirm the decision of the Registrar.

Appellant’s Evidence

20The appellant provided a report from his physician Dr. W. dated July 23, 2018 which is supportive of the appellant’s driving licence being reinstated. Dr. W. indicated that he has been the appellant’s primary care physician since February 2011. He stated that the appellant drinks responsibly at no more than 14 drinks per week. In Dr. W.’s opinion, the appellant does not need to attend rehabilitation for alcohol abuse. Dr. W. explained that the appellant has a history of chronic anxiety for which he takes 1 mg of Ativan twice daily. Dr. W. states that the appellant does not have a seizure disorder (epilepsy). Dr. W. provided an explanation of the appellant’s visit to the hospital on September 22, 2017. He wrote “(the appellant) misused his prescription for Ativan. He was seen at TGH emergency department for symptoms of acute withdrawal from Ativan. He did not have an epileptic seizure.” With respect to the recent lab results, Dr. W stated “(the appellant) has been prescribed medical cannabis by the Canadian Cannabis Clinic. Therefore his drug screen was positive for cannabis, alone. His MVC was normal as were all other liver enzymes except GGT, which was elevated at 130. There are many other reasons for this enzyme to be elevated other than alcohol’s effect on the liver.” He further stated “I personally see no reason why (the appellant’s) licence should not be reinstated at this time.”

D. THE LAW

21The 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) to (g) of that section. Paragraph (g) is the relevant one in this appeal and it states that a licence may be suspended for “any other sufficient reason not inferred to in clause (d), (e) or (f).”

22One 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 addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) states:

(1) An applicant for or a holder of a driver’s licence must not,

(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.

23Section 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 the Tribunal is not bound by them.

24The Minister may also require a driver to provide satisfactory evidence pursuant to s. 14(2)(b) of the Regulation that he or she is able to drive safely. The Tribunal may consider to what extent the driver has satisfied such a request.

25The Registrar bears the burden of proving the alleged grounds for suspending a driver’s licence on a balance of probabilities. Following a hearing, the Tribunal is empowered by s. 50(2) of the HTA to confirm, modify or set aside the decision or order of the Registrar.

E. SUBMISSIONS

Registrar’s Submissions

26The Registrar requests that the Tribunal confirm the suspension and relies on the documentary evidence submitted in support of the continued suspension.

Appellant’s Submissions

27The appellant submits that the licence suspension should be set aside.

28The appellant described that his anxiety started when he was young. His mother had been diagnosed with cancer and he had been her caregiver. She later died from cancer. Dr. W prescribes Ativan 1 mg twice a day to help him manage his anxiety symptoms and also supports him psychologically in dealing with the anxiety. Since the overdose, Dr. W. has increased the frequency of office visits to once monthly from once every three months and does not allow the appellant to pick up ‘repeats’ of his monthly Ativan prescription between visits. Instead, Dr. W sees the appellant once a month to assess and monitor him. This is working well.

29The appellant admits that he is a social drinker. He may drink a glass of wine each day. He does not drive when he drinks. Even when his mother died, he did not over drink. He denies being addicted to alcohol and this view is supported by his family physician.

30The overdose incident in September 2017 was triggered by a number of very unpleasant events that all occurred in a short window of time. The appellant’s aunt had been diagnosed with terminal cancer, he found out his partner had cheated on him and he lost his job due to a shortage of work. This was overwhelming for the appellant and he had a very hard time coping. The overdose event occurred because he was trying to cope with the high level of anxiety created by these events. These events are not likely to reoccur as the appellant has made positive changes to his life since this single event and has gained insight into the consequences that can occur if he does not take his lorazepam as prescribed.

31The appellant does not believe that he had a seizure. He says he went to the hospital because he was experiencing withdrawal symptoms. He just “didn’t feel right.” He wouldn’t describe it as a seizure. Neither of the 2 ED physicians nor Dr. W. investigated him or treated him for a seizure disorder.

32The appellant advised that he has been prescribed medical marijuana for chronic knee pain. He was prescribed CBD about 6-12 months ago and he takes it as needed. He finds this more effective than traditional pain medications. He orders it online. His last marijuana usage was the night before the hearing.

33The appellant reported that he has only ever tried cocaine once in his life. He does not use any illicit drugs other than the one prescribed to him.

34The loss of the appellant’s licence has been very difficult. The appellant described it as having “ruined his life.” The appellant is unable to work without the ability to drive and therefore he has suffered a significant financial loss as a result. He has been receiving employment benefits however these payments will run out soon and he will have no choice but to seek social assistance and possibly sell his condominium. The appellant was emotional at times when he was describing the impact the license suspension has had on him.

35The appellant testified that he has had his Ontario driver’s licence since 2011 and has never driven under the influence of alcohol or drugs. He has never even had a speeding ticket. This is supported by the driving record produced by the respondent. Even when he overdosed on Ativan, he took a taxi to the hospital and did not attempt to drive himself. The appellant indicates he has always been a responsible driver.

F. ANALYSIS

36We are not satisfied that the appellant is addicted to alcohol. The appellant denies that he is, and his physician, who has been managing his care for a decade, does not believe the appellant needs alcohol treatment. The lab results do not indicate significant alcohol use, although one biomedical marker is elevated. As stated by Dr. W. in his July 23, 2017 letter, “there are many other reasons for this enzyme to be elevated other than alcohol's effect on the liver”.

37The appellant appears to be following his physician’s directions with respect to treatment of his anxiety disorder. Aside from the single overdose incident in September 2017, which was the result of a number of stressful factors occurring around the same time, the appellant has never abused or misused his prescription medication. The appellant admits he made some poor choices then. At this time, nearly a year has passed with no drug misuse by the appellant.

38There is little potential for an overdose incident to occur again. The stressors that caused the appellant to overdose are now largely gone. The appellant is no longer with the partner who cheated on him. His aunt has passed away. The appellant has gained insight into the consequences that can occur if he does not take his lorazepam as prescribed. He also described that he enjoys the support of family and friends. Even if the appellant overdosed again, his past conduct suggests he would take a taxi or an ambulance to the Emergency Department for medical treatment rather than drive himself.

39There is no evidence to support a finding that the appellant has ever had a seizure aside from the possible seizure in September 2017 in connection with the overdose event. In his testimony, the appellant denied that he had a seizure on that date. Dr. W.’s responses on the Epilepsy and Seizure form indicates that the appellant is not being treated for seizures and is not on any seizure medication. We see little risk that the appellant is likely to seize and therefore his ability to safely drive a motor vehicle is not compromised by a seizure disorder.

40The appellant’s long-time physician supports the reinstatement of the driving licence.

41For the foregoing reasons, we do not believe the Registrar has discharged its burden in in this case.

ORDER

42For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to suspend the appellant’s licence.