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:
D.O. 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: Sanjay Kapur, Agent
Place and date of hearing: Teleconference July 20, 2018
REASONS FOR DECISION AND ORDER
A. Overview:
1On March 16, 2018, the appellant went to the hospital to seek medical attention for alcohol consumption. The emergency room doctor attending him submitted a medical condition report to the Ministry of Transportation (Ministry) noting alcohol dependence. The appellant’s driver’s licence was then suspended on April 4, 2018.
2The appellant has since completed an alcohol treatment program and seeks to have his licence suspension lifted. The respondent is seeking a period of six months’ abstinence before reinstating the licence.
3For the reasons that follow, we find that the respondent has not established that the appellant suffers from alcohol dependence to an extent likely to significantly interfere with his ability to drive safely.
4Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
B. ISSUE:
5The issue in this appeal is whether the appellant suffers from alcohol dependence such that is it likely to interfere with his ability to drive safely.
C. LAW:
6The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities.
7The 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 alcohol to an extent likely to significantly interfere with their ability to drive safely.
8Section 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.
9The CCMTA Standards at s. 15.6.3 states that a person who suffers from a substance use disorder (including alcohol dependence) can have their licence reinstated after a period of abstinence of 12 months or sooner if a rehabilitation program is completed and there is support from a treating physician or addiction specialist.
10We may take the CCMTA Standards into consideration, although they are not binding on us.
D. EVIDENCE AND Analysis:
11The following relevant documentary evidence was entered as evidence to the Tribunal:
a. A medical condition report submitted by Dr. S. on March 16, 2018 reporting alcohol dependence;
b. A Substance Use Assessment form completed by Dr. P., treating physician, on April 30, 2018 states that biomedical markers were done and the “MCV has gone down significantly since January”. The doctor also writes “last drink March 19, 2018 spent 18 days in Rehab and 30 days at Sober Living. He urgently needs a driver’s licence for work. He has not had any DUI incidents.”;
c. A letter of services from R.G., primary addiction counsellor, dated April 2, 2018;
d. A letter of completion from R.G., primary addiction counsellor, dated April 28, 2018;
e. A letter from I.D. CCAC/CSW Director of New Beginnings Sober Living dated July 7, 2018 noting the appellant demonstrated excellent qualities and took part in all the group functions and meetings; and
f. A copy of the appellant’s driving record showing a speeding ticket in 2015, a suspension due to an unpaid fine in 2015, a reinstatement of licence in 2017 and the medical suspension in April 2018.
12The respondent’s position was that to lift the suspension, the appellant needed to stay abstinent for one year, or 6 months if the appellant completed an alcohol treatment program and had the support of his medical doctor. The respondent agreed that the appellant had in fact completed an alcohol treatment program and had the support of his treating physician. However, the appellant only had four months of abstinence and not the six months requested by the respondent. The respondent also requested updated biomedical markers at the end of the six-month abstinence period.
13The appellant testified that in December 2017, he began experiencing some personal struggles, including the loss of his job. He began drinking too much. In January 2018, he voluntarily entered a private alcohol treatment program at Addiction Rehab Toronto (ART). He paid for 14 days of the program but only completed eight days before feeling better and going home.
14The appellant stated that in late February 2018 he began another alcohol “bender” which lasted about a month and consisted of drinking about 375 ml of vodka per day. The drinking was triggered by an issue with his daughter which he found depressing. In March 2018, because of the extended drinking, he was feeling so unwell that his girlfriend called paramedics to take him to the hospital. The emergency doctor attending him submitted a report of alcohol dependence to the Ministry. This resulted in the appellant’s licence suspension.
15The appellant testified that following the emergency room visit he spent an initial five days in detoxification at the hospital, followed by 18 days in rehabilitation at ART, followed by another 30 days at Sober Living. He stated he has not had a drink since March 19, 2018.
16The appellant also testified about the importance of his driver’s licence. He works as an exterminator. He lost his job as an exterminator in Barrie in December 2017. Since then he upgraded his skills and obtained a structural licence to be able to work in Toronto. He was supposed to start a new job on May 14 and has been unable to do so due to lack of a driver’s licence. The employer is waiting for him, but not for much longer. The appellant testified that he needs to have a career and pay for child support. He is anxious to get back to work.
17The appellant also testified that he cannot get by on government assistance, considering his child support payments and paying for bills, as well as caring for himself and his girlfriend. He stated he made a poor choice to drink at home but when he sought help he called for an ambulance. He stated he has never driven drunk.
18The appellant was asked to discuss his history of use of alcohol. He stated that alcoholism runs in his family, though both his parents have been sober since 2005. He stated that he began drinking socially when he was 19. He has in the past found that he was drinking too much. Approximately nine years ago, during the break-down of his marriage he drank heavily. After his divorce, he did not drink for two years. Since that time his pattern was to drink on the weekend with possibly one drink after work. He estimated he would drink 5-6 drinks total a week of one ounce of vodka and orange juice. He had on occasion tried to abstain from alcohol for a period of 30, 60 or 90 days. He only began drinking more in December 2017. He stated he never has an alcohol withdrawal seizure.
19The appellant testified that he had learned a lot through the counselling he took. He has new coping strategies including attending Alcoholics Anonymous (AA) meetings, going to church, people he can call, and he is beginning one on one counselling. In addition, his girlfriend does not drink and they do not keep any alcohol in the house. Finally, he does not have a car and the only vehicle he would have access to would be a vehicle provided by his work.
20The appellant also advised that other than smoking, he does not currently use other substances – drugs or alcohol.
Analysis
21The test the Tribunal must consider is whether the appellant suffers from alcohol dependence such that is it likely to interfere with his ability to drive safely.
22We find that the appellant was consistent when he spoke about the alcohol treatment programs he went through and the coping strategies he has learned. We find that he has significant family support as well as community support through AA and his church. He was persuasive when he spoke of his current understanding of alcoholism and that he cannot have just one drink. He was remorseful regarding his drinking but felt he had taken charge of the problem by seeking medical attention and paying for private rehabilitation. He said he has never driven after consuming alcohol and would never drive after consuming alcohol.
23We find that the appellant has recently taken very positive steps to combat his alcohol dependence. He has successfully completed an alcohol treatment program of his own volition and has successfully completed four months of abstinence. He has provided evidence that we find shows he will continue to be abstinent. The appellant’s testimony was convincing that he has never and would never drive after consuming alcohol, and is corroborated by the absence of any DUI on his driving record. The appellant also has a job waiting for him and we recognize that the loss of his job was one of the reasons he recently turned to alcohol. The importance of his licence for employment was emphasised by both the appellant and in writing by his treating physician Dr. P. (April 30, 2018).
24We note that the respondent’s position that six months of abstinence is required is not a position specifically supported by the CCMTA Guidelines, which states reinstatement after one year of abstinence, or sooner if a rehabilitation program is completed and there is support from a treating physician or addiction specialist. In this case, the appellant has completed a rehabilitation program, has four months of abstinence and has the support of Dr. P., his treating physician at ART (he does not have a regular family physician).
25Although the appellant’s MCV numbers were still above average in March when the biomedical marker test was done, this number had dropped since January. MCV markers are known to be slow to return to normal limits even after abstinence. Therefore, we find that the appellant’s biomedical marker test is sufficient to show he has been recovering from his alcohol dependence.
E. CONCLUSION:
26We find that, under the circumstances, the respondent has not proven on a balance of probabilities that the appellant suffers from alcohol dependence to a degree likely to affect his ability to drive safely.
F. ORDER:
27For 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.
LICENCE APPEAL TRIBUNAL
____________________________
Erica Weinberg, M.D., Member
____________________________
Marisa Victor, Member
Released: August 9, 2018