C.P. v. Registrar of Motor Vehicles, 2018 CanLII 107940

Licence Appeal Tribunal

Date: 2018-08-02

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Minister of Transportation pursuant to section 47(1) of the Act to suspend a Driver’s Licence

Between:

C.P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Kate Awad, M.D., Member Avvy Yao-Yao Go, Member

Appearances:

For the Appellant: C.P., Appellant For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: By Teleconference July 11, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant, C.P. has a history of alcohol dependence. For about 4 years prior to October, 2017, the appellant was drinking heavily. He was diagnosed with depression and anxiety in or around October, 2017. Since then, the appellant has been receiving treatment and medication for his mental health condition and his alcohol consumption has decreased.

2On April 1, 2018, the appellant had an argument with his wife, did not take his medication and was consuming alcohol. His wife called the police who compelled the appellant to go to the hospital. The appellant was admitted to the emergency room at a hospital where he was seen by Dr. Y., a psychiatrist. On the same day, Dr. Y. submitted a medical condition report to the Ministry of Transportation as required by s. 203 of the Highway Traffic Act (HTA). Dr. Y. reported that the appellant had the condition of alcohol dependence which rendered it dangerous for him to operate a motor vehicle.

3By a letter dated April 4, 2018, the Deputy Registrar of Motor Vehicles advised the appellant that his driving privilege had been suspended due to his alcohol dependence.

4The appellant appealed the suspension to the Licence Appeal Tribunal. Just prior to the hearing of his appeal, the appellant submitted the Substance Use Assessment (the Assessment) prepared by his family physician, Dr. F. In the Assessment, Dr. F. opined that the appellant’s alcohol use was within low risk drinking guidelines and he adhered to the recommended treatment regimen for his medical condition. In the same Assessment, Dr. F. also noted that the results of biochemical markers within the last three months – blood works that were required for the completion of the Assessment – were pending.

5Upon receipt of the Assessment, the respondent reached out to the appellant to propose an adjournment of the hearing until the results of the biochemical markers became available. The respondent made a similar suggestion at the commencement of the hearing. The appellant opted to proceed with the hearing, relying solely on the Assessment of his family physician and his own testimony.

6For reasons to follow, we find the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

7The issue in this appeal is whether the appellant suffers from a mental or physical disability likely to significantly interfere with his ability to drive a motor vehicle safely.

C. LAW:

8The Registrar has the power under s. 47(1) of the Highway Traffic Act to suspend or cancel a driver’s licence on various grounds. Subsection 14(1) of O. Reg. 340/94 (“Regulation”) under the HTA states in part:

(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....

9Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transportation 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 documents.

10Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

11The Registrar has the burden of establishing the ground 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.

D. ANALYSIS:

12Paragraph 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s.14(1) are met. The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements.

13In this case, the respondent referred the Tribunal to provisions in CCMTA dealing with alcohol use and driving, and noting the CCMTA’s guideline that individuals who are impaired are not permitted to drive any class of motor vehicle.

14At the start of the hearing, the appellant told the Tribunal that he has not been drinking for six months. Upon further questioning by the Tribunal and by the Registrar, he revised this statement by stating that he only drinks socially when he is with friends, on weekends, and on special occasions like watching the World Cup. The appellant was upset that Dr. Y. only saw him for five minutes and decided to file a report which triggered the suspension of his licence. The appellant asked the Tribunal to consider the Assessment filed by his family physician, and not rely on any information about his past history, including a 2017 conviction of impaired driving, which resulted in the suspension of his licence until December 2018.

15The appellant noted that he has worked very hard to be in compliance with his treatment because he wants to live for his two children who are still under the age of 18. Apart from taking medication, he also attends meetings of Alcoholics Anonymous on a weekly basis.

16We appreciate the efforts that the appellant has made to alleviate his alcohol dependence. We find, however, that the appellant has given inconsistent evidence about his alcohol consumption, which calls into question whether the appellant has in fact been able to keep his alcohol dependence under control.

17We began by reviewing the Assessment provided by his family physician in which Dr. F. reported the appellant has been in compliance with his medication; he does not drink early in the morning and does not drink alone, and only drinks in social context in the company of others. We note that under the Leeds Dependence Questionnaire, the appellant is given a score of 9 by his physician, indicating mild dependence. Yet we also note the family doctor reported that the appellant has been abstained from drinking for less than six months. However, based on the appellant’s own evidence, he has not abstained from alcohol at all. The respondent submitted that in completing this form, the family doctor may not be fully aware of the appellant’s pattern and level of consumption of alcohol, we agree.

18More critically, the appellant has given inconsistent information about his drinking pattern. For instance, when asked by the Chair when was his last drink, he stated it was over 10 days ago but later under questioning by the respondent, he changed his answer to the weekend.

19The appellant stated that he has reduced his alcohol dependence because of the medication his family doctor prescribed for his depression, and that he has been in compliance with the medical treatment. Yet, it was because of his non-compliance with his medication that had led to the appellant’s visit to the E.R. on April 1, 2018. When asked, the appellant did not provide any explanation as to why he did not take his medication that day. This also contradicts the assessment by the appellant’s family doctor that he has been in compliance with his medication, which in turn formed the basis of the doctor’s assessment about the appellant’s “mild” alcohol dependence.

20All of these concerns, coupled with the fact that the appellant has not provided the respondent or the panel the results of his blood work left us with insufficient evidence to conclude the appellant does not have alcohol dependence, as reported by Dr. Y. As the respondent has noted, the appellant has yet to submit the results of biochemical markers in order to determine, objectively, whether he still suffers from alcohol dependence, and to provide any clinical explanation if the results fall outside of the acceptable range.

21Even with respect to the availability of the blood work results, the appellant has provided inconsistent evidence. At first he said he did not have time to do the blood work and later he said the blood work has been done but he had no time to collect the results.

22In conclusion, notwithstanding the tremendous efforts the appellant clearly has undertaken to address his underlying mental health issue, there remain many unanswered questions as to whether the appellant has his alcohol dependence under control. We accept the conclusion of Dr. Y. that the appellant has a medical condition of alcohol dependence, a condition that is not yet under control. Applying the CCMTA standards, and in view of the evidence before us, we therefore find the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

23In coming to this conclusion, we want to assure the appellant that our decision is not in any way influenced by his past behaviour or record. We are focused solely on the appellant’s present condition. We encourage the appellant to continue to work with his family physician on a path to recovery and to determine when it will be appropriate for him to submit an updated Assessment and the necessary blood work in order to have his driving privilege reinstated.

E. ORDER:

24We confirm the decision by the Registrar to continue to suspend the appellant’s driving privilege under section 47(1) of the HTA.