Date: 2018-08-01

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:

K.K.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Peter Savage, Member

Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sonia de Santis, Agent

Place and Date of Hearing: Teleconference

June 14, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1In September 2016, the appellant went to see her family doctor, Dr. L., for edema in her legs after a stressful day at work. She had consumed alcohol prior to seeing her doctor. After the visit, her doctor submitted a medical condition report to the Ministry of Transportation (MTO) appellant noting alcohol dependence.

2The appellant then brought a complaint against Dr. L. before the College of Physicians and Surgeons of Ontario (CPSO). To support her complaint, and subsequently her appeal before the Licence Appeal Tribunal (the Tribunal), she filed an October 2017 report by her psychiatrist, Dr. J.M. that states the appellant does not suffer from an alcohol use disorder.

3The appellant did not appeal her licence suspension until May 2018.

4For 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 her ability to drive safely.

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

B. ISSUE:

6The issue in this appeal is whether the appellant suffers from alcohol dependence such that is it likely to interfere with her 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 alcohol to an extent likely to significantly interfere with her 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 (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.

D. EVIDEnCE AND Analysis:

11On September 29, 2016, the appellant went to see her family doctor, Dr. L., for edema in her legs, after a stressful day at work. She had consumed alcohol prior to seeing her doctor. She complained at the appointment of the long wait time to see the doctor. Her doctor terminated their relationship at the appointment. He had been her doctor for three years. That same day, the doctor completed a medical condition report to the Ministry of Transportation (MTO) noting alcohol dependence. The form states that the appellant was not made aware of the report and that the doctor was to be advised if the report was to be released to the appellant.

12The following day, on September 30, 2016, Dr. L. faxed the form to the MTO. He also called the appellant and apologised for the way the appointment had gone and stated she could come back to see him the following week.

13The appellant received a letter from the MTO advising that her driver’s licence had been suspended for medical reasons. It took her three months to get information through the Freedom of Information Act to find out why her licence had been suspended. At that point she launched a complaint against Dr. L. through the College of Physicians and Surgeons of Ontario (CPSO). She had already begun seeing a new family doctor.

14In order to support her case against Dr. L., the appellant was referred by her new family doctor to Dr. J.M., psychiatrist, who issued a report in October 2017. The report disputed the diagnosis of alcohol dependence based on a psychiatric assessment, review of the MTO suspension letter, photocopy of the appellant’s September 29, 2016 medical file, and a copy of the response from Dr. L. to the complaint. Dr. J.M. concluded that the appellant does not meet the conditions of an Alcohol Use Disorder. The report also questioned the honesty of Dr. L. The appellant has continued to see Dr. J.M. on a regular basis for depression.

15The relevant documentary evidence before the Tribunal consisted of the following:

a. The medical condition report submitted by Dr. L. on September 30, 2016

b. The report by Dr. J.M., psychiatrist, dated October 11, 2017

c. A driver’s abstract indicating that the appellant has a clean driving record.

16The appellant has been preoccupied by her complaint to the CPSO. This complaint process has not yet been concluded. The appellant did not appeal the suspension of her driver’s licence until May 2018 when she was informed the CPSO complaint process would take an additional 22 weeks.

17The appellant testified that she lives downtown within walking distance of her work and therefore does not own a car and rarely drives. She only drives when renting a vehicle on vacation, either here or in Ireland. She testified that she has never driven after consuming alcohol and never would.

18The appellant was asked about her use of alcohol. Although at first she questioned the relevance of these questions, she did eventually answer that when she drinks she has one or two drinks per day which generally consists of wine or beer. She stated that she had taken part in an alcohol treatment program in the distant past. She did say that she had spoken to Dr. L. once prior to the September 2016, appointment about alcohol use. At that time, she stated she was concerned she was consuming one or two more drinks during the week that she wouldn't normally have. She testified that at the September 29, 2016, visit she had no conversation with Dr. L. about alcohol use at all. She has had no discussions about concerns regarding her alcohol use with her current family doctor or psychiatrist.

19The respondent asked the appellant why she had not had her current family doctor complete the substance abuse form sent to her by the MTO. The respondent also asked why the appellant did not complete a bio-medical marker test, which was also requested by the MTO. The respondent argued that had the appellant completed the form and had the bio-medical test done, and had that information supported the appellant’s position, the MTO would have reinstated the licence without the need for this appeal.

20The appellant testified, in response, that she has spent enough time and energy on this case (including her CPSO appeal). Furthermore, she could not understand why Dr. J.M.’s report was not definitive on the issue. She saw no need to subject herself to further testing at her own expense.

Analysis

21The test the Tribunal must consider is whether the appellant has an alcohol use disorder, and if so, whether her condition affects her ability to drive safely.

22The medical documentation submitted by Dr. L. lacks information, it only indicates, through a check-mark that the appellant suffers from alcohol dependency. Dr. L. did not add any further details on the form where optional information can be included. The only other evidence of alcohol consumption came from the appellant herself. While she testified that she does consume alcohol, the amounts reported did not seem substantial. The CCMTA notes at section 15.2 that the prevalence of alcohol consumption in Canada is high. It defines heavy drinking as four or more drinks a day for women. The self-reported amount of alcohol consumed by the appellant is well below this amount.

23The appellant submitted a six-page report from Dr. J.M. which attested to significant psychiatric testing to determine whether the appellant met the definition of alcohol use dependence under the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition published by the American Psychiatric Association, 2013 (also known as DSM-5). The report concluded she did not meet that definition.

24Considering the in-depth report by Dr. J.M., we find the MTO form submitted by Dr. L. without further information, insufficient to establish alcohol dependency on a balance of probabilities. Furthermore, the appellant’s testimony regarding her consumption of alcohol does not seem to be substantial.

25We find that the appellant was consistent and persuasive when she stated that she has never driven after consuming alcohol and would never drive after consuming alcohol. She does not drive regularly, nevertheless, her driver’s record is impeccable, showing licensing since 1991 and not a single conviction, discharge or other action in that 25-year time span.

26While it is problematic that the appellant did not complete the substance use form provided by the MTO and refused to subject herself to further testing, it is not determinative of the issue before us.

27We find that, under the circumstances, the respondent has not proven on a balance of probabilities that the appellant suffers from alcohol dependence. We therefore cannot find that the appellant suffers from alcohol dependence to a degree likely to affect her ability to drive safely.

28As a result, we set aside the Registrar’s decision to suspend her licence on the basis of alcohol dependence.

E. CONCLUSION:

29After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not suffer from alcohol dependence and does not abuse alcohol such that it is likely to interfere with her ability to drive a motor vehicle safely.

F. ORDER:

30For 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.