M.M. v. Registrar of Motor Vehicles, 2018 CanLII 117003

Licence Appeal Tribunal

Date: 2018-10-04

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:

M.M.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Joseph Smuczek, M.D., Member Avvy Yao-Yao Go, Member

Appearances:

For the Appellant: M.M., Appellant

For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: By Teleconference September 21, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1On July 7, 2018, the appellant was admitted to the Emergency Department of a hospital and was assessed by the on-call psychiatrist, Dr. M. Dr. M filed a Medical Condition Report with the Ministry of Transportation stating that the appellant has a substance use disorder due to his alcohol consumption.

2On July 8, 2018, a second Medical Condition Report was filed by Dr. H, another psychiatrist with the Ministry of Transportation stating that the appellant had uncontrolled substance (alcohol) use.

3By a letter dated July 10, 2018, the Deputy Registrar of Motor Vehicles advised the appellant that his driving privilege had been suspended due to alcohol dependence. The letter asked for medical information from the appellant’s treating physician in order to reinstate his licence.

4The appellant’s treating physician, Dr. S, completed a Substance Use Assessment Form dated August 9, 2018 confirming the appellant has a medical history/condition of alcohol abuse, but that he has abstained from alcohol for less than six months. Dr. S also provided a letter dated August 9, 2018 stating that the appellant has a long history of dysthymia and anxiety.

5Upon receiving Dr. S’s letter and report, the Deputy Registrar advised the appellant that his driving privilege should remain under suspension because of his psychiatric condition. Further by a letter dated September 12, 2018, the Deputy Registrar advised the appellant that to have his licence reinstated, the appellant has to submit, among other things, confirmation of a six month period of mental and emotional stability, and confirmation that he has abstained from alcohol for one year, or a period of six months if he has confirmation from his physician that he has successfully completed an alcohol treatment program.

6The appellant appealed the suspension to the Licence Appeal Tribunal. Just prior to the hearing of his appeal, the appellant submitted, among other documents, a letter of support from his wife, additional letters from Dr. S, a Mental Health Assessment Form from Dr. S, a letter confirming his current enrollment in a substance addiction program, and a letter from his employer.

7For reasons to follow, we find the appellant suffers from a mental or physical condition, alcohol use disorder 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:

8The 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:

9The Registrar has the power under s. 47(1) of the Highway Traffic Act to suspend or cancel a driver’s licence on various grounds.

10Subsection 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....

11Section 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.

12Under 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.

13The 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. EVIDENcE AND ANALYSIS:

14Paragraph 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.

Respondent’s Evidence

15In this case, the respondent referred the Tribunal to provisions in CCMTA dealing with alcohol use and driving and pointed out the CCMTA’s guideline that individuals who are impaired are not permitted to drive any class of motor vehicle.

16The respondent also relied on Dr. S’s diagnosis of the appellant with major depression as another basis for their decision. Finally, the respondent pointed out that the appellant has been in hospital two or more times within the last 12 months, indicating the lack of stability of his medical condition.

Appellant’s Evidence

17The appellant started by acknowledging that he has a medical condition, namely, dysthymia. The appellant also acknowledged that he has, on occasion, used alcohol. He challenged, however, the respondent’s claim that his medical condition significantly interferes with his ability to drive.

18The appellant candidly shared his family background and history, and his ongoing struggle with dysthymia, which was first diagnosed when he was in undergraduate study. The appellant submitted that his dysthymia – which is a low level depression – and anxiety do not interfere with his ability to drive. Relying on the provincial government’s Mental Health Promotion Guide, the appellant pointed out the incongruity between the province’s strategy to combat stigma of mental health on the one hand, and the denial of someone’s licence based solely on the person’s mental health diagnosis on the other.

19The appellant noted that his physician, Dr. S, who is a psychiatrist, has written to explain that he does not believe the appellant suffers from major depressive disorder and that it was an error he made when completing the Mental Health Assessment Form. Dr. S confirmed the appellant’s diagnosis as Persistent Depressive Disorder (Dysthymia), which does not impact on the appellant’s ability to operate a motor vehicle. Dr. S’s letter also confirmed that, to the best of his knowledge, the appellant has abstained from alcohol since July 7, 2018.

20Referring to the letters from his wife and employer, the appellant pointed out that he has a strong network of support in his personal life and professional life. The appellant is worried that his job could be at risk if he cannot get his licence back.

21The appellant submitted that he is in compliance with medication and is getting proper treatment and support from Dr. S, whom he has seen since February 2018. The appellant is also going through counselling, as well as attending a Concurrent Disorders Program.

22With respect to his alcohol use, the appellant testified that he does not have alcohol at home and he never drinks and drives.

23Upon questioning from the respondent, the appellant revealed that he was admitted to the hospital on July 7, 2018 when mother came to visit him, and he took 8 shots of alcohol. The respondent added he was not on anti-depressants at the time because his physician was trying different drugs. Since then, the appellant has been put on anti-depressants. The appellant confirmed his previous hospitalization was in December 2017 and was also related to his using alcohol as a form of self-medication.

Panel’s Analysis

24To start, the panel notes that the appellant was forthcoming and was not evasive with answering questions. The panel understands it is not easy to share personal and medical information, especially in a legal setting. The panel appreciates the appellant’s candidness.

25The first question that we needs to determine is whether the appellant has a medical condition. We find he does. As the appellant noted himself, he has dysthymia and anxiety.

26In addition, we find that the appellant also has an alcohol use disorder. Our finding is based on the following information:

a. the two Medical Condition Reports submitted by Dr. M and Dr. H.;

b. the appellant’s evidence that he has been hospitalized twice, once as recently as July 2018, for alcohol use as a way of self-medication; and

c. the appellant’s evidence that he has been part of a depression and alcohol treatment program and is currently enrolled in a concurrent program for his medical conditions.

27Having found that the appellant has a medical condition, the panel must still determine whether the condition significantly interferes with the appellant’s ability to drive a motor vehicle. We will assess this issue by first looking at the condition of dysthymia and anxiety.

28It is our determination that the respondent has not discharged their burden of proving that the appellant’s dysthymia and anxiety interferes with his ability to drive. From the submissions of the respondent, this aspect of the suspension seemed to be based solely on a letter from the appellant's psychiatrist indicating that he has depression and anxiety. Subsequently, the psychiatrist, Dr. S, completed a Mental Health Assessment form. A medical condition report indicating that a physician or his psychiatrist believed that his ability to operate a motor vehicle was affected due to these conditions was not part of the submission. Furthermore, Dr. S wrote a follow-up letter on September 9, 2018, indicating that the appellant has dysthymia and social anxiety. Dr. S believes that these conditions do not impact the appellant’s ability to operate a motor vehicle in any way.

29Given that there is no evidence to suggest that the appellant’s dysthymia and anxiety has any negative impact on the safety of his driving, we find this ground of suspension unfounded.

30With respect to the appellant’s alcohol use disorder, we find, based on a balance of probabilities, that the registrar has proven their case for the following reasons.

31First, there are two medical condition reports filed by two separate psychiatrists regarding their concern for the appellant's ability to operate a motor vehicle due to an uncontrolled alcohol use disorder, one by Dr. M and another by Dr. H. While the appellant suggested that Dr. H only spent a short time with him and should have spoken to his own physician before submitting the report, the panel notes that physicians do have an obligation under the Act to report to the Ministry if in their opinion, a patient’s medical condition will significantly interfere his/her ability to drive. By the appellant’s own admission, he was in the hospital at the time due to his alcohol use, which eventually led to the reports by Dr. M and Dr. H.

32Second, the appellant submitted that he has been enrolled in a concurrent disorders program since February 2018, and seeing his psychiatrist on a monthly basis. Since February 2018, he has had a hospital admission related to his psychiatric condition and alcohol. While his psychiatrist does not believe that the appellant's ability to operate a motor vehicle is affected as a result of his psychiatric condition of dysthymia and social anxiety, there is no evidence that this opinion extends to the patient's alcohol use disorder.

33Finally, the panel notes that the CCMTA standards for all substance use disorders require abstinence of 12 months or the drivers must meet the criteria for remission before they are allowed to drive. This timeframe may be reduced given the successful treatment of a drug rehabilitation program and recommendation from an addictions specialist. Both the registrar and the appellant submitted that the appellant has remained abstinent from alcohol since July 7, 2018. This is confirmed with blood work indicating that liver enzymes that are within normal limits. While this is a good starting point, it does not meet the CCMTA standard for the timeframe of abstinence. In addition, there is no letter from an addiction's specialist nor a treating physician with a favourable recommendation from the standpoint of his alcohol use disorder, nor has there been successful completion of an alcohol treatment program.

34In conclusion, notwithstanding the tremendous efforts the appellant clearly has undertaken to address his underlying health issue, and the support he has been receiving from various sources, there remain some unanswered questions as to whether the appellant has his alcohol use 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.

35In coming to this conclusion, we want to assure the appellant that our decision is not in any way influenced by his mental health diagnosis. We encourage the appellant to continue to work with his treating physician on a path to recovery and to determine when it will be appropriate for him to submit an updated Assessment and the necessary documentation in order to have his driving privilege reinstated.

E. OrdER:

36We confirm the decision by the Registrar to continue to suspend the appellant’s driving privilege under section 47(1) of the HTA.