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 pursuant to section 47(1) of that Act – to suspend a licence
Between:
D.P.
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member Ted Crljenica, Vice Chair
Appearances:
For the Appellant: D.P., Self-represented
For the Respondent: Stella Velocci, Agent
Place and Date of Hearing: Teleconference September 20, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, dated May 7, 2018 to suspend the appellant’s class G driver’s licence.
2The appellant is a retired 76-year-old male. His licence was suspended on the basis that the he suffers from alcohol dependence.
3For the reasons that follow, the decision by the Registrar to suspend the appellant’s class G driver’s licence is set aside as the Registrar has not established that the appellant’s alcohol consumption is likely to significantly interfere with his ability to drive safely.
B. LAW
4Under section 203 (1) of the Highway Traffic Act (“HTA”) a physician in the Province of Ontario shall report to the respondent the name, address and clinical condition of any person sixteen years of age or over who, in the opinion of the physician, is suffering from a prescribed medical condition, functional impairment or visual impairment.
5Pursuant to section 203 (2) of the HTA a physician may report to the respondent the name, address and clinical condition of any person sixteen years of age or over who, in the opinion of the physician, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle safely.
6The respondent has the power under s. 32(5)(b) of the HTA to suspend a licence in accordance with requirements prescribed in the regulations.
7Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from any . . . physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely. Under subsection 14 (1)(b) a holder of a driver’s licence must not 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.
8Section 14(2)(a) of the O. Reg. 340/94 allows the Minister of Transportation to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.
9The Registrar has the burden of establishing on a balance of probabilities the ground or grounds to suspend a driver’s licence.
10Pursuant to section 50(2) of the HTA, the Tribunal may confirm, modify or set aside the decision or order of the Registrar after a hearing.
C. ISSUE
11The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94, the section of the regulation under which the respondent made its decision.
D. THE EVIDENCE
12The facts are not in dispute. On September 29, 2017 the appellant was drinking hard liquor at home, fell and hit his head requiring stitches. He was taken to a hospital by ambulance.
13The appellant testified that the emergency physician asked him questions about his alcohol consumption which the appellant answered. The physician sent the Ministry of Transportation an unsolicited Medical Condition Report on which he reported that the appellant is alcohol dependent. The form contained no other information regarding this diagnosis.
14By letter dated October 4, 2017 the respondent advised the appellant that his driver’s licence was being suspended because of alcohol dependence. The respondent further advised that if this diagnosis is confirmed by the appellant’s treating physician, for his licence to be reinstated the appellant would be required to abstain from alcohol for one year, although this period may be reduced if the appellant completes an alcohol treatment program and his physician supports reinstatement of his driver’s licence.
15Dr. H, the appellant’s family physician since September 2015, submitted to the respondent a Substance Use Assessment form dated October 30, 2017. On it, he checked the box for alcohol abuse, not the box for alcohol dependence. Dr. H also reported that a recent blood test disclosed the following biomarkers:
a. MCV – Within Normal Laboratory Range;
b. GGT – Elevated;
c. ALT - Within Normal Laboratory Range;
d. AST - Within Normal Laboratory Range
Dr. H indicated that the raised GGT level was a result of alcohol use.
16On the form, Dr. H reported that over the past year the appellant cut down on his alcohol consumption, except for the September 29, 2017 event, that for 30 years the appellant has not driven after drinking alcohol, and that the appellant is attending an alcohol counselling program.
17Also submitted to the respondent was an Alcohol Use Disorders Identification Test (AUDIT) on which the appellant scored eight. According to the form, this score indicates a strong likelihood of hazardous or harmful consumption (alcohol misuse) and the individual should be advised to cut down and drink within low risk levels.
18The appellant also completed a Leeds Dependence Questionnaire on which he scored zero. This score indicates no alcohol misuse, abuse or dependence.
19After reviewing the above information, the respondent wrote to the appellant on November 16, 2017 advising that the respondent accepted the appellant’s medical report. As a result, his licence was reinstated. He was also advised that he will be required to file another medical report on April 30, 2018.
20As required by the respondent, Dr. H submitted a Substance Use Assessment form dated April 26, 2018. On it he again reported a diagnosis of alcohol abuse, as well as elevated levels of MCV and GGT, both a result of alcohol use. He also reported that the appellant was continuing with an alcohol counselling program, was consuming three beers a day but had not consumed any hard liquor for six months. The appellant again completed an AUDIT questionnaire. His score increased to nine from the eight he scored in the autumn of 2017. He again scored zero on the Leeds Dependence Questionnaire.
21Following receipt of this information, the respondent advised the appellant by letter dated May 7, 2018 that his licence would be suspended because of alcohol dependence. The respondent also advised the appellant that if his physician confirmed a diagnosis of alcohol dependence, in order for his licence to be reinstated the appellant will be required to be abstinent for one year although this period may be reduced if he completes an alcohol treatment program, and his physician will be required to support reinstatement of his driver’s licence.
22We also heard from the appellant. He testified that he has been drinking since he was 15. In 1982 he was charged with and convicted of the criminal offence of refusing a breath test. In 1985 he was charged with and convicted of the criminal offence of impaired driving. This latter conviction was a result of being stopped on the highway after having a few drinks with co-workers after work. It was the appellant’s testimony that since 1985 he has not driven after consuming alcohol. He was very adamant in his testimony that since 1985 he has not driven after drinking, and will not drive after drinking.
23The appellant began alcohol counselling after the September 2017 fall. However, he stopped attending counselling when his driver’s licence was suspended in April 2018 as he cannot get to the program location which is some distance from his home. He cannot get there via public transit and cannot afford to take a taxi. When asked if his wife can drive him, the appellant responded that she cannot as she is busy with her volunteer activities. This primarily consists of assisting an elderly neighbour but also includes formal volunteering within the municipality in which the appellant and his wife reside.
24The appellant described his current daily pattern of alcohol consumption as follows: he has his first beer of the day at around 11 a.m., has another in the afternoon and one in the evening. When he had his driver’s licence he did any required driving in the mornings before his first drink at 11 a.m. When asked why he has his first drink at 11 a.m., his response was that perhaps it is out of habit. Later he testified that he “deserves it” because he has always had a beer at 11 a.m. The appellant also testified that he takes a weekly “holiday” on which he does not consume any alcohol. This was a strategy introduced to him at alcohol counselling.
25The appellant has not consumed any hard liquor since he fell in September 2017. His wife will not allow him to have any hard liquor in their home.
26Both the appellant’s wife and Dr. H have urged the appellant to reduce his alcohol consumption. As well, according to the appellant, about 9 years ago a doctor at a 3 week counselling program implied that the appellant might be able to be a “controlled drinker” with reduced alcohol intake, as opposed to requiring total abstinence. The appellant feels he can control his alcohol intake.
27In addition to attending with Dr. H, the appellant is under the care of a nephrologist as a result of loss of kidney function and a cardiologist as a result of heart problems. He also testified that he is suffering from cirrhosis of the liver as a result of his life-long drinking. The appellant has told neither the nephrologist nor the cardiologist about his alcohol consumption.
28In response to questions from the Tribunal the appellant testified that he has tried to totally abstain from alcohol consumption but has mostly failed. However, in the summer of 2017, the appellant, at the suggestion of his orthopedic surgeon stopped alcohol consumption for 30 days prior to his surgery. The appellant admitted to experiencing withdrawal symptoms such as agitation and trouble sleeping, but denied ever having significant shakes or a seizure during this time period.
29The appellant feels that he is better at “controlling” his alcohol intake levels rather than abstaining entirely. When asked if he craves alcohol, the appellant responded that he has a “thirst” for alcohol but not to the point of “climbing the walls”. He has tried drinking water instead of alcohol but after a half hour or so he thirsts for alcohol. The appellant testified that alcohol helps him to settle down when he feels agitated. The appellant stated that he currently experiences mild alcohol withdrawal symptoms perhaps once per month, not weekly as he did when he drank more heavily.
E. THE PARTIES’ SUBMISSIONS
30As the respondent is not alleging that the appellant is addicted to the use of alcohol he is not relying on section 14 (1)(b) of O. Reg. 340/94. Rather, the respondent’s position is that the appellant’s alcohol use constitutes a disability that is likely to significantly interfere with his ability to drive a motor vehicle safely: O. Reg. 340/94, s. 14 (1)(a). As such it was submitted that the Tribunal should confirm the decision to suspend the appellant’s licence.
31The appellant submitted that he is fully aware of the extent of his drinking, recognizes that on occasion he abuses alcohol but is not alcohol dependent. Since 1985 he has not driven after consuming alcohol and submitted that he will not drive after consuming alcohol. Thus it is his position that the respondent’s decision to suspend his class G licence should be set aside.
F. ANALYSIS
32According to the definitions that appear in the glossary of the respondent’s Substance Use Assessment form, a person who misuses or abuses alcohol or who is dependent on alcohol represents a potential risk to drive after drinking thus interfering with his or her ability to drive safely.
33However, not every person who falls within the scope of this definition is disentitled to hold a class G driver’s licence. This is inherent in the legislative scheme. Mandatory reporting to the respondent by physicians and other specified professions in relation to alcohol consumption is only required if the licence holder has a substance use disorder which must be uncontrolled and the person is non-compliant with treatment recommendations or the alcohol consumption causes or contributes to another condition that results in a disability likely to significantly interfere with his or her ability to drive a motor vehicle safely. Even a person addicted to alcohol is not automatically disentitled from holding a class G driver’s licence.
34Thus, each situation must be assessed on each appellant’s individual circumstances. Here, the onus is on the respondent to establish that the appellant’s alcohol use constitutes a disability and that this disability is likely to significantly interfere with his or her ability to drive a motor vehicle safely: O. Reg. 340/94, s. 14 (1)(a).
35The emergency room doctor who submitted the initial Medical Condition Report reported that the appellant is alcohol dependent but he did not provide any information to explain this diagnosis. Dr. H’s diagnosis was that the appellant abuses alcohol. We accept Dr. H’s diagnosis. Our conclusion is based to a great extent on the appellant’s evidence which we accept. The appellant was very honest and straightforward in his testimony and willingly provided answers that were not advantageous to his position.
36To meet the definition of alcohol abuse as per the glossary to the respondent’s Substance Use Assessment form, an appellant must recurrently inappropriately use alcohol. Furthermore, the glossary goes on to state that someone who abuses alcohol is not necessarily addicted or dependent on alcohol.
37In contrast, the glossary’s definition of alcohol dependence is the repetitive inappropriate use of alcohol associated with loss of control, inability to abstain, a preoccupation with obtaining alcohol and withdrawal symptoms. Although the appellant described having experienced some symptoms of withdrawal and he cannot abstain permanently, he was able to abstain for 30 days prior to his knee surgery. There is no evidence that he experiences loss of control or that he is preoccupied with obtaining alcohol. He limits his consumption to three beers a day and takes an alcohol “holiday” once a week.
38In the glossary to the respondent’s Substance Use Assessment form, in reference to alcohol abuse, the following appears:
The goal of treatment for such individuals is not always abstinence. Moderation management is often the goal of alcohol abusers.
In our view, the appellant has been able to moderate his alcohol consumption by managing what he drinks, how much he drinks, and when he drinks.
39We accept the appellant’s evidence that since 1985 he has not driven after consuming alcohol. We find that the appellant has sufficient control over his alcohol consumption and we accept his assertion that his 1985 conviction for impaired driving has impacted him to such an extent that he will not drink and drive again. As such it is our determination that the respondent has not established that the appellant’s alcohol abuse constitutes a disability which is likely to significantly interfere with his ability to drive safely.
40We wish to comment on the respondent’s position on this appeal which we find difficult to reconcile with his decision to reinstate the appellant’s driver’s licence in November 2017. When the respondent suspended the appellant’s licence following receipt of the Medical Condition Report of September 29, 2017, the only information he had was that the appellant suffered from alcohol dependence.1 In his correspondence to the appellant the respondent indicated that if this is confirmed by his treating physician in order for his licence to be reinstated the appellant will be required to be abstinent for one year, although this may be reduced if he completes an alcohol treatment program, and his physician will be required to support reinstatement of the appellant’s driver’s licence.
41In the October 30, 2017 Substance Use Assessment the appellant’s family physician reported the appellant:
a. As suffering from alcohol abuse;
b. Has not abstained from alcohol:
c. Is enrolled in and regularly attends an alcohol counselling program;
d. Has cut down on his alcohol consumption in the last year;
e. Had one episode of consuming hard liquor, that being on September 29, 2017;
f. Has not engaged in drinking and driving for the past 30 years;
g. Reported an elevated level of GGT in the appellant’s blood. This biomarker suggests long term heavy use of alcohol.
42Following receipt of this report the respondent reinstated the appellant’s driver’s licence subject to the condition that the appellant file another medical report on April 30, 2018.
43The information received by the respondent in regard to the April 30, 2018 deadline, pursuant to which the respondent again suspended the appellant’s driver’s licence, differed very little in substance from the October 30, 2017 report. The April 2018 report reported that the appellant:
a. Suffers from alcohol abuse;
b. Has not abstained from alcohol:
c. Was enrolled in an alcohol counselling program but had not completed it;
d. Consumes three beers a day;
e. Has not consumed hard liquor in the preceding six months;
f. Had reported an elevated level of the enzyme GGT and an increase in the average size of red blood cells, MCV
In the report the physician did not comment on whether the appellant has engaged in drinking and driving since the October 2017 report.
44In the April 2018 report, the appellant had two elevated biomarkers – GGT and MCV. Both of these markers may indicate heavy alcohol use, which the appellant does not deny.
45In our view, there was no significant change between the Substance Use Assessment form dated October 30, 2017 pursuant to which the respondent reinstated the appellant’s driver’s licence and the Substance Use Assessment form dated April 26, 2018 which resulted in the current suspension. Further, notwithstanding Dr. H’s April 26, 2018 report of alcohol abuse, in the respondent’s letter of May 7, 2018 he advised the appellant that the current licence suspension was based on alcohol dependence. We do not understand the basis of this determination.
46Unfortunately, the decision to suspend the appellant’s licence in May 2018 has resulted in him not being able to attend the alcohol counselling program that he had been attending. We hope this has not set him back in his efforts to manage his alcohol consumption.
G. CONCLUSION
47For the reasons set out above, pursuant to subsection 50 (2) of the Act, the Registrar’s decision to suspend the Appellant’s driver’s licence is set aside.
LICENCE APPEAL TRIBUNAL
___________________________
Erica Weinberg, M.D. Member
___________________________
Ted Crljenica, Vice Chair
Released: October 18, 2018