Date: 2018-10-22

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:

L.V.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Joseph Smuczek, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: Teleconference October 1, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1On May 4, 2018, the Ministry of Transportation (MTO) received a medical condition report from Dr. J.B., emergency room physician, reporting that the appellant suffers from alcohol dependence. Because of that report, the respondent suspended the appellant’s driver’s licence on the basis of alcohol dependence. The appellant appeals this decision.

2For the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

3The issue in this appeal is whether the appellant suffers from alcohol dependence such that it is likely to significantly interfere with her ability to drive safely.

C. LAW:

4The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities.

5The respondent 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) 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.

6Section 14(2)(a) of the Regulation allows the respondent to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Standard) when determining whether the requirements of s. 14(1) are met.

7Section 15.6.3 of the CCMTA Standard applies to substance use disorders, including drivers who are under the influence of alcohol. The recommended standard for lifting a licence suspension includes the following:

a. Meeting the criteria for remission and/or has abstained from the substance for 12 months; and

b. Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician and the successful completion of a drug rehabilitation program.

8We may take the CCMTA Standard into consideration, although it is not binding on us.

D. EVIDEnCE & ANalysis:

9The respondent relied on the following documentary evidence to show that the appellant suffers from alcohol dependence and has not yet met the CCMTA Guideline for re-licencing:

a. A medical condition report submitted by Dr. J.B., emergency room physician, on May 4, 2018 advising the MTO of the appellant’s reported condition of “alcohol dependence”;

b. A Substance Use Assessment form by Dr. I.N., family physician, dated August 9, 2018. Dr. I.N. has treated the appellant since 1994. The report notes a diagnoses of “alcohol dependence” and “alcohol abuse”. It states the appellant has abstained from alcohol for four months as of the date of the report. The report notes an attached letter showing confirmation of completion of a treatment program in July 2018 (the N.P. Centre letter). The report also states the appellant attended a women’s detox program from May 7 – 11, 2018. The report includes that the appellant has elevated levels of the biochemical markers MCV, GGT, ALT and AST due to alcohol use, but that she was undergoing weekly bloodwork that showed the marker levels were improving. The report concludes with the following note, “completed a successful treatment/rehab program. Going to AA meetings weekly. The condition is resolved.”

c. A letter from N.P. Centre, dated July 26, 2018, attached to the above Substance Use Assessment form. This letter confirms the appellant attended a residential treatment program for substance abuse from July 9 – 26, 2018.

d. Biomedical marker tests dated July 18, 2018, July 24, 2018, July 31, 2018, August 7, 2018, August 22, 2018, and September 22, 2018 showing elevated biomedical markers that decrease week by week; and

e. A letter from Dr. S., internal medicine specialist, dated August 28, 2018, following up on the appellant’s alcoholic liver disease. The letter states that the appellant is doing surprisingly well and has been abstinent for more than 100 days at the time of the report. The appellant looks well but is still jaundiced. Dr. S. recommends weaning her off diuretics and potassium supplements and reviewing her case again in a few months.

10The respondent relied on the CCMTA Standard. The CCMTA Standard states that impaired driving is the leading cause of criminal death in Canada and that one quarter of all motor vehicle fatalities in Canada involve alcohol. It states that alcohol impairs a driver’s judgement, reflex control and behaviour towards others. In addition, regular users of alcohol who withdraw from the drug may suffer seizures and withdrawal may cause other health problems including liver disease.

11The respondent submitted that the appellant, having completed a substance abuse treatment program, qualified for a reduction from the 12-month licence suspension as recommended in the CCMTA Standard. The respondent states that a 6-month period of abstinence prior to re-licensing is reasonable considering the risks associated with alcohol dependence and driving. According to the appellant’s testimony, she has completed 5 months of abstinence. Therefore, the respondent’s position was that her licence suspension could be lifted in one more month with the submission of updated biomedical markers and confirmation that she was still abstinent from alcohol.

12It was not contested that the appellant suffers from alcohol dependence and has sought treatment to overcome this. We accept the respondent’s evidence that the CCMTA Standard is persuasive in regard to the risks of alcohol and driving and the suggested guideline that a reduced suspension is recommended when the appellant has completed a substance abuse program and has a recommendation to return to driving from a treating physician or addiction specialist.

13The appellant testified that she has been a driver since she was 16 and has never been convicted of an offence for drinking and driving. She stated her life has revolved around driving her two, now adult, children to various places and driving herself to work. She has recently obtained a part-time job and is required to take cabs and buses or have one of her children give her a ride. She stated that when she checked into the hospital for detox treatment, her daughter drove her.

14The respondent’s submissions included a certified extended driver record showing that the appellant has been licensed since 1982 and has a clean driver’s record. We accept that the appellant has a clean driver’s record. However, given our finding that the appellant has an alcohol addiction and the appellant’s stated to desire to drive regularly, we believe that should the appellant return to drinking alcohol, she poses a significant driving risk.

15The appellant testified that she lives in a semi-detached home with her two children. Her son has just completed a 4 year college program and her daughter is in her 3rd year. She testified that she used to drink Pinot Grigio, no beer or hard alcohol. Currently, there is no alcohol in her home and has not been any for months.

16Prior to seeking treatment, she spoke to her children about it. She stated that a team effort got her into the women’s detox program and then the N.P. Centre residential treatment program. She stated she did not suffer a seizure from withdrawal. Since the program, she follows up with her family doctor monthly and has been discharged from Dr. S.’s care.

17Although her family doctor noted in early August that the appellant was attending Alcoholic Anonymous (AA) meeting weekly, the appellant testified that other than her family doctor, she is not currently in counselling or involved with AA.

18We accept that the appellant has family support and that she continues to see her family doctor for ongoing alcohol dependence treatment.

19The appellant also stated that she had previously abstained from alcohol last summer for 102 days for the sake of her children, however she could not do it alone. This past summer was the first time she was involved in a treatment program. She stated that the treatment program was excellent and that she learned about denial.

20We find that the appellant has made good strides in her recovery. She has maintained a period of abstinence that is longer than previously achieved. She has also involved her family and family doctor in treatment and support. However, we do note that the appellant has tried to abstain from alcohol before and was unsuccessful. We hope that this time, with the added support from the treatment program, her family doctor and family, she is able to maintain her abstinence.

21The appellant is one month shy of the recommended 6-month period of abstinence which is sought by the respondent. We believe the 6-month waiting period is reasonable for the following reasons:

a. The appellant has attempted abstinence before and was unsuccessful. Reaching 6 months of abstinence would reduce the risk of the appellant returning to alcohol use;

b. We disagree with the family doctor’s comments in the Substance Use Form that the appellant’s condition has resolved. Dr. S. indicated in late August, after the Substance Use Form was submitted, that the appellant suffers from liver disease and is still jaundiced. In addition, while the appellant’s biomarker test results have significantly decreased, they are still above normal. A letter from her family doctor explaining why the levels remain elevated would have been useful; and

c. The appellant does not have a letter from her family doctor, another treating physician or an addiction specialist specifically recommending a return to driving, which is one of the requirements suggested by the CCMTA Standard for early re-licensing.

22Although not binding on us, the CCMTA Standard provide guidance as to when a person suffering from alcohol dependence should resume driving. In this case, we find these guidelines persuasive. Based on the evidence above, we find that the appellant has not yet met the requirements suggested by the CCMTA Standard.

23Considering the above evidence, we also accept the respondent’s submission that the completion of 6-month period of abstinence prior to the licence being reinstated is reasonable. This is a reasonable waiting period given the appellant has not yet fully recovered and the significant road safety risk posed by alcohol consumption and driving.

24The appellant has a history of alcohol dependence, but has successfully sought help and has abstained for 5 months already. This is very hopeful for the appellant’s recovery. She should be commended on her choice to seek treatment and her success to date. Her progress suggests that her licence will likely be reinstated in one more month should she continue to be abstinent.

25The respondent has met its burden to prove on a balance of probabilities that the appellant is addicted to alcohol such that it is likely to significantly interfere with her ability to drive safely. Although the appellant has recently made significant strides in her addiction recovery, we find that a 6-month period of abstinence is required to show that she no longer has a condition likely to affect her ability to drive safely.

E. CONCLUSION:

26We confirm the respondent’s decision to suspend the appellant’s licence on the basis of alcohol dependence that is likely to interfere with her ability to drive a motor vehicle 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 confirmed.