G.D. v. Registrar of Motor Vehicles, 2018 CanLII 126558

Date: 2018-11-15

Appeal under Section 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) to suspend a Licence

Between:

G.D.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND REASONS

Adjudicator: Dr. Dimitri Louvish, M.D., Member D. Gregory Flude, Vice-Chair

Appearances:

For the Applicant: Faisal Jillani, Agent For the Respondent: Kyle Biel, Agent

Heard by Teleconference: October 31, 2018

OVERVIEW

1The appellant, G.D. is a commercial driver. On June 25, 2018, while driving a loaded tractor trailer from Sault Ste. Marie to the Greater Toronto Area (GTA) he was involved in a single vehicle accident and sustained injuries. He was taken to the local hospital and treated in the emergency room and in the critical care unit. The critical care doctor submitted a Medical Condition Report to the Registrar of Motor Vehicles under s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) indicating that the appellant was alcohol and drug dependent. The emergency room doctor submitted a Medical Condition Report indicating that the appellant had been drunk at the time of the accident. The Registrar did not pursue the issue of drug dependency in the hearing.

2After reviewing the two Medical Condition Reports, the Registrar informed the appellant that his licence was suspended on medical grounds, effective July 7, 2018. The appellant has appealed the Registrar’s decision to suspend his licence to the Tribunal, pursuant to s. 50(1) of the Act.

ISSUE

3The issue in this matter is:

a. Is the appellant alcohol dependent;

b. If the answer to a. above is yes, is that dependency likely to interfere with the appellant’s ability to operate a motor vehicle on highway safely; and

c. Should we confirm, modify or set aside the decision of the Registrar?

RESULT

4For reasons more fully set out below, we find that the appellant is alcohol dependent and that dependency is likely to interfere with the appellant’s ability to operate a motor vehicle safely on the highway. We confirm the decision of the Registrar.

EVIDENCE AND ANALYSIS

5There is a disparity between the documentary evidence advanced by the Registrar and the oral evidence given by the appellant. We prefer the documentary evidence over the oral evidence. We have blended the sources of evidence together chronologically as it is best understood in this format.

6The appellant left the GTA for Sault Ste. Marie and arrived at his destination on June 24, 2018. He delivered his load but, as there was no return load to the GTA that day, he spent the night in Sault Ste. Marie. It was his evidence that he had two shots of vodka around 8:30 p.m. on the evening of June 24 and consumed no more alcoholic beverages from that time until the accident at approximately 4:30 p.m. on June 25.

7The appellant had been prescribed methadone. He took his methadone on the morning of June 25 with his breakfast. He then hooked up to his load and headed for the GTA. He testified that on the ramp from Highway 17 East to Highway 69 South he was cut off by a fast-moving car. When he swerved to avoid the car his tractor trailer left the roadway and ended up in the ditch. He was taken to hospital, treated in the emergency room and then moved to the critical care unit. The appellant testified that he was unconscious for a number of days, which is consistent with being moved to the critical care unit.

8The emergency room doctor noted that the appellant was drunk at the time of the accident. The critical care unit doctor noted that blood tests had shown he had 66.7 mmol/L of ethanol in his blood. This number translates to approximately 300 mg of alcohol per 100ml of blood – over three and a half times the legal limit for driving.

9Notwithstanding the appellant’s evidence that his alcohol consumption in the previous 24 hours had been limited to two shots of vodka the evening before, we prefer the documentary evidence and find the appellant had consumed much more alcohol that he acknowledged. The blood tests were conducted in an emergency room setting to give treating physicians insight into the appellant’s condition and treatment options. They are inherently objective and reliable. The appellant took no issue with the results at the hearing.

10In addition to the blood test results discussed above, the appellant’s licence was suspended for 90 days under an administrative driver’s licence suspension for driving with over 80 mg/100ml, and the appellant was charged with alcohol-related driving offences that are still working their way through the courts.

11In the Substance Use Assessment form submitted by the appellant’s family physician dated October 19, 2018, the family physician confirms the diagnosis of alcohol dependence. Our review of this form causes concern with the appellant’s insight into his condition. One part of the form consists of a number of questions to be answered by the appellant. In that section he answers every question about his alcohol consumption and impacts as “never” having an impact on him, including that in the last year he has never been injured as a result of his drinking.

12The evidence discloses and we find that the appellant is alcohol dependent but has taken a rehabilitation course to help address his condition. It also discloses that he has operated a motor vehicle in a state of extreme intoxication. We find that there are grounds to believe he will not be able to operate a motor vehicle on the highway safely.

13The starting point for a substance abuse suspension is one year abstention under the Canadian Council of Motor Transport Administrators Medical Standards for Driver Guidelines (the “Guideline”), the guide used by the Registrar in medical licence suspension cases. The Guideline allows for the reduction of the one year suspension if the appellant were to take a rehabilitation program, provide medical information showing no use of the illicit drug or alcohol and a doctor recommend reinstatement.

14The appellant attended his family doctor who completed a substance abuse form on October 19, 2018. The doctor’s report states that the appellant has not consumed alcohol since the accident. Accompanying the form are blood test results showing none of the markers consistent with heavy long-term alcohol use which give credence to the doctor’s note that the appellant told him he was abstinent. The appellant also completed a rehabilitation program and included a certificate of completion in his tendered documents.

15Based on these documents, the Registrar is prepared to reduce the period of abstinence recommended in the Guideline from one year to six months. The Registrar still requires a recommendation from the appellant’s doctor that the appellant’s driving privileges should be restored, as well as a second completed substance abuse form from the doctor and blood tests indicating no further alcohol use. If the appellant complies, then his licence would be reinstated in late December 2018 or early January 2019.

16The appellant is currently unemployed and is having difficulty supporting his family. He has no money for rent or groceries. He would like his licence to be reinstated immediately based on the medical and rehabilitation evidence currently before us. He would like to get back to earning a living.

17Reviewing the above evidence, we are of the view that the decision of the Registrar should be confirmed. While the Guideline is not binding legislation, the legislation does permit the Registrar to take it into account when setting medical policy. It is a starting point for any analysis we might undertake. It recommends one year of abstinence but in this case that number has been halved because the appellant took a rehabilitation course. The Registrar’s action indicates a high degree of faith that the appellant has come to terms with his substance abuse issues and will be clear going forward, especially while operating a heavily laden tractor trailer. Notwithstanding that faith, the appellant’s doctor has not recommended reinstatement and absent that recommendation we cannot consider reducing the period of abstinence further.

ORDER

18Pursuant to the powers vested in us by s. 50(2) of the Act, we confirm the decision of the Registrar to suspend the appellant’s driver’s licence.