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:
D.Y.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Erica Weinberg, M.D., Member Stephen Scharbach, Member
Appearances:
For the Appellant: D.Y., Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: November 26, 2018
REASONS FOR DECISION AND ORDER:
OVERVIEW
1This is an appeal from a decision of the Registrar of Motor Vehicles (“Registrar”), to suspend the appellant’s driver’s licence on medical grounds. According to the Registrar, the appellant suffers from substance use disorder (cocaine) and alcohol dependence and these conditions are likely to significantly interfere with his ability to drive safely.
2The appellant states that he has received successful treatment for his conditions and has remained free of alcohol and cocaine for several months.
3According to the appellant, his conditions are now controlled and they are no longer likely to significantly interfere with his ability to safely drive. He asks this Tribunal to set aside the Registrar’s decision and re-instate his licence.
ISSUE
4Does the appellant now suffer from substance use disorder and/or alcohol dependence that is/are likely to significantly interfere with his ability to drive a motor vehicle safely?
DECISION
5The evidence establishes on a balance of probabilities that the appellant suffers from the conditions of substance use disorder and alcohol dependence and these conditions are likely to significantly interfere with his ability to safely drive.
6The Tribunal confirms the Registrar’s most recent decision that the appellant’s licence shall remain under suspension until the Registrar receives confirmation that (among other things) the appellant has remained abstinent from alcohol and any other illicit drug for a minimum period of six months.
THE LAW
7The Registrar has the power under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) to suspend or cancel a driver’s licence on various grounds, including any mental or emotional condition, or addiction to the use alcohol or a drug, “…likely to significantly interfere with his or her ability to operate a motor vehicle safely” (Ontario Regulation 340/90 (“Regulation”) s. 14(1)).
8The Registrar often receives information from physicians about a driver’s medical fitness to drive. Physicians in Ontario are legally required to report patients to the Registrar who, in the opinion of the physician, suffer from a condition that may make it dangerous for that person to operate a motor vehicle (Act, s.203).
9In determining whether an individual suffers from a condition or addiction that may disqualify him/her for a driver’s licence, the Regulation allows the Minister of Transportation to consider the medical standards set out in the Canadian Council of Motor Transport Administrator’s Medical Standards for Drivers (“CCMTA Standards”). Those standards have been developed and published in order to establish consistent medical standards for assessing driving eligibility.
10Section 15.6.3 of the CCMTA Standards is relevant in this case. It states that a person who suffers from a substance use disorder involving alcohol or illicit drugs will be eligible for licencing if he/she:
meets the criteria for remission and has abstained from the substance for a period of 12 months
earlier re-licensing may be considered upon favorable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program
the functional abilities necessary for driving are not impaired.
11The Regulation also permits the Minister to require a driver to provide medical evidence concerning his or her ability to drive safely.
12Any person whose licence is suspended by the Minister under s. 47 of the Act may appeal that decision to this Tribunal. (Act, s. 50(1)).
13On an appeal, the Registrar of Motor Vehicles (“Registrar”) has the burden of establishing, on a balance of probabilities, that appropriate grounds for suspension exist.
14Following a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar (Act, s. 50(2)).
ANALYSIS
(a) Registrar’s Initial Decision to Suspend
15In a letter dated July 10, 2018, the Registrar informed the appellant that a decision had been made to suspend his driver’s licence on two medical grounds - alcohol dependence and substance use disorder.
16That decision was prompted by a medical condition report that had been submitted to the Registrar on July 6, 2018, by Dr. V., the appellant’s family doctor. Dr. V. stated that the appellant suffered from an uncontrolled substance use disorder involving both alcohol and cocaine and recommended intensive outpatient treatment.
17Based on that report, the Registrar concluded that the appellant had conditions that affected his ability to drive safely and suspended the appellant’s licence effective July 20, 2018.
18The Registrar stated in his July 10, 2018 letter that in order to have his licence reinstated, the appellant would have to submit:
(i) confirmation that he has remained abstinent from alcohol for one year
(ii) that period may be reduced to six months if the appellant’s physician confirms that he successfully completed an alcohol treatment program and is supportive of re-instatement
(iii) a substance use assessment form completed by his physician.
(b) Appellant’s Physician Clarifies Condition
19Dr. V. provided the Registrar with updates about the appellant’s condition. In a letter August 27, 2018, Dr. V. stated that after he submitted his medical condition report in July, the appellant committed himself to sobriety and total abstinence from cocaine. According to Dr. V, the appellant’s last use of cocaine was on July 9, 2018, and he planned to never use it again. With respect to alcohol, Dr. V stated that the appellant has one drink per night and will abstain upon Dr. V’s recommendation.
20In a second letter dated October 3, 2018, Dr. V reported that the appellant continued to be free of cocaine as confirmed by in-office urine drug screening. He also stated that the appellant was abstinent from alcohol as of late August, 2018. According to Dr. V, the appellant had been drinking alcohol at a very low level before that to reduce withdrawal symptoms.
21The Registrar reviewed those reports and, in a letter dated October 30, 2018, informed the appellant that his licence would remain suspended. Reinstatement would be considered upon confirmation of a one-year period of abstinence from alcohol with the possibility of reduction if the appellant successfully completes a rehabilitation program.
22The Registrar also required a diagnosis from his physician indicating the severity of his cocaine use and, if there was a diagnosis of severe substance use disorder, reinstatement would also require confirmation of abstinence from all illicit drugs for one year with the possibility of reduction upon successful completion of a rehabilitation program.
23On November 2, 2018, Dr. V. completed and submitted a substance use assessment form along with a covering letter describing the appellant’s treatment and progress to date. Dr. V. stated that since he submitted his medical condition report in July 2018, the appellant demonstrated “remarkable success” with respect to controlling his alcohol and drug use. According to Dr. V., the appellant had been abstinent from illicit drugs since July 9, 2018, and abstinent from alcohol since August 28, 2018.
24Dr. V. stated that he has seen the appellant regularly and his sobriety was confirmed by regular urine drug screen testing. Dr. V. stated that the appellant attended all appointments, followed all of his medical advice, regularly attends meetings and groups and has a sobriety sponsor.
25Dr. V. attached a completed substance use assessment form in which Dr. V. indicated that the appellant had successfully completed a formal addictions program or formal counselling with a physician. In his testimony, the appellant clarified that he had not recently completed a formal addictions program but he had received formal intensive counselling with respect to his conditions from Dr. V.
26Dr. V. stated that in his medical opinion the appellant is currently safe to operate a motor vehicle. He recommended reinstatement of the appellant’s licence as soon as possible because the suspension jeopardized the appellant’s employment and continued employment was a key part of the appellant’s recovery.
(c) Registrar’s Revised Decision - November 2, 2018
27The Registrar reviewed the appellant’s case again in light of the more recent medical information and, in a letter dated November 2, 2018, imposed less restrictive requirements for reinstatement.
28The Registrar stated that reinstatement would be considered upon confirmation of a 6-month period of abstinence from alcohol supported by the results of recent bio-chemical markers. In addition, the Registrar required confirmation from a physician or specialist of a diagnosis relating to the appellant’s past cocaine use (drug misuse, drug abuse or drug dependence), and confirmation of recently completed, repeat urine drug screening.
(d) Should the Suspension Continue?
29The Registrar’s original suspension (July 10, 2018) and the decision to continue the suspension (November 2, 2018) are based on the reported conditions of alcohol dependence and substance use disorder. The onus is on the Registrar to establish on a balance of probabilities that the appellant suffers from those conditions to the extent that they are likely to significantly interfere with his ability to drive safely.
30We find that the evidence does establish that the appellant presently suffers from the condition of alcohol dependency and substance use disorder to an extent likely to significantly interfere with his ability to drive safely and we confirm the Registrar’s November 2, 2018 decision to maintain the suspension for a minimum period of six months.
31In coming to that conclusion, we have considered both the nature of the appellant’s condition as well as the applicable CCMTA standard.
(e) Nature of the Condition
32The appellant candidly admitted at the hearing that for many years he occasionally used cocaine after he had been drinking. In April, 2018, he lost his job and, according to the appellant, he “lost all control” of his substance/alcohol use. Although he did not drink/use substances on a daily basis, he stated that he probably did so “every couple of days”. He denied ever driving while under the influence of alcohol or drugs.
33The appellant testified that he previously became dependant on sleeping pills that were prescribed after his mother died. He continued to use them for several years. Approximately 18 months ago he attended a 2.5 week in-patient treatment program to deal with that dependency.
34The appellant testified that after he lost his job and his drug/alcohol use became more severe, he confided his problems to Dr. V. and began seeing him regularly. When the appellant missed an appointment and lost contact with Dr. V. in early July, 2018, Dr. V. submitted the medical condition report.
35The appellant stated that on July 9, 2018 he made a firm decision to stay abstinent from drugs and alcohol. His last use of cocaine took place on July 8, 2018. He continued to use alcohol in very small amounts until the end of August, 2018. According to the appellant, he spoke to a health care professional who recommended tapering off alcohol use in order to reduce potentially harmful withdrawal symptoms.
36The appellant testified that he now sees Dr. V. regularly. He has also become involved in a 12-Step program and has a sobriety sponsor who he sees about once per week. According to the appellant, he has embraced a faith-based life. He reports that he now feels mentally and spiritually healthy and at peace with himself.
37The appellant stated that he no longer feels compelled to use drugs or alcohol. He has been offered anti-craving medication but declined it because he does not now experience cravings for either alcohol or cocaine. He has been in social situations connected with his employment where alcohol is present and has been able to abstain.
38The appellant testified that it is becoming increasingly difficult to carry out the functions of his job without a vehicle and the lack of a licence may jeopardise his continued employment. He feels that he is now able to operate a motor vehicle responsibly and safely, and asks that the Tribunal set aside the Registrar’s decision so that his licence can be reinstated.
39In considering the nature of the appellant’s condition, we note that:
The appellant experienced a previous, longstanding dependency on sleeping pills that eventually had to be addressed by in-patient treatment
the appellant’s current substance use involved cocaine
The appellant used both alcohol and cocaine in conjunction for many years
The appellant’s pattern of substance use became established and continued for many years. It will take some time for his recovery to crystallize and become established
Relapse is common in early recovery.
40Taking those factors into account, we agree with the Registrar’s November 2, 2018 decision that (among other things) a minimum six-month period of abstinence is necessary to make sure that the appellant’s recovery has crystallized before reinstatement is considered.
(f) The CCMTA Standard
41The Registrar’s July 10 and November 3, 2018 decisions are consistent with the CCMTA medical standards for driver eligibility.
42The relevant CCMTA standard states that a person who suffers from a substance use disorder or alcohol dependence will be eligible for licencing if he/she:
(i) meets the criteria for remission and has abstained from the substance for a period of 12 months
(ii) earlier re-licensing may be considered upon favorable recommendation from an addiction’s specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.
43The Register’s initial decision to suspend the appellant’s licence until a one-year period of abstinence had been confirmed is consistent with the CCMTA standard.
44The standard also states that earlier licencing may be considered upon the favourable recommendation of the treating physician and completion of a drug rehabilitation program.
45In this case, Dr. V. stated (in his letter of November 2, 2018) that in his opinion the appellant is safe to drive and recommended reinstatement of his licence. Dr. V. also confirmed that the appellant had received formal counselling with respect to his conditions.
46In light of that information, the Registrar reduced the required one-year period of abstinence to six months. That decision was also consistent with the CCMTA standard above.
(g) The Registrar’s Decisions are Confirmed
47In summary, given that the appellant used cocaine and alcohol – both addictive substances - for many years, and the fact that relapse is common in early recovery, we are of the opinion that the suspension should continue for a minimum six-month period of abstinence.
48We do not minimise the appellant’s success in dealing with this difficult condition and we acknowledge his responsibility and courage in taking the appropriate steps to deal with it. We wish him continued success.
49However, our primary concern is the safety of the public and in the circumstances of this case we confirm (subject to the modification described below) both the Registrar’s initial July 10, 2018 decision to suspend the appellant’s licence and the November 2, 2018 decision to continue the suspension until (among other things) confirmation of a minimum 6-month period of abstinence is received.
(h) When Does the Six-Month Period Start?
50The Registrar’s November 2, 2018 letter stated that reinstatement will be considered once the Registrar receives confirmation from the appellant’s treating physician that he has been abstinent from alcohol for a period of six months.
51In a letter dated November 13, 2018, Dr. V. stated that the appellant stopped using cocaine as of July 9, 2018 but continued to consume one drink per night for a short period because sudden discontinuance could be dangerous.
52According to Dr. V., the six-month period of abstinence should start on July 9, 2018 since he has been abstinent from cocaine since then and only consumed alcohol in small amounts for a short period afterwards on the advice of a health care professional.
53At the hearing, the appellant reiterated that request. The Registrar’s agent agreed that the 6-month period of abstinence should be regarded as starting on July 9, 2018.
54The facts indicate that the appellant stopped his uncontrolled use of alcohol as of July 9, 2018. After that date he only consumed a small controlled amount on medical advice to reduce the chance of potentially dangerous withdrawal symptoms.
55We agree that the appellant should be regarded as having been abstinent from alcohol from the date that he stopped using alcohol except as directed by a health care professional. Since the appellant only used alcohol after July 9, 2018 on medical advice, his first day of alcohol abstinence should be considered to be July 9, 2018.
DECISION
56Under s. 50(2) of the Highway Traffic Act, the Tribunal may confirm, modify or set aside a decision of the Register made under s. 47 of the Act.
57We confirm the Registrar’s decision of July 10, 2018 to suspend the appellant’s licence on medical grounds.
58We modify the Registrar’s November 2, 2018 decision only to make it clear that what is required is a minimum six-month period of abstinence from consuming alcohol except upon the advice of a health care professional.
ORDER
59The appellant’s licence shall remain under suspension until the following information is sent to and assessed by the Ministry’s Medical Review Section:
(a) Confirmation that the appellant has been abstinent from alcohol for a minimum period of six months except upon the advice of a health care professional.
(b) This assessment must be supported with the results of recent biochemical markers (MCV, GGT, ALT) with a clinical explanation for any results that are outside the normal laboratory range and urine drug toxicology.
(c) Confirmation from the appellant’s treating physician or specialist of a diagnosis concerning his past cocaine us (i.e., drug misuse, drug abuse, or drug dependence).
(d) Confirmation of the results of a recently completed urine drug screening.
LICENCE APPEAL TRIBUNAL
Erica Weinberg, M.D. Member
Stephen Scharbach, Member
Released: December 7, 2018