D. S. v. Registrar of Motor Vehicles, 2018 CanLII 128745

Date: 2018-09-28

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:

D. S. Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, M.D., Member Barbara Hicks, Member

Appearances: For the Appellant: Self-represented For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: By Teleconference August 2, 2018

REASONS FOR DECISION AND ORDER:

A. OVERVIEW

1On January 27, 2018, the appellant, a 54 year old man, was seen in the emergency department of Mackenzie Richmond Hill Hospital. Sometime on the evening of January 26th, the appellant had been found by a passerby unresponsive behind the wheel of his vehicle in the hospital parking lot. Based on that emergency department visit, the emergency physician, Dr. F, filed a Medical Condition Report with the Registrar of Motor Vehicles, pursuant to s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H 8 (the “HTA”), which requires all medical practitioners to report any person older than the age of sixteen who is suffering from a condition which may make it dangerous for that person to drive. The condition reported was drug dependence. As a result of the report, the Registrar suspended the appellant’s driver’s licence pursuant to s. 47(1) of the HTA. The appellant appeals the suspension of his driver’s licence to the Licence Appeal Tribunal (the “Tribunal”) under s. 50 of the HTA.

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

B. ISSUES

3The issue for the appeal is whether the appellant is addicted to a drug to an extent that it is likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer this question, we will focus on the following questions:

• Is the appellant drug addicted?

• If so, is his drug addiction likely to significantly interfere with his ability to drive safely?

C. EVIDENCE

Registrar’s Evidence

4The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA based on a Medical Condition Report dated January 27, 2018 from Dr. F. This report was based on Dr. F’s examination of the appellant and the reported condition of “drug dependence.” There was a handwritten notation by the doctor on the Medical Condition Report as follows: “Cocaine. Methadone. Found with decreased level of consciousness while driving truck.”

5The appellant was notified that his licence was suspended by letter from the Registrar, dated January 30, 2018. The letter enclosed a Substance Use Assessment Form. The letter explained that in order to have his driver’s licence reinstated, the appellant should take the letter and the accompanying forms to his physician for completion. The letter indicated that if the physician confirmed the diagnosis of substance dependence, the Ministry would require confirmation that the appellant has remained abstinent from all illicit and/or non-prescribed medication for a period of one year. This period may be reduced if the physician confirmed that a drug treatment program had been successfully completed and the physician was supportive of the appellant’s driving privileges being reinstated.

6The appellant provided the Substance Use Assessment Form to Dr. K., his family physician. Dr. K. completed the form on March 9, 2018 although it appears that only the first and last pages of the Assessment Form were transmitted to the respondent. The middle page was missing. Question #1 asks the physician to indicate on the list all diagnoses that apply. Here, Dr. K indicated “drug dependence.” At question #2, Dr. K indicated that the substances that apply were illicit substances and prescribed medication. In handwriting beside this question, Dr. K wrote “February 22^nd^ urine test - he was abstinent from cocaine.” At Part 3 Dr. K indicated that the patient has been prescribed medication but that the medication regimen does not result in any side effects that would impair the appellant’s ability to safely operate a motor vehicle. In Part 4, which allows for additional comments, Dr. K wrote: “He was booked for MRI on January 26, 2018. He is claustrophobic. I have given him Ativan 5 tablets. He took 2 mg and was not helpful. He was instructed to take the rest and that caused him to get confused. He was not driving at the time of the incident.” Dr. K indicated that she has been treating the appellant since October 2016. Ativan is a benzodiazepine, also known as a tranquilizer.

7On March 6, 2018, the appellant entered into a written agreement with Dr. K. regarding the proposed plan to treat his chronic pain with opioid analgesics. In the agreement, the appellant agreed that the form of treatment, the side effects of it and the risks associated with this type of treatment had been explained to him. He also acknowledged that ongoing use of opioids will lead to physical dependence and the risk of addiction.

8On March 21, 2018, the respondent wrote to the appellant and requested that the appellant ask his physician to complete the Substance Use Assessment Form again since the previous one that had been submitted was incomplete.

9A second Substance Use Assessment Form was submitted by Dr. K on March 29, 2018 referencing the same date as the previous one (March 9, 2018). This time, page two was included and it had been completely filled out. The panel notes the following questions and answers, using the numbering system on the Substance Use Assessment Form:

5. To your knowledge, has the patient abstained from alcohol?

Answer “No.”

6. To your knowledge, has the patient abstained from drugs?

Answer “No.”

7. If the patient is physically dependent on prescription medication, have they been taking the medication at the dosage prescribed for at least 6 months?

Answer “Yes.”

8. Has the patient successfully completed a formal addictions treatment program or formal counselling with a physician, nurse practitioner or ICADC certified addictions counsellor?

Answer “No.”

9. Has the patient been reported for drug misuse, abuse or dependence? If Yes checked, the results of a urine toxicology screen completed within the last 3 months are required. To which the doctor answered “Yes” and referenced urine toxicology results done in the emergency department of Mackenzie Richmond Hill Hospital.

10. The results of biochemical markers within the last 3 months are required. Dr. K indicated that all markers were within normal laboratory range.

10On April 5, 2018, the Registrar wrote to the appellant informing him that his driving privilege should remain under suspension. The Ministry would review the case if the appellant’s physician could confirm that the appellant has remained abstinent from all illicit drugs for a period of one year, which timeframe could be reduced to six months if a drug treatment program had been successfully completed and the appellant’s physician was supportive of the driving privilege. In addition, the Ministry requested the results of a recent urine toxicology drug screen with a clinical explanation for any abnormal results.

11On April 27, 2018, a urine toxicology drug screen result was provided to the respondent. The urine had been collected on February 22, 2018. The drug screen was positive for a number of drugs and their break down products, including methadone, EDDP, oxycodone, noroxycodone, fentanyl, norfentanyl and lorazepam. The presence of these drugs is consistent with medications that have been prescribed to the appellant.

12The receipt of this urine drug screen prompted a further letter to the appellant from the Ministry. On May 8, 2018, the Ministry advised the appellant by letter that the driving privilege should remain under suspension until confirmation could be provided that the appellant had remained abstinent from all illicit drugs for a period of one year (which could be reduced to 6 months upon successful completion of a drug treatment program and the appellant’s physician being supportive of reinstatement) and the results of a further urine drug screen toxicology report.

13The Ministry provided a copy of the Extended Driver Record Search for the appellant dated July 12, 2018. It indicates that the appellant has been driving in Ontario since December 28, 1979. The appellant’s licence had been suspended previously on two occasions for unpaid fines, but there were no convictions for any impaired driving offences of any type. The suspension for medical reasons began on February 9, 2018. The appellant does not currently have any demerit points.

14In summary, the respondent relies on the Medical Condition Report, including the physician’s documentation regarding cocaine use, Dr. K’s report that the appellant is drug dependent, the appellant’s own admission about his use of an illicit drug and Chapter 15 of the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (“CCMTA Guidelines”). According to the CCMTA Guidelines, research indicates that the use of opioids can adversely affect driving performance, with the degree of impairment dependent on the particular opioid used, dosage, previous use and developed tolerance, and time of day taken (page 222). Opioid drugs are known to potentially impair the ability to operate a motor vehicle safely. The use of opioids can cause blurred vision, slowed reaction times, sedation, tremors, rigidity, impairment of memory and attention and disorientation or hallucinations. Opioid narcotics include, but are not limited to, fentanyl, methadone and oxycodone. The appellant takes these medications on a regular basis. In the respondent’s opinion, the appellant’s use of prescribed and illicit drugs is directly connected to the appellant being unconscious behind the wheel of his vehicle.

15The respondent requests that the Tribunal confirm the decision of the Registrar.

Appellant’s Evidence

16The appellant described the events leading up to the time he was found in his vehicle with a decreased level of consciousness on January 26, 2018. The appellant was scheduled to have an MRI at Mackenzie Richmond Hill Hospital earlier that day.

17As a result of a motor vehicle collision a number of years ago, the appellant suffers from excruciating pain in his back. He cannot enjoy some of the activities he used to enjoy before such as going fishing or hunting, attending garage sales, walking the dog or washing the dishes. Having an MRI done would potentially help identify options for reducing the pain and for that reason the appellant was highly motivated to have the MRI.

18The appellant lives on Manitoulin Island and therefore it was an 8-hour drive for him to get to the hospital in Richmond Hill. He had made arrangements in advance to stay at a friend’s house the night before the MRI. The drive was long and difficult since he had to do all the driving himself and the driving conditions were dangerous as it had been snowing. His wife was not able to accompany him to Richmond Hill as she needed to stay home to care for their sick dogs. Prior to driving, the appellant chose not to take any of his pain medication so as not to impair his ability to drive. He testified that although he was in pain as a result of not taking any medication, he had to “rise above it” so he could get to Richmond Hill. The appellant was also feeling very anxious during the drive because he suffers from claustrophobia and he was worried that he might not be able to go into the relatively small, confined space inside the MRI machine the next day.

19The appellant arrived at his friend’s house at around midnight or 1 am. His friends were in “party mode” when he arrived. The appellant’s friend was about to undergo an amputation and his friend was dealing with that difficult news by partying and doing drugs. His friend offered him a “line of cocaine” and the appellant accepted. He testified that he felt it would be almost rude to refuse. He said this was very out of character for him and said it will never happen again. He stayed up with his friends until 4 am or 5 am and then went to bed.

20When the appellant arrived at the hospital the same day for his MRI at 4 pm, he took his normal dose of pain medication plus ‘a couple’ extra Ativan (lorazepam) as was suggested by a physician who the appellant did not want to identify. The appellant was extremely anxious and understood that the Ativan would help him relax enough so that he could be in the confined space of the MRI machine. As he was still feeling anxious, he took 3 more Ativan while in the waiting room.

21Unfortunately, despite taking the extra Ativan, he was not able to take the MRI at the scheduled time due to his overwhelming claustrophobia. The hospital staff did their best to try to accommodate the appellant, but he just could not do it. By the time he felt ready to attempt the MRI, his scheduled time slot had passed and he had to be rebooked. At that point, he went to his vehicle. He was planning to stay overnight at a hotel or at his friend’s house again but he really cannot recall much of what happened after that. He does not recall starting the vehicle or driving it. A passerby noticed him passed out behind the wheel and called for help. The appellant was then taken into the emergency department. It does not appear that the police were involved as we do not have any police report before us.

22The appellant said that he did not know that taking so much Ativan would impact him the way it did. He just thought it would help him feel more relaxed so that he could have the MRI. He testified that he never would have taken so many if he had known that they would have made him so impaired.

23After he was discharged from the emergency department, the appellant took a taxi to his friend’s house and slept. The next day he recovered his vehicle from the hospital parking lot and drove back to Manitoulin Island.

24The appellant testified that he worked as a truck driver for his entire adult life and always relied on having a driving licence. He broke his back in an automobile accident in 2007 and has not worked since then. He now receives a disability pension. Though he is now retired, he lives in a remote area of northern Ontario where there is no public transportation. His wife does not drive so it is a necessity for him to have a driving licence. He has been relying on friends for rides since his licence has been suspended.

25Under the direction of Dr. K, the appellant takes a number of medications to help manage his back pain. He admitted that he is physically dependent on them. Currently the appellant uses a 100 microgram transdermal fentanyl patch every three days. He also takes OxyContin 80 mg four times per day. He takes methadone once a day and Ativan as needed (usually every few nights when sleeping is difficult or when he feels anxious). He also takes blood pressure pills.

26The appellant testified that he has not had an alcoholic beverage in 25 years. He has not used illegal drugs since his teenage years, save and except for that one occasion at his friend’s house the early morning before the scheduled MRI. He regrets that decision terribly and says it was a momentary lapse of judgment on his part. He also indicated that he has always been very responsible with all of his medications and has not abused them. About four years ago, in an attempt to manage his pain, the appellant voluntarily participated in a methadone program in Newmarket. More recently, he has been on a methadone taper in an attempt to reduce his overall use of opioids (pain medications). Currently the appellant takes 22 mL of methadone daily and must travel every day to a nearby town (approximately 50 km round trip) to have the methadone dispensed by a pharmacist.

27Dr. K. is aware of the appellant’s claustrophobia, which started a couple of years ago. She is supportive of any program/efforts the appellant might want to take to address it. Even though the claustrophobia prevented the appellant from having an MRI done, he has not taken any non-pharmacological steps to deal with it.

28The appellant’s wife, V.S., also gave oral testimony. She indicated that they have been a couple since 1993 and that he used to work as a truck driver. Because of his work, he would have random drug checks frequently. V.S. has never known the appellant to do any marijuana or other illicit drugs or drink any alcohol at all, not even on New Year’s Eve. She said that he made a mistake that early morning in January 2018, no doubt because he was afraid about the MRI the next day. She was very surprised and shocked to hear that he had taken cocaine. As V.S does not drive, the appellant now depends on neighbours for rides into town.

29The appellant provided a letter from his physician, Dr. K., dated August 1, 2018. The letter indicates that the appellant has been under Dr. K’s care since October 2016. She indicated that since the drug overdose incident, she has checked the appellant’s urine twice without notice, and that the results indicated that he is only taking his prescribed medications. She supports reinstatement of the driving privilege.

D. THE LAW

30The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d) to (g) of that section. Paragraph (g) is the relevant one in this appeal and it states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

31One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) states:

(1) An applicant for or a holder of a driver’s licence must not,

(b) 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.

32Section 14(2) of the Regulation allows the Minister of Transportation to consider the CCMTA Guidelines when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Guidelines into consideration, although the Tribunal is not bound by them.

33The Minister may also require a driver to provide satisfactory evidence pursuant to s. 14(2)(b) of the Regulation that he or she is able to drive safely. The Tribunal may consider to what extent the driver has satisfied such a request.

34The Registrar bears the burden of proving the alleged grounds for suspending a driver’s licence on a balance of probabilities. Following a hearing, the Tribunal is empowered by s. 50(2) of the HTA to confirm, modify or set aside the decision or order of the Registrar.

E. SUBMISSIONS

Registrar’s Submissions

35The Registrar requests that the Tribunal confirm the suspension and relies on the documentary evidence submitted in support of the continued suspension. The Registrar is moved by the medical evidence and remains concerned about the appellant’s ability to drive safely.

Appellant’s Submissions

36The appellant submits that the licence suspension should be set aside.

37The appellant submits that the incident leading to his driver’s licence suspension was a one-time incident that will not recur. The appellant has gained insight from this very negative experience by having a much better understanding about the impact that too many Ativan will have on him and will be sure not to abuse that medication again.

38The appellant admits that he took cocaine once but he states that he will not do that again.

39The loss of the appellant’s licence has been very difficult. As his wife does not drive, he is now dependent on friends for rides. Because he lives in a remote area, it makes it more difficult to get to medical appointments when he does not have a driver’s licence. His family physician is located in the Toronto area and can only manage to see her every 3 months or so. The appellant stated that he intends to move from his current remote location as soon as possible.

F. ANALYSIS

40The Tribunal has given careful consideration to the evidence and submissions of both parties. We have also considered the legislation and the relevant medical standards in determining if the appellant suffers from a condition that is likely to significantly interfere with his ability to operate a motor vehicle safely.

41We are not satisfied that the Registrar has proven that the appellant is addicted to his prescribed medications or to illicit drugs. Although there are two separate medical assessments from two different doctors confirming drug dependence, physical dependence is not the same as addiction. As per page 4 of the Ministry of Transportation Substance Use Assessment Form (SR-LC-151 14/07), addiction is the repetitive inappropriate use of any psychoactive substance associated with loss of control, inability to abstain and a preoccupation with obtaining the substance and withdrawal symptoms.

42While the appellant exercised very poor judgment when he took cocaine in the early morning hours before his MRI, there is no evidence that he is addicted to cocaine. It appears he used cocaine only on that one occasion.

43He misused his Ativan prescription on the day of the MRI (taking five Ativan tablets in a short period of time, not one as needed at night time). While the appellant may be physically dependent on Ativan, there is no evidence to support a finding that he is addicted to it. The appellant’s dependence on Ativan is not likely to interfere with his ability to drive safely if he takes it as prescribed. This is supported by Dr. K’s answer on the Substance Use Assessment Form dated March 9, 2018 Dr. K. wherein she confirms that the appellant’s current medication regime will not result in any side effects that would impair the appellant’s ability to safely operate a motor vehicle.

44The appellant’s physician is supportive of reinstatement of the driving privilege. Dr. K has performed urine toxicology tests twice on the appellant since the incident in January without advance notice to him and the results indicated that only the appellant’s prescribed medications were present. Since the overdose incident, the appellant entered into an agreement with Dr. K. regarding his treatment of chronic pain using opioids. In it, the appellant acknowledges the risks, side-effects and rules around this treatment method and agrees to abide by them.

45The appellant has a long driving record with no other incidents of impaired driving.

46The appellant readily admitted his poor decisions and accepted responsibility for his actions and states that he has learned from his mistakes. He has much greater insight now into the consequences of taking illicit drugs or misusing his prescription. We strongly urge the appellant to seek non-pharmacological treatment for his claustrophobia, which appears to have been the major cause of the poor decisions he made in January.

47For the foregoing reasons, we do not believe the Registrar has discharged its burden in in this case.

ORDER:

48For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to suspend the appellant’s licence.