Date: 2018-09-13

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:

J.F.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Peter Savage, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: Teleconference August 14, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1On September 12, 2017, the Registrar of Motor Vehicles (Registrar) received a medical condition report from Dr. D.C., family physician, reporting that the appellant suffers from drug dependence, in particular cocaine addiction, and that he drives for Uber. Because of that report, the respondent suspended the appellant’s driver’s licence on the basis of a substance abuse. The appellant appeals this decision.

2The question we had to determine was whether the appellant is addicted to a drug such that it is likely to significantly interfere with his ability to drive safely.

3For the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

4The issue in this appeal is whether the appellant is addicted to cocaine such that it is likely to interfere with his ability to drive safely.

C. LAW:

5The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities.

6The 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 a drug to the extent likely to significantly interfere with their ability to drive safely.

7Section 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.

8The CCMTA Standard at s. 15.6.3 applies to drivers who are under the influence of alcohol, and illicit drugs including cocaine. The recommended standard for lifting a licence suspension includes the following:

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

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

9We may take the CCMTA Standard into consideration, although it is not binding on us.

D. EVIDEnCE & ANalysis

10The respondent relied on the following documentary evidence to show that the appellant has an addiction to cocaine and has not met the CCMTA Guideline for re-licensing:

a. A medical condition report submitted by Dr. D.C., family physician, on September 18, 2017 advising the Registrar of the appellant’s reported condition of “drug dependence”. The report includes the following note “Cocaine addiction. Discloses 1g cocaine/day in small sniffs including smoking crack cocaine. Drives for Uber as a self-employed taxi driver. Threat to road safety unknown. Seeking help for addiction”;

b. Two of three pages of a completed Substance Abuse Assessment form by Dr. D.C., dated June 20, 2018. The report notes “drug misuse” and alcohol use within low risk drinking guidelines. Attached to the form was a letter dated June 20, 2018 from Dr. D.C. stating the appellant drinks 5-6 beers per week. It also states the appellant abstained from cocaine for 7 months apart from snorting 0.5g on Sunday June 17, 2018. The letter states there are no formal addiction treatments available for him at this time however he has engaged with a support group. Past medical history includes anxiety and depression. There is also an addendum dated August 10, 2018 which includes urine toxicology submitted August 7, 2018 which was positive for cocaine and levamisole (an animal tranquilizer sometimes mixed in with cocaine in street bought drugs);

c. A second drug screening test conducted three days later on August 10, 2018 negative for cocaine and all other drugs; and

d. A letter from the respondent, dated August 13, 2018, advising that the respondent’s Medical Review Section had reviewed the appellant’s medical documents and was requesting confirmation that he had remained abstinent for 12 months, or 6 months upon completion of a drug treatment program and a physician confirming support for a return to driving.

11The appellant testified that his previous family doctor had retired. He had gone to an interview with a new doctor, Dr. D.C., who was one of several doctors taking over the practice. The appellant agreed that he had advised the doctor that he occasionally did cocaine. He was surprised when he was informed by Dr. D.C. that he might have to be reported. At the time, he was an Uber driver.

12The appellant stated that Dr. D.C. misunderstood him at the initial meeting. He did not have an opportunity to put into context his cocaine use and show that it was not part of his daily routine. He agreed he might have used 1g on a “party day” but not on a regular basis.

13We accept the appellant’s evidence that his cocaine use was not a regular habit of 1g/day. That being said, we find that his significant and repetitive use of cocaine does amount to a cocaine addiction. Furthermore, the appellant agrees that he needed help, and indeed, this is why he raised his usage with his doctor in the first place.

14The appellant testified that he did not wish to return to Dr. D.C. after the doctor sent in the medical condition report to the Registrar. However, in order to have the required Substance Abuse Assessment form filled out, he had no choice but to return to Dr. D.C.’s care.

15In cross-examination, the appellant stated he felt safe at first talking to Dr. D.C. and wanted assistance, but lost his trust when advised he would have to be reported to the Registrar. When asked if he would change his answers knowing the seriousness of what he told his doctor now, he stated he would have gone to see a different doctor.

16We find this evidence somewhat troubling. Dr. D.C. was complying with a legal obligation to report the appellant to the Registrar. The appellant sought assistance and was honest with his family doctor. He agreed that there was some good which came out of this in that he took significant steps to address his cocaine use and change his lifestyle. It would not serve the appellant nor the public had he concealed his cocaine use for the purpose of maintaining his licence while suffering from cocaine addiction.

17The appellant insisted he will not drink and drive or do drugs and drive partly due to the experience many years ago of having to identify his father-in-law’s body who was killed by an impaired driver. The appellant advised that if he did go to a party, he would not work the following day. If he did 1g of cocaine, he would wait a few days before working again.

18The appellant supported his evidence with an extended driver record for the appellant showing only a suspension for medical reasons and no other convictions, discharges or other actions. He also provided Uber passenger reviews showing excellent reviews and no complaints. Should he get his licence back he planned to drive again for something like Uber or a local pizza delivery service.

19The CCMTA Guideline submitted by the respondent explain how drugs such as cocaine affects judgement and decision making. It further states that 35% of people killed in car accidents had legal or illegal drugs in their system.

20We accept that driving while under the influence of a cocaine drug addiction is a significant risk to road safety.

21Although the appellant’s driving record is excellent, as are his reviews, they were not persuasive as evidence that the appellant did not drive under the influence of cocaine. In addition, given our finding that the appellant has a cocaine addiction and the appellant’s stated to desire to drive, we believe that if he continues to use cocaine, he is likely to drive while under the influence of cocaine.

22The appellant testified that there were no drug treatment programs available to him other than Narcotics Anonymous (NA) meetings. In cross-examination, however, he changed his evidence and agreed that there were programs available but that they had a long waiting list.

23We were not provided any evidence as to which programs were available or how long the waiting lists were. In addition, the appellant did not provide any evidence to show that he was on a waiting list. While the appellant is not required to enter a drug treatment program, if he completed one, it would satisfy the guideline in the CCMTA Standard for a reduced waiting period for re-licensing.

24The appellant agreed in cross-examination that Dr. D.C. did not endorse a return to driving. He stated that his doctor is “by the book” and it was not his job to ask for the appellant’s licence back. In our experience, a family doctor can provide a medical opinion regarding the appellant’s drug addiction and therefore his ability to drive safely. In this case, Dr. D.C. made no comment either way. We also note that Dr. D.C.’s letter included a drug test which showed the appellant tested positive for cocaine. We find that the appellant did not have a physician’s endorsement to return to driving.

25The appellant testified that as a result of the loss of his licence he lost his job with Uber, could not find other work and had to go into bankruptcy. He was unable to pay his rent and eventually moved into a rooming house. He wants his licence back so he can return to work and gain his life back.

26The evidence regarding the appellant’s financial difficulties raised questions of credibility when it changed throughout the hearing. While at first the appellant blamed the loss of a driver’s licence as the reason for his financial troubles, he later revealed that he had been a successful real estate agent for 35 years before recently retiring and then becoming a part-time Uber driver. When he lost his driver’s licence he did not qualify for social services due to a failure to pay taxes in the past, which had resulted in the government garnishing 100% of his CPP pension. He chose to declare bankruptcy in order to regain his CPP and Old Age pension.

27We accept that he had previously failed to pay his taxes and this was the reason for his financial difficulties, not the loss of his licence. No weight was placed on the appellant’s financial difficulties as it is not a matter relevant to the test we must consider. However, we do find the appellant’s conflicting testimony affected his credibility.

28The appellant advised that he had once again become active with NA since his licence was revoked. He also described his change in lifestyle. He does not have “party days” anymore. He also has changed the people he hangs out with. He stays in contact with his children and his ex-wife. He goes to NA meetings two to three times per week.

29He at first stated that he had had one slip in his abstinence in the last 10 months by taking cocaine upon hearing that his friend had committed suicide. He reported this to his doctor in June and it is noted in Dr. D.C.’s June letter. The appellant later testified that he had taken cocaine again more recently in July, about three weeks before his positive drug test. He was surprised when his Aug 7, 2018 drug test came back positive for cocaine.

30In cross-examination, he agreed that he had looked up how long cocaine stayed in the system and would show up on a drug screening test, but the internet information was inconclusive. The appellant also postponed this hearing multiple times in order to obtain medical documents. We find that the appellant admitted that he tried to time his test so as to obtain a clear result for the purpose of this appeal.

31We find that the evidence shows the appellant has recently taken cocaine, in both June and July. This is troubling because this is after he made changes to his lifestyle and sought help with NA. We find that this shows the appellant still has an addiction to cocaine and does not meet the criteria for remission.

32The appellant also reported a historical addiction to cocaine in the early 1980s for which he sought treatment at the Royal Ottawa Hospital. At the time, he completed a 28-day in house treatment program. He had even started an NA group in Ottawa. He remained clean from 1983-2003 after which time he started using cocaine casually again. He also expressed that he had been through a lot and this had led him back to using drugs.

33The above evidence shows the appellant has a history of drug dependence, but also a history of successfully being able to seek help and abstain from drugs. This is very hopeful for the appellant’s future recovery.

34The respondent’s position is based on the CCMTA Standard. The respondent also argued that the appellant had neither completed a drug treatment program, nor obtained the support of a physician to return to driving, the two criteria that, according to the CCMTA Guideline, could reduce the one year abstinence waiting period.

35Again, we agree with this assessment of the appellant’s evidence. He has not completed a year of abstinence; he has not completed a drug treatment program, and he does not have the support of a physician to return to driving.

36The respondent further argued that the appellant had sought and obtained four adjournments of this file in order to obtain the evidence to support his appeal and that even then, one recent report came back positive for cocaine and the Substance Abuse Form submitted was also missing one page (though both parties agreed that the missing page was not relevant).

37The appellant stated that if there was a concern regarding his ability to drive others around, he would agree not to do so for a year.

38It is clear the appellant has made some positive steps to address his drug use. He has committed to NA and finds that helpful. He has also returned to his family doctor who can provide support. He has made changes to his lifestyle. He also states that the loss of his licence was a shock and an eye opener for him. However, despite his positive steps, he has still used cocaine relatively recently. The appellant needs more time abstaining from drugs in order to get his licence back. While he is making progress, he is still using cocaine. Unfortunately, we do not have the power to grant a driver’s licence with conditions.

39Although not binding on us, the CCMTA Standard provide guidance as to when a person suffering from a drug dependency should resume driving. In this case, we find these guidelines persuasive. Based on the evidence above, we find that the appellant has not met the requirements suggested by the CCMTA Standard.

40The respondent has met its burden to prove on a balance of probabilities that the appellant is addicted to cocaine such that is likely to significantly interfere with his ability to drive safely. Although the appellant has recently made significant strides in his addiction recovery, we find that he requires more time in a consistent period of abstinence to show that he is no longer addicted to cocaine and therefore does not have a condition likely to affect his ability to drive safely.

E. CONCLUSION:

41We confirm the respondent’s decision to suspend the appellant’s licence on the basis of a drug addiction that is likely to interfere with his ability to drive a motor vehicle safely.

F. ORDER:

42For 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.