B.R. v. Registrar of Motor Vehicles, 2018 CanLII 50224

Licence Appeal Tribunal

Date: 2018-05-04

File Number: 11203/MED

Appeal under subsection 50(1) of the Highway Traffic Act (the HTA), R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 47(1) of the HTA to Suspend a Driver’s Licence

Between:

B.R. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Harriet Lewis, Member

Appearances: For the Appellant: B.R., Appellant For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By teleconference: March 26, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant is a 43-year-old professional accountant who is a partner in a property management business. He was first licensed to drive in 1981 and prior to this suspension had an unblemished driving record.

2In 2016, he realized that his alcohol consumption had increased to an uncomfortable point, he sought medical help. He completed a residential treatment program in early May 2017 and remained abstinent until November 2017, at which point he decided to test whether he could drink socially. He drank in escalating amounts for approximately a week and a half and then stopped.

3On November 11, 2017, during an appointment for unrelated medical issues, he told his family physician Dr. M.W. about his relapse. In answer to a question posed by the doctor, the appellant allegedly admitted that he had driven after drinking alcohol. Dr. M.W. issued a medical Condition Report, indicating “Alcohol Dependence”.

4As a consequence, on November 17, 2017, the Deputy Registrar of Motor Vehicles (the registrar) issued a letter to the appellant, suspending his licence and requiring confirmation of a period of abstinence of one year; that period being subject to reduction to six months on confirmation by a physician that the appellant had successfully completed an alcohol treatment program and that the physician was supportive of the appellant’s driving privileges.

5On January 9, 2018 the registrar again wrote to the appellant advising that the registrar required confirmation of abstinence of “one year six months”. That letter was followed on January 10, 2018, by a further letter asking that the appellant “disregard the correspondence issued on January 9”, and confirming that the required period of abstinence was to be six months, plus a satisfactory recent report on bio-chemical markers.

6Following receipt of the January 10 letter, the appellant submitted a letter to the registrar from Dr. B.R., his addiction specialist. Dr. B.R. confirmed the appellant’s abstinence since November 14, 2017, and indicated support for his driving privileges “as long as he remains abstinent from alcohol use”.

7Notwithstanding, on January 30, 2018, the registrar again wrote to the appellant, confirming that both a six - month period of abstinence and a recent satisfactory bio-chemical marker report were required before reinstatement would be considered.

8On February 7, 2018, the appellant filed his appeal.

9On March 13, 2018 a further “amended letter” was issued to the appellant by the registrar. In that letter, the requirement for reinstatement was changed again. This time it was stated to be one year of abstinence, subject to reduction to six months if “your physician confirms that you have successfully completed a new alcohol treatment program and is supportive of your driving privileges”. In addition, the application for reinstatement was to include a satisfactory report of tests for named bio-chemical markers.

10For the reasons that follow we deny the appeal but modify the registrar’s decision and substitute the pre-requisites of reinstatement as set out in the registrar’s letter of January 30, 2018. Details of those pre-requisites are set out below.

B. PRELIMINARY ISSUES:

11At the outset of the hearing, the tribunal expressed concern about the pattern of letters from the registrar. The agent for the registrar acknowledged the unusual nature of the correspondence but was unable to provide any explanation for what had occurred.

C. ISSUES:

12The issue in this appeal is whether the appellant is addicted to the use of alcohol to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.

D. EVIDENCE:

Respondent’s Evidence:

13The respondent’s evidence consisted of reference to the materials on which the registrar relied in suspending the licence, particularly on the one year abstinence specified by CCMTA standard 15.6.3.

Appellant’s Evidence:

14The appellant is a business man who lives with his wife, daughter and son on a rural property. He is a partner in a property management business and is dependent on being able to drive, both for his business and for family activities.

15The appellant stated that over time, he noticed with concern that the level of his social drinking had been increasing. Although he did not drink during the day, his practice was to spend the evening in his “man cave”, watching T.V. and consuming an increasing number of drinks. He estimated that he consumed from four to six drinks of hard liquor over two or three hours each evening. In late 2016, he shared his concern with his long- time family physician who referred him to an addiction specialist, Dr. B.R., who prescribed medication (Campral 330 mg) designed to reduce his desire for alcohol.

16The appellant did not find the medication to be effective. He returned to Dr. B.R. and about the same time, changed his family physician to Dr. M.W. At the time, neither of Doctors B.R. or M.W. were sufficiently concerned about the risk of his driving to file a Medical Condition Report about him with the Ministry of Transport.

17In April 2017 of his own volition, he entered a five-week residential treatment program at the Homewood Health Centre in Guelph, Ontario. He graduated on May 15, 2017 and reported that the program gave him tools for abstinence to which he frequently still refers.

18After eight months of abstinence he wondered if he could resume social drinking and to test himself he resumed drinking in mid-November 2017 for a period of one and a half weeks. During that time, he again observed that he had issues with control. He estimated that by the second week he had accelerated to drinking five beers in an evening. He quit again and has not had a drink since November 14, 2017.

19After his relapse he visited his specialist, Dr. B.R. and told him of the relapse. He believes that Dr. B.R. was not concerned about his driving as he did not report him to the Ministry. At this time, he also had an appointment with his family physician for an unrelated issue. In the course of conversation, he shared the fact of his relapse with him. Dr. M.W. did report him by way of the Medical Condition Report of November 11, 2017, identifying him as “alcohol dependent”.

20The appellant was shocked to receive the registrar’s notice that his license was being suspended and denies that Dr. M.W. told him that he was going to file a report. He also denies that he told Dr. M.W. that he drove after drinking which was reported in the Medical Condition Report.

21The appellant told the tribunal about his confusion upon being notified of the various and differing requirements for reinstatement that were set out in the series of letters sent from the registrar. After the erroneous letter of January 9, 2017 and the correction of January 10, 2017, he spoke to a supervisor in the office of the registrar and confirmed that the letter of January 10, setting a six -month period of abstinence, reflected the registrar’s decision.

22On January 12, 2018 the appellant’s specialist submitted a letter to the Ministry in support of the reinstatement of driving privileges. That letter was followed by a further letter from the registrar to the applicant dated January 30, 2018, clarifying that he not only had to be abstinent for six months and have his doctors support for reinstatement, but also provide a recent bio-medical marker report. Shortly after, on February 7, 2018, the appellant filed this appeal.

23The appellant expressed the frustration he felt with the process when, after filing his appeal, he received a registrar’s letter dated March 13, 2018, imposing new and more onerous conditions. He believes the conditions are unnecessarily punitive and are detrimental to both his family and business life.

24At the end of 2017, after his relapse, the appellant made arrangements to begin therapy. He subsequently arranged for another family member to see the therapist and that fact, combined with his limited ability to travel without driving, has meant that he has not continued with the therapist. He attended a few sessions of A.A. after his residential treatment, but did not find it to be helpful. He continues to take medication prescribed by his addiction specialist and takes other prescribed drugs for unrelated medical conditions.

25During the period of licence suspension, the appellant has had to rely on an employee and his family members to drive him to and from work. There is no bus service in his immediate neighborhood. As his wife also works outside of the home, he is concerned about his inability to be available to pick up his daughter when needed, or to run errands. His son has recently returned to live in the family home and now is able to share some of those responsibilities.

26There is alcohol in the home, and his wife continues to be a social drinker, enjoying a glass of wine with dinner. He stated that he is not tempted by the presence of alcohol in the home.

27The appellant’s testimony as to whether he ever had driven after drinking was somewhat unclear. Although he was clear that he never drove when intoxicated, he agreed that in the past he may have driven to a store or elsewhere after having had a drink with dinner.

28Although he noted sometimes high levels of stress both at work and at home, he believes he has good family support for his abstinence.

E. THE LAW:

29The Registrar has the power under s.47(1) of the Act to suspend or cancel a drivers licence for any sufficient reason.

30In this case, the applicable reason for suspension is found in Ontario Regulation 340/94 under the HTA which 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.

31In determining whether a person meets the standard set by s.14(1) the Minister may, under s.14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s.15 of the Regulation.

32Paragraph 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s.14 (1) are met.

33The tribunal may take the CCMTA Standards into consideration although they are not binding requirements. In this case, the respondent referred the tribunal to s. 15.6.3 of the CCMTA; which recommends a twelve-month period of abstinence, but provides for earlier relicensing on a recommendation of a treating physician and the successful completion of a drug rehabilitation program.

34The jurisdiction of the tribunal is set out in s. 50(2) of the HTA and allows the tribunal to confirm, modify or set aside the decision or order of the Minister.

F. ANALYSIS:

35The evidence requested prior to reinstatement of a drivers licence in this case is set out the last registrar’s letter on March 13, 2018 and is that:

. there be twelve months abstinence from November 14, 2017

. the period may be reduced to six months if a physician confirms successful completion of a new alcohol treatment program and is supportive of driving privileges

. there is evidence of attendance in a relapse program and of support for the maintenance of recovery

. the appellant provides results of recent bio-medical markers with a clinical explanation for any levels outside of the normal laboratory range.

These conditions are much more onerous than those previously imposed, and no explanation for the changed requirements has been provided

36We are of the view that the pattern of erroneous and amended communications from the registrar to the appellant in this case is very unfortunate. The inconsistency in the requirements for reinstatement set out in the correspondence has caused undue stress for the appellant to the point of being punitive.

37The appellant presents as a credible and self -aware individual who has recognized that he cannot drink alcohol and has taken steps to address his desire to do so. But for unclear evidence as to whether he has ever driven after drinking, (which is irrelevant if he remains abstinent), we found him to be forthcoming about his problems and his testimony to be credible.

38At the time of this hearing he has been abstinent for four months. He has expressed a wish to continue with some therapy when he can gain access to it and continues to make regular visits to his addiction specialist and family doctor. He returns to the materials and lessons learned at Homewood for further support.

39Because of the requirements of both his family and his business, he is highly motivated to maintain his sobriety and regain his driving privileges. We believe he will be able to obtain support for the reinstatement of those privileges from his addiction specialist.

40He did not provide the tribunal with a recent bio-marker analysis as required by the registrar, and our view is that that the requirement that he provide recent test results is reasonable in these circumstances.

41We are of the view that fulfilling the conditions set out below will be sufficient to show that the appellant is not addicted or dependent on alcohol to the extent likely to significantly interfere with his ability to drive a motor vehicle safely.

G. CONCLUSION

42For the reasons set out above, pursuant to subsection 50(2) of the HTA, the registrar’s decision is modified to provide that the appellant shall be entitled to the reinstatement of his licence on the following conditions:

. a report from his physician attesting that the appellant has abstained from using alcohol for a period of six months from November 14, 2017.

. results of a recent test showing that his biomedical markers (MCV, GGT, AST & ALT) are within normal laboratory range with a clinician’s explanation for any levels outside of that range.

. confirmation from his physician that he is supportive of reinstatement of the appellant’s driving privileges.