Licence Appeal Tribunal File Number: 12229/MED
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 licence pursuant to Section 47(1) of the Act.
Between:
Raymond Vitellaro
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice Chair Erica Weinberg, M.D., Adjudicator
APPEARANCES:
For the Appellant: Raymond Vitellaro, Self-represented
For the Respondent: Sonia DeSantis, Agent
Heard by teleconference: September 19 and October 1, 2019
BACKGROUND
1The appellant appeals the July 21, 2019 suspension of his Class A driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), every prescribed person shall report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive. After receiving such a report from an emergency room physician dated June 11, 2019, the Registrar suspended the appellant’s driver’s licence under s.47(1) of the HTA due to appellant’s substance use disorder.
2The hearing was adjourned on September 19, 2019 with the consent of respondent’s agent to allow the appellant an opportunity to resend some medical information to the Tribunal. The appellant stated that he sent the documentation on September 10, 2019 but would resend it.
3The September 19, 2019 hearing was continued on October 1, 2019. Prior to the continuation the Tribunal and the respondent received the appellant’s patient administration log from Shoppers Drug Mart (“pharmacy”), substance use assessment report from the appellant’s physician Dr. T. dated September 3, 2019 and a letter from Dr. P. dated July 23, 2019.
ISSUE
4The issue in this appeal is whether the appellant has a medical condition, specifically substance use disorder (“SUD”) likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:
a. Does the appellant have SUD?
b. Is the appellant’s medical condition of SUD, if any, likely to significantly interfere with his ability to drive safely?
CONCLUSION
5For the reasons that follow, we find that the appellant suffers from a medical condition, specifically SUD, that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LAW
6The 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), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
7One 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”) under the HTA states:
- 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.
8Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s.14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
9Under s.14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
10The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s.50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
EVIDENCE AND ANALYSIS
Does the appellant suffer from SUD?
11We find that the appellant suffers from SUD.
12The Registrar filed medical records showing the appellant has a history of drug use dating back to 2006 and that the appellant’s driving license was suspended and reinstated in 2015.
13The Registrar filed the report of Dr. W., a hospital emergency department doctor, dated June 11, 2019 which, based on ambulance notes, reports that the appellant felt tired, closed his eyes for a second and struck the tractor trailer from behind, “…took one line of fentanyl and 35 mg of methadone 2 hours prior”. Medical history of methadone and IV drug user is noted. Various other medical reports show that in July 2019 the appellant underwent an operation and received treatment for a fracture and pain as a result of the motor vehicle accident in June 2019.
14The appellant testified that he has used drugs since he was in a motor vehicle accident as a passenger in 2006 and broke 23 bones. He said his doctors prescribed oxycodone and other medications and made him addicted to opioids.
15The appellant testified that he attended an addiction clinic with Dr. B. and was placed on Suboxone (buprenorphine/naloxone) from early 2014 until June 2019.
16After the motor vehicle accident, the appellant was taken to the hospital in an ambulance. He said he does not remember saying anything to the ambulance attendant or to medical personnel at the hospital because he passed out after telling the ambulance attendant that he could not breathe and didn’t wake up until well after being admitted to the hospital. The appellant denied taking one line of fentanyl and 35 mg of methadone two hours prior to the accident as recorded in the ambulance notes and said that this was hearsay. The appellant testified he was going through a divorce at the time of the accident, was sad, depressed, tired and not sleeping well. He denied that these feelings were from his methadone, which was being upwardly titrated at the time.
17The appellant testified that he did take a line of fentanyl (an opioid) in combination with alcohol, but this was on a weekend at least two weeks prior to the accident. He also stated that after he told Dr. B. about the fentanyl use, this is when Dr. B. insisted on a change in his addiction treatment, from Suboxone to methadone. The appellant stated that he chose to change addiction treatment centres and doctors to do this.
18The appellant was discharged from the hospital on Friday, June 14, 2019. During his hospital stay he was given methadone and hydromorphone. When he was discharged from the hospital, the pharmacy cut off his methadone. He stated this had to do with his usage of prescribed hydromorphone during his hospital admission and upon discharge from hospital. He said he went the weekend without methadone but on Sunday June 16, 2019, he got OxyNeo (a form of controlled-released oxycodone, an opioid) from a friend so that he could get through Father’s Day because he did not want his family to see him in withdrawal. On Monday, June 17, 2019 he saw his addiction specialist Dr. B. who put him back on methadone. The appellant testified that he did not want to take methadone, claiming he asked to be titrated off methadone. The appellant testified that he has been clean since then.
19As noted above, the appellant filed patient administration logs from his pharmacy, a substance use assessment form from Dr. T., his family doctor, dated September 3, 2019 and a letter from Dr. P., an addiction treatment doctor, dated July 23, 2019.
20The pharmacy records confirm that the appellant was on a course of methadone prescribed by Dr. P. prior to June 11, 2019. Although the appellant submitted that these records show the times and dosages of methadone and therefore prove his drug usage did not cause the accident on June 11, 2019, the purpose of this hearing was to determine whether the appellant has SUD likely to significantly interfere with his ability to drive safely, and not to determine the cause of the accident.
21The substance use assessment form from the appellant’s family physician Dr. T. diagnoses severe substance use disorder from prescribed medication and recommends counselling/outpatient intensive treatment. Dr. T. notes that he has been involved with the appellant “May 2015 to Dec 2015-July 2019 to present” and “He was followed at a methadone clinic (by another MD) up until July 23, 2019 at which time he stopped attending further appointments as he believed the MD lied to him. At this time, I do not currently have any documentation from the methadone clinic. This form has been completed given the limited information I have on file for him…” Dr. T. sent in two urine drug tests which the appellant believes show he has stopped using drugs, but the appellant says there should have been four tests and he does not know why these others were not sent in.
22Dr. P.’s letter dated July 23, 2019 addressed to the appellant, notes “On July 23, 2019, you became upset because I refused to fill out an MTO form that says you do not have substance use disorder based on recent illicit usage of opiates in June 2019. You got angry and used profanity, had threatening behaviour and damaged the computer teleconference equipment…Our mandate is to work in a harm reduction environment and your behaviour is not only harmful to yourself, it is harmful to other individuals in our clinic. As a result, we regret to inform you that you will no longer be able to attend our Program. We hope that you reflect on this circumstance and remain committed to your recovery journey…”
23We find that the appellant’s doctors are better qualified to assess and objectively report on the appellant’s medical condition than the appellant himself and we accept the evidence in the report of Dr. W., a hospital emergency department doctor, dated June 11, 2019 which reports a medical history of methadone and IV drug use.
24The appellant submits that the statement in Dr. W.’s report based on ambulance notes that he took one line of fentanyl and 35 mg of methadone 2 hours prior is hearsay and ought not to be used in this hearing against him. While we have some latitude in the evidence we accept, we do not rely solely on Dr. W.’s report for the diagnosis of SUD.
25We also rely on the report of Dr. T. dated September 3, 2019 where he diagnoses severe SUD and recommends counselling/outpatient intensive treatment and on the appellant’s admission of illicit drug use on June 16, 2019. The appellant brought forward no medical evidence to support his view that he is not suffering from SUD. Accordingly, we find, based on the totality of the evidence, that the respondent has proven on a balance of probabilities that the appellant suffers from SUD.
Is the appellant’s medical condition likely to significantly interfere with his ability to drive safely?
26For the reasons that follow, we find that the appellant’s medical condition, SUD, is likely to significantly interfere with the appellant’s ability to drive safely.
27The appellant testified that he feels he can drive safely, does not drink, has not taken any drugs since July 23, 2019 and needs his driving license so he can return to work. He also said the Suboxone worked well for him and he is willing to take it again because it is not considered an opioid. He has learned to live with pain.
28The Registrar submits that the appellant’s medical condition is severe enough that he should not be permitted to drive at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers with respect to substance abuse or dependence (Chapter 15).
29Chapter 15 of the CCMTA Standards states that individuals who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines are at a higher risk for adverse driving outcomes.
30Guideline 15.6.3 of the CCMTA Standards states that an individual who is under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines is eligible for a licence if he or she:
- Meets the criteria for remissions and or has abstained from the substance for 12 months.
- Earlier re-licencing may be considered upon favourable recommendation from an addictions specialist and or treating physician and successful completion of a drug rehabilitation program
- The functional abilities necessary for driving are not impaired
- Where required, a road test or other functional assessment shows the functional abilities for driving are not impaired.
31Based on this standard, the appellant would not be eligible for a licence. The appellant’s evidence does not establish that he has abstained from drugs for 12 months. The appellant says he has abstained since July 23, 2019 which is far less than 12 months. However, Dr. T., as recently as September 3, 2019, does not corroborate that the appellant has abstained since July 23, 2019 in his report but instead confirms that the appellant’s diagnosis is severe substance use disorder and recommends counselling/intensive therapy. The appellant testified that he has not discussed treatment with Dr. T. and has not considered going into any treatment program in the last six months because he has stopped taking methadone on his own and does not need a treatment program.
32The appellant has a history of long-term prescription drug use/abuse. Subsequently, for over four years he was on Suboxone therapy (a form of opioid agonist therapy) for SUD. However, he failed to comply with the program rules when he took fentanyl. He then switched addiction treatment centres, was prescribed methadone (another form of opioid agonist therapy) for his SUD but failed to comply with the rules again.
33The evidence also demonstrates that appellant is willing to use illicit drugs. Dr. P.’s letter dated July 23, 2019 to the appellant, notes his illicit usage of opioids in June 2019 (i.e. OxyNeo), his anger, profanity, threatening behaviour and damage to the computer equipment, that his behaviour is not only harmful to appellant but also to other individuals in our clinic and expresses the hope that appellant reflect on this and remain committed to his recovery journey.
34Re-licencing at this time is not appropriate because the applicant does not have a favourable recommendation from an addiction’s specialist and/or treating physician and has not completed a rehabilitation program. We are not bound by CCMTA Standards but in this case choose to follow them given the appellant’s willingness on at least one occasion to use illicit drugs since the June 11, 2019 accident, his refusal or failure to discuss with his doctor a SUD treatment program as recommended by his doctor and his testimony that he does need a treatment program.
35Accordingly, we find, based on the totality of the evidence, that the appellant’s medical condition of SUD is likely to significantly interfere with his ability to drive safely at this time.
36We appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, including his inability to drive for a living, we must apply the provisions of the HTA and Regulations, keeping in mind the objective of ensuring public road safety.
37After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from SUD and that this medical condition is likely to interfere with his ability to drive a motor vehicle safely.
ORDER
38For 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.
Released: October 25, 2019
___________________________
Erica Weinberg, M.D., Adjudicator
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Avril A. Farlam, Vice Chair