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 pursuant to section 47(1) of the Act to suspend a Driver’s Licence
Between:
R.G.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Erica Weinberg, M.D., Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Stella Velocci, Agent
Place and Date of Hearing: Teleconference
December 18, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1On June 24, 2018, the Ministry of Transportation (MTO) received a Medical Condition Report from Dr. Y., an emergency room physician, reporting that the appellant suffers from alcohol dependence (addiction).
2As a result of that report, the respondent suspended the appellant’s driver’s licence as of July 15, 2018, on the basis of alcohol abuse/dependence.
3The appellant appeals this decision on the basis that he is now ‘doing everything right’, he is ‘dry’ and things are ‘going to stay that way’.
4For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
B. ISSUES:
5The issue in this appeal is whether the appellant suffers from alcohol dependence, also known as alcohol addiction and/or alcohol use disorder (AUD), such that it is likely to significantly interfere with his ability to drive safely.
C. LAW:
6The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities.
7The 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 the use of alcohol to an extent likely to significantly interfere with their ability to drive safely.
8Section 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.
9Section 15.6.3 of the CCMTA Standard applies to substance use disorders, including drivers who are under the influence of alcohol). The recommended standard for lifting a licence suspension includes the following:
a. Meeting the criteria for remission and/or has abstained from the substance for 12 months; and
b. Earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician and the successful completion of a drug rehabilitation program.
10The Tribunal may take the CCMTA Standard into consideration, although it is not binding on it.
D. EVIDENCE:
11The respondent relied on the following documentary evidence to show that the appellant suffers from alcohol dependence and has not yet met the CCMTA Guideline for re-licensing:
a. A Medical Condition Report submitted by Dr. Y., an emergency room physician, on June 24, 2018. This report was based on an examination of the appellant, by Dr. Y., on June 18, 2018 and advised the MTO of the appellant’s reported condition of “alcohol dependence”. In the optional section of the report, Dr. Y wrote: “Patient admits drinking large amounts of alcohol. Unsuccessful with attempts to achieve abstinence”.
b. A Substance Use Assessment (SUA) form completed by Dr. M., dated August 3, 2018. Dr. M. has been the appellant’s family physician since August 2013. The report notes the diagnoses of “alcohol dependence”’ and “alcohol abuse”. Furthermore, the SUA form states that the appellant has not abstained from alcohol and has not successfully completed a formal addictions treatment program or formal counselling. The form also indicated that the appellant’s bio-chemical marker, GGT, was elevated, and was thought to be due to alcohol use and medication.
c. Two completed questionnaires, the Alcohol Use Disorders Identification Test (AUDIT) and Leeds Dependence Questionnaire, submitted by Dr. M. On the AUDIT, the appellant scored 19. A score ≥12 is suggestive of alcohol related harms, the individual should be advised to abstain from alcohol and tests should be conducted to assess for alcohol dependence. A score of ≥20 is suggestive of alcohol dependence (addiction). The Leeds Dependence Questionnaire is based on consumption patterns within the last month. The appellant scored 5, indicating mild dependence.
d. Three completed MTO Medical Report (MR) forms for continuation of the appellant’s commercial licence. All of the MR forms were completed by Dr. H., a physician at an Occupational Health Clinic, and were signed on August 30, 2016, August 29, 2017 and August 23, 2018, respectively. All three forms indicated that the appellant suffers from: mild hypertension, rheumatoid arthritis and mild depression. On all three forms under question 10, ‘mental competence’, Dr. H. indicated that the appellant did not suffer from an emotional disorder, including alcoholism and drug habituation. All MR form are stamped ‘meets current standards’.
e. A letter dated October 9, 2018 from Mr. M., an addiction worker at a residential Withdrawal Management Centre (WMC). This letter confirmed that the appellant was admitted to their residential program on August 24, 2018, and completed it on August 29, 2018.
f. A letter from Mr. B., a social worker at a counselling centre. This letter is not dated, but a fax date of October 31, 2018 is noted at the top. This letter confirmed that the appellant had attended four counselling sessions starting September 10, 2018, and that a fifth session was booked for November 27, 2018. The letter indicated that the focus of the sessions had been on supporting the appellant through losing his licence, expanding his self-care strategies and his goal to stay dry. Mr. B. stated that the appellant “reports that he has not drank since July and is regularly attending AA twice a week”.
12The respondent relied on the CCMTA Standard which describes alcohol as a depressant drug with both sedative and disinhibitory effects, and which may impair a driver’s judgement, reflex control and behaviour towards others. In addition, in those who are regular users of alcohol, withdrawal from alcohol may trigger seizures.
13Standard 15.6.3 applies to all drivers with substance use disorders (such as AUD), and does not distinguish between commercial and non-commercial drivers. The respondent submitted that the appellant, having completed a residential withdrawal management centre program and certified counselling, qualified for a reduction from the 12-month licence suspension. The respondent stated that a six-month period of abstinence is reasonable considering the risks associated with alcohol dependence and driving.
14The appellant testified that his wife had expressed concerns about his drinking on previous occasions over the years. In the past he would consume 5-6 beers or 5-6 ounces of vodka daily. The appellant admitted that in the past he has never been abstinent from alcohol. Some time prior to the June 18, 2018 event, the appellant testified that he had reduced his drinking to two times per week.
15The appellant denied a family history of substance/alcohol use disorder, testified that the sleeping pill (zopiclone 7.5 mg) that he has used for ‘a couple of years’ does not give him a hangover effect, and that his rheumatologist probably told him in the past to keep his alcohol consumption down because of the medications he is on for his rheumatoid arthritis.
16The appellant explained that he is semi-retired, relying on occasional commercial driving to supplement his pension.
17As per his testimony, and the certified extended driver record submitted by the respondent, the appellant has a clean driver’s record.
18On June 18, 2018, the appellant and his wife were having a celebratory occasion at home. In his Notice of Appeal (NOA) he states that he “was drinking all day” and “was drunk”. At the hearing, the appellant candidly admitted that he “had more to drink than he should have, fell inside his home and dislocated his shoulder”. The appellant testified he took an ambulance to the hospital for treatment.
19When questioned whether he was prescribed any medication for alcohol withdrawal or to help with achieving abstinence, the appellant testified that he was prescribed baclofen 10 mg daily by Dr. M. He stated that he started taking the medication sometime in July 2018 and continued using it for a month or more. Baclofen, although officially approved in Canada as an antispastic agent, is also used, unofficially, to treat alcoholism as it may help lessen cravings for and withdrawal symptoms from alcohol.
20On August 23, 2018, the day before the appellant entered the WMC program, he attended an occupational health clinic to have his annual MR form filled in for his commercial driver’s licence. At the hearing the appellant testified that he told the intake personnel at the clinic that his licence was suspended for alcohol dependence. In addition, the appellant initially stated that he could not remember if he directly told Dr. H about his licence suspension for alcohol dependence. However later, he stated that “Dr. H did not ask” and “he did not offer” any information regarding his drinking. At the hearing, the appellant did not express any form of remorse for the above incident.
21When questioned about what he learned in the WMC program, the appellant stated that alcohol is addictive, is hard on your health, and is a legal poison. He stated that he attends AA twice a week and meets with his sponsor monthly. The appellant no longer keeps alcohol in his home. He currently drinks club soda when out and/or refrains from going places to avoid any temptation.
22The appellant clearly stated that he takes responsibility for his actions on June 18, 2018, and he is ‘doing everything right’ by attending AA and seeing a counsellor.
E. ANALYSIS:
Does the appellant have AUD:
23Two physicians, Drs. Y. and M., have diagnosed the appellant with alcohol dependence /AUD. Dr. M.’s diagnosis of AUD, dated August 3, 2018 (more than six weeks after the instigating event), was substantiated by an AUDIT score of 19, a Leeds score of 5 (past month consumption patterns), and the notation of an elevated GGT (a bio-chemical marker). In contrast, Dr. H.’s MR report of August 23, 2018 indicated that the appellant does not suffer from ‘alcoholism’ or ‘drug habituation’, and states that the appellant meets current standards for his commercial licence. As the appellant admitted at the hearing that he did not directly provide information to Dr. H. regarding his previous alcohol use or current licence suspension, I am not putting weight on Dr. H.’s report. Furthermore, the appellant testified that he was prescribed and subsequently used the drug baclofen for over a month, a drug which can be used unofficially to treat alcoholism as it may help lessen cravings for and withdrawal symptoms from alcohol. Taking all of these facts into consideration, I conclude that the appellant does suffer from the medical condition AUD.
Date of Abstinence:
24The date of abstinence is inconsistent in the written evidence submitted by, or on behalf of, the appellant. Specifically, the starting date of abstinence is listed as July 5, 2018 in the appellant’s NOA, July (no specific day) 2018 in the addiction counsellor’s note, and Dr. M.’s SUA form, dated August 3, 2018, stated that the appellant was not yet abstinent. At the hearing, the appellant had no good explanation for the discrepancies, but did admit that he had recently discussed Dr. M.’s date with Dr. M. and was told that this is what was said/written in the office medical chart. I also note that the date of July 5, 2018, corresponds to the date of issue of the initial MTO letter out to the appellant regarding his driver’s licence suspension for medical reasons. The appellant testified that when he entered the WMC program on August 24, 2018, he was abstinent from alcohol. I accept the information in Dr. M.’s SUA form to be more accurate than the appellant’s memory, and conclude that the reported date of abstinence is early-mid August 2018, and not July 2018.
Recommendation from a Treating Physician and Current Bio-chemical Markers:
25As of the date of the hearing, the appellant has not yet provided a favourable recommendation for relicensing from his family physician, Dr. M. Likewise, there are no up-to-date bio-chemical markers available. Biochemical markers are useful for monitoring/verifying abstinence and/or identifying chronic alcohol abuse/use. Thus, it is unclear if the appellant’s previously elevated bio-chemical marker GGT, which Dr. M. attributed to alcohol and prescribed drugs, has returned to a normal value. A current GGT value in the normal range would further verify the appellant’s testimony of abstinence.
Is the Appellant’s AUD Likely to Significantly Interfere with his Ability to Drive Safely?
26The appellant has a clean driver’s record as indicated in his certified extended driver record.
27In addition, he has taken responsibility for his actions on June 18, 2018.
28As of the date of the hearing and based on an abstinence start date of early-mid August 2018, it is the appellant’s testimony that he has been abstinent from alcohol for over four months, attends AA meetings twice a week, meets with his AA sponsor monthly, and still meets with his counsellor on occasion. This is the appellant’s longest period of self-reported abstinence in his adult life.
29All of the above is very hopeful for the appellant’s recovery and he should be commended for both his choice to seek treatment and his success to date. I also recognize the financial hardship the appellant and his family are suffering from at this time.
30However, the appellant was neither candid nor forthright with Dr. H. about his condition of ‘alcoholism’, and thus was able to obtain a ‘meets current standards’ for his commercial licence even when his licence was suspended. He also did not express remorse regarding this incident at the hearing. Honesty, willingness to make amends and admission to wrongs are part of the 12-step program to successful addiction recovery. In addition, respecting law and authority is an important part of safe driving.
31Furthermore, the appellant has yet to obtain a favourable recommendation for relicensing from Dr. M., his family physician of over five years. Dr. M.’s only report in evidence stated that as of August 3, 2018, the appellant was not yet abstinent.
32Moreover, there are no current bio-chemical markers to confirm or verify the appellant’s self-report of abstinence.
33AUD is a chronic, relapsing illness that requires sufficient insight, supports, desire and time to overcome with success.
34Although the appellant has recently made significant strides in his AUD recovery, I find that a six-month period of abstinence, confirmed by bio-chemical markers and supported by a favourable recommendation for relicensing by his treating physician, is required to show that the appellant no longer has a condition likely to affect his ability to drive safely.
F. DECISION:
35I confirm the respondent’s decision to suspend the appellant’s licence on the basis of alcohol dependence/AUD that is likely to interfere with his ability to drive a motor vehicle safely.
G. ORDER:
36For 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.
LICENCE APPEAL TRIBUNAL
Erica Weinberg, M.D., Member
Released: January 3, 2019