Date: 2019-01-28

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:

R.T.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D. Member John Kromkamp, Member

Appearances:

For the Appellant: R.T., Self-represented

For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: By Teleconference December 7, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1On June 26, 2018 the Ministry of Transportation (Ministry) sent the appellant a letter reminding him that he was required to file an up-to-date assessment from a specialist or treating physician stemming from the reinstatement of his G-licence. The appellant’s licence was suspended following an alcohol withdrawal mediated seizure in May 2017. This new assessment, due by August 21, 2018 was to include: i) confirmation that he had remained seizure free and abstinent from alcohol and ii) the results of recent bio-chemical markers (MCV, GGT, AST, ALT), with a clinical explanation for any levels outside the normal laboratory range.

2The appellant visited his family physician, Dr. S., who on August 14, 2018 wrote a letter to the Ministry, noting the appellant’s binge drinking and elevated bio-chemical markers. Dr. S. then referred the appellant to Dr. C., a gastroenterologist, who determined that the elevated biochemical markers were in keeping with alcoholic hepatitis.

3These reports prompted the Ministry to suspend the appellant’s driver’s licence for medical reasons as of August 25, 2018.

4The appellant appeals the decision to suspend his licence on the basis that the most recent instances of binge drinking leading to the suspension were isolated, did not involve driving and that he has his drinking under control.

5For the reasons that follow, the Tribunal confirms the decision by the registrar to suspend the appellant’s driving privilege.

B. ISSUES:

6The issue in this appeal is whether the appellant suffers from a medical condition, namely alcohol use disorder, likely to significantly interfere with his ability to drive a motor vehicle safely.

C. EVIDENCE:

7On May 8, 2017 a medical condition report (MCR) about the appellant was submitted to the Ministry citing alcohol dependence and seizure(s)-alcohol related. As a result of the MCR, the appellant’s licence was suspended for medical reasons on May 22, 2017.

8The terms alcohol dependence and alcohol addiction are older terminology for alcohol use disorder (AUD). As set out in the 2017 addiction treatment facility notes, the appellant: i) suffered from severe AUD, ii) was in withdrawal at the time of detoxification (having continued to consume 375-500 mL vodka daily prior to detox), iii) was detoxified in early August 2017, iv) started taking pregabalin 25 mg twice daily to reduce cravings following the detox, and v) was told not to drink. The appellant’s licence was reinstated on January 12, 2018 on the basis of support from Dr. S, his AUD treatment in August 2017, no further seizures since May 2017, a reported abstinence date of June 26, 2017 and biochemical markers almost within normal limits, except GGT=67 (normal 14-62). On April 3, 2018, the appellant was approved for a commercial driver’s licence, and in June of 2018 he was reminded that an up to date medical assessment was required on or before August 21, 2018.

9A medical report prepared by Dr. S., dated August 14, 2018 was delivered to the Registrar. The report stated that “he (the appellant) says he drinks on and off in the parties once in 3 months. I think his GGT (GGT=152 on August 13, 2018) is elevated due to occasional binge drinking.” Appended to Dr. S.’s letter were all of the current bio-chemical markers and a letter from Dr. C. Dr. C. reporting that “He never stays dry, was drinking heavy at parties on and off. 3 days after one such he went for a blood test: AST 302; ALT 280; GGT 598. He is a commercial driver. He has been using pregabalin 25 mg bid (twice daily) … in the last month. He finds that it reduces his cravings.” Dr. C. recommended that: “He has to stay dry. I advise him about this, and recommend he stay with … addiction centre for addiction and alcoholism.”

10As a result of this report the Registrar suspended the appellant’s licence again, effective August 25, 2018. Seeking reconsideration of the decision, the appellant provided biochemical markers from August 23, 2018 revealing an elevated GGT of 147 (normal 14-62) and a completed Substance Use Assessment (SUA) form signed by Dr. S dated August 30, 2018. This report indicated that the appellant: suffers from alcohol misuse, had abstained from alcohol since July 26, 2018, completed a formal addictions treatment program less than 3 months prior, had an elevated GGT of 147 attributable to alcohol use (as opposed to diseases of the liver) and “according to his history he uses alcohol occasionally in the parties. He says he drinks once in 3 months”. Appended to the SUA form is a completed Alcohol Use Disorders Identification Test (AUDIT), with a score totalling 12 (suggesting alcohol related harm). As stated on the AUDIT form, the questions are to be based on current consumption patterns. The appellant’s answers included the positive answer ‘less than monthly’ (as opposed to never) to having: a drink containing alcohol, nine or more drinks containing alcohol on a typical day when he is drinking, five or more drinks on one occasion, and found that he was not able to stop drinking once he had started.

11The appellant testified that he had undergone alcohol addiction treatment in August 2017, not recently. He admitted that he suffers from alcohol addiction and that he had been told at the addiction centre that this is a long-term problem and to stay away from alcohol. The appellant stated that he continued on the prescribed pregabalin for cravings for a period of time, but eventually stopped it because of weight gain. The appellant testified that: i) he kept alcohol in his home after his alcohol-withdrawal seizure, but currently does not have alcohol in his home, ii) does not attend and has never attended any addiction support groups, such as AA, iii) did not think he needed any support group, iv) was abstinent in 2018 until June or July 2018, when he started drinking socially, at parties, and that he didn’t think that if he drank occasionally it would ‘bother him’, v) that he drank in June and/or July on three occasions excessively, vi) that his drinking is under control, vii) he can control his drinking and cravings with ‘mind control’, viii) that he does not recall Dr. C. telling him to return to the addiction’s centre, ix) that he now uses pregabalin as needed when others are drinking (July 27 and August 16, 2018) and x) he has been abstinent since July 26, 2018.

[11]

12The appellant’s November 25, 2018 bio-chemical markers still show an elevated GGT of 123. No further explanation for this elevated bio-chemical marker has been submitted by Dr. S.

13By letters dated September 6, 2018 and November 29, 2018, the Ministry requested: confirmation of abstinence from alcohol for a period of six month plus recent bio-chemical markers (MCV, GGT) with a clinical explanation for any level outside the normal laboratory range.

14A certified Extended Driver Record Search reveals a three day administrative suspension for a 0.05 BAC on May 16, 2016. The appellant testified that this was the only time that he drove after drinking. He stated that he drank a lot the night prior, was pulled over in the morning, and ‘blew over’.

D. LAW:

15The 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).”

16One 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:

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

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(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.

17Alcohol addiction includes alcohol dependence and alcohol misuse to the extent that they significantly interfere with the ability to drive safely.

18Section 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.

19Section 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.

20The Tribunal may take the CCMTA Standard into consideration, although it is not binding on it.

21The 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.

E. ANALYSIS:

Does the appellant have AUD?

22In August 2017 the appellant was diagnosed at an addiction’s treatment centre with severe AUD, was detoxified and subsequently treated with a medication to prevent cravings. On the August 2018 SUA form, Dr S. checked off alcohol misuse as the issue. The appellant himself admitted that he suffers from alcohol addiction and was told not to drink anymore. AUD is known to be a chronic, relapsing illness. Thus, we believe the appellant suffers from AUD.

23The appellant was addicted to alcohol in 2017 which led to a licence suspension that year. After treatment and a period of abstinence, his licence was restored in early 2018.

24The appellant was then required to provide up-to-date medical assessments confirming that he remained abstinent from alcohol. Given his previous experience he was aware that his biochemical marker GGT would take time to normalize. The Tribunal is satisfied that by the time he received notification in the letter of June 21, 2018 to submit a further report, he had resumed drinking, although perhaps infrequently. The report submitted makes reference to drinking once in 3 months, but also refers to the fact that “he never stays dry”. More significantly, however, is the fact that, after being notified of the requirement to submit a follow up report, the appellant admitted to having engaged in instances of heavy drinking at two or three parties in the month of July. After the last of these occasions, he took pregabalin to curb his cravings. By the time he was tested on August 13, 2018 his GGT level was 152, well above the normal range of 14-62. The high level was attributed to his binge drinking and not to any other potential cause.

25As noted, his licence was suspended as of August 25, 2018. The appellant submitted a further report, dated August 30. Although the appellant maintained he had been abstinent since July 26, 2018 the report indicated he “uses alcohol occasionally at parties. He says he drinks once in three months”. The report also indicated a GGT level of 147, and attributed that result as likely due to alcohol use, and not to any other potential cause. Finally, in the November report his GGT level was recorded as 123 as of the date of testing on November 25, 2018.

26Published and widely accepted literature dealing with alcohol-related bio-chemical markers (see for example: “Biomarkers of alcohol misuse: recent advances and future prospects, Gastroenterology Review 2016;11(2): 78-89) indicate that if the appellant had abstained as he claimed in his testimony, the GGT levels observed would have been much lower. GGT typically falls to the normal range within two to six weeks of abstinence. No explanation for the elevated GGT other than alcohol, has been provided by the appellant’s treating physicians. While the level seen on August 13 may have been a remnant of the July binge drinking two weeks earlier, the reading in the August 30 report would have been much closer to normal, and the reading in November would have returned to the normal range. Given that his physicians attributed these levels to alcohol use and not any other potential cause, the Tribunal is of the view that this scientific evidence supports an inference that the appellant continued to drink throughout this period.

27This is further supported by the comments made by his physicians in the August 14, 2018 report that led to the suspension under appeal. These comments refer to his ongoing drinking. Subsequent reports also refer to alcohol use notwithstanding his claim to have been abstinent since July 26, 2018.

28Finally, on the appellant’s own evidence, after being notified in June 2018 that he had to file a report by August 21, 2018 demonstrating ongoing abstinence, he nevertheless embarked on a period of excessive drinking in July 2018. Both the excessive drinking and the inability or unwillingness to remain abstinent in the face of a crucial upcoming medical examination support the finding of the Tribunal that the Appellant remains addicted to alcohol and is unable to control his cravings for the drug.

Is the Appellant’s AUD Likely to Significantly Interfere with his Ability to Drive Safely?

29As of the date of the hearing, the appellant has failed to provide a favourable recommendation for relicensing from his family physician, Dr. S. The appellant’s licence was reinstated by the Ministry on January 12, 2018, following a positive recommendation from Dr. S, treatment at an addiction centre, near normalization of his GGT and a self-reported abstinent date of June 26, 2017. However, evidence before the Tribunal has shown that the appellant continued to drink alcohol heavily until seen at the addiction centre early in August 2017.

30The above, along with other contradictory evidence at the hearing (e.g. how many binges the appellant has had since June/July 2018); why the appellant’s GGT is still elevated despite his self-reported abstinence and in the absence of any other reported factors), leads us to question the reliability of the appellant’s testimony, including his current self-reported date of abstinence of July 26, 2018.

31AUD is a chronic, relapsing illness that requires sufficient insight, supports, desire and time to have the best chance to overcome with success.

32The Tribunal is satisfied that the appellant lacks the necessary insight as to the nature and seriousness of his addiction. While his addiction required an intensive program of treatment in 2017, he has sought no treatment in 2018 in light of his return to excessive drinking. He has not sought any community or institutional resources to provide support and to help him to deal with his relapse. He does not recognize that such supports are necessary or of use to him. He fails to recognise that there is a serious problem. He believes that he can deal with his cravings for alcohol through “mind control”. However the evidence shows that his willpower alone has not been successful. His thinking that he could continue to drink occasionally but use pregabalin as a backstop to terminate his drinking sessions reflects his lack of insight into his illness of alcohol use disorder”. The Tribunal is satisfied that the appellant’s alcohol abuse is not under control.

33The Tribunal finds that the appellant continues to abuse alcohol, has taken no steps and showed no commitment to deal with his current abuse of alcohol. The Appellant lacks insight into the seriousness of his addiction. He minimises it by suggesting he can control it through the sheer force of his mind without appreciating that this has not been a successful strategy in the past.

F. CONCLUSION:

34While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

35The Appellant’s ongoing untreated addiction to alcohol coupled with his inability or unwillingness to control if, when or how much he drinks leads the Tribunal to confirm that the decision to suspend the his licence on the basis of alcohol dependence/AUD 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.