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.W.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice-Chair
Apparences:
For the Appellant: Taylor Robertson, Counsel For the Respondent: Stella Velocci, Agent
Heard by teleconference: February 25, 2019
REASONS FOR DECISION AND ORDER
Overview
1The appellant appeals the July 1, 2018 suspension of his 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”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA due to the appellant’s alcohol dependence after receiving a report from a specialist in internal medicine dated June 20, 2018.
ISSUE
2The issue in this appeal is whether the appellant has a medical condition, specifically alcohol dependence, 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 alcohol dependence?
(b) Is the appellant’s medical condition of alcohol impairment, if any, likely to significantly interfere with his ability to drive safely?
CONCLUSION
3For the reasons that follow, we find that the appellant suffers from a medical condition, specifically alcohol dependence 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
4The 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).”
5One 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,…
(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.
6Section 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.
7Under 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.
8The 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
(a) Does the appellant suffer from alcohol dependence?
9As set out below, we find that the appellant has alcohol dependence and that this medical condition is likely to significantly interfere with the appellant’s ability to drive safely.
10The Registrar filed two medical reports both of which confirmed the diagnosis of alcohol dependence. In a medical condition report dated June 20, 2018, Dr. C., a specialist in internal medicine, reported the appellant has alcohol dependence and noted “…admitted after fell intoxicated, on floor many hours”. Dr. C. notes in the report that the date of examination of the appellant was June 20, 2018 and states “…Patient is aware of this report.”
11In a substance use assessment report dated June 28, 2018, appellant’s family physician Dr. K. diagnoses alcohol dependence. In part 2, question 5, the words “back to A.A.” are written on Dr. K.’s report. Part 2, question 8, where details of the treatment program are to be set out has been left blank. In part 3, question 1, the answer is “yes” in response to the question “In your opinion, does the current medication regime result in any of the side effects listed below to an extent that may impair the patient’s ability to safely operate a motor vehicle?” “Sedation or psychomotor slowing” is indicated and “Temazepam for sleep” is noted. The report also notes “Was in bathroom at time of collapse. Nowhere near a vehicle. Perfect driving record 18 years. Never drink and drive. No drugs ever.”
12The appellant testified that he fell at home and he was taken to a hospital in an ambulance called by his brother some two days later. He said that he was cleaning up in the bathroom when water got on the floor and he slipped on it. The appellant said he had bruises on his knees and arms but nothing was broken so he did not think it was serious enough to go to the hospital. His caretaker/friend was present and helped him. A few days later his brother came to visit and called an ambulance to take him to the hospital. The appellant testified that he told the ambulance personnel he did not want to go to the hospital but they took him anyway.
13The appellant said he does not recall meeting Dr. C. at the hospital, does not remember talking to him and has no physician/patient relationship with Dr. C. The appellant testified that he dealt with Dr. M., another doctor, while he was in the hospital and that on his discharge Dr. M. told him his licence was being taken away. He testified that he thinks he was in the hospital about a week and said they did a lot of tests on him. The appellant denied drinking before being taken to the hospital. Appellant testified that he had some alcohol after being discharged from the hospital but has not had a drink since about July 1, 2018. The appellant admitted that he drank a little white wine the night before the fall. He does not recall anyone asking questions about alcohol use when he was at the hospital. The appellant admitted that he knew he could obtain copies of his hospital records.
14The appellant testified that he took the substance use assessment form to Dr. K. The appellant admitted that he wrote the words “back to A.A.” in part 2, question 5 of Dr. K.’s report. He said he intended to go to A.A. but after making a few phone calls decided not to. Appellant testified that he has not entered any treatment program between the time of the fall and the hearing. The appellant said that Dr. K. was his family physician but now he has a new family physician because Dr. K. retired and he has not talked to his new doctor about this. The appellant testified that Dr. K. misunderstood when the appellant told him he would be dependent on alcohol for the rest of his life and that what he meant was that if he started drinking alcohol again he would be dependent on it. The appellant testified that the diagnosis of alcohol dependence is wrong and that Dr. K. would not have prescribed Temazepam for him for years if he was alcohol-dependent because this conflicts with alcohol.
15The appellant testified that he feels he can drive safely, does not drink and drive, will be 64 years old soon and needs to drive in order to get groceries and live his life.
16The appellant’s caretaker/friend testified that the appellant fell on June 18, 2018 after getting up from sleeping. She said that the tile floor in the bathroom was slippery and the mat slipped and he fell. She testified that the appellant did not consume alcohol the night before the fall and only drank water in the night. She said that she helped the appellant to the living room. He was in pain. Two days later his brother came to see him and called an ambulance. She said the appellant had no alcohol before he went to the hospital. She said she has known the appellant for about two years and does not believe he is dependent on alcohol. She said before the fall he would typically drink one or two glasses in the evening but has not had any alcohol since July 1, 2018 to her knowledge. She testified that the appellant was asked no questions about alcohol use while at the hospital.
17Appellant’s counsel submitted that the respondent has not proven that the appellant has a medical condition of alcohol dependence and that this is likely to interfere significantly with his ability to drive a motor vehicle safely.
18We note that the appellant did not put forward any medical evidence in support of his statements that he does not have alcohol dependency, that he was misdiagnosed by Dr. C. and Dr. K., that Dr. C. did not see him at the hospital or that Dr. K. would not have prescribed Temazepam for him for years if he was alcohol-dependent because this conflicts with alcohol. We find based on the written report of Dr. C. dated June 20, 2018 that Dr. C. saw and treated the appellant on that day and had a physician/patient relationship with him on that day.
19We find the testimony of the appellant unreliable in several areas of his testimony. He admitted that he wrote “back to A.A.” on Dr. K.’s report dated June 28, 2018. Adding these words to the physician’s report was not only misleading but also untrue. Appellant admitted he intended to go back to A.A. but did not do so in June 2018 or any time since. Appellant’s statement that he was not examined by Dr. C. in the hospital is not reliable given that Dr. C. completed a written medical condition report about his examination on June 20, 2018, the day the appellant says he was taken to the hospital. It is also not reliable that the appellant told the ambulance personnel he did not want to go to the hospital. Even if true, this is not borne out by how the appellant acted when he got to the hospital. Once there, the appellant allowed himself to be admitted for to the hospital and he underwent tests for a number of days.
20The testimony of appellant’s caretaker/friend is not persuasive about his medical condition. She testified that she does not “believe” he is dependent on alcohol and has not had any alcohol since July 1, 2018 “to her knowledge”. She testified that he was asked no questions about alcohol use while at the hospital, which is contradicted by the written report of Dr. C. dated June 20, 2018 which records a diagnosis of alcohol dependence and notes that he “fell intoxicated”.
21We find that the appellant’s doctors are better qualified to assess and objectively report on the appellant’s medical condition than the appellant himself or his caretaker/friend, and we accept the evidence in the two medical reports filed by the respondent. The appellant brought forward no medical evidence to support his view that he is not dependent on alcohol and able to drive safely. Accordingly, we find, based on the totality of the evidence, that the respondent has proven on a balance of probabilities that the appellant has alcohol dependence.
(b) Is the appellant’s medical condition likely to significantly interfere with his ability to drive safely?
22The appellant’s position is that he feels he can drive safely, does not drink and drive, will be 64 years old soon, needs to drive in order to get groceries and live his life, and that the suspension of his licence should be set aside.
23The 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).
24Chapter 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.
25Guideline 15.6.3 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
26Based on this standard, the appellant would not be eligible for a licence. The appellant’s evidence does not establish that he has abstained from alcohol for 12 months. The appellant says he has abstained since July 1, 2018 which is less than 12 months. Re-licencing at this time is not appropriate because there is in evidence no favourable recommendation from an addictions specialist and/or treating physician and successful completion of a rehabilitation program. Dr. K.’s comment in his June 28, 2018 report of “…perfect driving record 18 years. Never drink and drive. No drugs ever” does not constitute a favourable recommendation as contemplated by the CCMTA Standards. The appellant admits he has not successfully completed a rehabilitation or treatment program since the fall in June, 2018. The Tribunal is not bound by CCMTA Standards but in this case chooses to follow them given the appellant’s medical condition of alcohol dependence.
27The Tribunal finds that the appellant has admitted to consuming alcohol the night before the fall which led to his hospitalization on June 20, 2018. We find that the appellant has alcohol dependence to an extent that significantly affects his ability to operate a motor vehicle safely on a balance of probabilities. Accordingly, we find, based on the totality of the evidence that the appellant’s medical condition of alcohol dependence is likely to significantly interfere with his ability to drive safely at this time.
28We 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, we must apply the provisions of the HTA and Regulations, keeping in mind the objective of ensuring public road safety.
29After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from alcohol dependence and that this medical condition, specifically alcohol dependence, is likely to interfere with his ability to drive a motor vehicle safely.
ORDER
30For 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
________________________
Dimitri Louvish, M.D., Member
________________________
Avril A. Farlam, Vice-Chair
Released: March 26, 2019