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:
T.A.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Peter Savage, M.D., Member Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: T.A., Self-represented For the Respondent: Kyle Biel, Agent
Heard by teleconference: April 10, 2019
REASONS FOR DECISION AND ORDER
Overview
1The appellant appeals the 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 on October 5, 2018, under s. 47(1) of the HTA for alcohol use disorder as a result of receiving a medical report that the appellant has severe alcohol and cannabis use disorder.
ISSUES
2The issue in this appeal is whether the appellant has a medical condition, specifically alcohol use disorder, 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 use disorder?
(b) Is the appellant’s medical condition, specifically alcohol use disorder, 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 use disorder, but that this medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside 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 (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 grounds 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 have alcohol use disorder?
9Registrar filed the medical report of Dr. V. dated September 24, 2018, a psychiatrist, which diagnosed the appellant with “severe alcohol and cannabis use disorder”. Dr. V. also noted that the appellant had a “history of driving under influence of both substances. At the moment not driving but has a valid licence. He’s not interested in pursuing substance use treatment or decrease his use.”
10Registrar also filed a part of a report provided by appellant from Dr. J., appellant’s psychiatrist, dated February 28, 2019. The appellant was referred to Dr. J. for assessment by appellant’s family physician, Dr. D. Regarding substance use, Dr. J. reports that the appellant states he has stopped using cannabis and alcohol “regularly”, since late 2017 has discontinued alcohol intake on a “regular basis” and will only drink at a very occasional social activity and use cannabis every few days if somebody gives it to him. Dr. J. notes that the appellant was seen at another mental health clinic in 2017 and at that time he was drinking 2 or 3 beers daily and it was noted that appellant reported being deceitful, impulsive, irritable and having a disregard for safety or safety of others. Dr. J. also reports that the appellant was seen at a hospital in September, 2018 and it was felt at that time that his substance use was significant.
11Appellant admitted in his testimony that he used to drink alcohol and use other substances a lot more than he does now but he has weaned himself off these substances on the recommendation of the mental health clinic that treated him in 2017 and now does not use them regularly. He said he was last intoxicated in October, 2018 and last had alcohol a few weeks ago when he shared a social beer with his father. He denied having any alcohol in the house but did admit to growing four marijuana plants at home, which he understands to be legal. Appellant said he comes from a Jamaican heritage, and grew up with alcohol and substance being part of his environment and he has insight into these issues now and is making significant changes in his life. He said his problem was mental health and social adjustment and he is now getting treatment for these issues.
12Appellant testified that except for one speeding ticket, his ten year driving record does not show any violations of any traffic laws. Appellant said he was an Uber driver before his driver’s licence was suspended and he had a good rating. Since the suspension of his driver’s licence, he has taken a course and is employed as a building superintendent. Appellant said he would not use substances when his children are present or when driving. He said he asked his family physician for help with his mental health issues and was referred to a mental health clinic in 2017, but the clinic was more concerned with his use of alcohol and other substances than his mental health.
13Appellant testified that Dr. V. only saw him briefly and he got into an argument with her and she abused her power and sent in the report dated September 24, 2018. He denied having severe alcohol and cannabis use disorder at this time. Appellant also admitted he got into an argument with his former family physician, Dr. D., and she is no longer his family physician. He said he has been prescribed medication by his psychiatrist, Dr. J., and is taking his medication, and said that Dr. J. is the only physician who has listened to him.
14We accept the report of Dr. V. dated September 24, 2018, the report of Dr. J. dated February 28, 2019 and the admissions of the appellant in his testimony and find based on this evidence that the appellant has alcohol use disorder.
b) Is the appellant’s medical condition, specifically alcohol use disorder, likely to significantly interfere with his ability to drive safely?
15We find that although the appellant does suffer from alcohol use disorder, this medical condition is not likely to significantly interfere with his ability to drive. Therefore, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
16The Registrar submits that the appellant’s alcohol use disorder when considered with his admitted cannabis use and mental health issues is severe enough that he should not be permitted to drive at this time. Registrar’s agent submitted that Dr. J.’s February 28, 2019 report states that appellant reported to him that he sometimes feels invincible, has been deceitful, impulsive, irritable and has a disregard for safety or safety of others, all traits which are inconsistent with driving a motor vehicle safely. These feelings were in the past because they were only mentioned in the notes historically and came to light as a result of his doctor’s review of previous records. However, Respondent’s agent admitted that there is nothing in the reports of appellant’s physicians Dr. V. or Dr. J. that reports either negatively or positively on appellant’s ability to drive safely at this time.
17The Registrar’s position is that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to substance abuse or dependence (chapter 15).
18Chapter 15 of the Standards indicates 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.
19Guideline 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-licensing may be considered upon favourable recommendation from an addiction 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
20The Tribunal is not bound by CCMTA Guidelines and in this particular case chooses not to follow them. Although Dr. V. reported “severe alcohol and cannabis use disorder” on September 24, 2018, the more recent February 28, 2019 report of Dr. J., appellant’s psychiatrist, noted that the appellant states he has stopped using cannabis and alcohol “regularly”, since late 2017 has discontinued alcohol intake on a “regular basis” and will only drink at a very occasional social activity and use cannabis every few days if somebody gives it to him. This is consistent with appellant’s testimony during which he admitted some use of alcohol and cannabis. However, appellant also said he comes from a Jamaican heritage, and grew up with alcohol and substance being part of his environment and he has insight into these issues now and is making significant changes in his life. He said he was last intoxicated in October, 2018 and last had alcohol a few weeks ago when he shared social beer with his father. Appellant denied having any alcohol in the house but did admit to growing four marijuana plants at home which he understands to be legal. He said his problem was mental health and social adjustment and he is now getting treatment for these issues. Appellant said he was an Uber driver before his driver’s licence was suspended and he had a good rating. Since the suspension of his driver’s licence, he has taken a course and obtained employment. Appellant has good insight into the consequences of substance use and said he would not use substances when his children are present or when driving. The appellant has voluntarily sought help for his mental health issues, has been prescribed medication, is taking his medication and said that Dr. J., his current psychiatrist, is the only one who has listened to him. Even though appellant has reported to Dr. J. he sometimes feels invincible, has been deceitful, impulsive, irritable and has a disregard for safety or safety of others there is no evidence that appellant has allowed himself to act this way when driving.
21It is the Registrar’s burden to prove that the appellant’s medical condition is likely to significantly interfere with appellant’s ability to drive safely at this time and we find that this has not been proven on a balance of probabilities. We find based on the totality of the evidence that the appellant’s medical condition, specifically alcohol use disorder, is not likely to significantly interfere with his ability to drive safely at this time.
oRDER
22For 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 set aside.
LICENCE APPEAL TRIBUNAL
Peter Savage, M.D., Member
Avril A. Farlam, Vice-Chair
Released: May 1, 2019