Date: 2019-06-26

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:

C.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member Joanne E. Foot, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Teleconference: May 8, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant is a 45-year-old man who works as a process engineer. The appellant’s driver’s licence was suspended after an emergency room physician filed a medical condition report with the Registrar of Motor Vehicles dated January 9, 2019. Physicians and other health care practitioners are, pursuant to section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), required to report any person older than sixteen who is suffering from a prescribed condition which may make it dangerous for the person to drive.

2The medical condition report indicated that the appellant had the conditions of substance use disorder (alcohol) and a psychiatric illness of bi-polar disorder or schizophrenia or other psychotic disorder. As a result of the report, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence under s. 47(1) of the HTA, effective January 11, 2019.

3The questions for our determination are whether the appellant suffers from a mental health condition, or an addiction to alcohol which, in either case, is likely to significantly interfere with his ability to drive safely.

4For the reasons set out below, we find that:

a. the appellant does not suffer from the mental health condition of psychiatric disorder;

b. the appellant suffers from the mental health condition of moderate alcohol use disorder;

c. the appellant’s mental health condition of moderate alcohol use disorder is not likely to significantly interfere with his ability to drive safely; and

d. the appellant is not addicted to the use of alcohol.

5For these reasons set out below, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

6The issues in this appeal are:

a. Whether the appellant suffers from a mental health condition that is likely to significantly interfere with his ability to drive safely; and

b. Whether the appellant is addicted to the use of alcohol to an extent likely to interfere with his ability to drive safely.

7These issues require that we answer four questions, as follows:

a. Does the appellant suffer from a mental health condition?

b. If so, is it likely to significantly interfere with his ability to drive safely?

c. Is the appellant addicted to alcohol?

d. If so, is he addicted to alcohol to an extent likely to interfere with his ability to drive safely?

LAW

8The 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) relate to misconduct, convictions and commercial motor vehicles respectively. Clause (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

9One 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 disability 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;

(b) be addicted to the use of alcohol or a drug to an extent likely to interfere with his or her ability to drive a motor vehicle safely;

10According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the CCMTA Medical Standards for Drivers (the “CCMTA Standards”), which are published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

11The Registrar has the burden to establish the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.

ANALYSIS

12The appellant gave very clear and consistent testimony regarding his drinking habits. He explained that for the past ten years, six days a week – Monday to Saturday - he drinks about 200 mL of hard alcohol in the evenings, beginning after he arrives home from work. He does not drink on Sundays. Following his emergency room visit in early 2019, and on the recommendation of his family physician, he began smoking a small amount of marijuana each evening and was able to decrease his nightly alcohol consumption to about 100 mL of hard liquor. He was clear that he does not intend to change these habits.

13On the evening that he was taken to the emergency room, he had been driving home and stopped for gas. At the gas station, a tow truck pulled up beside him and the driver of the tow truck accused him of having hit a car. The situation escalated and an argument followed. The appellant explained that he believed the tow truck driver was trying to “scam him” and that he found the situation frightening and stressful. He left the gas station, “losing them”, went home and called 911 to report the incident. Being upset about the situation, he drank more alcohol than was usual for him – about 13 ounces of vodka. It took about two hours for the police to arrive and by that time, he was angry and inebriated. The police arranged for him to be taken to the emergency room. He described himself as “irate” while at the hospital.

Mental Health Condition – Does the appellant suffer from a mental health condition?

Psychiatric Disorder

14In the Medical Condition Report, the emergency room physician indicates that the appellant suffers from the mental health condition of bi-polar disorder or schizophrenia or other psychotic disorder. In fact, the appellant was involuntarily detained for a period of three days as a result of this emergency room visit. The Registrar requested completion of a Mental Health Assessment Form. This form, completed by Dr. K., psychiatrist, indicated no mental health issues other than substance use (alcohol).

15The appellant testified that he has never been diagnosed with a mental health disorder, has never been prescribed medication for a mental health disorder and was not, at the time of the hearing, prescribed any medication of any kind. His two visits with Dr. K. resulting from the emergency room visit are the only times he has ever seen a psychiatrist. He reports that his family physician has not recommended counselling, other than the referral to Dr. K.

16We prefer the evidence of Dr. K. in the Mental Health Assessment Form, compiled as a result of two consultations, to the indications of the emergency room physician in the Medical Condition Report. As well, we accept the appellant’s testimony that he has never suffered from a psychiatric illness. As such, we find that the appellant does not suffer from the mental health condition of a psychiatric disorder.

Alcohol Use Disorder

17The appellant’s family physician, Dr. Y. completed the Substance Use Assessment Form requested by the Registrar. This indicates that the appellant suffers from “Moderate substance use disorder”, the substance being alcohol, and that the appellant was not then abstinent. The form also reports elevated GGT levels (an inducible liver enzyme) and normal MCV levels (size of red blood cell), biochemical markers related to excessive alcohol consumption. In the Mental Health Assessment Form, Dr. K. describes his substance use of alcohol as his primary mental health disorder.

18The appellant testified that he has never missed work as a result of his alcohol consumption, that he has never suffered withdrawal symptoms on Sundays, his day off drinking, and that he has never experienced an alcohol withdrawal seizure. He also indicated that he has had an ultrasound of his liver in the past, but that none had been recommended lately. He believes that he is “not a severe drinker” and that his drinking is in the moderate range.

19It appears to us that the appellant may not fully appreciate the difference between moderate alcohol consumption and moderate alcohol use disorder. Based on his self-reported alcohol consumption, the opinions of his family physician and his psychiatrist, and his elevated GGT levels, we find that the appellant does suffer from the mental health condition of moderate alcohol use disorder.

Is the appellant’s mental health condition of moderate alcohol use disorder likely to significantly affect his ability to drive a motor vehicle safely?

20The Registrar has the burden to establish that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely. We discussed with the Agent the necessity of establishing a link between the appellant’s use of alcohol and his ability to drive safely. The Agent submitted that no such link was necessary in that the appellant had not met the waiting period set out for persons with substance use disorders in the CCMTA Standards. With respect, we disagree – there must be evidence to support a finding that the appellant’s moderate alcohol use disorder is likely to significantly interfere with his ability to drive safely.

21The appellant testified about his drinking and driving behaviour. He stated that he will very occasionally drive if he has had one or two drinks, but that he never drives when he plans to consume his usual amount. His view is that it is “not worth it”. The appellant submitted a significant number of Uber receipts for the prior six months to demonstrate that he uses alternative means of transport when he intends to consume alcohol. We accept that he does not, for the most part, drink and drive.

22The appellant’s driving record disclosed a criminal conviction for failing or refusing to provide a blood or breath sample in July 2010. He explained that he had been drinking at a friend’s house. He left the house, and realizing that he had consumed too much alcohol to drive, decided to sleep in his car which was parked on the road outside his friend’s place. His keys were in his pocket when the police stopped to check. He explained that he was not then aware that he had care and control of the vehicle, which amounted to an offence. Having no other evidence to consider, we accept the appellant’s version of this event.

23The Registrar did not lead any other evidence linking the appellant’s use of alcohol to his ability to drive safely. In consequence, we do not find that the appellant’s mental condition of moderate alcohol use disorder is likely to significantly interfere with his ability to drive a motor vehicle safely.

Is the appellant addicted to the use of alcohol?

24The Agent for the Registrar indicated that he was proceeding on both grounds set out in subsection 14(1) of the Regulation, that is, mental health condition and addiction.

25As set out above, the appellant’s family physician and psychiatrist both believe him to suffer from moderate alcohol substance use and we have made that finding. In the Mental Health Assessment Form, Dr. K. did not recommend abstinence from alcohol and did not recommend drugs to help him reduce his intake of alcohol. As well, his MCV levels were not elevated which would be a marker of severe alcoholism. We accept that the appellant uses alcohol inappropriately on a recurrent basis. However, we were not presented with any evidence that he is addicted to or dependent upon alcohol. In these circumstances, we find that the appellant is not addicted to alcohol for the purposes of subsection 14(1)(b) of the Regulation.

ORDER

26For 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.