Licence Appeal Tribunal
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 J.T.S.’s driving privileges under Section 47(1) of the Highway Traffic Act. (HTA)
Between:
James Tyler Snowdon Appellant
and
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member Patricia Conway, Member
Appearances: For the Appellant: James Tyler Snowdon, appellant Jim Snowdon, father of appellant For the Respondent: Sonia DeSantis, agent for the Registrar
HEARD by Teleconference: June 21, 2019
OVERVIEW
The appellant appeals the suspension of his driver’s licence by the Minister under s. 47(1) of the Highway Traffic Act (the Act) on grounds that he has conditions that affect his ability to drive safely, those conditions being “Seizure – Alcohol Related” and “Alcohol Use Disorder”.
On January 14, 2019, a Medical Condition Report (“MCR”) was faxed to the Ministry of Transportation. On this form, the admitting physician reported that the appellant had experienced the following condition: “Seizure due to alcohol withdrawal”. Because of this report, the appellant’s driver’s licence was suspended by notice from the Registrar dated January 16, 2019. The Registrar’s letter stated that if the appellant’s physician confirmed a diagnosis of severe alcohol use disorder and/or that he had experienced an alcohol withdrawal/related seizure, the Ministry would require certain medical reports. These reports would have to state that he had remained seizure-free and abstinent from alcohol for a period of one year. This period could possibly be reduced to six months if he successfully completed an alcohol treatment program and his physician supported reinstatement of the licence.
The appellant provided an assessment report from his primary care physician to the Registrar on February 6, 2019. His physician stated that the appellant had a shaking episode witnessed by his father on January 16, 2019 and that the admitting physician at the hospital had presumed it was a seizure. However, the appellant wondered if it was a severe anxiety/panic attack. In the assessment report, the appellant’s primary care physician stated that if it was a seizure, it was due to alcohol withdrawal. His physician further stated the appellant had moderate alcohol use disorder.
On February 20, 2019, following receipt of this assessment report, the Registrar advised that the appellant must show 12 months of seizure-free alcohol abstinence, possibly reducible to six months on conditions set out in paragraph 2. The Registrar further required blood tests showing specified biochemical markers within normal limits. The appellant submitted more medical information, including the results of a recent blood test showing biochemical markers within the normal range, confirmation that he was attending ADAPT (a relapse prevention program), and an updated mental health assessment from his family physician. On March 1, 2019, the Ministry continued the suspension and restated its requirements for lifting the suspension, as earlier set out in paragraph 2. This position was repeated by the Ministry on March 11, 2019 after the appellant submitted a completed driver medical review form.
The appellant appealed this decision on May 5, 2019. He has continued, up to the day before the hearing, to submit medical reports from his family physician. The last report dated June 19, 2019, with an addendum dated June 21, 2019, states that he was abstinent from alcohol from January 14 to March 15. On March 15 and 16, 2019 the appellant relapsed, but has since been abstinent up until the day of the hearing. The family physician also recommends that his driving privileges be reinstated. The Ministry’s response, communicated by letter and by its representative at the hearing, requires medical confirmation that he has remained abstinent from alcohol for a period of six months, provision of blood tests showing biochemical markers within normal range and medical confirmation of a six-month period of mental and emotional stability.
DECISION OF THE TRIBUNAL
- The Tribunal sets aside the decision of the Minister and orders an immediate reinstatement of the appellant’s driver’s licence.
ISSUES
The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a vehicle safely.
To answer that question, we will address the following issues:
a. Was the incident that led to the appellant’s hospitalization in January 2019 an alcohol withdrawal seizure?
b. Does the appellant have alcohol use disorder?
c. If he does have alcohol use disorder, is it likely to significantly interfere with his ability to drive a vehicle safely?
d. Does the appellant have any other mental health disorder that would significantly interfere with his ability to drive a vehicle safely?
LAW
- The Registrar has the power under s. 47(1) of the Act to suspend a driver’s licence on grounds that:
(g) any other sufficient reason not referred to in clause (d), (e), or (f).
- Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act 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.
According to s. 14(2)(a) of the Regulation, if the Minister is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). The Tribunal may also take the CCMTA Standards into consideration, although they are not binding requirements.
The Minister has the burden of establishing the grounds for suspending the appellant’s 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 Minister’s decision or order.
EVIDENCE AND ANALYSIS
The evidence offered by the Registrar was solely documentary. This consisted of the MCR which led to the suspension, the correspondence between the Ministry and the appellant and the medical reports and letters the appellant sent to the Registrar in compliance with its requests for information.
The appellant and his father gave oral evidence. The appellant, a 24-year-old man who has his own business as a stonemason, gave his evidence and responded to questions in a straightforward and matter-of-fact manner. He demonstrated a mature understanding of his alcohol use disorder, and of his psychological and emotional challenges. He was able to describe what has happened to him over the past six months in a clear and concise manner. The Tribunal found his evidence entirely credible.
The appellant’s father was also credible. While it was evident to the Tribunal that the appellant’s father was very concerned that his son’s driving privileges be reinstated as quickly as possible, his evidence was measured and precise.
Did the appellant have a seizure due to alcohol withdrawal in January 2019?
At the hearing, the appellant explained that what occurred In January 2019 leading to his hospitalization was a severe panic attack. He described waking up in bed and being engulfed by panic, hyperventilating, shaking and feeling rigid. He was convinced that he was about to die. He has had panic attacks before, but none so severe. He stated that he tried to tell his father that he was having a panic attack but could not. He tried again to explain this at the hospital but in all the noise and confusion he again was not able to.
The appellant’s father stated that he was aware that his son had panic attacks in the past but had never seen his son like this before. He called 911 and stated that his son was “having some sort of a seizure.”
The admitting physician, whose specialty is internal medicine, ticked two boxes on the MCR stating that the appellant had a seizure due to alcohol withdrawal. The Registrar relies on this in support of its position that the appellant had a seizure. However, the Tribunal notes that of course the admitting physician did not witness the supposed attack. If there was a live concern that the appellant might have a seizure disorder, one would expect outpatient follow-up for neurological testing such as an EEG or an appointment with a neurologist to have been recommended or arranged. Neither of these was suggested. The appellant was prescribed a new drug, but this was ordered by his psychiatrist. While the drug prescribed, gabapentin, may be prescribed for seizures, its typical use is for numerous other conditions including anxiety and alcohol cravings. When questioned by the Tribunal regarding why gabapentin was prescribed, the appellant stated that his psychiatrist told him that he was prescribing if for his anxiety and depression and to reduce alcohol cravings.
The appellant also stated that on the evening prior to his panic attack, he had consumed six beers. He testified that this was his habitual alcohol consumption. He would come home after work, relax, and consume usually five or six beers. He testified that two nights before the episode in question, he also consumed about five beers. The Tribunal notes that an alcohol withdrawal seizure, according to the Appendix to the Registrar’s Substance Use Assessment form,” occurs 12-72 hours after cessation of drinking or significantly reduced alcohol consumption”. There is no evidence that the appellant stopped drinking during the preceding days, nor that he significantly reduced his alcohol consumption.
The appellant’s primary care physician, in her first assessment of the appellant after his January hospitalization, advised the Registrar, as noted in paragraph 3 of this decision, that the admitting physician had assumed that the appellant had a seizure, but notes that the appellant thinks it may have been a panic attack. She makes no statement that he had a seizure.
The Tribunal is satisfied, on the entirety of the evidence, that the Registrar has not proved on the balance of probabilities that the appellant suffered a seizure from alcohol withdrawal in January 2019. The Tribunal finds that the appellant had a panic attack, which his father did not recognize as such. His father told emergency staff that it was “some sort of seizure” and this statement was passed on to the admitting physician, who wrote it on the MCR, without any elaboration or support. The appellant was not in alcohol withdrawal.
Does the appellant have alcohol use disorder
In the Substance Abuse Assessment completed by the appellant’s physician on February 5, 2019, she describes the appellant’s alcohol use disorder as “moderate”, while noting that he has been abstinent since his release from hospital. She recommends counselling with ADAPT, a relapse prevention program, and continued work with his psychiatrist to deal with the appellant’s anxiety and depression. In her second assessment, prepared in early May 2019 for his appeal, the family physician describes his alcohol use disorder as “mild”. In her letter and addendum to the Registrar shortly before the hearing, the appellant’s physician stated that he was attending and benefiting from the ADAPT program and psychiatric counselling. She stated that she supported reinstatement of his driving privileges. She reported, however that on March 15 and 16, 2019 the appellant, who had been abstinent since his release from hospital in January 2019, consumed alcohol.
The appellant candidly admitted during the hearing that he did have an alcohol use disorder. He was drinking an average of six beers a night after work in January 2019. He told the Tribunal that he knew he was drinking too much but was using it to cope with stress and with his anxiety and depression. The appellant testified that through the ADAPT program he was learning tools and strategies to help him deal with his anxiety and depression without resorting to alcohol. More importantly, his continued work with his psychiatrist was helping him better understand and control his mental challenges. He admitted that he suffered a relapse on March 15 and 16, 2019. He explained that he was feeling mentally unwell and unhappy, attributing this in some part to the Registrar’s having refused to reinstate his licence in March. Although he consumed only two beers each evening, having found these in the refrigerator, he stated even this level of consumption was not good for him, and that he wants to remain abstinent for his well being. He reported that he went to hospital and was admitted on a “Form 1”. This occurs when the admitting physician completes a form stating that the patient (here the appellant) should be admitted because he is in imminent danger of doing harm to himself or others. Clearly then, this was not an admission to deal with alcohol use, but to assist him with mental health challenges.
The appellant testified that during his 3-day hospital stay, his psychiatrist adjusted his medications. Since then, he has felt much more in control, less anxious, less depressed, and has experienced no craving for alcohol at all. He also told the Tribunal that after this March admission to hospital, he moved from his father’s home to the home shared by his mother and his sister. He finds the environment there more positive; he is a short distance from the hospital and his psychiatrist’s office. In addition, his mother and sister do not keep alcohol in the home.
Based on this evidence, the Tribunal is satisfied that the appellant does have an alcohol use disorder, but it is now well controlled.
Is the appellant’s alcohol use disorder likely to significantly interfere with the appellant’s ability to drive a vehicle safely?
It is important to bear in mind that the Registrar is required to prove, on the balance of probabilities, not only that a disorder exists, but also that this disorder is likely to affect the appellant’s ability to drive safely.
In this case, the evidence of the steps taken by the appellant since January 2019 to bring his alcohol consumption and craving under control, and the success he has achieved in this objective, according to his testimony and supported by his physician, lead to the certain conclusion that his disorder does not interfere with his ability to drive safely.
This conclusion is fortified by the following: the appellant testified that he only drank at home, and never drove after drinking. On the rare occasions when he drank at a bar, he was driven home, either by a companion or by cab. The appellant’s father testified that his son is a serious young man who loves his work and would do nothing to jeopardize his ability to drive his truck, a vehicle he needs to get to job locations with his tools. The appellant’s driving record shows no alcohol-related events.
Does the appellant suffer from any other mental or emotional disorder that is likely to significantly effect his ability to drive safely?
The Ministry’s June 21, 2019 letter to the appellant stipulates that to regain his licence he must be able to confirm a period of six months of mental and emotional stability, in addition to alcohol abstinence for the same period. This requirement derives from the language of section 14(1)(a) of Ontario Regulation 340/94 of the Highway Traffic Act quoted earlier in this decision. It is unclear whether the Registrar intended to impose a new requirement on the appellant in its June 21 letter, or was intending to refer to Regulation 340/94 in general terms.
The Tribunal will deal with this issue here to ensure that the Registrar’s concerns in this regard, if any, are answered.
There was no evidence presented at the hearing by the representative of the Registrar or the appellant that would indicate that the appellant’s mental or emotional challenges have ever impacted his ability to drive safely. Indeed, the evidence the Tribunal was offered indicates that over the six months since his panic attack, he has made marked progress in that area. He has stopped using alcohol to cope with his anxiety and depression. He has been prescribed and takes medications that help him feel calm and focused, less anxious, and able to handle himself positively without needing alcohol. He has acquired tools to assist him in this through ADAPT and through his sessions with his psychiatrist. The Tribunal states without hesitation that the appellant’s mental and emotional state do not negatively impact his ability to drive safely.
ORDER
- For the reasons set out above, the Tribunal under s. 50(1) of the Act sets aside the decision of the Registrar and orders the immediate reinstatement of the appellant’s
LICENCE APPEAL TRIBUNAL
Erica Weinberg M.D., Member
Patricia Conway, Member
Released: July 15, 2019