Date: 2019-06-25

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.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: J.R., self-represented

For the Respondent: Sanjay Kapur, agent

Heard by Teleconference: June 10, 2019

Overview

1The appellant appeals the suspension of his driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2In February 2018 the appellant applied for a change of class of his driver’s licence, from class “G” to commercial. Based on information contained in his family physician’s (Dr. S.) Medical Report (“MR”) form, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s class “G” driver’s licence for medical reasons, listing the reported conditions “alcohol abuse/dependence” and “substance use/abuse”.

3Based on submitted reports, completed forms and blood/urine tests, the Registrar reinstated the appellant’s driver’s licence on July 26, 2018. The appellant was, however required to file a further medical report on December 5, 2018.

4In October 2018, the appellant once again began the process of changing the class of his driver’s licence. On October 11, 2018, Dr. S. again filled in a MR form on behalf of the appellant. In the “History Details and Summary” section, she stated that repeat testing had been ordered and was pending.

5On October 24, 2018, Dr. S. sent an unsolicited Medical Condition Report (“MCR”) to the Ministry of Transportation, citing under “Substance Use Disorder” (“SUD”), “this patient has or appears to have a diagnosis of alcohol abuse and is non-compliant with treatment recommendations”.

6On November 6, 2018, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA, with the reported condition of SUD.

7For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

8The issue in this appeal is whether the appellant suffers from a medical condition, namely SUD, which is likely to significantly interfere with his ability to drive a vehicle safely.

9To answer that question, I will address the following issues:

a. Does the appellant suffer from SUD?

b. Is the appellant’s SUD, if any, likely to significantly interfere with his ability to drive a vehicle safely?

LAW

10The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

11The 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 clauses (d), (e), (f) or (g) of that section. Clause (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

12One 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 likely to significantly interfere with his or her ability to drive safely. Clause 14(1)(a) 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.

13Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “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.

14Under 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.

15A person whose licence is suspended under s. 47 of the HTA may appeal the decision to the Tribunal. The 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 suffer from SUD?

16I find that the evidence presented establishes that the appellant suffers from SUD, specifically alcohol use disorder (“AUD”).

17On August 22, 2017 Dr. S., the appellant’s family doctor of seven years, filled in the Ministry’s required MR form for change of class of driver’s licence. On this form, Dr. S. answered affirmatively to “addictions (alcohol, sedatives, tranquilizers, narcotics, etc.)”. In the “History Details and Summary” portion of the MR form she wrote:

[L]ong term stable alcohol abuse and recreational drug use; 20 drinks/week only on off days at home/socially in personal time without any driving history or police history of issues. Also rare recreational cocaine use when off work, ≤ every 6 months without any issues.

18The completed MR form submitted to the Ministry in mid-February 2018 triggered a suspension of the appellant’s driver’s licence effective March 2, 2018.The reported medical conditions were: alcohol abuse/dependence and substance use/abuse.

19In June 2018 Dr. S. submitted records from the appellant’s office electronic medical records plus a completed Substance Use Assessment form (“SUA” form). Of significance in these reports was: an elevated inducible liver enzyme GGT =183 (April 17, 2018; normal <60); a urine drug screen (April 18, 2018) positive for cannabis; and abstinent “drugs” for 7.5 months. A June 5, 2018 gastroenterology consult note stated: i) elevated GGT=319 secondary to alcohol-related fatty liver; ii) fibroscan F0 (no evidence of significant liver damage); iii) no drinking/driving; iv) reduced alcohol intake to a few beer after work, more on weekends; and v) definitely think he is consuming too much alcohol.

20On July 23, 2018 the appellant submitted a letter to the Registrar stating:

[O]ccasionally after work on weekdays, I may have a couple of beers during preparation of supper. On weekend evenings on my off time I may [sic] a few more with my wife socially only when there is no driving involved, and if we go out to town on Saturdays we take the bus and cab back home…I am sincerely truthful and adamant that I do not drink and drive ever since I was charged with a DUI…my licence is far more important right now as for I’m trying to move up in life and with work upgrading to a commercial class licence. As far as substances, I have quit any recreational drug use as of last year and want nothing to do with that anymore…I have seen a specialist and my health is good.

21On July 26, 2018 the Registrar reinstated the appellant’s driver’s licence, subject to filing a further MR form on December 5, 2018.

22On October 11, 2018 Dr. S., at the request of the appellant, filled in another MR form for a change in class of the appellant’s driver’s licence. At this time she did not check off “Addictions”. In the “History Details and Summary” section she stated, “…history of elevated liver enzymes that resolved with alcohol cessation. Sober since May 2018. Repeat testing ordered/pending.”

23On October 24, 2018 Dr. S. filed an unsolicited MCR with the Minister, with SUD and alcohol (as opposed to other substances) checked off. On the MCR Dr. S. handwrote “…one drink October 8, 2018. October 11, 2018 blood positive for alcohol of 3 (i.e. alcohol still detectable in the blood); typically resolves within 4-6 hours of discontinuing drinking…I feel there is ongoing alcohol abuse greater than patient reported intake. Recommend out-patient services for alcohol cessation.” Appended to this report was laboratory information indicating that samples were collected at 10:38 a.m. on October 11, 2018 and that GGT=150 (normal <60), serum ethyl alcohol =3, and that urine drug screen was negative for illicit drugs and cannabis.

24Late in 2018, the Minister updated its SUA form and its corresponding Appendix to reflect current medical terminology regarding SUD (and AUD). As per the Appendix’s Glossary of SUD terms:

• Mild SUD (drug misuse) = the occasional inappropriate use of any psychoactive substance

• Moderate SUD (drug abuse) = recurrent inappropriate use of any psychoactive substance despite negative consequences.

• Severe SUD (drug dependence) = the repetitive inappropriate use of any psychoactive substance associate with loss of control, inability to abstain, a preoccupation with obtaining the substance and withdrawal symptoms.

25By letter dated November 6, 2018 the appellant was notified that his driver’s licence was being suspended for medical reasons, with the condition being SUD. Furthermore, this letter instructed the appellant to take the letter to a treating health care professional when his condition improves and have the enclosed SUA form completed in full and sent to the Ministry. As of the date of the hearing, the appellant has not yet provided this information to the Ministry.

26At the hearing, the appellant admitted to having an “issue or problem” with alcohol in his early 20’s, drinking a “six-pack of beer” every night. He also stated that his father, who died at a young age, was an alcoholic. Furthermore he commented that from 2017 until the second suspension of his driver’s licence for medical reasons in November 2018, he did not reduce his beer intake and was often drinking 20 beers per week.

27When questioned about cravings for alcohol, the appellant stated that “before” it was more difficult, but now he may get cravings for alcohol by mid-afternoon on the weekends.

28The appellant denied that he suffers from alcohol abuse or SUD. He also presented a letter from his wife as evidence, which stated that he is not abusing alcohol.

29I accept the opinion of Dr. S. expressed in her MCR and SUA form, which was verified by my questioning of the appellant at the hearing, over that of the appellant and his wife. It is my opinion that the appellant suffers from the chronic, relapsing medical condition of SUD, specifically AUD. Furthermore, based on the evidence before me, it is my opinion that the appellant does not currently suffer from severe AUD, but likely suffers from mild-moderate AUD.

b. Is the appellant’s AUD likely to significantly interfere with his ability to drive a vehicle safely?

30The Registrar has the burden of establishing that the appellant’s AUD is likely to significantly interfere with his ability to drive a motor vehicle safely.

31I find that the Registrar has met its burden.

32The respondent relied on the CCMTA Standards which describes alcohol as a depressant drug with both sedative and disinhibitory effects, and which may impair a driver’s judgement, reflex control and behaviour towards others.

33Although I am not bound by the CCMTA Standards, I note that 15.6.3 applies to all drivers with SUD, and does not distinguish between the degree of SUD (i.e. mild, moderate, or severe).

34During the hearing, the appellant was questioned why he has not yet had another SUA form filled out by Dr. S. as requested by the Minister (paragraph 25). He responded that: i) information on a newly completed form would not be that different from the original one; ii) he is “drinking less” on his own; iii) all his blood work shows his GGT is going down; iv) his GGT=89 (April 2019, normal <60) is “just outside normal”; iv) he has to pay for the forms to be completed; v) Dr. S. is now on maternity leave and he does not know if she has a replacement; and vi) he drinks in moderation.

35The appellant testified that he had not seen Dr. S. since November 2018. However, as per evidence submitted by the appellant, Dr. S.’s name is on the blood work ordered on April 18, 2019.

36Furthermore, the appellant was questioned why he has not attended any out-patient services regarding his alcohol use, as recommended by Dr. S. He commented that he: “does not think it is necessary”; “has changed since being a father”, is “not doing anything wrong”; and “will continue to bring his GGT down”.

37Late into the hearing it became apparent to the Tribunal that the appellant was not truthful/forthright in his written and oral statements regarding having “changed since being a father”. Only after a significant amount of direct questioning did it become clear to the Tribunal that: the appellant is a father of two children (ages 4 and 2); that the “changes” he is referring to are specifically to illicit drugs and cannabis, not alcohol; and these “changes” only occurred following the birth of his second child.

38The Tribunal noted numerous discrepancies between the appellant’s testimony and the written evidence. Of particular concern are the following discrepancies:

The appellant did not disclose to Dr. S. that he:

a) had an alcohol-related criminal code conviction (May 5, 2005) for a fail to provide breath or blood sample (as per his extended driver record)

b) continued to drink “excess alcohol” until November 2018

c) drank “a few beers” on the evening of October 10, 2018 (he only mentioned consuming one beer on October 8, 2018)

d) may consume as many as 5-6 beers at a sitting when out with friends

39In addition, the Tribunal noticed discrepancies in the appellant’s letter sent to the Registrar on July 23, 2018 (paragraph 20) and the consult note from gastroenterologist, Dr. S. Nowhere in Dr. S.’s consult note does she say that the appellant’s “health is good”.

40In her June 5, 2018 consult note, Dr. S. indicates that she:

• Is quite sure the elevated liver numbers are secondary to alcohol related fatty liver.

• Explained to him that alcohol can affect the liver, brain, heart, peripheral nerves, pancreas, etc.

• Explained to him that I definitely think he is consuming too much for his overall health.

41On October 11, 2018, the morning after attending a hockey game where he claims to have consumed “a few beer” (which he did not disclose to Dr. S.), the appellant followed through with Dr. S.’s request of laboratory testing, and then drove to work. As per the evidence, the laboratory testing was done at 10:38 a.m. The serum ethyl alcohol level at 10:38 a.m. was reported as being 3 (i.e. detectable). On the MCR form, Dr. S. comments that a blood level for alcohol typically resolves within 4-6 hours after drinking is stopped. Based on my knowledge and qualifications, I agree with this fact.

42However, based on my knowledge and qualifications, I am also aware that: i) alcohol is primarily metabolized (broken down) in the body by the liver; ii) the body can only break down a certain amount of alcohol and eliminate it from the bloodstream per hour; and iii) there are other factors that may increase or decrease the rate at which alcohol is metabolized. Some of these “other factors” include: genetics, age, sex, presence/absence of food in the stomach, drugs, diseases of the liver, etc.

43On October 11, 2019 following the laboratory testing, with alcohol still in his system despite his report of nearly 12 hours having passed since drinking “a few beers” while attending an evening hockey game, the appellant drove to work, and then operated a forklift to stack/complete orders at the plywood company where he works. In my opinion, operating a forklift with alcohol in one’s system shows poor judgement.

44The evidence before the Tribunal has shown that the appellant has a prior criminal code conviction for a fail to provide breath or blood sample; has not yet accepted his diagnosis of AUD; continues to be non-truthful to his healthcare team regarding his alcohol consumption; and has demonstrated poor judgment with respect to using heavy machinery with alcohol in his system.

45Furthermore, the appellant has failed to have completed the Registrar’s requested SUA form, and has not followed through with the recommendations from Dr. S. to attend out-patient counselling for his AUD. The appellant also presented contradictory evidence to the Tribunal.

46The appellant appears fixated on his latest GGT level being “just outside normal”, that his “health is good”, he is able to “drink in moderation”, and he has “changed since becoming a father”. Dealing with and/or living with AUD, is not as simple as just knowing your GGT level. AUD is a chronic, relapsing illness that requires acceptance, insight, support, desire, and time to overcome with success. To date, the appellant does not appear to have acceptance, insight, or supports in place with respect to his AUD.

47The appellant also has not followed the advice of his health care team to a great extent on his AUD, does not currently have support from Dr. S. for the reinstatement of his driver’s licence, and has not submitted the requested SUA form to the Registrar.

48The appellant “adamantly” and “sincerely truthfully” claims that he does not drink and drive since his earlier conviction. However as already pointed out, the appellant has been less than truthful with his healthcare team particularly in regard to his alcohol consumption patterns, there were inconsistencies in the evidence heard by the Tribunal, and there was a significant amount of discrepancy between the oral and written evidence. Therefore, I reject his evidence that he does not drink and drive, and find that there is a significant risk that he will do so.

49Driving is a privilege, not a right. In order to keep the roads safe for everyone, it is my opinion that the appellant requires time not only to appropriately accept his medical condition of AUD, but to gain insight, obtain supports, improve his judgment with respect to the use of alcohol, and improve communication/trust with his health care team and other persons/agencies of authority before he returns to driving any vehicle.

50I acknowledge the burden that the loss of the appellant’s driver’s licence is having on him and his family. While I understand the practical challenges that can result from a driver’s licence suspension, I must apply the provisions of the HTA, keeping in mind the objective of ensuring road safety.

ORDER

51For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.