Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Fernando Moniz v. Registrar of Motor Vehicles, 2020 ONLAT 12430 HTA

Date: 2020-01-27

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:

Fernando Moniz

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Katie Awad, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: December 18, 2019

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 58-year-old man who was reported as being alcohol dependent. On January 30, 2014 he was convicted for a second time for impaired driving. As a result he was required to install an ignition interlock device in his vehicle. After three years, the ignition interlock condition could be removed. As part of the removal process, the appellant was required to submit a Substance Use Assessment Form. His family doctor submitted the form and indicated the appellant suffered from alcohol dependence.

2As a result of the family doctor’s report the respondent took the position that the appellant has an alcohol use disorder and suspended the appellant’s driver’s licence for medical reasons. The respondent requires the appellant to remain abstinent for one year together with a recent bio-medical marker test prior to licence reinstatement.

3The appellant appeals the medical suspension.

4The question we need to determine is whether the appellant suffers from a medical condition, in this case alcohol use disorder, that is likely to significantly interfere with his ability to drive safely.

5For the reasons that follow, we find that the respondent has not established that the appellant suffers from alcohol use disorder to an extent likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the respondent’s decision to suspend the appellant’s driver’s licence.

B. ISSUE

6The issue in this appeal is whether the appellant suffers from alcohol use disorder such that it is likely to interfere with his ability to drive safely.

C. LAW

7The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

8The respondent has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1) of O. Reg. 340/94 (the Regulation) states that a holder of a driver’s licence must not be addicted to the use of alcohol to an extent likely to significantly interfere with their ability to drive safely.

9Section 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 Standard) when determining whether the requirements of s. 14(1) are met.

10The respondent relied on Chapter 15, s. 15.6.3 of the CCMTA Standard. That section is for those with a substance use disorder, including alcohol use disorder. The CCMTA Standard states a driver can have their licence reinstated after a period of abstinence of 12 months or sooner if a rehabilitation program is completed and there is support from a treating physician or addiction specialist.

11We may take the CCMTA Standards into consideration, although they are not binding on us.

D. EVIDEnCE

Respondent’s Evidence

12The respondent relies on the family doctor’s Substance Use Form dated September 9, 2019 to establish that the appellant has an alcohol use disorder. The family doctor has treated the appellant since 1986. The report also included recent biomedical marker results showing an elevated MCV of 105 (98 and below is normal)¹ and an elevated GGT of 95 (60 and below is normal).²

13The respondent also relies on subsequent reports from the family doctor. On November 12, 2019, the doctor reported that the appellant had stopped drinking on Thanksgiving. His liver was tested, and the report showed normal functioning. A further biomedical marker test was done and showed MCV was still at 106 but GGT had dropped to 36 and was now within the normal range.

14The respondent also relied on the December 11, 2019 biomedical report showing MCV had dropped to 102 and GGT remained normal. In addition, the appellant provided information that prior to stopping drinking he was consuming 2 beers a day with dinner.

15The respondent stated that the appellant has not met the CCMTA standard for licensing. In particular, he has not completed a year of abstinence and does not have his doctor’s recommendation for return to licensing. The respondent’s position is that the existence of alcohol dependence will significantly interfere with his ability to drive safely. However, the respondent also pointed to the appellant’s two prior convictions for impaired driving (2005 and 2014) as further evidence of the effects of that dependence.

Appellant’s Evidence

16The appellant explained that he had applied to have his ignition interlock device removed. He was concerned that after three years of compliance with the interlock device he was now having his licence suspended for medical reasons. He also was shocked as he had not had any violations of the ignition interlock device.

17The appellant does not believe he needs treatment. He advised that he used to drink two beers and a glass of wine with dinner but, in the spring, his family doctor had asked him to cut back on consuming sugar due to a concern over pre-diabetes. As a result, he had stopped drinking wine all together. His normal drinking pattern at the time of his licence being suspended for medical purposes, was two beers at dinner. After the suspension, the appellant stopped drinking all together on October 14. He stated that he values his driver’s licence too much. The appellant states he is a safe driver and drives 7 days a week from his home to London for work.

18The appellant described his conviction for impaired driving in 2014. He was barred from driving for one year and then had the ignition interlock device installed in January 2015.

19He has no history of hospitalization for alcohol use, no history of seizures and no other medical issues.

E. Analysis

20We have concerns regarding the diagnosis of alcohol use disorder. The appellant described a pattern of moderate drinking (2 beers a day with dinner), no history of hospitalization with alcohol withdrawal, no history of seizures, and no difficulty abstaining from alcohol. His GGT biomedical markers dropped quickly on abstaining from alcohol, indicating he was not a chronic drinker and furthermore, that he was being truthful about abstaining from alcohol. The appellant also points to nearly three years of daily driving for work with no violations of his ignition interlock device. All of these factors point to an individual who does not have an alcohol use disorder.

21On the other hand, the appellant has two impaired driving convictions and that are of significant concern. However, a conviction for impaired driving does not necessarily indicate a medical alcohol use disorder. The other fact that gives us pause is the family doctor’s report of alcohol dependence given the doctor’s lengthy history of treating the appellant.

22Nevertheless, on a balance of probabilities, we find that the evidence that the appellant does not have an alcohol use disorder outweighs the evidence that he does. We make this finding on the basis of the appellant’s testimony, biomedical marker tests and the fact that for three proceeding years he has not violated the ignition interlock device. The respondent has not met the onus to show that the appellant suffers from an alcohol use disorder.

23The legal test requires that first we find that the appellant has an alcohol use disorder. The second step is to determine whether the condition affects his ability to drive. In this case, as we have found that the respondent have not proven on a balance of probabilities that the appellant suffers from alcohol dependence, we cannot find that the condition is likely to affect his ability to drive safely.

F. ORDER:

24For 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

____________________________

Katie Awad, M.D.

LICENCE APPEAL TRIBUNAL

____________________________

Marisa Victor

Footnotes

1. 1A mean corpuscular volume (MCV) test measures the average size of your red blood cells. MCV values greater than 100 in patients with liver disease generally indicate alcohol-related disease. In the short-term, changes in MCV are of little use in monitoring alcohol intake because it can detect evidence of earlier drinking even after a long period of abstinence. Therefore, it is not an adequate indicator of recovery among alcoholics who have stopped drinking.
2. 2Gamma-glutamyl transferase (GGT) is a commonly used biochemical measure of drinking. Four to five weeks of abstinence are usually required for GGT levels to return to within normal range. The ability of this test to detect long-term heavy drinking in the recent past makes GGT useful for monitoring abstinence in recovering alcoholics. However, non-alcoholic liver disease also can increase GGT levels, increasing the likelihood of false-positive result.