Date: 2020-01-30

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:

Dianne Hennenfent

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Dianne Hennenfent, self-represented

For the Respondent: Sonia De Santis, agent

Heard by Teleconference: January 20, 2020

A. Overview:

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

2The appellant was involved in a motor vehicle accident (“MVA”) on December 27, 2017. This MVA resulted in an emergency room (“ER”) visit.

3Following an assessment in the ER, Dr. Ch. filed a Medical Condition Report (“MCR”) with the Registrar of Motor Vehicles (“the Registrar”). Pursuant to s. 203 of the HTA, every prescribed person shall report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.

4On January 12, 2018 following a review of Dr. Ch.’s report, the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA.

5For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

6The issue in this appeal is whether the appellant suffers from a medical condition, namely substance use disorder, which is likely to significantly interfere with her ability to drive a vehicle safely.

7To answer that question, I will address the following issues:

a. Does the appellant suffer from substance use disorder?

b. Is the appellant’s substance use disorder, if any, likely to significantly interfere with her ability to drive a vehicle safely?

C. LAW:

8The Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. The Registrar’s powers are set out in s. 47(1) of the HTA, specifically in this case, 47(1)(g) and in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”). Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely. A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 47 of the HTA.

9On appeal, the Registrar has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from substance use disorder (“SUD”)?

11The evidence before the Tribunal reveals that the appellant has a long history of substance use issues, particularly with respect to alcohol and opioids. These will be outlined fully below.

12I find that the evidence presented establishes that the appellant suffers from the mental health condition of SUD.

13On May 27, 2005 the Ministry received an unsolicited letter from Dr. Co. regarding the appellant. In this letter Dr. Co. indicated that the appellant, who had been suffering from depression at that time, had “made a suicidal gesture by driving into the path of a transport truck while her daughters were in the car. She swerved away at the last moment.” By letter dated June 21, 2005 the appellant’s driver’s licence was suspended for medical reasons. By letter dated September 20, 2005 the appellant’s medical report was approved.

14At the hearing, the appellant stated that she does not remember this instance in 2005 and is “in the dark”.

15However, included in the evidence regarding this event is a two paged letter sent to the Ministry in the appellant’s hand writing, dated August 22, 2005. I note that in this letter the appellant states that she has no criminal record.

16With respect to the appellant’s use of alcohol she stated that the month of December is a particularly hard time for her, finding it depressing and sad. She relates this to the death of her husband a number of years ago and that she is alone for Christmas. She admits to binge drinking or “overdoing” her drinking at this time of year.

17The appellant testified that when she drinks, she drinks in the evenings only, and “parks her vehicle.” She stated that following her impaired driving charge in 1996 she never drank and drove again.

18On December 24, 2015 the Registrar received an unsolicited MCR from Dr. W. The MCR stated that the appellant suffers from alcohol or drug abuse and that the threat to road safety was unknown.

19The appellant testified that on the occasion in question she went to a walk-in clinic and was “seen” by Dr. W. via teleconferencing for less than five minutes.

20According to the College of Physicians and Surgeons of Ontario’s website (check date January 23, 2020), Dr. W. is a licenced psychiatrist whose current primary practice location is in the city where the appellant resides. On the MCR Dr. W. wrote his address as OATC (Ontario Addiction Treatment Centres) in the city where the appellant resides. At the hearing, the appellant testified that she has never seen a psychiatrist.

21By letter dated January 7, 2016 the Registrar suspended the appellant’s driver’s licence with the reported condition of alcohol dependence.

22A Substance Use Assessment (“SUA”) form was completed by Dr. Da. on March 22, 2016. According to the appellant, Dr. Da. was the physician treating her chronic back pain at that time.

23The completed SUA form indicated that the appellant’s drinking was within low risk drinking guidelines. In the ‘Additional Comments Or Information To Take Into Consideration’ section Dr. Da. wrote, “Patient was seen in a walk in clinic and had consumed alcohol prior to that but was not driving then. When asked by MD if she was driving she answered “yes” in that she thought this was a general question and not about that day.”

24By letter dated April 20, 2016 the Registrar approved the appellant’s case and her driver’s licence was reinstated.

25On December 27, 2017 the appellant stated that she was driving early evening to Walmart to pick up some supplies. En route, she testified that she suffered a blackout or loss of consciousness that led to an MVA. The appellant denies having any alcohol to drink that day but admitted to having drinks the night before in the evening. The appellant was transferred to the ER at a local hospital by ambulance following the MVA.

26In her written submissions and during the early part of the hearing, the appellant denied having any blood work done in the ER department on December 27, 2017. She stated that she was alert during her ER visit and she remembers all the tests that were done. Later at the hearing she testified that she recalled that she had refused blood work. She also stated that Dr. Ch. saw her for less than 5 minutes in the ER.

27As part of her evidence, the appellant submitted a copy of two pages from her ER visit on December 27, 2017.

28The nursing and triage notes indicate that the appellant was initially drowsy in the ER but followed commands, appropriately answered questions, and that her oxygen level went down when she dozed off. In addition, it was noted that the EMS found an alcohol cooler can in her purse.

29The appellant stated that she had an empty cooler can in her purse. Her explanation was that: earlier that day she had put a bag of empties in the back seat of her car; one empty cooler can rolled from the bag in the back seat to the front; and she took the empty can from the floor and put in her purse because she didn’t want it to look bad “in case getting stopped”.

30Dr. Ch.’s ER history and examination notes indicate that a history and examination were done, investigations were ordered including blood work, and that the appellant looked intoxicated. Some of the patient’s blood work results were written in by hand in his notes, including “ET-OH 52”. ET-OH is one of the many short forms used for ethanol, the alcohol in alcoholic beverages. Dr. Ch.’s discharge diagnosis was MVC (motor vehicle collision) and ET-OH. His discharge instructions included follow-up if signs of concussion or shortness of breath, and reference to sending information to the Ministry of Transportation because of alcohol. Nowhere in his notes did Dr. Ch. indicate that the appellant potentially had a stroke that led to her blackout, nor did he refer her to a neurologist for investigation regarding a possible stroke.

31The appellant stated that some time following her MVA she searched the internet for a medical reason for why she might have blacked out or lost consciousness prior to the MVA. Her conclusion was that she had suffered a stroke. Subsequently she arranged to see a neurologist in 2018 or 2019, had some testing done, but did not go to her follow-up appointment with the neurologist. No notes from this neurologist were submitted as evidence.

32The appellant stated that she no longer has a family doctor, having been discharged from Dr. Du.’s practice sometime in 2017 for missing three appointments, and that getting a family doctor where she resides is very difficult. She remembered seeing Dr. R. a number of years ago for her back injury. According to Dr. R.’s letterhead he does orthopedics plus occupational and rehabilitation medicine.

33In Dr. R.’s office note dated February 15, 2019, he stated that he is seeing the appellant regarding documentation from the Ministry of Transportation (“the Ministry”) and that “she was seen subsequently in the emergency department at the Regional Hospital and at that time the ER physician must have felt that the patient was having a stroke and the Ministry was notified and her driver’s licence was cancelled.”

34In his completed SUA form dated February 15, 2019, Dr. R. indicated that: the appellant had occasional alcohol misuse but was within normal standards; results of biochemical markers (MCV, GGT, ALT, AST) within the last 3 months were N/A (not applicable); and “diagnosis made by ER doctor with no history of patient’s medical history, diagnosis made by misunderstanding circumstances, saw patient for few minutes, wrongful diagnosis. Patient has no history of alcohol dependence or impaired driving.”

35In medical terms, “no history of …” implies never having a history of a particular diagnosis or event.

36With respect to the appellant’s use of opioids, she testified that: Dr. Da. prescribed the opioid Percocet^® for years for her back pain; she used one tablet three times daily (never more); she used up all the tablets of Percocet^® in each bottle dispensed by the pharmacy; Dr. Da. retired sometime in 2017; Dr. Da. weaned her off the Percocet^® prior to his retirement, going down from three tablets to two tablets to one tablet; and that because of severe withdrawal symptoms following the weaning off of Percocet^® she went on methadone (“MTD”) treatment at an addictions treatment centre for four weeks.

37Pharmacy printout sheets for January-February 2017 submitted by the appellant as evidence revealed Percocet^® prescriptions filled every two weeks for 75 tablets to be taken four times daily when needed. If the appellant used up the full prescription each time (as she testified), this would mean she was actually using on average five Percocet^® per day (75÷14=5.4).

38In either late 2018 or early 2019 the appellant was hospitalized for what she described as an accidental ingestion of a friend’s MTD (140 mg MTD in a Tang-like beverage) stored in the friend’s refrigerator.

39Dr. M., in her February 15, 2019 follow-up note of the appellant’s hospitalization for the MTD ingestion, wrote “she only uses Percocet^® two tablets a day for pain control therefore I doubt she would develop a high tolerance to opiates…140 mg of MTD is a huge dose.”

40The appellant testified that she started taking Suboxone^® (an opioid plus naloxone) for her back pain in April 2019. She stated that she read about Suboxone^® on the internet as a treatment for chronic pain, and that Dr. H. prescribed it through teleconferencing at the same clinic where she received her four weeks of MTD in 2017. She indicated that she was on weekly dispensing and weekly urine toxicology screens, was on an 8 mg/2mg dose, and that it helped her back pain. Furthermore the appellant stated that: she recently asked Dr. H. to taper her off Suboxone^®; her last dose of Suboxone^® was three days prior to the hearing; and that Dr. H. refused to send in most of the medical information requested in the Ministry’s July 30, 2019 letter (e.g. details of the medical condition for which the medication is prescribed and current drug regimen, confirmation of: no adverse side effects, clinical and functional stability, fitness to drive a motor vehicle etc.). The appellant did, however, provide in her submissions a November 26, 2019 negative urine screen for ethanol and a normal GGT (biochemical marker/liver enzyme) level.

41Dr. R. reassessed the appellant on June 19, 2019 and made a referral to Dr. S. a physician at a chronic pain management program in her community. In the referral letter Dr. R. wrote that the appellant had been on large amounts of Percocet^®, that her family physician had recently retired and she had no physician to prescribe the Percocet^®. Furthermore, he indicated that he was going to send the appellant for drug toxicology screening.

42The appellant testified that she did go for the toxicology screening, but that she has not seen Dr. S. No drug toxicology screening results were received by the Ministry.

43After considering the evidence as a whole, it is clear that the appellant has not been completely truthful either in her testimony before me or her dealings with the Registrar respecting her lengthy history of substance use issues. Despite her denial of a criminal record in 2005, the appellant was convicted under the Criminal Code of Canada for impaired driving on January 16, 1996 (offence date October 22, 1995). There are also many inconsistencies between the appellant’s version of events leading to three physicians sending MCRs to the Ministry and the documentation submitted or available from or regarding the physicians in question. For example, the ER documentation clearly indicates that the appellant was not alert during her entire ER stay, she had blood work taken, and there was no mention by the ER physician of a stroke causing her blackout.

44SUD (for any substance) is defined on a continuum (i.e. mild, moderate, severe) and is frequently a relapsing mental health disorder.

45With respect to the appellant’s use of alcohol, I accept the appellant’s admission that she has a history of binge drinking and prefer the opinions of Dr. W. (trained psychiatrist who works at an addiction clinic) and Dr. Ch. (ER physician who wrote that her ET-OH level was 52), over those of Drs. Da. and R., whose opinions appear to be based entirely on the appellant’s self-reports following the filing of MCRs, that the appellant suffers from SUD – alcohol.

46With respect to the appellant’s use of opioids and the current written evidence, I find on a balance of probabilities that the appellant suffers from SUD – opioids. The appellant’s Percocet^® usage in early 2017 exceeded her testified dosage of three tablets per day and her withdrawal symptoms following her Percocet^® taper were severe enough to necessitate MTD therapy for four weeks. Furthermore, although the appellant testified that her use of Suboxone^® is for chronic pain management, she has not yet provided documentary evidence of this. Suboxone^® is only approved in Canada for the treatment of SUD – opioids (also called opioid use disorder)

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

47The Registrar has the burden of establishing that the appellant’s SUD is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met its burden.

48Section 14(2)(a) of the Regulation allows the Registrar 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.

49Although I am not bound by the CCMTA Standards, Chapter 15 provides guidance into SUD and its relation to driving. Based on the rationale that certain substances are known to potentially impair the ability to operate a motor vehicle safely, 15.6.3 of the CCMTA Standards (SUD – All drivers) specifies that certain information (e.g. types of drugs used; details of underlying medical condition; whether the functional abilities necessary for driving are impaired, etc.) is required from an addictions specialist or treating physician prior to relicencing.

50As previously stated, on the evening of December 27, 2017 while driving a car, the appellant testified she suffered a blackout or loss of consciousness that resulted in an MVA. The MVA was significant enough that she was transported to hospital by ambulance. The appellant testified that she was alert throughout her ER stay and that she either did not have or refused blood work. Furthermore, the appellant claims that she did not have any alcohol to drink that day but did consume alcohol the previous evening.

51A copy of the appellant’s ER record shows that blood work was not only ordered but was done. Hand written in the physician section of the record is ET-OH 52. Blood alcohol levels in Ontario are reported in SI units or mmol/L (i.e. ET-OH = 52 mmol/L). Ethanol (CH₃CH₂OH) has a molar mass of 46 g/mol. Thus, the appellant’s blood alcohol concentration (“BAC”) by volume was 239 mg of alcohol in 100 mL of blood (0.24%). In Ontario the maximum legal BAC for a fully licensed driver is 80 mg of alcohol in 100 mL of blood (0.08%).

52Furthermore, I find on a balance of probabilities that in order to reach a BAC of 0.24% the appellant consumed a significant amount of alcohol sometime on December 27, 2017 prior to or while driving. A BAC of 0.24% on the evening of December 27, 2017 cannot be accounted for by last consuming alcohol approximately 24 hours earlier.

53In addition, I find on a balance of probabilities that the appellant’s blackout while driving on the evening of December 27, 2017 was caused by a significant or rapid consumption of alcohol prior to or while driving. Although blackouts are dependent on a number of factors, it is accepted that: blackouts are more common in those who binge drink (due to the rapid escalation of blood alcohol level); people may begin to experience blackouts at a BAC of around 0.20%; and those who have blackouts may not remember what has happened because of the blackout (https://awareawakealive.org/educate/blood-alcohol-content).

54Moreover, I find on a balance of probabilities that the appellant lacks acceptance of and has poor judgement and insight into her SUD including its potential impact on the functions necessary for driving. Despite reviewing the ER documentation with the appellant in detail at the hearing she was still adamant that no blood work was taken, she was alert the entire ER stay, and she did not drink alcohol on December 27, 2017 sometime prior to the MVA.

55Thus, based on the above I find that the appellant’s SUD-alcohol has significantly interfered with her ability to drive a vehicle safely.

56I acknowledge that the appellant claims that she has been abstinent from alcohol for two years and that laboratory results from November 2019 reveal normal biochemical markers (MCV, GGT) and a negative urine ethanol level.

57However, there is written evidence suggesting that the appellant continues to consume alcohol. Dr. M. noted on February 15, 2019 that “She told me about puffiness of her face in the morning and I have attributed this to daily beer consumption rather than CHF picture. I advised her to cut down her alcohol intake …”. In addition, in his completed June 27, 2019 SUA form, Dr. R. indicated that the appellant engages in occasional alcohol misuse but is within normal limits.

58As previously stated, the appellant has a recent history of being on the opioid combination medication Suboxone^®, a medication that is approved in Canada for SUD to opioids. According to the appellant, she was prescribed Suboxone^® for chronic pain management and not addiction (i.e. opioid use disorder), and she stopped taking Suboxone^® three days prior to the hearing in an attempt to get her licence back. The appellant also described that she has no concrete plans or ideas on how she will manage her chronic pain once the Suboxone^® is fully out of her system.

59Since July 30, 2019 the Registrar has been requesting that the appellant submit information from her treating physician regarding: diagnosis, treatment and current status; the results of all laboratory tests including urine drug screen toxicology; details of the medical condition for which the medication is prescribed; and confirmation of numerous things including: any side effects, clinical and functional stability, and fitness to drive a motor vehicle. To date, the appellant has been unable to procure this information from her treating physician.

60This request by the Registrar is not unreasonable based on the appellant’s testimony of Suboxone^® usage starting April 2019.

61In addition, it is prudent that the appellant’s very recent taper off Suboxone^® be verified by a healthcare professional in her circle of care and that it is also verified that the appellant does not suffer any untoward effects from this taper which may impact her ability to drive safely.

62In summary, I find that the appellant’s medical condition of SUD is likely to significantly interfere with her ability to drive a vehicle safely. In arriving at this conclusion, I have relied on the following:

a. The appellant admits to a history of binge drinking.

b. Binge drinking with significant sequelae can fulfill the DSM-5 criteria for SUD.

c. The appellant admits to driving a motor vehicle on the evening of December 27, 2017, suffering a blackout or loss of consciousness while driving which resulted in an MVA, and being transported to hospital by ambulance.

d. A blood alcohol level of 52 mmol/L or the equivalent of a BAC of 0.24% was documented on the ER report of December 27, 2017 following the MVA.

e. A BAC of 0.24% is three times the maximum legal BAC for a fully licensed driver in Ontario.

f. A BAC of 0.24% can cause blackouts.

g. The appellant is still adamant that she did not have or that she refused blood work in the ER on the evening of December 27, 2017 despite the clear evidence establishing otherwise. She also appears to not accept the fact that the ER notes described her as being drowsy on admission that evening and that her blood alcohol level was significantly elevated.

h. The appellant lacks good judgment, good insight and acceptance into her medical condition of SUD. These are important factors not only for her recovery from or treatment of SUD, but also on its impact on the functions necessary for driving.

i. The appellant’s assertion that the December 27, 2017 MVA was caused by a stroke is not supported by the evidence. The ER notes made no reference to the appellant having potentially suffered a stroke prior to the MVA, nor did the ER physician refer the appellant to a neurologist for an opinion regarding her blackout or loss of consciousness.

j. The appellant admitted that the idea of her blackout or loss of consciousness while driving on December 27, 2017 being caused by a stroke was something she read about on the internet. She admitted to seeing a neurologist at a much later date (unknown), having testing done, but not going to her follow-up appointment with the neurologist.

k. Two physicians (Dr. M. and Dr. R.) have implied in their 2019 letters or forms that the appellant was still drinking alcohol.

l. The appellant has a 1996 Criminal Code of Canada conviction for impaired driving which she failed to disclose to healthcare professionals in her circle of care on occasion.

m. The appellant has had issues with opioids in the past including using more than prescribed, suffering extreme withdrawal after being tapered off, needing MTD for a period of time to manage her withdrawal symptoms, and an accidental ingestion of 140 mg MTD.

n. The appellant has more recently been prescribed Suboxone^®, a medication approved in Canada for Opioid Use Disorder. The appellant claims that the Suboxone^® was for the treatment of her chronic back pain, but despite requests from the Registrar, she has not provided written confirmation from a healthcare professional regarding the diagnosis, treatment and current status for this.

63I acknowledge the burden and stress that the lack of a driver’s licence is continuing to have on the appellant, however driving is a privilege, not a right.

64While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

E. ORDER:

65For 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.