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 pursuant to section 47(1) of that Act – to suspend a licence
Between:
Tyler English
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Tyler English, Self-represented
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: July 21, 2020
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G drivers licence because the appellant suffers from substance use disorder. The appellant was notified of the suspension by a letter from the Registrar dated January 31, 2020.
B. ISSUE
2The legal issue to be determined is whether the appellant suffers from a medical condition, specifically, substance use disorder, which is likely to significantly interfere with his ability to drive safely.
C. CONCLUSION
3For the reasons that follow, I find that the appellant does suffer from a medical condition, however, I find that the medical condition is not likely to significantly interfere with his ability to safely drive a motor vehicle. The Tribunal sets aside the decision by the Registrar to suspend the appellant’s class G driver’s licence.
D. LAW
4The Registrar has the authority under s.47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), to suspend or cancel a driver’s licence if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
5Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”
6Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal.
7The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.
8Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. THE EVIDENCE and SUBMISSIONS
Registrar’s evidence and submissions
9The Registrar submitted a number of documents under seal which I received in evidence as well as copies of the relevant legislation. He then reviewed those documents beginning with those sections of the HTA that the Ministry relied upon to suspend the appellant’s class G licence.
10The documents show that the Registrar received an unsolicited medical report dated January 28, 2020 from Dr. Jessika Shaman, an addiction doctor at Homewood Mental Health Centre. This report stated the appellant had a substance abuse disorder. She indicated both opioids and cocaine as the substances of abuse. Dr. Shaman went on to say if the appellant continued to demonstrate abstinence and enroll in an inpatient or outpatient program the appellant would no longer meet the criteria for a medical condition report
11The Registrar sent a letter to the appellant on January 31, 2020, informing the appellant his licence was suspended. The letter noted the reason for suspension was substance use disorder. The letter outlined the conditions needed to regain his licence: “Confirmation you have remained abstinent from all illicit substances for a period of one year. This period may be reduced to six months if your physician confirms that you have successfully completed a recent approved treatment program and is supportive of your driving privilege.”
12The Registrar included a substance use questionnaire with this January 31, 2020 letter.
13In late June of 2020 the appellant sent the registrar a completed substance abuse questionnaire completed by nurse practitioner, Jill Achelle, as well as a letter from Dr. Jean Costello, PHD, psychologist. The letter from Dr. Costello confirmed the appellant had completed the AMS program at Homewood. The appellant also included a letter from Dr. David Langois which confirmed the appellant was part of an opioid agonist program. This program required weekly urine drug testing and confirmed that the appellant had reached level 6 of the program allowing weekly carries of Suboxone (Suboxone is a medication that prevents the painful withdrawal symptoms caused by opioid addiction). These reports are labeled as exhibit #3.
14The Registrar responded to the appellant’s medical reports in a letter July 13, 2020. The letter stated the suspension was still in place and the condition for removal of suspension was confirmation that the appellant had remained abstinent from illicit drugs for a period of 6 months.
15The Registrar reviewed the appellant’s driving record. He noted the record was perfect except for the suspension for medical reasons.
16The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding the effect of medical conditions on the ability to drive a motor vehicle safely. The Registrar noted that the recommendations of the CCMTA were recommendations and not the law.
17The Registrar pointed out the danger substance abuse could present while driving. The CCMTA document outlines the dangers of substance abuse. The Registrar drew our attention to section 15.6.3, a general recommendation pertaining to substance abuse. This section recommended a period of abstinence of one year for all drivers. This period could be reduced to 6 months for drivers completing an approved treatment program.
18With follow up questioning, the Registrar submitted that he had no direct evidence showing the appellant specifically would be a danger if the suspension was lifted but, in general, he felt that the 6-month period of suspension was necessary to ensure that the condition was controlled. The registrar felt the 6-month period could not be shortened.
Appellant’s evidence
19The appellant testified that while at college he had occasionally experimented with cocaine and cannabis. He then led a drug and alcohol-free life for many years until October 2019 when a tooth abscess requiring extensive surgery associated with numerous complications caused him to be placed on long term Percocet (an opioid analgesic). He was given open prescriptions for the drug from the dentist and found himself addicted to opioids and abusing the drug.
20The appellant testified he held a Bachelor of Social work degree and worked as a counselor in outpatient and hospital settings. He had experience with the treatment and management of substance abuse problems. He realized he had a substance abuse problem and went to Homewood to get help
21The appellant testified Dr. Jessika Shaman was the intake physician. The appellant and Dr. Shaman did not agree on the best management of the appellant’s substance abuse. This first admission to Homewood was not successful. The appellant was allowed a weekend pass in late January 2020 and did not return to Homewood at the end of the weekend.
22While out of Homewood, the appellant went back to using opioids through the first few weeks of February and his situation worsened when his wife died on February 5, 2020.
23By the third week of February the appellant knew he needed to have help. He stopped opioids and arranged another admission to Homewood. This time he was started on the Suboxone program that he had initially requested. He completed a 55-day inpatient stay at Homewood and came out on an outpatient Suboxone program directed by Dr. Langois. The program requires weekly drug testing and the appellant is now at level six of the program allowing him one week carries and weekly drug testing. The appellant is very committed to this program.
24The appellant testifies he last took an illicit substance in the third or fourth week of February. His wife had died, and he was stressed and confused and cannot remember the exact date.
25The appellant testifies he does not take alcohol and the only medication he is on is the antidepressant Celexa 10 mg daily. His nurse practitioner is decreasing the dose with a view to discontinuing it.
26Since discharge from Homewood the appellant also has attended Narcotics Anonymous (N.A.) and has enrolled with Dr. Koom, a practitioner who works with patients who have had addiction problems in the past.
27The appellant has a number of supports at home. His mother is close and is supportive. His wife’s family has remained close and is supportive. His N.A. sponsor Mr. Willis is in close contact and is supportive. His nurse practitioner Becky and Dr. Koom are part of his support group.
28The appellant testified he has a perfect driving record. The appellant emphasized his need for a driver’s licence to continue to work and to support his son.
29The appellant testified he took every day seriously and has been living a recovery-based life style for the last 5 months. He went on to testify that in his opinion he has done more in the last 5 months than most people could do in a year. He acknowledges the fact he has not completed the 6-month period of abstinence the Registrar is seeking, however, his feeling is that his condition is under control and waiting another period of weeks only adds to his stress as he is unable to drive to work when shifts or emergencies require immediate response and his long term disability is used up and he has significant financial obligations.
30The appellant called his friend, Ms. Donna Cloney, to testify. Ms. Cloney testified the appellant was following all the rules, was not using any illicit substances and was attending counselling and clinics regularly. It was her opinion he was taking his rehabilitation very seriously.
F. ANALYSIS
31Based on the medical evidence presented, the appellant’s testimony, and on a balance of probabilities, I find that the appellant does have a medical condition of substance use disorder. As well, I find on reviewing the evidence that this condition would not on a balance of probabilities be likely to significantly interfere with his ability to safely drive a motor vehicle.
32I accept the report of Dr. Shaman as well as the appellant’s evidence setting out a diagnosis of substance use disorder. I note in the initial medical condition report Dr. Shaman wrote if the appellant continued to demonstrate abstinence and enroll in an inpatient or outpatient program the appellant would no longer meet the criteria for a medical condition report. I have heard evidence that the appellant has completed an inpatient program and has completed 5 months of abstinence from illicit substances.
33The Registrar commends the appellant on the steps he has taken. However, the Registrar would like the appellant to wait a few more weeks until the full six months of abstinence is complete as recommended by the CCMTA (Section 15.6.3). The Registrar also noted that the CCMTA makes recommendations and these recommendations are not the law.
34I accept the submissions of the Registrar about the CCMTA outlining the dangers associated with substance abuse and driving. However, I have to agree with the appellant when he states that every case is individual and must to be considered on its own merit. The completion of the Homewood program as well as the ongoing Suboxone program and the other supports outlined by the appellant, including the drug testing, doctors’ reports, perfect driving record, and friend’s testimony, support my conclusion that this condition of substance use disorder is controlled, and is not likely to significantly interfere with his ability to safely drive a motor vehicle.
ORDER:
35Pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s class G driver’s licence.
LICENCE APPEAL TRIBUNAL
_________________________
Dr. Peter Savage,
Member
Released: August 5, 2020