Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-02-03

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:

Duncan Matthews

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Erica Weinberg, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Stella Velocci, Agent

Heard by teleconference: January 11, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 30-year-old man with a 2014 conviction for driving his car with more than 80 mgs of alcohol in his blood. In 2020, after the suspension of his driving licence due to criminal convictions was complete, he took steps to reinstate his licence and have any conditions removed. Part of that process required his family doctor to submit a completed Substance Use Assessment form (the “Form”) to the Ministry of Transportation. The appellant’s family doctor submitted the Form on July 16, 2020. In the Form, the family doctor indicated that the appellant had the diagnoses of alcohol dependence, alcohol abuse, alcohol misuse, drug dependence, drug abuse and drug misuse.

2As a result of the family doctor’s submission of the Form, on September 1, 2020, the Ministry of Transportation wrote to the appellant and, on the basis of an alcohol use disorder, suspended the appellant’s driver’s licence for medical reasons. The respondent’s position is that in order to lift the medical suspension, the appellant must remain abstinent from alcohol for one year. That period can be reduced to six months with completion of an alcohol treatment program.

3The appellant appeals the medical suspension to the Licence Appeal Tribunal (the “Tribunal”).

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. Accordingly, we set aside the respondent’s decision to suspend the appellant’s driver’s licence.

B. ISSUE

6The issues in this appeal are whether the appellant has alcohol use disorder and, if so, whether that disorder is likely to significantly 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 (the “HTA”) to suspend a driver’s licence for a sufficient reason. Subsection 14(1)(b) 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 (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met.

10We may take the CCMTA Standards into consideration, although they are not binding on us.

D. EVIDEnCE

Respondent’s Evidence

11The respondent argued that the appellant has alcohol use disorder based primarily on the Form submitted by the appellant’s family doctor.

12In question 1 of part 2 of the Form, the family doctor indicated the diagnoses of alcohol dependence, abuse and misuse, as well as drug dependence, abuse and misuse. The family doctor noted, in question 2 “Check all substances that apply”, that the substances in question were alcohol, illicit substances and prescribed medication. In question 5, the family doctor indicated that the appellant consumes 12 drinks of beer per week. In question 6, he indicated that the appellant uses 3 joints of marijuana (no timeline given). The Form indicated that the recent biochemical marker test results indicated values all within the normal range. In part 3 of the Form, the family doctor indicated that the appellant is not on any prescribed medication for any treatment and does not demonstrate any pattern of non-adherence.

13The family doctor also submitted an Alcohol Use Disorder Identification Test form (the “AUDIT”) as well as a Leeds Dependence Questionnaire (the “Leeds Questionnaire”). The AUDIT helps identify persons whose alcohol consumption has become hazardous or harmful to their health. The AUDIT provides a maximum score out of 40 based on ten questions. The higher the score the more suggestive of dependence (addiction, alcohol use disorder). The appellant scored a 6 out of 40 on the AUDIT. The answers to questions 1-3 of the AUDIT (about alcohol consumption) indicate that the appellant consumes alcohol 2 – 3 times a week, consumes 3 – 4 drinks containing alcohol on a typical day when he drinks and about once a month consumes five or more drinks containing alcohol on a single occasion. The appellant answered negatively to questions 4-6 of the AUDIT (about alcohol dependence) and to questions 7-10 of the AUDIT (about problems caused by alcohol).

14The Leeds Questionnaire is a screening test that can be used in addition to the AUDIT to help assess level of dependence for alcohol or drugs. The appellant was given a score of 0 which indicates no substance misuse, abuse or dependence.

15The respondent also relied on the appellant’s driving record. The appellant’s Extended Driver Record Search for Criminal Code Convictions was submitted (the ‘Driving Record’). This showed that the appellant had a conviction for driving with more than 80 mgs of alcohol in his blood on May 15, 2014 based on an incident on April 18, 2014. The appellant had a further conviction for driving while disqualified on October 21, 2015 based on an incident on April 14, 2015.

16The respondent relied on Chapter 15, and in particular, s. 15.6.3 of the CCMTA Standards. That section is for those with a substance use disorder, including drivers under the influence of alcohol. The CCMTA Standards 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. The respondent also requires recent biochemical markers to be completed. The respondent submitted that the appellant has not met the CCMTA Standards for licensing. In particular, he has not completed a year of abstinence and he has not completed an alcohol treatment program which could reduce the suspension period to six months.

Appellant’s Evidence

17The appellant provided context for the appeal and how it came about that his family doctor submitted the Form to the Ministry of Transportation. Following the appellant’s conviction for driving offences, the appellant completed the ‘Back on Track’ remedial program but he did not seek reinstatement of his licence once the licence suspension due to his criminal convictions was complete. The appellant could have sought reinstatement of his licence in August 2019 however he would have had to install an ignition interlock device for one year. Instead he chose not to install the device and not to drive his car for the one-year period. He sought to reinstate his licence in the summer of 2020 when the one-year requirement of an interlock device had expired.

18The appellant testified that he contacted his family doctor in order to have the Form completed. After completing blood work for the biochemical markers, he had one telephone appointment as in person appointments were not available due to the COVID-19 pandemic. The appellant stated that his family doctor incorrectly filled out the Form based on the information provided during that one telephone call.

19The appellant pointed out that in question 1 of the Form, the family doctor indicated three diagnoses for alcohol use and three diagnoses for substance use, in each case only one diagnosis, if any, should have been checked off. The appellant also stated that the family doctor erred when he indicated that the appellant used illicit drugs as marijuana (cannabis) is now legal. He also stated that the family doctor erred when he indicated that the appellant takes prescription medication as the appellant has no condition requiring prescription medication and does not take any prescription medication. This is confirmed later in part 3 of the Form. Further, the appellant denies any history of prescription drug misuse, abuse or dependence. The appellant argued that his position regarding his alcohol consumption is supported by his biochemical marker tests which indicated all biochemical markers were within a normal range.

20The appellant agreed with the notations the family doctor made, namely that at the time the form was filled out he was consuming approximately 12 beers a week and three joints of cannabis a week. He added that he now uses cannabis at most once per month and uses it only at night, as a sleep aid. He stated that his pattern of alcohol consumption has stayed the same since the Form was completed. The appellant stated that the responses in the AUDIT and Leeds Questionnaire were based on his answers to the questions that his family doctor asked, and do accurately reflect his pattern of alcohol consumption which he states is approximately 1-2 beers a day with occasionally 4-5 on the weekend for a total of about 12 beers a week.

21The appellant testified that he no longer associates with the same people he associated with six years ago in 2014 at the time of his criminal conviction. He states that the following year, in 2015, when he drove while disqualified, he was sober and drove a friend home who had been drinking. He testified that he has not driven since and gets around using the bus and Uber. When asked what he would do now if he went out for a drink and was permitted to drive, he stated he would use the bus or Uber.

22The appellant lives alone and is employed as a small machine operator making plastic parts. He stated that he has not been late for work due to any alcohol consumption and he has not had any problems at work.

E. Analysis

23The first part of the test before us requires us to find whether or not the appellant has a substance use disorder. The respondent has only pursued alcohol use disorder in its September 1, 2020 letter to the appellant. We find that the evidence does not support the finding that the appellant has alcohol use disorder.

24We accept the appellant’s evidence that the family doctor filled out questions 1 and 2 of part 1 of the Form incorrectly. Too many diagnoses are indicated, and these are not supported by the answers in the rest of the document, specifically the AUDIT and the Leeds Questionnaire scores. The evidence from the family doctor’s notes and the appellant’s testimony is consistent that the appellant consumes approximately 12 beers a week. The appellant scored ‘0’ on the Leeds Questionnaire. As per the Leeds Questionnaire this “indicates no substance misuse/abuse/dependence”. The appellant scored ‘6’ on the AUDIT. We note that per the AUDIT a score of 8-11 indicates a strong likelihood of hazardous or harmful consumption (alcohol misuse), a score of 12 or more is suggestive of alcohol related harm, and a score of 20 or more is suggestive of dependence (addiction, alcohol use disorder). The AUDIT does not provide any comments on scores less than eight. We find that the AUDIT and Leeds Questionnaire submitted both indicate that the amount of alcohol consumed by the appellant does not indicate problems with alcohol use, and specifically does not indicate alcohol use disorder. Further the appellant reports no problems with his personal or work life as a result of alcohol consumption. The appellant’s testimony with respect to his alcohol consumption is also supported by his biochemical markers.

25The fact that the appellant has a previous conviction for driving with more than 80 mgs of alcohol in his blood and then a subsequent conviction for driving while disqualified is concerning. However, these convictions were six and five years ago, respectively. Further, the convictions do not establish that the appellant has alcohol use disorder today. Finally, the appellant indicated that he has made some life changes since that time. The convictions therefore do not form a basis on which we can find that the appellant has a medical condition upon which a suspension should be confirmed.

26On a balance of probabilities, we find that the evidence that the appellant does not have alcohol use disorder outweighs the evidence that he does. We make this finding based on the appellant’s testimony, the biomedical markers results, and portions of the Form, AUDIT and Leeds Questionnaire submitted by the family doctor. The respondent has not met the test to show that the appellant suffers from alcohol use disorder.

27The legal test requires that we first find that the appellant has alcohol use disorder. The second step is to determine whether this medical condition affects his ability to drive safely. In this case, we have found that the respondent has not proven on a balance of probabilities that the appellant suffers from alcohol use disorder. Therefore, we cannot find that this medical condition is likely to significantly interfere with his ability to drive safely.

F. ORDER:

28For 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.