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:
Piotrk Kus
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Piotrk Kus, self-represented
For the Respondent: Kyle Biel, agent
Heard by Teleconference: November 25, 2021
A. Overview:
1Piotrk Kus (the “appellant”) appeals the April 1, 2019 suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).
2The issue in this appeal is whether the appellant’s reported medical condition of substance use disorder (“SUD”) is likely to significantly interfere with his ability to drive a vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s SUD is likely to significantly interfere with his ability to drive a vehicle safely.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from SUD, a medical condition, which is likely to significantly interfere with his ability to drive a vehicle safely.
5To answer that question, I will address the following issues:
a. Does the appellant suffer from SUD?
b. If the appellant suffers from SUD, is it likely to significantly interfere with his ability to drive a vehicle safely?
C. LAW:
6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(b) of O. Reg. 340/94 under the HTA (the “Regulation”).
7Under 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.
8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
9On appeal, the Registrar has the burden, on a balance of probabilities, of establishing that the licence should remain suspended.
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.
11Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (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.
D. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from SUD?
12I find, on a balance of probabilities, that the appellant suffers from SUD.
13On March 20, 2019, emergency room physician, Dr. W., sent an unsolicited Medical Condition Report to the Ministry of Transportation (the “Ministry”). On the report, Dr. W. indicated that she was of the opinion that the appellant was suffering from drug dependence. In the optional section Dr. W. wrote, “Patient in single vehicle MVC [motor vehicle collision] with significant car damage and admitted to using fentanyl prior to driving. Please assess fitness to drive.”
14By letter dated March 22, 2019, the Ministry suspended the appellant’s driver’s licence with the reported condition of SUD and requested that his treating physician complete a Substance Use Assessment (“SUA”) form.
15On the April 18, 2019 completed SUA form, the appellant’s Methadone Maintenance Treatment Program (“MMTP”) physician, Dr. M., indicated that the appellant:
is on a MMTP at a stable dose with no reported negative side effects, including sedation;
has recent cannabis and illicit drug use, which is minimal at present; and
ongoing treatment is planned with: urine samples weekly; monthly physician appointments; carries for his methadone; and no counselling at present.
16In response to the Ministry’s subsequent requests for additional information, Dr. M. indicated that the appellant: was receiving on-going treatment for opioid use disorder; is on methadone maintenance therapy (“MMT”); and currently his SUD is mild. Dr. M. sent the Ministry many Urine Drug Screen (“UDS”) results and indicated that the appellant’s UDS dated July 14, 2019 was positive for cocaine and some other UDS were positive/borderline positive for cannabis.
17Although the appellant stated more than once that he “never had a problem with drugs”, when specifically asked, the appellant admitted to prior problems with Percocet (oxycodone). He stated he has been on MMT at the same clinic for at least 6-7 years, previously tried weaning off methadone, but found his withdrawal symptoms too severe at lower doses. The appellant is currently on methadone 50 mg daily, with weekly UDS, weekly allotment of methadone (carries) and monthly physician visits (currently “video chats”). He stated that Dr. M. retired about one year ago and that he now has a different physician at the clinic.
18The appellant admitted to trying fentanyl for the first time in March 2019, but stated it was not on the day of the MVC. He admitted to using cocaine once only, this being at a friend’s house while they were drinking alcohol and denied any other illegal or illicit drug use since that time. He admitted to smoking cannabis “here and there” but not everyday, and only since cannabis was legalized.
19Based on the above, I find on a balance of probabilities that the appellant suffers from SUD.
b. If the appellant suffers from SUD, is it likely to significantly interfere with his ability to drive a vehicle safely?
20The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.
21As per its November 19, 2021 letter to the appellant, the Registrar is currently of the opinion that it requires confirmation that the appellant has remained abstinent from all illicit drugs and “mind-altering” substances for a period of one year.
22The Registrar is relying on 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from SUD may be eligible for a licence if they meet the criteria for remission and/or have abstained from the substance for twelve months. This CCMTA Standard also states that earlier re-licensing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.
23The appellant stated that after the MVC he “stopped (using) everything” and that he stopped smoking cannabis around December 2019. He stated that from time to time he uses over-the-counter ibuprofen and sleep aids. When he works the later shift at work (i.e., 3-11 p.m.) as opposed to the day shift, he sometimes has trouble sleeping.
24The appellant explained his weekly procedure at the MMTP. After checking in with the receptionist he gives a urine sample. This sample is then run/analyzed and then he is given his carries of methadone. He stated that if his urine were “dirty” his carries would be stopped. He denied that his carries were stopped after his UDS was positive for cocaine in 2019 or at any other time.
25As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s SUD is likely to significantly interfere with his ability to drive a motor vehicle safely.
26Based on my knowledge as a licenced and duly qualified physician in the province of Ontario1, I am aware that a MMTP usually uses point-of-care UDS analyzed by immunoassay (“IA”). However, I am also aware that a UDS analyzed by IA has limitations. For example, a UDS positive/borderline for morphine (“MOP”) by IA may indicate recent use of morphine, codeine or heroin, or may be a false positive or due to a cross reacting substance. Similarly, an IA UDS positive/borderline for benzodiazepine (“BZO”) may represent relatively recent use of a benzodiazepine or may be a false positive or due to a cross reacting substance. A low creatinine in an IA sample may suggest dilution or tampering of a sample.
27Based on the evidence before me, I note the following relatively recent irregularities in the appellant’s UDS submitted as evidence on the following collection dates:
May 9, 2021: positive BZO; borderline MOP
May 23, 2021: borderline BZO
July 11, 2021: abnormal creatinine (does not specify high or low)
28However, I have no broad spectrum/GCMS UDS analyses (which are generally more sensitive and specific) corresponding to these urine samples submitted as evidence, nor any specific dates from the appellant of when he may have ingested certain foods or taken other medications. Without this information I cannot determine the significance of the IA UDS irregularities noted above. The positive/borderline BZO results may be from cross-reactivity from diphenhydramine, which can be found in some over-the-counter sleep aids, and the borderline MOP result may be from ingestion of poppy seeds. However, in medical terms, may does not mean on the balance of probabilities.
29I am aware that the length of time a person is on methadone for SUD is highly variable. Furthermore, I am also aware and wish to point out, that for many persons a MMTP may always be “ongoing and not completed”. I also acknowledge that many persons on methadone for SUD are fit to drive.
30The appellant’s certified “Extended Driver Record Search For Criminal Code Convictions”, submitted as evidence, shows no infractions for drug- or alcohol- related offenses, however, in this specific case there are relatively recent irregularities in the appellant’s UDS which are concerning. There is no clear written evidence before me to indicate that the MOP and BZO irregularities are confirmed as false positives or represent cross-reactivity from another substance. I also have no clear written evidence to explain the abnormal creatinine noted on July 11, 2021, nor its significance. Even the occasional use of morphine, codeine, heroin or a benzodiazepine, on their own, in combination, or in combination with methadone, can significantly interfere with the ability to drive a motor vehicle safely.
31Furthermore, in this specific case, the appellant testified that his current MMTP provider, whom he has known for about one year, is not yet willing to provide a narrative letter to the Registrar supportive of the reinstatement of his driver’s licence. The appellant stated that his physician will “think about it” and wants more time to get to know the appellant.
32I commend the appellant for his continued hard work and effort to avoid substances of abuse, and for continuing with the MMTP. I acknowledge the burden that the lack of a driver’s licence is having on the appellant and his family. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.
33I encourage the appellant to continue to reach out to his MMTP physician to ask for explanations regarding the irregularities noted in his UDS and to continue to ask his physician to support, in writing, the reinstatement of the appellant’s driver’s licence. As stated by the respondent when asked by the appellant at the hearing, the appellant may continue to submit any new medical information and it will be reviewed by their Medical Review Department.
34I also encourage the appellant to reach out to a pharmacist before using any prescribed or over-the-counter medication while on the MMTP. A pharmacist should be knowledgeable in potential interactions between other medications and methadone and the potential for any other medication to cause any irregularity in his UDS.
35Furthermore, should the appellant continue to use over-the-counter sleep aids, I encourage him to keep track of the dates he uses the sleep aids, so that he can report this information accurately to his MMTP physician.
36Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged the onus of establishing that the appellant’s SUD is likely to significantly interfere with his ability to drive a vehicle safely.
E. ORDER:
37For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: December 08, 2021
Footnotes
- Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.