Licence Appeal Tribunal
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:
Vladislav Ritberg Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Vladislav Ritberg, Appellant Jami Sanftleben, Paralegal representative
For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: March 3, 2021
A. Overview:
1Vladislav Ritberg (the “appellant”) appeals the 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 not met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from a medical condition, specifically SUD, 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.
D. PRELIMINARY ISSUE:
11During the latter part of the hearing, it became apparent that the appellant had recently undergone a urine drug screen for drugs of abuse (“UDS”) ordered by his family doctor, Dr. C. The appellant’s representative stated that a copy of the UDS was not available prior to the date of disclosure determined at the case conference (February 24, 2021) and thus the UDS was not submitted as evidence.
12I was of the opinion that the contents of this document may affect the outcome of this hearing and in the interest of fairness asked the respondent if she had any objections to the contents of the UDS being read orally at the hearing and receiving a copy as a late submission. The respondent expressed no objections and received a copy of the UDS prior to the completion of the hearing.
13I received a copy of the UDS following the completion of the hearing and verified that the written contents were the same as the oral testimony at the hearing.
E. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from SUD?
14I find, on a balance of probabilities, that the appellant suffers from SUD.
15On February 28, 2020, an emergency room (“ER”) psychiatrist, Dr. P., submitted an unsolicited Medical Condition Report (“MCR”) to the Registrar indicating that the appellant has or appears to have a diagnosis of uncontrolled SUD to opioids.
16On March 13, 2020, under s. 47(1) of the HTA, the Registrar suspended the appellant’s driver’s licence for medical reasons.
17On April 5, 2020, neurologist Dr. T. submitted an unsolicited MCR to the Registrar indicating that the appellant has or appears to have the diagnoses of seizure due to opioid abuse and SUD.
18Dr. Z., the appellant’s SUD treating physician, stated in his September 21, 2020 Substance Use Assessment form (“SUA” form) that at the time the appellant lost his driving privilege he had severe SUD to illicit substances and/or non-prescribed pharmaceuticals.
19The appellant does not deny that he has had substance use issues, specifically with opioids.
20The appellant stated that he had a work-related accident 2-3 years ago, necessitating surgeries. Following surgery, he was prescribed a number of opioids, eventually being prescribed transdermal fentanyl. At some point, the appellant realized that he was “dependent” or “hooked on” the prescribed fentanyl. He candidly admitted that he then progressed to buying and smoking street drugs, which he thought were primarily fentanyl, for a period of approximately 6-8 months starting sometime in 2019.
21Based 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?
22The 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 not met that burden.
23Although the appellant’s testimony at the hearing was at times vague with expressed difficulties remembering dates or events, I accept the appellant’s explanation that the reason for his vagueness or inability to recall events was the result of his significant substance use during the time period in question. I found the appellant’s testimony to be credible to the best of his ability.
24The appellant testified that he left the practice of the physician who prescribed the transdermal fentanyl to him after he realized he was “hooked on” fentanyl. According to Dr. C., he joined Dr. C.’s practice in November 2019. The appellant is “not sure” or “cannot remember” whether he disclosed his ongoing substance use issues with Dr. C. at this time.
25A Certified Extended Driver Record Search, submitted as evidence, reveals that the appellant was issued an Administrative Driver’s Licence Suspension (“ADLS”) – Drug Recognition Evaluator (“DRE”) on December 6, 2019 that extended through March 4, 2020.
26According to the first MCR received by the Registrar, the appellant was seen at the Centre for Addiction and Mental Health (“CAMH”) on February 28, 2020 by ER psychiatrist Dr. P. Dr. P. recommended intensive out-patient treatment for the appellant’s SUD. When questioned at the hearing, the appellant stated that he did not remember going to or being at CAMH.
27The appellant recalled that, around the time that the COVID-19 pandemic started, he was trying to get help for his SUD, was seeking a place to detoxify, but could not find one. He stated that, instead, he decided to stay at home and go off his street drugs on his own. He described the severe withdrawal symptoms that ensued. Apparently, his father came to visit him one day, saw the state the appellant was in, called an ambulance and the appellant was taken to hospital.
28The appellant stated that he was unsure of the dates he was in hospital, was “unresponsive” and “could not talk” at times, stayed for a couple of days, did not have a seizure and was admitted for severe withdrawal symptoms. When specifically asked if neurologist Dr. T. saw him in hospital, the appellant did recollect that Dr. T. saw him both during his hospitalization and later as an out-patient.
29Dr. T.’s correspondence to the Registrar (MCR sent April 5, 2020; a note dated June 13, 2020; and a SUA form completed on September 14, 2020) plus Dr. Z.’s SUA form (completed on September 21, 2020) shed light on the appellant’s medical condition in early April 2020, of which he has little memory.
30Dr. T. stated that the appellant had two generalized tonic clonic seizures (April 4 and April 7, 2020) when he just became abstinent of his street drugs. He was initially started on anti-seizure medication, which was stopped once the drug history became clear. There were no other seizures since early April 2020 and his tests, including an electroencephalogram (“EEG”) and magnetic resonance imaging (“MRI”) of the brain, were normal.
31Although at the hearing the respondent confirmed that the Registrar no longer has concerns with regards to the appellant’s reported medical condition of seizures and their potential interference with his ability to drive a vehicle safely, I wish to comment on these reported seizures, as the appellant adamantly denied he had them.
32I prefer the opinion of Dr. T., a trained neurologist, over that of the appellant, that on a balance of probabilities, the appellant suffered two seizures in early April 2020. I am basing my opinion on the facts that: generalized tonic clonic seizures cause a sudden loss of consciousness frequently followed by a period of impaired level of consciousness or confusion and no memory of the event itself; a normal EEG or MRI of the brain does not rule out seizures; Dr. T. started the appellant on an anti-seizure medication; and withdrawal from certain drugs can cause seizures (in this case, benzodiazepines more than opioids). Dr. Z. stated that on April 2 and April 6, 2020 the appellant tested positive for fentanyl and benzodiazepines.
33The appellant stated that he began a methadone (“MTD”) program for his SUD sometime in the latter part of April 2020 under Dr. Z. He stated that he was on 80 mg MTD for a while, with daily pickups for 2-3 months, weekly visits with Dr. Z., weekly UDS and counselling. However, the appellant stated that the MTD made him feel drowsy, sleepy and he could not focus at work. He stated that he felt the way he did when he used illicit drugs. In consultation with Dr. Z. and with Dr. Z.’s approval and supervision, the appellant tapered off the MTD.
34Dr. Z.’s September 21, 2020 SUA form stated that: the appellant had been compliant with the guidelines of therapy; his UDS were negative for drugs of abuse since April 27, 2020; he was tapering the dose of MTD; and he was currently on 10 mg of MTD daily.
35The appellant stated that he was off MTD towards the end of September 2020 but had severe withdrawal symptoms that necessitated a visit with Dr. C. with whom he now has regular visits. Furthermore, the appellant testified that he has been abstinent of all opioids or illicit substances since this time.
36When questioned about what he uses for his residual pain from the accident and surgeries, the appellant stated that massage, exercise and the occasional (about every three months) use of a cannabidiol (“CBD”) pill help.
37He further commented that he has “changed his life around” by staying away from people “who do” or deal with drugs, exercising and working. During his SUD recovery, he moved in with his parents and sold his condominium. He stated that “one mistake” destroyed years of hard work and destroyed the family automotive business. Between COVID-19 and the suspension of his driver’s licence, he lost customers and had to hire extra people to test drive cars or drive cars back to customers. The appellant denied driving while his driver’s licence has been under suspension.
38On February 18, 2021, Dr. C. wrote a letter to the Registrar stating that he: was aware that the appellant was undergoing MTD treatment under Dr. Z. as of April 2020 and stopped MTD treatment in September 2020; was of the understanding that the appellant had been abstinent from all illicit drug substances since that time and has had no seizures; has no major concerns at this time; and the appellant remains clinically stable.
39Furthermore, a UDS for drugs of abuse sample collected on February 17, 2021 was negative for opioids, amphetamines, barbiturates, benzodiazepines and cocaine. The UDS was positive for cannabinoids, a non-illicit drug, which the appellant testified he uses infrequently and on advice of Dr. C., for residual pain from his accident and surgeries.
40Section 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.
41As per its February 21, 2021 letter to the appellant, the Registrar is currently of the opinion that in order to reinstate the appellant’s driver’s licence it requires confirmation that he has remained abstinent from all illicit substances for a period of one year. At the hearing, the respondent specifically referred to 15.6.3 (SUD – All drivers) of the CCMTA Standards.
42Although not bound by the CCMTA Standards, I note that 15.6.3 applies to all drivers who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines, etc. This Standard indicates that drivers are eligible for a licence if:
meets the criteria for remission and/or has abstained from the substance for 12 months;
earlier re-licensing may be considered upon favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program;
the functional abilities necessary for driving are not impaired; and
where required, a road test or other functional assessment shows that the functional abilities for driving are not impaired.
43Based on the appellant’s testimony and the evidence before me, on a balance of probabilities the appellant has abstained from illicit drugs since at least April 27, 2020, now over 10 months.
44In addition, the appellant attended a formal MTD or SUD program with counselling for over five months. Dr. Z. stated in the SUA form that the appellant was compliant with the guidelines of therapy.
45Furthermore, Dr. C.’s recent letter stated that he has no major concerns regarding the appellant and that the appellant remains clinically stable. I find that this letter constitutes a favourable recommendation from a treating physician recognized by the licensing authority.
46The fact that the appellant had an ADLS – DRE on December 6, 2019 continuing through March 4, 2020 is concerning. However, I am of the opinion that the appellant’s attendance at the ER of CAMH on February 28, 2020, though he seems to have no memory of this, prior to the expiration of the ADLS – DRE, was both an indication that the appellant had accepted he had a serious substance use issue and an attempt to get help for this medical condition. Unfortunately for the appellant, Dr. P. recommended intensive out-patient therapy as opposed to in-patient therapy, the COVID-19 pandemic ensued, and the appellant felt his only viable option to deal with his SUD was to withdraw from illicit substances on his own.
47Based on the totality of the evidence before me, I find that the appellant has made significant strides in the past 10 months to overcome his SUD, has a plan in place to manage his pain without opioids or illicit substances and has changed his lifestyle significantly for the better.
48Furthermore, the evidence before me indicates that the appellant has a supportive family physician who is now clearly aware of the appellant’s SUD history, currently lives with his family who are supportive and has no plans to move from the family home at this time.
49Thus, based on the above, I find on a balance of probabilities that the appellant’s reported medical condition of SUD is not likely to significantly interfere with his ability to drive a vehicle safely.
50I commend the appellant for his efforts to date in acknowledging and dealing with his SUD.
51However, I encourage the appellant to continue to have regular contact with Dr. C. and reach out to him or another trained professional should he be having any potential symptoms or signs of relapse of his SUD.
F. ORDER:
52For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Released: March 10, 2021