An 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 licence pursuant to Section 47(1) of the Act.
Between:
Jonathen Landsborough
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATORS: Dr. Peter Savage, Member Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Jonathen Landsborough, Appellant
For the Respondent: Stella Velocci, Agent
Held by teleconference: December 12, 2022
REASONS FOR DECISION AND ORDER
A. Overview
1Jonathen Landsborough (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “respondent”) to suspend his driver’s licence for medical reasons.
2In response to a Medical Condition Report (“MCR form”) dated October 6, 2022, completed by the appellant’s family physician, Dr. Amy Blake, by letter dated October 7, 2022, the Registrar of Motor Vehicles (the Registrar) suspended the appellant’s Class G1 licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), for medical reasons.
3In response to a Substance Use Assessment form (“SUA form”) dated November 21, 2022, also completed by Dr. Blake, by letter dated November 22, 2022, the Registrar advised that the appellant’s driving privilege remains suspended.
4The appellant appeals the suspension and asks the Tribunal to reinstate his licence.
5Having considered all the evidence and for the reasons that follow, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
B. Issue
6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.
7To resolve that issue, we will address the following questions:
Does the appellant suffer from a medical condition, namely a substance use disorder?
If the appellant does suffer from a substance use disorder, is this likely to significantly interfere with his ability to drive a motor vehicle safely?
C. The Law
8The Registrar has the authority under s.47(1) of the Act to suspend or cancel a driver’s licence for any grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”
9One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
10Section 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 mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”
11Section 203(1) of the HTA requires medical professionals to report prescribed medical conditions to the Registrar, while s. 203(2) gives medical professionals the discretion to report medical conditions that they believe might make it dangerous for a person to drive.
12Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Registrar or on this Tribunal.
13The 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.
14Pursuant 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.
D. Evidence and Analysis
a. Does the appellant suffer from a substance use disorder?
Evidence of the respondent
15In support of its allegation that the appellant suffers from a substance use disorder, the Registrar relies on the MCR from Dr. Blake as well as the SUA form.
16In the MCR form, Dr. Blake advised that the appellant suffers from a Substance Use Disorder and specifies the substance as cocaine. Dr. Blake wrote,
“Cocaine - but is going to be seeking help (not yet) – Gave # for pt to call for Addiction [Service].”
17In the SUA form, Dr. Blake reaffirms that the appellant suffers from a severe substance use disorder and that he has abstained from the use of cocaine for less than 6 months. Dr. Blake continues,
“didn’t call treatment programs Thames Valley [unintelligible] about wait times for programs…has made some calls for private counselling long wait times though.”
Testimony of the Appellant
18The appellant testified that, in October 2022, he visited Dr. Blake to consult about his mental health, as he had been going through difficult times. In that visit, he admitted to Dr. Blake that he had used cocaine recreationally. He testified that he believes that, at that point, Dr. Blake overreacted, concluding that he had a problem with cocaine and proceeded to complete the MCR form.
19He testified that he was not addicted to cocaine, and that he never drove while using the substance. He now believes that using cocaine was a mistake and has abstained from its use since the loss of his licence. He has not suffered any withdrawal symptoms.
20The appellant’s testimony indicates that his cocaine use was known to some friends, but not to his family. He testified that, since the loss of his licence, his family and his girlfriend are now aware of his use of cocaine and are supportive in his decision to abstain from its use.
21The appellant added that, in response to Dr. Blake’s recommendations, he has investigated different treatment options, but has not followed through due to long wait times and the cost of that treatment. However, as stated, he did not believe that his use of cocaine was anything more than a recreational diversion and that he has had no difficulty in abstaining.
Conclusion
22We found the appellant’s testimony credible and forthright, and we do commend him on his abstention from the use of cocaine and his establishing stronger and more transparent relationships with his family and his girlfriend. However, we find that the only objective evidence with respect to the appellant’s possible substance use disorder is found in the MCR and SUA forms, both completed by his family physician, Dr. Blake. Therefore, we find that the Registrar has established on a balance of probabilities that the appellant suffered from a medical condition, namely substance use disorder.
b. Is the appellant’s medical condition of substance use disorder likely to significantly interfere with his ability to drive a vehicle safely?
23The Registrar has the burden of establishing that the appellant’s substance use disorder is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find that the Registrar has not satisfied this burden.
24The Registrar relies on the CCMTA National Safety Code, chapter 15 which describes drugs, alcohol and driving, and the concerns with driving with respect to that condition. The Registrar relies on chapter 15.6.3 which recommends a 12-month driving restriction with consideration of earlier re-licensing upon a favourable recommendation from an addictions specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program.
2The 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 substance abuse disorder is likely to significantly interfere with his ability to drive a motor vehicle safely. And while the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts.
25The Registrar notes in the CCMTA Standards the possible effects cocaine can have on a driver’s ability but presents no direct evidence of the specific effects cocaine has had on the appellant.
26While the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts.
27The only medical indication of the effect on the use of cocaine on the appellant’s ability to drive safely was the fact that Dr. Blake completed the MCR form, submitted under s. 203 (2) of the Act. However, we have no further evidence from Dr. Blake or any other medical professional addressing this issue. It would have been helpful to have further medical documentation with respect to the extent of the appellant’s cocaine usage and its effects on his ability to drive. Absent that further medical documentation, it is difficult to make the leap from the appellant advising his doctor of (what he testifies) is his recreational use of cocaine, to the finding of its interference with his ability to drive safely.
28In an Extended Driver Record search for Criminal Code Convictions of the appellant dated November 7, 2022, the only two entries are that of a speeding ticket, dated September 9, 2022, and the medical suspension dated October 17, 2022. Aside from the MCR form, this is the only objective documentary indication of the appellant’s ability to drive safely and, while it may be superfluous to reference, the encounter with traffic enforcement 38 days prior to his medical suspension provides no suggestion of impairment on the appellant’s part.
Conclusion
29While we have concluded that the evidence establishes that the appellant has a substance use disorder, the dearth of evidence with respect to its effect on his ability to drive safely leads us to conclude that the Registrar has not succeeded on this step of the test for the suspension of the appellant’s driver’s licence under s. 14(1)(a) of O. Reg. 340/94.
30Based on the evidence, we find that the Registrar has not established on a balance of probabilities that the appellant’s substance use disorder is likely to significantly interfere with his ability to safely drive a motor vehicle.
E. Order
31For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s decision to suspend the appellant’s Class G Licence.
Licence Appeal Tribunal
Dr. Peter Savage, Member
Jeffery Campbell, Vice Chair
Released: December 15, 2022