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:
Bonita Visutski
Appellant
and
Registrar of Motor Vehicles.
Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Bonita Visutski
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: April 21, 2022
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 driver's licence. The suspension took effect January 1, 2022 and the cause of the suspension was the appellant’s alleged alcohol use disorder.
B. ISSUE
2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically, alcohol use disorder, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.
C. CONCLUSION
3For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition however this condition is not likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, the decision by the Registrar to suspend the appellant’s class G driver’s licence is set aside.
D. LAW
4The Registrar has the authority under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), 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 maybe suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”
5One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
6Sections 203.1, 203.2 and 204 of the HTA state as follows:
Every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment. 2015, c. 14, s. 55.
A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle. 2015, c. 14, s. 55.
A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,
(a) the name, address and date of birth of the reported person.
(b) the condition or impairment diagnosed or identified by the person making the report,
7Subsection 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.”
8Section 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 Minister of Transportation or on this Tribunal.
9The 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.
10Pursuant 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. EVIDENCE and PARTIES’ SUBMISSIONS
Registrar’s evidence
11The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant’s G-class licence, including section 14(2)(b)(ii), which empowers the Ministry to request information about a condition that may affect the appellant’s ability to drive and requires licence-holders to provide the requested information.
12The Registrar received an unsolicited medical report dated December 17, 2021 from Dr. Allison Clarke the appellant’s family doctor. This report stated the appellant had an uncontrolled substance use disorder and specified alcohol. The report recommended an outpatient alcohol program and cessation of drinking alcohol.
13The Registrar sent a letter to the appellant informing the appellant of the report and suspending their class G driver licence. The letter indicated the licence was suspended based on an alcohol use disorder. The letter included a substance use assessment questionnaire to be filled out by the appellant’s health care provider.
14The Registrar pointed out the substance use assessment had been completed and returned completed by Dr. Clarke on February 13, 2022. This questionnaire confirmed the diagnosis of severe substance use disorder and identified alcohol as the substance being abused. The report noted the appellant had enrolled in an alcohol treatment program and had not had a drink since January 1, 2022.
15The Registrar responded to this report stating the licence remained under suspension and consideration or reinstatement would only occur after a year of proven abstinence or a shorter period of six months if proof of attendance at a recognized alcohol treatment program was provided.
16The Registrar pointed out the appellant’s long history of drinking alcohol and noted the appellant’s testimony that her family doctor had advised her to stop drinking for medical reasons and the appellant had not stopped.
17The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding driving safety and the effect of medical conditions on the ability to safely drive a motor vehicle.
18The Registrar pointed out the dangers that substance abuse could present while driving. The CCMTA Standards outlines the dangers of substance abuse. The Registrar directed me to section 15.6.3 of the CCMTA Standards. This section recommends a period of 12 months of abstinence or a lesser period of abstinence if a recognized treatment program has been completed. The Registrar agreed that the lesser period was not defined by the CCMTA.
19The Registrar noted the fact that the appellant’s testified she had stopped drinking for 3 weeks a few years ago but had returned to her habit of drinking 3 beers most evenings and up to six beers a day on weekends. The Registrar stressed the danger of relapse happening again resulting in impairment of the appellant’s ability to drive safely.
20The Registrar drew attention to the appellant’s driving record. There were no reports of any infractions.
21The Registrar pointed out that the medical evidence confirms a diagnosis of alcohol use disorder. The registrar also stated the appellant has taken very positive steps, however not long enough time has passed to be sure the appellant will stay alcohol free and a longer period of suspension was needed. The Registrar’s position was that a full six months of abstinence was needed before the appellant could safely be considered for licensure.
Appellant’s evidence
22The appellant was credible and gave her testimony and answered questions in a straightforward non-evasive manner.
23The appellant admitted that at the time of suspension she had been drinking beer on a regular basis for many years. She testified her medical doctor identified her alcohol intake as a condition that was going to affect her health and the appellant’s doctor had told her on occasion that her blood tests confirmed she was drinking too much. The appellant stressed that in the 4 months since losing her licence the situation is completely changed and her alcohol use disorder is under control.
24The appellant testified that in December 2021 she felt overwhelmed. Her extended family was coming for Christmas for the first time since the Covid-19 outbreak in March 2020, her husband was unwell, she was raising her 11-year-old granddaughter, and her older mother was coming to live with her rather than being admitted to a long-term facility. She went to the emergency at the Pembroke Hospital and was given a pill that made her feel unwell. She followed up with her family doctor who changed her medication to 25 mg of Trazadone each night, a medication that has helped her and she is still taking. It was at this visit that Dr. Clarke again advised her to stop drinking, reported her alcohol use disorder to the Registrar and advised her of the need for treatment of her substance use condition. The recommendation was to stop drinking and attend an outpatient alcohol treatment program.
25The appellant testified Dr. Clarke advised her to stop drinking for health reasons and she did not recall being told not to drive.
26The appellant stated she continued to drink intermittently until January 1, 2022 when she quit drinking “cold turkey”. The appellant testified she has not had a drink since that date and she has no intention to return to drinking alcohol
27The appellant testified she had no alcohol withdrawal symptoms when she stopped drinking and she felt this verified her contention that she was not an alcoholic although she testified she had been a heavy drinker.
28The appellant drew our attention to a letter dated March 29, 2022 from Addiction Treatment Services in Renfrew, Ontario. This letter confirmed her treatment in the alcohol program and noted that she had not had a drink since January 1, 2022.
29The appellant testified she took the above-noted Trazadone at bedtime and a pill for her blood pressure, but did not take any recreational drugs or medications.
30The appellant testified that she is a safe driver and has no alcohol convictions and that she would never drive while her ability was impaired. The appellant testified she only drank in the evenings prior to dinner and never went out to any pubs or drinking establishments.
31In response to the Registrars questions about her past relapse, the appellant testified that many things had changed and in many ways she is a new woman.
She has a good family doctor and has a good supportive relationship with her and now understands the doctor’s concerns.
Her husband is sick and has a medical condition that is affecting his liver and is awaiting surgical intervention to improve liver function. Any alcohol may affect him. The appellant realizes that she and her husband had been codependent and had been encouraging each other to continue drinking. There is now no alcohol in their home.
She now feels her health both mentally and physically is much improved since the cessation of alcohol. She is enjoying this improvement in her wellbeing and wants to maintain it.
She has accepted that as a couple they had been spending hundreds of dollars a month on beer and now with no drinking their finances were in much better shape and this would be an incentive to not return to drinking alcohol.
She has come to the realization that she had an alcohol problem and is firmly committed to never having another drink of alcohol.
Her work life is now stable and she works in the home looking after her mother and her grandchild and sick husband. She maintains the house and a large garden.
Her personal life is stable and alcohol is not part of their life. She and her husband do not have an active social life but when they have gotten together with neighbors they have been offered beer and have had no problem in declining the alcohol and just having soft drinks.
The appellant feels no need to return to drinking alcohol.
F. ANALYSIS
Does the Appellant Suffer from Alcohol Use Disorder?
32The medical evidence establishes that the appellant suffers from alcohol use disorder. First, we have the unsolicited medical report from Dr. Clarke, the appellant’s family doctor, indicating a substance use disorder and confirming that substance was alcohol. Second, we have the substance use questionnaire diagnosing a severe substance use disorder and confirming that the substance was alcohol.
33Testimony from the appellant indicates heavy regular drinking that led to abnormal liver function tests in her blood tests and her doctor advising her to stop drinking.
34Considering all of the above, I am satisfied that the appellant has the medical condition of alcohol use disorder.
Is the appellant’s alcohol use disorder likely to significantly affect the appellant’s ability to drive a motor vehicle safely?
35Having determined the appellant has a condition, namely alcohol use disorder, I must now determine whether the Registrar has discharged its burden of proving that this condition is likely to significantly affect the appellant’s ability to drive a motor vehicle safely
36There is no direct medical evidence available to assist in making a determination of the effect the condition may have on the appellant’s ability to drive.
37The Registrar draws attention to the dangers associated with alcohol use disorder and driving and feels that not enough time has passed to be sure that the appellant will not return to heavy alcohol use. The Registrar also points out that the appellant did not stop drinking in the past when her family doctor advised her to stop for health reasons.
38I am very much assisted in making the determination of safety to drive, by the appellant’s testimony and documentation.
39The appellant’s driving record has no infractions, alcohol related or otherwise.
40The appellant completed a rehabilitation program at a recognized treatment facility.
41The appellant acknowledges the fact she had an alcohol problem and that resuming drinking will endanger her life as well as the health of her husband. I found the appellant to be a credible witness and accept her testimony that she has been alcohol-free since early January 2022 and does not intend to resume drinking.
42The appellant’s work, home, and personal life are stable. She lives in an alcohol-free residence with her husband, mother, and granddaughter. Everyone in her family and community is supportive of her plan to not drink again.
43The appellant has a supportive family doctor who is aware of her past problem with alcohol and is supportive of her plan to stop drinking
44The Registrar points out the CCMTA guidelines which outline the dangers of severe alcohol use disorder. The Registrar points out that not enough time has passed to be sure the appellant will be compliant. The guidelines suggest a year of abstinence unless an accredited program has been taken. If an accredited program has been completed then a shorter time is indicated, the Registrar has decided that period should be six months but this is just a suggestion and is not the law. The Registrar testifies that every case should be judged on its own merits however has a rule that six months free of alcohol is the minimum amount of time needed to consider licence reinstatement.
45The Registrar pointed out that the appellant had stopped drinking for three weeks in the past but had returned to drinking and this could happen again. The appellant argued that things were different this time and the guidance she has received at rehab, family doctor and the support of family and friends will prevent her from any possible relapse.
46The appellant’s position was that she had complied with all the steps her doctor had suggested (stopping drinking and completing addiction counselling) and she was going to continue to follow through. She argues waiting a few more weeks to achieve some arbitrary period of time was not needed.
47The CCMTA Standards are not binding on the Tribunal, though the Regulation refers to them specifically and gives the Minister the authority to consider them in making medical suspension decisions. In my view, the CCMTA Standards should be accorded significant weight in medical suspension cases, including in the present case, however, as the appellant pointed out each case must be considered individually.
48I also note that the legislation suggests that an alcohol addiction is not necessarily sufficient on its own to warrant an automatic suspension of a driver’s licence. As noted, s. 14(1)(a) of the Act provides that a driver must not have a medical condition that is likely to significantly interfere with their ability to drive safely. However, s. 14(1)(b) provides another ground upon which the Registrar may suspend a licence. It provides that a driver must not “be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely” (Emphasis added).
49The Registrar did not purport to suspend the licence under subsection (b). Nonetheless, the addition of the words “to an extent” appear to be deliberate, and in my view make it clear that the Legislature did not intend that all persons with an alcohol addiction must remain suspended subject to the CCMTA Standards, but rather only those whose addiction is serious enough that it is likely to significantly interfere with their ability to drive safely. I do not find that to be the case here.
50The Registrar suggests the evidence from the unsolicited medical report and substance use questionnaire is strong enough to convince us that the medical condition would affect the appellant’s ability to drive safely at this time.
51While I agree that the unsolicited medical report contains enough information to conclude that the appellant suffered from alcohol use disorder, I do not agree that there is enough information to establish that the disorder is to an extent that it would likely significantly affect the appellant’s ability to drive safely at this point in time.
52The burden of proof rests with the Registrar in this appeal and the Registrar has not established that the appellant’s alcohol use is likely to significantly interfere with her ability to drive safely.
ORDER
53Pursuant 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: April 26, 2021