Licence Appeal Tribunal
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:
Duc Khong Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION & ORDER
ADJUDICATOR: Dr. Dimitri Louvish, M.D., Member Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant: Duc Khong, Self-represented For the Respondent: Kyle Biel, Agent
Heard by teleconference: July 4, 2022
Background
1By letter dated February 24, 2022, the Registrar of Motor Vehicles (the "respondent") advised Duc Khong (the "appellant") that his licence was being suspended for medical reasons. This decision was made after the respondent received an unsolicited medical report, dated February 19, 2022, from an emergency physician at Scarborough General Hospital. The report indicated that the appellant suffered a seizure as a result of drug or alcohol ingestion. The report also identifies cocaine as one the of illicit substances the appellant was using at the time of his hospital visit.
2The letter from the Registrar specifically identifies the following medical conditions which appear in the medical report. They are:
a. Syncope/Loss of Consciousness
b. Seizure due to Alcohol Withdrawal
c. Substance Use Disorder
3To properly assess the appellant's ability to safely operate a motor vehicle, the respondent requested that certain forms be completed by his doctor, specialist, or nurse practitioner. The Registrar is also seeking confirmation of the diagnosis of severe alcohol use disorder and/or alcohol withdrawal/related seizure. In situations such as this, the ministry requires further confirmation that the appellant is seizure free and abstinent from alcohol for a period of one year. This period may be reduced to six months if the appellant's healthcare practitioner confirms that he has successfully completed an alcohol treatment program and the doctor is supportive of his driving privilege.
4In addition, the respondent's letter also states that if the appellant's healthcare provider confirms a diagnosis of severe substance use disorder, they would also be required to confirm that the appellant has remained abstinent from drugs for a period of one year. As in the case of severe alcohol use disorder, this period may be reduced to six months if the healthcare practitioner confirms that the appellant has successfully completed a drug treatment program and the doctor is supportive of his driving privilege.
Issue
5The issue to be determined is whether the appellant's medical condition, if any, is likely to significantly interfere with his ability to drive a motor vehicle safely.
Result
6For the reasons set out below, we confirm the respondent's decision.
Law
7The respondent has the power under s. 47(1) of the HTA to suspend or cancel a driver's licence for any of the 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)."
8One 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 that is likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the "Regulation") under the HTA states:
An applicant for or a holder of a driver's licence must not...
(a) 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.
9Section 14(2)(a) of the Regulation allows the Minister of Transportation ("Minister") to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers ("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. In this matter, the Registrar is relying on the CCMTA standard relating to alcohol use disorder.
10Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
11The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the respondent.
Evidence and Analysis
12In response to the respondent's February 24, 2022 letter, the appellant submitted some of the requested information to the Ministry of Transportation (the "ministry") including the Seizures and Loss of Consciousness form and the Substance Use Assessment form. It was also around this time that the ministry received a second unsolicited report, dated February 22, 2022, from another doctor who provided the appellant treatment during his hospital visit.
13The various assessments conclude that the medical incident experienced by the appellant was drug induced. It was also concluded that the seizure he suffered was provoked and not the result of a structural brain abnormality. The seizure was likely caused by his unresolved substance use problem. The Seizures and Loss of Consciousness form identifies and confirms a severe substance use disorder to illicit substances and/or non-prescribed pharmaceuticals. It also confirms that the appellant has not attended a supervised treatment program to address this issue.
14The respondent sent another letter to the appellant on May 16, 2022, acknowledging receipt of the new information but also advising that his condition of substance use disorder remains outstanding, and his licence would remain suspended until he complies with the instructions in the letter.
15The appellant was candid in his testimony. He stated that he is now making better lifestyle choices and he is more aware of the state of his health and impact drugs can have on him. He is committed to taking care of himself does not intend to cause more harm to himself. He also testified that he has proven this to himself by quitting smoking, a feat he did not think was possible.
16The appellant stated that he has followed the directions of the hospital physician and staff to get his life back on track. He shared that he took his family on a vacation to Cuba and did not consume any alcohol during the trip.
17The appellant stated that he has not done any cocaine or non-prescribed pills since the initial incident, and he strongly regrets his past poor decisions. In an effort to improve his personal situation, he is working with his wife, family, and friends to find ways to de-stress without relying on any substances. He states that he has a good support system behind him.
18Finally, the appellant stated that he is getting married on July 31, 2022, and it is imperative that he work again to pay his bills. However, we note that he has been able to work part-time during this period and is still receiving some income. The appellant's partner is not currently working. They also have 2 children under the age of two.
19To his credit, the appellant has applied to a rehab centre in Scarborough, Ontario for treatment. His first session is scheduled shortly after this hearing.
20The respondent argues that the appellant's substance use is serious and has not been addressed by treatment or a significant period of abstinence. To that extent, the respondent argues that the medical condition is unresolved and remains a concern. During the hearing, the appellant acknowledged using an array of substances including recreational cannabis, cocaine, and alcohol. More recent test results show the appellant testing positive for THC.
Appellant's Witness (Emily Ha, Girlfriend/Fiancé)
21Ms. Ha testified on behalf of the appellant. She states that she was not aware of his significant drug problem. She notes that he does go out late at night and blames a negative social group that the appellant associates with. She testified that since the medical incident, has been with him every single day. Her testimony further corroborates the appellant's claim that his personal situation is improving, and he is doing well.
22Ms. Ha also testified that he appears to be on the right track and has made some considerable improvements in his health and personal outlook.
23The appellant submits that the loss of his licence makes it difficult for him to earn full-time income. During the hearing, he explained that he has made improvements in his life, and he is motivated to making positive changes. He did not dispute his substance use, the reason for his hospital visit, or the fact that he attended hospital due to a seizure from the use of substance.
24The respondent submits that the appellant suffers from a medical condition that interferes with his ability to operate a motor vehicle safely. It asserts that it has yet to receive confirmation of completion of a drug treatment program. In addition to this, the respondent states that a longer period of abstinence and stability is needed for the appellant. The respondent states that at this time its Medical Review Team does not have the requisite information to consider a licence reinstatement.
25In considering this case there are two elements that need to be satisfied:
a. Does the appellant have a medical condition; and,
b. Will that condition significantly interfere with his ability to drive safely.
Does the appellant have a medical condition?
26At the hearing, we received evidence from the medical reports that the appellant suffers from a substance use disorder. We also received evidence from the appellant in a letter dated June 22, 2022, from his family physician. The letter provides the doctor's opinion that the appellant should be allowed to drive again but leaves the decision up to the ministry.
27We accept the appellant's statement that he is trying to make positive changes in his life for the sake of his family and personal health. He does not dispute the findings of the medical reports or the reason for his hospital visit.
28There is an abundance of evidence that the appellant does have a condition. The appellant's admission that he suffers from a substance use problem corroborates his diagnosis and supports a finding that he has a medical condition capable of satisfying the first element of the test.
Is this condition likely to significantly interfere with his ability to drive safely?
29The appellant submits that he should be granted his licence due to the positive changes he has made in his life thus far. He further states that he has not used alcohol or other substances since his hospital visit. Further probing by the respondent revealed that he did in fact use cannabis during that period.
30We find that the appellant has not been forthcoming with his substance use and may be underestimating the difficulty of overcoming his addiction. Until this incident, he hid his substance use problem from his partner. At times during the hearing, he appeared to minimize his addiction and described his usage as occasional over the weekend with friends.
31The respondent submits that the appellant's substance use is significant and warrants a longer period of abstinence to be considered for licence reinstatement. It also argues that Regulation 340/94 clearly states that an individual must not be addicted to alcohol or drugs which may significantly interfere with an individual's ability to drive. The respondent also argues that the appellant does not meet any of the criteria set out in the CCMTA (Canadian Council of Motor Transport Administrators) guideline to suggest reinstatement is appropriate at this time.
32Finally, it is the respondent's position that not enough time has elapsed to consider lifting the licence suspension, especially since the appellant's substance use appears to be serious and requiring specific professional treatment and intervention.
Conclusion
33We find that the appellant suffers from a condition of substance use disorder. The fact that he has only been abstinent for a short period of time and the fact that he continues to test positive for THC suggests that this problem remains unresolved. This is also coupled with the fact that he has not completed treatment.
34Without sufficient time and professional intervention, we also find that the appellant may by at risk of relapse.
35In the end, we find that the appellant has not been able to demonstrate a significant period of abstinence to give assurance that his addiction is under control.
36Along with the HTA, the respondent relied on section 15.6 of the CCMTA Standards which provides the guidelines for assessment. We find that it is prudent to apply the CCMTA Standards in this case. The medical standards are clearly established in this guideline. The appellant's addiction is neither resolved nor currently being addressed. As such, he falls short of the criteria set out in the CCMTA Standards.
37Based on a careful consideration of all the evidence before us, we are satisfied 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. Therefore, the respondent's decision is confirmed.
WE ORDER AS FOLLOWS:
38For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar's decision to suspend the appellant's driver licence is confirmed.
LICENCE APPEAL TRIBUNAL
Dr. Dimitri Louvish, M.D., Member
Raymond C. Ramdayal, Member
Released: August 3, 2022