Date: 2022-09-27

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:

Kearsten Lumley

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Kearsten Lumley, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: August 12, 2022

A. Overview:

1Kearsten Lumley (the “appellant”) appeals the July 4, 2022 suspension of her Class G2 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 her 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 her 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 her 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 her 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. PRELIMINARY ISSUEs:

12At 11:56 p.m. on August 11, 2022, the appellant submitted to the Tribunal the results of three recent immunoassay (“IA”) urine drug screens (“UDS”). Not only were these UDS submitted beyond the disclosure date of August 9, 2022 indicated the Case Conference Report and Order (“CCRO”), they were not copied to the respondent as per the CCRO.

13I was of the opinion that the contents these UDS may affect the outcome of this hearing and in the interest of fairness asked the respondent if he had any objections to admitting the UDS as evidence. Following the receipt of a copy of the UDS from the Tribunal, the respondent expressed no objections.

14Furthermore, at the outset of the hearing the respondent was questioned whether or not the Registrar had submitted any additional documents following the July 21, 2022 CC. The respondent answered negatively.

15However, during the latter part of the hearing, it became apparent that the respondent had, in fact, submitted an additional document on July 22, 2022 upon it wished to rely. The respondent apologized for his original oversight when questioned. Although this document had been copied to both the appellant and the Tribunal, I did not receive it prior to the hearing. Following receipt of this document from the Tribunal, it was entered into evidence.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from SUD?

16I find, on a balance of probabilities, that the appellant suffers from SUD.

17All three completed Substance Use Assessment (“SUA”) forms (June 18, 2021, November 12, 2021 and June 7, 2022) entered into evidence indicate that the appellant suffers from severe SUD, specifically to illicit substances and/or non-prescribed pharmaceuticals. In the ‘Additional Comments’ section of the June 18, 2021 form, Dr. M., the appellant’s primary care physician since 1993, indicated that the appellant “was a heavy regular user of cocaine”.

18The appellant does not deny that during a 4-year period she suffered from severe SUD to cocaine.

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 her 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 her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

21The division of the Ministry of Transportation (the “Ministry”) that deals with suspensions or downgrades of driver’s licences for medical reasons (“medical suspension”), became aware of the appellant’s SUD from Dr. M.’s completed SUA form dated June 18, 2021.

22Following a lengthy period of questioning of the parties, I am satisfied on a balance of probabilities that the following recitation of facts is accurate:

• the appellant has a Criminal Code conviction for driving with more than 80 mg alcohol in blood (offence date August 16, 2015);

• her driver’s licence was reinstated on December 16, 2015 under the “Ignition Interlock Program”;

• the appellant was involved in a motor vehicle collision sometime around April 2016. Her car was “totalled” and she was charged with careless driving;

• she was unable, within the required 30 days, to get a new vehicle with an Ignition Interlock installed so she let her driver’s licence expire;

• sometime in 2020, the appellant decided to regain her driving privilege, beginning with her G1 licence and her Ignition Interlock requirement “carried over”;

• at some point the appellant applied for the removal of the Ignition Interlock conditions on her licence;

• she recalls receiving a blank SUA form in the mail, did not keep the cover letter and had Dr. M. complete the form;

• the appellant was approved for the removal of the Ignition Interlock around July 2021 and proceeded to obtain her Class G2 driver’s licence;

• both the medical suspension section of the Ministry and the section dealing with Ignition Interlock conditions use the same “Medical Review” team.

23On the completed June 18, 2021 SUA form Dr. M. indicated that the appellant:

• had severe SUD, having been a heavy regular user of cocaine;

• reported no alcohol consumption for more than six months;

• had abstained from cocaine for less than six months, with the last positive UDS for cocaine being January 2021; and

• had completed a virtual rehabilitation program in June 2021 and was continuing with ongoing follow-up programs

24By letter dated June 25, 2021 the Registrar approved the appellant’s case and indicated that she would be required, at a later date, to file a further SUA form.

25On November 12, 2021, Dr. B., who took over Dr. M.’s medical practice when Dr. M. retired, completed a SUA form. On this form Dr. B. indicated that the appellant:

• has severe SUD to illicit substances and/or non-prescribed pharmaceuticals;

• has abstained from alcohol for 6-12 months;

• has not abstained from all other substances that have been or are currently a problem;

• has recently completed a supervised treatment program as a result of this reported condition; and

• has “recent UDS positive for cocaine intermittently. No signs of alcohol usage. [She] vehemently declines current usage of either.”

26By letter dated November 22, 2021, the Registrar again approved the appellant case and indicated that she would be required, at a later date, to file a further SUA form.

27On June 7, 2022, Dr. B. completed another SUA form. On this form, Dr. B indicated that the appellant:

• has severe SUD to illicit substances and/or non-prescribed pharmaceuticals;

• has abstained from alcohol for 6-12 months (“almost 12 months now”);

• has not abstained from all other substances that have been or are currently a problem;

• has recently completed a supervised treatment programs as a result of this reported condition (May 2021); and

• has had UDS “intermittently positive for cocaine use”, “denies having taken”.

28In an amended letter dated June 24, 2022, the Registrar indicated that upon further review the appellant’s driver’s licence was suspended for the reported medical condition of SUD. This letter indicated that in order to be reinstated the Ministry requires:

• confirmation that she has remained abstinent from drugs for a period of one year. This period may be reduced to six months if her healthcare practitioner confirms that she has successfully completed a drug treatment program and is supportive of her driving privilege.

29As per the CCRO, following the case conference the respondent was to have reviewed a letter from Dr. B. dated June 29, 2022 which was part of the appellant’s Notice of Appeal (“NOA”). In this June 29, 2022 letter, Dr. B. indicated that the appellant:

• “continues to support on history that she has been abstinent from use”;

• has had UDS which “have been intermittently positive on multiple occasions since July 2021”; and

• explains that “her positive results may be due to close proximity to such illicit substances and nearby acquaintances who are using”.

30Upon review of the information contained in the appellant’s NOA, and by letter dated July 22, 2022, the Registrar indicated that in order for the appellant’s driver’s licence to be reinstated the Ministry requires:

• confirmation that she has remained abstinent from drugs for a period of one year from her self-reported abstinence date of February 2022. This period may be reduced to six months if her healthcare practitioner confirms that she has successfully completed a drug treatment program post relapse and is supportive of her driving privilege.

31The respondent stated that the Registrar is relying on Chapter 15 of the CCMTA Standards. He emphasized that the CCMTA Standards are not arbitrary, are National standards drawn up by experts in the field and that alcohol and illicit drugs are known to potentially impair the ability to operate a motor vehicle safely. He indicated that Chapter 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers” applies to both alcohol and illicit drugs (such as cocaine) and stated that this 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.

32The appellant spoke to the four different drug treatment programs she attended in 2021, the certificates of which were submitted as evidence (May 27, July 14, August 26 and September 9, 2021). She also spoke to the positive comments in a letter written by Ms. V., someone the appellant has known for a number of years, as well as her participation in activities such as “community hours”, yoga, and gym in an effort to maintain her sobriety.

33The appellant testified that she “has been completely sober for 1.5 years”. However, in her NOA the appellant wrote she had “been sober from illicit drugs since February 2, 2022”. When questioned regarding the inconsistencies in the dates, she testified that the date in her NOA was an error and should read February 2, 2021.

34The appellant argued that: she entered into doing UDS on her “own accord”; they were not originally intended for the Ministry; and they are now being used against her. She did however acknowledge that she, herself, submitted many UDS results in her NOA and also gave permission to her healthcare providers to share this information with the Ministry.

35In her NOA the appellant stated, “I do believe the cause of my positive drug screens could be a result from second hand due to the company I may still keep during my recovery”. At the hearing she testified that she is “one hundred per cent sure that it is a proximity issue”. She elaborated that: she has “lots of friends who still use” (i.e., cocaine); she continues to support them by visiting them from time to time in their homes or by giving them lifts to the grocery store; and these friends look up to her and her success. The appellant detailed that: sometimes her friends smoke cocaine right in front of her (“blow out in front of her”); she might walk into their home just after they smoked cocaine; and she would be inhaling “second-hand smoke”. She estimated that she might be in her friends’ homes for “15-20 minutes” or “one hour at the most”. She denied keeping track (i.e., a log) of the visits to her friends’ homes or the lifts she gave them for obtaining groceries. Furthermore, the appellant stated that there are no set dates for her UDS (i.e., it is all up to her when she goes), provided she follows the frequency of UDS that are required.

36The appellant further argued that: there are “barely any positive” UDS for cocaine in the UDS she provided; there is no evidence that she was behind the wheel around the time of the positive tests; and there is no driving under the influence of drug charges on her driving record.

37In her NOA, the appellant wrote, “I have remained completely ABSTINENT for alcohol which was originally the underlying issue”. I also note that the three SUA forms in evidence indicate that, by history, the appellant is abstinent from alcohol.

38When questioned about a positive UDS in April 2022 for alcohol (ethanol) submitted by the appellant in her NOA, the appellant admitted to having a “couple of drinks” or “three drinks” on her mother’s birthday over the period of the evening of April 6, 2022 through the early hours of April 7, 2022. When it was pointed out that the positive UDS for alcohol was from a urine sample taken at 1:41 p.m. on April 28, 2022, the appellant stated that she could not recall drinking, but perhaps she may have had a beer with a friend when she went out for a meal (either lunch that day or dinner the evening prior). Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I am aware that an IA UDS positive for alcohol at 1:41 p.m. on April 28, 2022, means, on a balance of probabilities, that the appellant consumed alcohol on April 28, 2022. An IA UDS for alcohol will usually be negative at 6-12 hours post alcohol consumption. When questioned whether she would have driven to the lab that afternoon to submit to her UDS, she stated that she does not know whether she drove to the lab herself or got a ride.

39Although it is not bound by the CCMTA Standards, they may be considered and applied by this Tribunal.

40The 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 her ability to drive a motor vehicle safely.

41I acknowledge that in the evidence before me, the appellant’s UDS were positive for cocaine only on December 13, 2021 and February 8, 2022. However, I note that the UDS the appellant entered into evidence began on October 4, 2021 and do not always include the number or frequency of UDS per month I would have expected based on the appellant’s testimony. For instance, there is only one UDS submitted for the month of March 2022. Furthermore, I note that Dr. B. in his November 12, 2021 SUA form stated, “recent UDS positive for cocaine intermittently”. I find based on Dr. B.’s comments, that on a balance of probabilities the appellant also had two or more UDS positive for cocaine prior to October 2021.

42I also acknowledge that the appellant claims to be abstinent from cocaine since February 2, 2021 and that she is “one hundred per cent sure that it is a proximity issue” causing her positive UDS for cocaine. However, medicine is not an exact science. I am aware that although it is possible that a UDS could be positive for cocaine from inhalation of its second-hand smoke, it is neither likely, nor probable. In addition, nowhere in Dr. B.’s forms/letter does he overtly support the appellant’s reasoning or theory regarding “proximity” or second-hand smoke. Dr. B. says the positive UDS results “may be” due to close proximity, which is at best indicating a possibility but is not confirmation.

43Furthermore, I am drawn to the inconsistencies in the evidence before me regarding the appellant’s alcohol consumption. Despite having evidence before me of a UDS positive for alcohol on April 28, 2022 plus oral testimony that the appellant had 2-3 drinks with her mother earlier that month, the appellant continued to say “I don’t drink” at least two more times following the questioning of her alcohol consumption.

44As previously stated, in all of the SUA forms in evidence, her healthcare practitioners have indicated that, by history, the appellant has abstained from alcohol, In fact, in November 2021, Dr. B. wrote that the appellant “vehemently declines current usage of either” (i.e., cocaine or alcohol).

45After considering the evidence as a whole, it is clear that the appellant has not been completely truthful with her healthcare professionals regarding her alcohol consumption.

46In addition, nowhere in Dr. B.’s communications with the Ministry does he overtly state that he currently supports the reinstatement of the appellant’s driving privilege.

47I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, driving a 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.

48Based 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 her ability to drive a vehicle safely.

F. ORDER:

49For 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.

Footnotes

1. 1Pursuant 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”.