Licence Appeal Tribunal
FILE: 7733/MED
CASE NAME: 7733 v. Registrar of Motor Vehicles
Appeal under Section 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
7733 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. David Borenstein, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: December 4, 2012
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Applicant was driving his car on August 5, 2012 and pulled over to the side of the road. He felt unwell. The EMS came to his aid and found his blood sugar to be 2.8 mmol/L. He received oral glucose and his sugar increased to 5.0 mmol/L. He felt better. After some convincing from the EMS, the Applicant agreed to go to the hospital. At the Emergency Department (ED), Dr. D.U. assessed the Applicant and then filed a medical condition report with the Ministry of Transport Ontario (MTO). The reason for reporting was Diabetes or Hypoglycemia - Uncontrolled. The physician noted in the form, “patient missed a meal, had hypoglycemic episode driving. Likely can drive again after recheck by family doctor if glucose controlled.” On August 25, 2012, the Applicant received a letter from MTO stating his driver’s licence was to be suspended. The letter included a list of those things the Applicant must do to get his licence re-instated. Suspension of the driver’s licence took effect September 3, 2012.
The Applicant, as requested, had his regular physician, Dr. D.W., perform a diabetic assessment. It stated that no recorded glucose reading had been below 4.0 mmol/L and that HbA1c was being measured every 3 months to assess diabetes control. In June, 2012, HbA1c had been 0.070. The Applicant received diabetes education in 2010. The assessment also stated that the “patient is aware of above, had missed a meal on the day in question. However had the awareness to pull off the road". The doctor listed the Applicant’s compliance with diet, monitoring and diabetes care as 2/5. The Applicant’s medications were changed to Metformin and Diamicron, as he had been on Metformin and Glyburide at the time of the hypoglycemic episode.
Upon review of this information, MTO informed the patient in writing on Oct 16, 2012 that his licence suspension would remain in place.. They requested current HbA1c levels, twice daily glucose reading to show no level below 4 mmol/L, another diabetic assessment and confirmation of no hypoglycemic episodes for 6 months duration based on current CCMTA standards.
The Applicant’s family physician subsequently retired and his new physician, Dr. G.B., completed a second diabetic assessment on October 23, 2012. He noted that that the Applicant’s actual year of diabetes diagnosis was 1998 (which the Applicant confirmed at the hearing), that no blood levels recorded twice a day were below 4 mmol/L, average blood levels in the last 30, 14 and 7 days were all above 6.7 mmol/L, that HbA1c in August 2012 was 0.065, that the Applicant fully understands the relationship between diet and diabetes medications (also noted in the first assessment), and that the compliance score is now 4/5.
The Applicant’s log of glucose readings from Aug 19, 2012 to Nov 7, 2012 showed 1 level below 4 mmol/L on Aug 31, 2012, in the early morning. All other readings were above 4 mmol/L. After that dip in glucose, his physician switched him to the new medication, discontinuing his glyburide. HbA1c performed on Nov 6, 2012 was 0.066.
On November 15, 2012 MTO informed the Applicant that his licence was still suspended following review of the new information, as he had not yet shown stability of diabetes for 6 months duration.
Evidence for the Applicant:
The Applicant agrees with all the facts stated above. However, he doesn't understand why he can’t now have his licence re-instated. He says he feels good and his doctors say he can drive. He says he forgot to eat on the day of the hypoglycemic episode as he was leaving a family gathering. He is aware he cannot forget to eat again. He called a witness, Dr. T.C. Both parties were immediately notified that the Chair of this hearing and Dr. T.C are colleagues and acquaintances. The parties were then asked if they had any objection to Dr T.C. giving evidence at the hearing. There were no objections.
Dr. T.C. is the Applicant’s son in law. He testified that the Applicant is aware of how diet affects his sugar levels and that the glucose log submitted by the Applicant was accurate. Apparently the Applicant had written his latter glucose results instead of printing them out on a computer. This was due to the fact that he no longer had computer access. Neither of these points required Dr. T.C’s testimony to be considered expert opinion, but serves more as corroboration from a person who knows the Applicant. The Registrar did not challenge either of these points.
Evidence for the Registrar:
The representative for the Registrar agreed with all the facts stated above. MTO’s concern is solely for the fact that the Applicant has not shown 6 months of diabetes stability since his hypoglycemic episode as per CCMTA standards. He appears to have satisfied the other criteria set forth by MTO.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
LAW
O. Reg. 340/94, Section 14 states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) 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; or
(b) 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.
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver’s licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
Section 50 of the Act states:
50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.
APPLICATION OF THE LAW TO FACTS
The only way to completely avoid potential hypoglycemic episodes is through unacceptably poor glycemic control in diabetic patients. In non-insulin dependent diabetics, it is usually the result of either a missed meal or an unusual amount of exercise. The risk of hypoglycemic episode is decreased if one understands the relationship of treatment, activity and diet as well as the warning signs of hypoglycemia. The CCMTA standards acknowledge these facts. For the Applicant, his incident was a mild hyopglycemic event manifested as feeling unwell, and responding rapidly to glucose. At the time, he did recognize his symptoms and pulled of the road. Additionally, he was taking Glyburide at the time of the incident and has now been switched Diamicron, a drug that has a significantly less risk of causing hypoglycemic episodes. Furthermore, the Applicant admits to not eating prior to his hypoglycemic event, of which he now realizes the repercussions.
The CCMTA standards were made for a reason. It is to protect drivers and bystanders from dangerous situations. However, they are guidelines to be interpreted based on individual situations. There may actually be times where a 6 month observation period is too lenient.
In this situation, there was a direct cause and effect. The Applicant was on a drug that did not help the situation, and he has been educated and is aware of how to avoid this problem in the future. He has been compliant with all that has been asked from him from MTO, and has submitted the assessment of two objective family physicians that deem him safe on the road. He has by this time already shown over 4 months of stability in his glycemic control, with only one incident of a low sugar, which occurred upon waking (after hours of presumably no food) and prior to his medication change. No instance of low glucose has been recorded in over 3 months since his medication change. There is no reason to believe that an additional period of observation of less than 60 days will show some new instability. The Tribunal concludes that the Applicant has provided reasonable proof of illness stability and personal understanding at this time.
DECISION
Upon the application by the Applicant to appeal the decision dated September 3, 2012 of the Registrar to suspend his driver’s licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be set aside.
LICENCE APPEAL TRIBUNAL
Dr. David Borenstein, Presiding Member
Released: December 12, 2012