Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-11-08
FILE:
8355/MED
CASE NAME:
8355 v. Minister of Transportation
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Minister of Transportation pursuant to section 32(5)(b)(i) - to Change the Class or Classes of Motor Vehicles in respect of which the Licence was issued
Applicant
Applicant
-and-
Minister of Transportation
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Russell McKnight, Agent
Heard in Ottawa:
October 24, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant respecting a decision of the Minister of Transportation (the “Respondent”) pursuant to section 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Applicant is a 47-year-old heavy equipment operator with Type II diabetes mellitus; he has been taking insulin since April 18, 2009.
The Respondent received the Applicant’s Driver's Licence Renewal Application, dated September 30, 2010 (Exhibit 3, Tab 1), which indicated he required insulin for diabetes. In a letter dated March 2, 2011 (Exhibit 3, Tab 3), the Respondent asked the Applicant to complete the MTO Diabetic Assessment, submit the Vision Report form and his diabetic diary for the past three months.
The Applicant's commercial driver's licence was approved in a letter dated June 3, 2011 (Exhibit 3, Tab 6).
In his Notice of Appeal dated September 23, 2013 (Exhibit 2, page 2/8), the Applicant states that on the weekend of June 29, 2013, he went to help a neighbour whose trailer was shifting and “due to my own stupidity I did not stop for snacks at proper times”. He experienced weakness and cold sweats, and was transported by ambulance to a local hospital which required an emergency room (“ER”) visit of 1 - 1.5 hours. There was no loss of consciousness, confusion or convulsions. The ER physician did not report the hypoglycemic episode as required pursuant to section 203 of the Act.
The Applicant's physician, in a letter dated July 9, 2013 (Exhibit 3, Tab 11), notified the Respondent of the hypoglycemic episode (blood sugar – 2.9 mmol/L) on the MTO Diabetic Assessment form.
In a letter dated July 24, 2013 (Exhibit 3, Tab 13), the Respondent suspended the Applicant's driving privileges under section 47(1) of the Act because of the diabetic/ hypoglycemic event.
Following a review by an independent medical analyst of the Respondent's Medical Advisory Committee (“MAC”) in a letter dated August 23, 2013, the Respondent advised that the Applicant's driving privileges should remain suspended (Exhibit 3, Tab 16).
In the Notice of Appeal, the Applicant explained that the driver's licence suspension was a financial hardship and the hypoglycemic episode was an isolated event.
In a letter dated October 16, 2013 (Exhibit 3, Tab 22), the Respondent restored the Applicant's Class “G” driver's licence.
Since the Applicant wanted restoration of his original “AZ” licence, it was agreed, by the parties, that the appeal would be heard under section 32(5)(b)(i) of the Act - to change the Class or Classes of Motor Vehicles in respect to which the licence was issued.
ISSUES
Should the decision of the Respondent to change the class or class of motor vehicles in respect of which the licence is issued in accordance with the result of the examination be varied, modified or set aside?
LAW
The relevant statutory provisions state as follows.
Section 32(5)(b)(i):
- No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him or her under this Act.
(5) The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,
(b) in the case of a person who holds a driver’s licence,
(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements, or
Further, 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.
Section 50 sets out the right of appeal:
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 Respondent has not made the case that the Applicant's “AZ” driver's licence should remain suspended. After careful consideration, the Tribunal has decided the Applicant’s Class “AZ” driver’s licence should be reinstated.
The Respondent was correct in initially downgrading this Applicant's driving privileges on July 24, 2013 following a hypoglycemic episode on June 30, 2013.
The Respondent was correct in asking the Applicant and his physician to complete the Diabetic Assessment and Vision forms, leading to the restoration of his Class “G” driver's licence.
To deny the Applicant restoration of his “AZ” licence (commercial driver with air brakes), the Respondent relies on the Canadian Council of Motor Transport Administrators (“CCMTA”), "Determining Driver Fitness in Canada”, Chapter 7, titled “Diabetes - Hypoglycemia". On page 170, Section 7.6.7 - "Episode of severe hypoglycemia - Commercial drivers", the standard states - "no further hypoglycemic episodes within past six months", as follows:
7.6.7 Episode of severe hypoglycemia – Commercial drivers
STANDARD
Commercial drivers eligible for a licence if
Treating physician indicates stable glycemic control re-established and authority determines are fit to drive. Time required to re-establish glycemic controls varies individually
No further hypoglycemic episodes within past 6 months
conditions for maintaining a licence are met
Conditions for maintaining licence
driver provides treating physician with blood glucose log of at least 4 readings per day for 30 days, where less than 5% of readings are below 4.0 mmol/L
must test blood glucose immediately before driving and approximately every hour while driving
doesn't begin or continue to drive if blood glucose falls below 6.0 mmol/L and doesn't resume driving until blood glucose rises above 6.0 mmol/L after food ingested
Reassessment
- Reassess based on opinion of the treating physician or at the discretion of the Authority
Information from health care providers
Date of the hypoglycemic episode
Opinion of treating physician whether stable glycemic control has been re-established
Statement from treating physician that driver has provided a blood glucose log of at least 4 readings per day for 30 days, in which less than 5% of the readings are below 4.0 mmol/L
Rationale
Severe hypoglycemia indicates a lack of glycemic control and the potential for further hypoglycemic episodes. Once control is re-established and driving resumes, more stringent glucose monitoring conditions are required temporarily to mitigate the increased risk of hypoglycemia.
The Applicant says he is to blame for the hypoglycemic episode, emphasizing it was a single event. He admits he made a mistake, stressing it was a unique situation. He simply overlooked having a snack at the proper time. He realizes the oversight was entirely his fault. He also understands the Respondent has rules and regulations and he has supplied requested medical information as required by MTO.
Although the Applicant had no specific additional information for the hearing, he is frustrated with trying to deal with MTO by phone. He appealed to "have his say, and to see what happens”. He is the sole provider and is afraid of losing his job and his home. The Applicant’s testimony was honest and candid.
The Tribunal believes the sudden and unexpected consequences of losing his commercial driver’s licence because of this single episode is sufficient motivation for the Applicant to ensure there will not be another hypoglycemic event.
Evidence submitted by the Applicant includes two strong recommendations from his family physician of 10 years.
In a letter dated August 1, 2013 (Exhibit 3, Tab 15), the doctor states:
he was working hard outside on chores and forgot to snack as he usually does…This is the only time since his diagnosis that he has had a low blood sugar event, and he understands exactly why and how it happened. He is very reliable in looking after his insulin and his meals/snacks. I am hoping that you will consider reinstating his licence as soon as possible.
In a letter dated October 3, 2013 (Exhibit 3, Tab 17), the same physician notes the Applicant has insight (aware of the consequences of both low and elevated numbers) and on June 30, 2013, he simply forgot to take a snack.
The physician continues, "I am not concerned that his diabetes will affect his driving" and "I believe that his low sugars were an isolated incident from which he has learned a great deal" (Exhibit 3, Tab 17).
The Applicant has diligently completed numerous Diabetic Assessment forms and blood sugar logs with his physician as required by the Respondent. The Applicant came to the hearing with his snack cooler which he now carries on his person all the time.
The Tribunal is confident the other requirements requested by the Respondent in the letter dated August 23, 2013 (Exhibit 2, page 8/8) can be monitored and confirmed by the Applicant’s family physician:
(i) Confirmation that his diabetic diary with blood glucose tested at least twice daily for the last 30 days has been assessed and includes the number of blood levels which are below four (4 mmol/L), and
(ii) A recently conducted HbA1C result is congruent with his blood logs.
Even though the Applicant is two months short of the requested six-month confirmed hypoglycemic-free period requested by the Respondent, based on probabilities and mindful of the safety of both the Applicant and the motoring public, the Tribunal finds that the Applicant does not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Applicant to appeal the decision dated October 16, 2013, of the Respondent to change the class or classes of motor vehicle in respect of which the licence was issued pursuant to section 32(5)(b)(i) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Respondent 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 Respondent be set aside.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Member
Released: November 8, 2013