8747 v. Registrar of Motor Vehicles, 2014 CanLII 30048

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-13

8747/MED

8747 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

Appellant

-and-

Registrar of Motor Vehicles

Respondent

D. Ian Turnbull, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Kyle M. Biel, Agent

Heard in Ottawa, ON:

May 6, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant 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”).

PRELIMINARY MATTERS

Exhibits 1 – 6 were admitted into evidence with the consent of both parties.

FACTS

The Appellant is a 56-year-old businessman who had a hypoglycemic reaction while driving on January 27, 2014. He felt "somewhat impaired" while driving from his office to his suburban home.

His vehicle swerved into the path of an oncoming propane truck and crashed. Neither driver was injured; the Appellant's car was a "write-off."

In a letter dated January 31, 2014 (Exhibit 3, Tab 1), his family physician reported to the Registrar that under her obligation to the law (Section 203 of the Highway Traffic Act (HTA)) that "there exists a medical concern with respect to his continued driving."

In a letter dated February 14, 2014 (Exhibit 3, Tab 2), the Registrar suspended the Appellant's driving privileges under Section 47(1) of the HTA (effective date of suspension February 24, 2014) - Exhibit 1).

The Registrar asked the Appellant to take this letter to his treating physician and have the following information sent to the Medical Review Section (MRS):

results of all investigations conducted
a diagnosis
treatment
current status
and confirmation the condition is controlled

The Appellant's family physician in a “to whom it may concern” letter dated February 27, 2014 (Exhibit 3, Tab 3) identified the "medical concern" as insulin-dependent diabetes mellitus. In the last line she stated, "I feel he is fit to have his licence re-instated."

In a letter dated March 11, 2014 (Exhibit 3, Tab 4), the Registrar continued the Appellant's driver's licence suspension and asked for:

confirmation that you have not experienced any severe hypoglycemic reactions, and that your condition has remained stable for a period of six months.
confirmation that your diabetic diary with blood glucose tested at least twice daily for the past 30 days has been assessed and includes the number of blood levels which are below four (4) mmol/L.
a recently conducted H6A1C result must be provided with confirmation that the level is congruent with your blood logs.
In a letter dated March 14, 2014 (Exhibit 3, Tab 5), the Appellant attached a Medical Report from his endocrinologist which concludes, "I have no concerns about his ability to safely drive a car."

In a letter dated April 6, 2014 (Exhibit 2), the Appellant had sent a Notice of Appeal to the Tribunal. An in-person hearing was arranged for May 6, 2014.

The Registrar responded in a letter dated April 22, 2014 (Exhibit 3, Tab 6) saying the Appellant's driving privileges should remain suspended and re-iterated the information required in the letter of March 11, 2014 and attached a Diabetic Assessment Form.

ISSUES

Should the decision of the Registrar to suspend the Appellant licence be confirmed, modified or set aside?

In particular:

Does the Appellant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to drive a motor vehicle safely?

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.

Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.

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 Registrar has not made the case that the Appellant’s driving privileges should remain suspended.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is not suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.

The Registrar was correct in suspending the Appellant’s driving privileges in a letter dated February 14, 2014, following receipt of a letter dated January 31, 2014 from the Appellant’s family physician concerned about “a medical concern with respect to his continued driving.”

The Registrar cites the Canadian Association of Motor Transport Administrators (CMTA) Guidelines, Chapter 7: Diabetes – Hypoglycemia, and specifically Page 167.

Section 7.6.4 – Episode of severe hypoglycaemia – Non-commercial drivers

STANDARD

Non-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 control varies individually
No further hypoglycemic episodes within past 6 months
Conditions for maintaining a licence are met

Conditions for Main- taining licence

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 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

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 Standard is:

Non-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 control varies individually
No further hypoglycemic episodes within past 6 months
Conditions for maintaining a licence are met

The Registrar stresses the second item in the standard – “No further hypoglycemic episodes within past 6 months” and emphasizes this is not an “either/ or” option. It has been three and one half months since the Appellant’s hypoglycemic episode.

The Appellant is a credible, educated business executive with managerial responsibilities both domestically and internationally.

He became an insulin-dependent diabetic in 1985 at age 27. He states he has had “exceptional control” since 2002 and emphatically “no episodes whatsoever of hypoglycemia.”

The Appellant admits being preoccupied on January 27, 2014, and forgot to take his snack. At “the time, he was very upset about what happened, thinking he could have injured somebody else because of his hypoglycemia.”

The Appellant regards himself as a model diabetic; his endocrinologist states, “the Appellant has exquisite control of his diabetes.”

The Appellant recognizes “an accident can happen,” but thinks the six-month hypoglycemic episode-free is too “punitive.” He says, “every person makes a mistake in their life, and he has learned.

The suspension has already affected the Appellant’s private life. It is difficult commuting from home to office and he is unable to visit his parents in the country. His managerial responsibilities both domestically and internationally are difficult and the consequences of his suspension are unknown.

He believes the six-month hypoglycemic period is a generalization and should not be applied to everybody. He further states his case should be decided on an individual basis, saying he “is as diligent as they come” and he “is no risk on the road.”

The Tribunal believes the Appellant fits the first criterion in the C.C.M.T.A. standards guidelines. Both his family physician and endocrinologist believe his diabetes is under control and the Appellant can drive safely.

The Tribunal has to reconcile the merit in the Appellant’s arguments with the position taken by the Registrar requiring a full six months without a hypoglycemic episode

Ontario 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;

The Tribunal believes it is safe to restore the Appellant’s driving privileges.

The Tribunal believes the Appellant is extremely unlikely to have another hypoglycemic episode in the next three months. This was his first mistake, and he has learned from it. He is highly motivated and has insight into his condition…the Tribunal believes him when he says “it will never happen again.”

DECISION

Upon the application by the Appellant to appeal the decision effective February 24, 2014 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 Appellant;

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

D. Ian Turnbull, M.D., Member

Released: May 13, 2014