8886 v. Registrar of Motor Vehicles, 2014 CanLII 46362

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-07-17

8886/MED

8886 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

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Kevin Flynn, M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Sanjay Kapur, Agent

Heard in Toronto:

July 9, 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 “Respondent”) pursuant to 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

FACTS

The Respondent’s Evidence

On March 4, 2014, an unsolicited Medical Condition Report was completed by Dr. F., an Emergency Room physician, in compliance with section 203 of the Act.

The condition reported was:

Hypoglycaemia

On March 18, 2014, the Appellant was informed by the Respondent that his driving privilege was suspended under section 47(1) of the Act. In order to be considered for reinstatement, he was required to submit a completed Diabetic Assessment.

Dr. S., the Appellant’s family physician, completed the Diabetic Assessment on May 5, 2014.

In summary, the assessment stated the following:

Diabetes was diagnosed in 1999
Current medications: metformin, glicazide, Januvia
Blood glucose tested twice daily; less than 10% below 4 mmol/L
Glucometer average = 5
Most recent A1C 6.7 in March, 2014; previously 6.7 in January 2014, consistent with blood sugar logs. Completed Diabetes Education in 1999 and re-education has not been advised
Has full understanding of close relationship with diet and oral medication
Compliancy 4/5
Aware of early symptoms of hypoglycaemia and management
One episode of major hypoglycaemia in past 6 months, with confusion and none in previous 2 years
Recent hypoglycaemic episode occurred at 3 a.m. when wakened by a call to the bathroom
Since then has increased awareness and keeps fruit juice at bedside
General health/complications of diabetes: diabetic neuropathy, cardiomyopathy unrelated to diabetes
Alcohol has not impaired diabetes control

On May 28, 2014, the Respondent informed the Appellant that his driving privilege would remain under suspension. He was requested to submit confirmation that he has not experienced severe hypoglycaemia and that his diabetes has remained stable for a period of six months.

The Appellant submitted a report of A1C with a result of 6.9 dated June 2, 2014.

The Respondent replied on June 25, 2014, with a request that the Appellant provide:

Confirmation that he has not experienced any severe hypoglycaemic reactions and that his condition has remained stable for a period of six months.
Confirmation that his diabetes diary with blood glucose tested at least twice daily for the last 30 days has been assessed and includes the number of blood levels below 4 mmol/L.
A recently conducted HbA1C result must also be provided with confirmation that the level is congruent with his blood logs.

The Appellant’s Evidence

The Appellant, in his Reasons for Appeal, stated that the reason for his hypoglycaemic episode on March 4, 2014, was that the previous evening he was overtired and went to bed without dinner or dinner medication.

In evidence, he stated that he is retired for medical reasons. The last medication taken on March 3, 2014 was metformin, 500 mg at 12:00 noon. He went to bed at 6:30 p.m. He awoke at 3:00 a.m. wanting to go to the bathroom. He felt confused but was not sweating. He realized that something was wrong and asked his wife to call for an ambulance. He did not associate his confusion with his diabetes at that time. Upon arrival, the ambulance personnel did not test his blood sugar right away but did so on the way to the hospital and gave him some sugar. He stated that he does not know what his blood glucose was at that time. He felt well by the time he arrived at the hospital and was allowed to wait in the waiting room. He stated that he was not given an intravenous or blood tests and was informed by the physician on duty that the situation had been rectified. He was discharged at 6:00 a.m. the same day.

He was driving for about two weeks until he received the notice of suspension.

He saw his family physician and discussed the hypoglycaemic episode. He agreed to keep glucose at his bedside and also now carries the same type of sugar tube used by the ambulance personnel.

Under cross-examination, he agreed that it was improper to take his diabetes medication on an empty stomach. He has reviewed literature and has discussed management with his family physician on how to manage diabetes.

Since the original diagnosis in 1999, he has been tested at the laboratory every three months for A1C, and sees Dr. S. for results and any adjustment in medication.

He stated that during the episode on March 4, 2014, he was lucid throughout and did not lose consciousness. The ambulance attendants were not sure what was happening until they tested his blood glucose en route to the hospital and gave him oral glucose. He then felt well before arriving at the Emergency Room.

He stated that he was not given a discharge summary when leaving the hospital and did not ask for copies of the ambulance or hospital records for the appeal. He stated that he would request and forward these documents to the Respondent.

He does not have a MedicAlert device and agreed that it would be wise to have this on his person.

ISSUES

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

Does the Appellant suffer from a physical condition likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely?

LAW

The relevant statutory provisions state as follows.

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).

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.

SUBMISSIONS

The Respondent relies on the following:

The receipt of a Medical Condition Report dated March 4, 2014 of hypoglycaemia, from a physician in compliance with section 203 of the Act, which authorized the Respondent to issue a suspension of the Appellant’s driving privilege.
The Canadian Council of Motor Transport Administrators (“CCMTA”), section 7.6.4 referring to Episodes of severe hypoglycaemia – non-commercial drivers, which states:
- Non-commercial drivers are 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 the past 6 months

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 Appellant, in submissions, states as follows:

He denies that the episode on March 4, 2014 was severe within the definition by CCMTA:

Severe hypoglycemia is commonly defined as hypoglycemia that requires outside intervention to abort, or that produces an alteration in level of consciousness or loss of consciousness. The altered or reduced level of consciousness prevents a person experiencing severe hypoglycaemia from taking appropriate action.

The Diabetes Assessment by his family physician confirms that he has three regular monthly HbA1C checks and office visits with no evidence of hypoglycaemia prior to the reported episode.

The most recent three-monthly HbA1C check is consistent with glycaemic control.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Respondent was justified in suspending the Appellant’s driving privilege under section 47(1)(g) of the Act upon receipt of a report of hypoglycaemia from a physician in compliance with section 203 of the Act.

The Tribunal finds, based on the evidence, that the episode of hypoglycaemia on the night of March 4, 2014 does not meet the definition of “severe hypoglycaemia”, and therefore, the Tribunal does not apply CCMTA Guideline 7.6.4 (for severe hypoglycaemia) in this case.

The Tribunal applies the CCMTA Guideline 7.6.1 for Type 2 diabetes treated with oral medications, i.e. metformin, which states:

STANDARD:

All drivers eligible for any licence class if:

o has good understanding of their condition

o routinely follows their physicians’ instructions about diet, medication, glucose, glucose monitoring and hypoglycaemia prevention

o conditions for maintaining a licence are met

The Appellant mistakenly skipped his evening meal and awoke feeling that something was wrong. He was able to waken his wife and ask her to call the ambulance.

He was lucid throughout. He was not sweating as would be expected with severe hypoglycaemia.

He was confused until he was given oral glucose in the ambulance with immediate relief. Upon arriving at the Emergency Room, he was seen by a physician who did not order blood tests or intravenous and he was allowed to go home less than three hours later.

A logical reason for the hypoglycaemia was provided and preventive measures have been taken against the possibility of recurrence.

The three-monthly A1C check performed in June 2014 was consistent with maintenance of glycaemic control. He does not have a history of previous hypoglycaemic episodes.

The Appellant did not provide documentary evidence of his visit to the Emergency Room but he will forward these to the Respondent. He has acknowledged the Tribunal’s suggestion that he should wear a MedicAlert bracelet.

Based on the foregoing, the Tribunal finds that the Appellant does not suffer from a physical condition that will significantly interfere with his ability to operate a motor vehicle of the applicable class safely.

DECISION

Upon the application by the Appellant to appeal the Respondent’s decision, effective March 28, 2014, to suspend his driver’s licence pursuant to section 47(1)(g) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Respondent 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 Respondent be set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

Released: July 17, 2014