9018 v. Registrar of Motor Vehicles, 2014 CanLII 61012

Licence Appeal Tribunal

DATE: 2014-09-17

FILE: 9018/MED

CASE NAME: 9018 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

9018 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: David W. Hurst, M.D., Member, Presiding Katherine Whitehead, M.D., Member

APPEARANCES: For the Appellant: Mark Reynolds, Agent

For the Respondent: Kyle Biel, Agent

Heard in Toronto: September 4, 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”).

FACTS

Respondent Registrar’s Evidence

Mr. Biel, Agent for the Ministry of Transportation (MTO) entered a letter to the MTO dated June 30, 2009, regarding the Appellant and signed by S.H., Provincial Constable. It is quoted as follows:

On the 27th of June, 2009 at 5:20 p.m. a motor vehicle driver was reported driving erratically on the Queen Elizabeth Highway. The vehicle, a 1998 car with Ontario plates [omitted] was reported as travelling east bound. The vehicle entered a bullnose area striking an exit sign and one way signs before coming to rest in part ditch.

The driver of the vehicle was identified by way of Ontario photo licence.

The Appellant was not charged as a result of this incident because it was determined to be a medical issue. The Appellant is a diabetic and had a low blood sugar of 2.3.

On August 19, 2009, the MTO wrote to the Appellant regarding this incident, giving a diagnosis of diabetes or hypoglycaemia and advising that the Registrar had decided to suspend his driving privilege under section 47(1) of the Highway Traffic Act.

In this form letter the MTO said that reinstatement could be considered on receipt of a detailed up-to-date report from your doctor. The report would include:

• The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the condition is controlled and that there are no other disqualifying medical concerns that may impact your ability to safely operate a motor vehicle
• Completion of the enclosed Diabetic Assessment Form by your treating physician, endocrinologist, internist or diabetologist. Information that you have not experienced a severe hypoglycaemic reactions.
• Confirmation that your 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.
• A recently conducted HBA1C result with confirmation that the level is congruent with your blood logs.

The Agent then entered a completed copy of the Diabetic Assessment Evaluation Form.

A review of this document indicated that the Appellant at first began to use insulin in December of 1998. A diagnosis of diabetes had been made in October of that year. Symptoms of hypoglycaemia included tremor, diaphoresis (sweating), treated by glucose tablets or food.

The Appellant was noted to have had a major hypoglycaemic event in June of 2009 and there had been confusion. His doctor included a brief note indicating that the Appellant had excellent glycemic control and follows all instructions appropriately. He added that he had no issues. This form was signed by Dr. VM on August 25, 2009.

On September 11, 2009, the MTO wrote to the Appellant to say his medical report was approved and that a notice of reinstatement was to be mailed.

On June 11, 2014, a Motor Vehicle Collision Report was sent to the MTO regarding a driving incident when the Appellant had a medical crisis and lost control of his vehicle which mounted the centre median and struck a fixed object. This note (a police report) stated that the driver (the Appellant) had experienced a diabetic episode.

Immediately on June 11, 2014 the MTO wrote to the Appellant indicating they have received a report that he had a condition affecting his ability to drive safely. The reported conditions were stated as:

• Diabetes
• Collision/police incident

The Registrar stated that the Appellant was to be suspended under section 47(1) of the Highway Traffic Act. This letter went on to list the requirements for reinstatement.

A Diabetic Assessment Evaluation Form dated June 17, 2014 and signed by Dr. VM was filed with the MTO A survey of this document again indicated that the diagnosis of diabetes was made in 1998 being managed with the help of an insulin pump. It was noted that blood glucose levels were being tested three or more times daily. There had been only one blood glucose reading of more than four (4) mmol/L (this is the level at which a hypoglycaemic episode may occur). Also the Appellant does have an awareness of early symptoms of hypoglycaemia, which involvesweating and tremor, and the treatment was with glucose tablets. In the past six months, there was only the event of May 11, 2014 involving hypoglycaemia. The form indicated that there had been loss of consciousness.

It was noted that there had been severe family stress, a very hot day, and the Appellant had been playing soccer. He had taken 25gm of sugar prior to driving and he had monitored his blood sugar after the exercise.

On July 28,2014, the MTO wrote to the Appellant indicating that his driving privilege would remain suspended.

The Ministry required for reinstatement:

• Confirmation that you have not experienced any severe hypoglycaemic 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 last 30 days has been assessed and includes the number of blood levels which are below four (4) mmol/L.
• A recently conducted HbA1C result must also be provided with confirmation that the level is congruent with your blood logs.
• The enclosed form(s) completed in full and all questions answered.

Another Diabetic Assessment Form was completed by Dr. VM, leading to an application for re-licencing by the Appellant. A review of the document disclosed that the Appellant’s management of his problem has been excellent and general health has also been excellent. As well, a written note states that management of blood glucose levels is also excellent. Accompanying lab reports confirm these statements in the survey.

On August 14, 2014 the MTO again wrote to the Appellant again stating the Ministry’s requirements.

The Agent presented a certified copy of the Appellant’s driving record which listed only a suspension for medical reasons on June 21, 2014. There were no demerit points.

Attention was then drawn to the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers. Mr. Biel addressed page 167 of this document – section 7.6.4, episode of severe hypoglycaemia – non-commercial drivers.

This guideline states:

The standard for 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 hypoglycaemic episodes within past six months
• Conditions for maintaining a licence are met.

Appellant’s Evidence

At this point the Agent indicated that his client fully understood that driving is a privilege. He understands the strict guidance indicated in theCCMTA document. He also fully understood the principle that safety is of the essence.

The Appellant said that he had been a diabetic for 16 years (Type 1), since the age of 29. He told the Tribunal of his extensive monitoring, saying that if he does not achieve a minimal of 4 testing of blood sugars a day he loses the right to have an insulin pump provided for him. The pump usually administers 8 injections. He explained that he is trying his best to comply in every regard in the hope that the onset of the known complications of Type 1 diabetes is controlled. He is very careful about weight control and the importance of exercise.

Through this testimony, the Appellant demonstrated marked sincerity and good insight into the problem and cooperation to be compliant. He described with considerable emotion that on that day he had received terrible news from his homeland (Egypt) of the passing of his mother and a brother also with serious medical issues. To further add to his dismay he was unable to obtain an airplane connection in a suitable time frame to go home. On the day of his serious hypoglycaemic attack he therefore was very stressed. He also played soccer (the pump is removed during such events) and he had special candy bars and a glucose supplement if needed. After the sport event he was involved in a momentary scuffle, waited awhile, felt tired, checked his blood sugar which was 10 whereas immediately before the game had been 4.2. He had taken the glucose supplement candy bar.

He began to drive and then realized a police car was giving chase and stopped him. He confessed to fogginess and impairment of his conscious level. He stated that a paramedic had told him his blood sugar was low, possibly down to 3.2. He was taken to hospital where the doctor agreed with the paramedic that he had not been taking enough carbohydrate. Four glucose tablets were taken and his blood sugar then rose to 8.

In answer to questions from the Tribunal at the hearing, he said that he remembered getting to the car and he denied an actual period of amnesia. He remembers driving the car but that his sensorium (mental function) was foggy.

The next day he saw his family doctor, explained things to him, again stressing the grief about his family, he felt it was very important to keep up an exercise regime.

Questioning by the Tribunal disclosed that in 2009 his licence was reinstated probably after an interval of three months but without providing an explanation.

Mr. Biel cross-examined the Appellant about his responses to the Tribunal’s attempt to clarify the events occurring at the time of the highway accident. He made the observation that there were gaps in the Appellant’s description of the time from picking up his car keys to the time when the police stopped him. He questioned why the Appellant had done two tests in the 15 minutes. The Appellant said he had gotten sidetracked in leaving the sports field so he double checked and again stressed the enormity of the stress he was under. This, combined with the physical exertion of the soccer, indicated that this must have caused the severe hypoglycaemia which was unexpected.

Mr. Biel said that the candy taken on that occasion simply had not worked. Mr. Biel observed the Appellant’s good insight and his compliance in the management of his condition. He also observed that there have been no other hypoglycaemic events.

At this point, the Appellant’s Agent drew the Tribunal’s attention to a letter from a regional medical centre stating as follows:

The Appellant is being followed at our centre. He has Type 1 diabetes and is currently wearing an insulin pump for his diabetes management. He was diagnosed in 1999 and has been followed at the diabetes care centre since 2008. His most recent A1C is 6.8% (May 2014). His last A1C was in December 2013 which was 6.5%. He tests his blood sugars 6 – 10 times per day. He attends all of his scheduled appointments in the centre and has a close relationship with the team. He completed his insulin pump program on January 30th, 2014.

He observed the wonderful compliance demonstrated by the Appellant and that the medical reports of blood sugars vary only slightly. He observed that his client is now almost four months since the hypoglycaemic event and the remaining several weeks of suspension will not add any more information. He emphasized the terrible emotional upset that the Appellant had suffered aggravated by his distance from home and also by the exertion of the soccer on that date. Therefore, he couldn’t see why a six month interval contributed anything more to the management of the diabetes.

The Appellant informed the Tribunal of the impossibility of getting photo ID from the drivers’ licence department while he is suspended.

Closing Submissions

Mr. Biel submitted that suspension had to be applied under the guidance of the Highway Traffic Act, section 47(1), and that that the hypoglycaemic event occurred even though there is evidence that the Appellant’s blood sugar has been well controlled. This means that possibly the hypoglycaemic event could happen even under such ideal circumstances. Therefore, a full interval of six months of no further hypoglycaemic events is needed, and this has not been achieved.

Mr. Biel then drew attention to an Ontario Ombudsman Report dated April 2014 and in particular, page 26, recommendation #5: the Ministry of Transportation should ensure that all staff in the Medical Review Section are provided with ongoing training to ensure they are familiar with and apply current CCMTA standards for driving. However, the Tribunal notes that this Ombudsman Report is neither legislation nor expert evidence, and it does not provide any additional weight to whether and when the Tribunal should apply these CCMTA guidelines.

The Respondent Registrar concluded by again underlining that the Ministry’s position was that six months free of further trouble are required.

The Appellant simply stated that he hoped that a “case-by-case assessment” might be applied here.

The Appellant’s Agent in a final note said that he is not convinced that his client had made any mistake and that all of this occurred because of the abnormal stress combined with the exertion of soccer and an incident in the parking lot. He is quite certain that his patient indeed has learned a lot.

ISSUES

Should the decision of the Registrar to suspend the Appellant’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.

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

First of all, one must give credit to the Appellant for the exemplary way in which he has managed his terrible problem of Type 1 diabetes. He has full insight into the difficulties in managing this situation and, in particular, is well aware of the complications that can ensue if management is not scrupulous (constant monitoring of blood sugars), with suitable instillation of insulin and corrective doses of glucose supplements.

There have been two episodes of hypoglycaemia. He has no sign of “hypoglycaemic unawareness”.

The Tribunal notes that his previous suspension by the MTO in 2009 was for a period which amounted to about three months, which appeared to be a length that had been set without any standards or guidance.

The legislation refers to the CCMTA standards as something that the Minister “may take into consideration.” These standards clearly refer to a six month interval with documented absence of any hypoglycaemic events.

The Appellant has demonstrated that he is very serious, intelligent, and fully compliant in the matter of regulating blood sugar levels with insulin and is hopeful that a cure for this disease will be found. He has already achieved more than three months free of any hypoglycaemic events with constant careful monitoring of blood sugars.

It should be noted that overall his blood sugar levels have been stable. It is of concern, however, that this is the second hypoglycaemic episode that has impaired the Appellant's ability to drive. Unfortunately, the symptoms that coincide with this condition are just as serious as those that accompany severe intoxication with alcohol with the concomitant risk on the highway.

The risks are significant in these circumstances, since Type 1 diabetes can be so unstable, and the Tribunal agrees with the Ministry’s submission that there should be a strict application of the six-month episode-free waiting period, and there is no reason to depart from that guideline in this case. Despite the Appellant’s responsible behaviour, the Tribunal finds on a balance of probabilities that he is still suffering from a physical condition or disability that is likely to significantly interfere with his ability to drive a motor vehicle safely.

DECISION

Upon the application by the Appellant to appeal the decision effective June 11, 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 confirmed.

LICENCE APPEAL TRIBUNAL

David W. Hurst, M.D., Member

Katherine Whitehead, M.D., Member

Released: September 17, 2014