Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9039/MED
CASE NAME: 9039 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
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: September 10, 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
The Registrar's Agent stated the Appellant should soon receive the Diabetic Assessment Form which should have been sent with the August 7, 2014, letter of suspension.
The Registrar's Agent offered the Appellant the option of either adjourning (pending the Medical Review Section (MRS) evaluation of the to-be-completed Diabetic Assessment Form) or proceeding with today’s hearing. The Appellant chose to proceed with the teleconference hearing.
FACTS
The Appellant is a 59-year-old small businessman who was involved in a motor vehicle accident on June 13, 2014.
An attending police officer, reporting pursuant to the Highway Traffic Act (HTA), Section 199(2), sent a "Request for Driver's Licence Review” to the Registrar on June 15, 2014, (Exhibit 3, Tab 1).
In paragraph 4(b), "Incident Information," the investigating officer indicated the operator may not be able to safely operate a motor vehicle due to:
loss of consciousness/ blackout
and under "Other", due to admitted diabetic incident
In a letter dated August 7, 2014, (Exhibit A), the Registrar suspended the Appellant's driving privileges (effective August 17, 2014). The Appellant was asked to supply medical information to the MRS for consideration of restoration of his driving privileges.
The Appellant sent a Notice of Appeal, dated August 13, 2014, (Exhibit 2), saying there was "no merit to findings. There was no incident of syncope and any medical reports to follow after or when requested."
The Appellant faxed a six-page document, dated September 8, 2014, (Exhibit 4), to the Tribunal which included a letter dated July 15, 2014, from his specialist (diabetes) physician and a letter dated September 8, 2014, from his family doctor.
On September 9, 2014, The Registrar's Agent was able to contact a member of the MRS with the Appellant's additional medical information. The member said the new medical information "does not change the Registrar's position."
The Appellant is a small businessman with 10 employees who needs his vehicle to drive from job-to-job. About 10 years ago, he was involved in a snow mobile accident which left him paraplegic; his certified driving record (Exhibit 3, Tab 4) states “driver may only operate vehicle with hand controls.”
At the same time (approximately 10 years ago), the Appellant was diagnosed with diabetes mellitus. Although his family physician states the Appellant has Type I diabetes, his diabetes specialist physician states he has Type II diabetes and is insulin-dependent. He has been insulin-dependent for 8-9 years.
ISSUE
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular:
Does the Applicant 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 made the case that the Appellant's driving privileges should remain suspended. The Registrar acted correctly in suspending the Appellant’s driving privileges following receipt of the police officer’s “Request for Driver’s Licence Review” dated June 14, 2014.
The Tribunal’s decision is influenced by the differences in the officer’s incident information and the Appellant’s affirmed testimony. The officer’s report states:
"Driver admitted having a low glucose count just prior to driving. He ate some food and drove immediately. He was attempting to take the ramp to E/B ____ from ____. Driver blacked out and his vehicle left the roadway, careened through a ditch and up a hill where it came to rest on top of the right guardrail to the opposite ramp to W/B _____."
The Appellant admitted telling the officer his glucose count was “low.” The Appellant states that contrary to the officer’s report, he did not have a low blood sugar prior to driving, and did not immediately have something to eat. The Appellant’s blood glucose measurement after the accident was (2.9 mmols/L ).
The Appellant states he lost control of his vehicle because his vehicle blew the right front tire. The police officer’s report makes no mention of this.
The main item checked in the officer’s incident report is “loss of consciousness or black out.” The Appellant repeatedly states that he did not lose consciousness. He admits being slightly confused and disoriented, but is certain that he did not blackout.
The Appellant states his reason for not challenging the officer’s report in his Notice of Appeal, was that he had admitted to the officer that his measured glucose count was “low.”
The Tribunal is uncertain whether the accident was caused by a blown right front tire or an episode of hypoglycemia. The Tribunal believes the Appellant when he states he neither lost consciousness or blacked out.
However, immediately after the accident, the Appellant used his blood glucose monitor and found the value was 2.9 mmol/L and admitted to the police officer this value was “low.”
The Appellant states he neither needed an ambulance, nor attended a hospital. There were no other vehicles involved and no insurance claim.
The Appellant believes he can "feel" when his blood sugar is low and needs something to eat. He states he did not have that feeling prior to the accident. This accident does not support the Appellant's assertion that he can always predict a low blood sugar.
The Appellant believes the licence suspension for six months is "over the top." He regards the accident as “a first-time and, one-time event”
The Appellant is compliant with his excellent medical care. He has seen the regional diabetes specialist every four months for the past six years. The specialist states, in his clinical note dated July 15, 2014, the Appellant has "reactions about once a month relieved by food, and these usually occur in the mid-afternoon."
The letter dated September 8, 2014, from his family doctor states, "unfortunately, he has had a significant hypoglycemic episode" and "it is my medical opinion that his episode was due to a combination of factors which are easily prevented and very unlikely to occur again."
In his affirmed testimony, the Appellant expanded on the "combination of factors," alluded to in his physician’s note. The Appellant has been severely stressed recently by both personal and business matters.
The Registrar relies on the Canadian Council of Motor Transport Administrators (CCMTA) Guidelines. Chapter 7 entitled “Diabetes-Hypoglycemia,” Section 7.6.4 (Page 167) applies to the Appellant.
7.6.4 Episode of Severe Hypoglycemia - 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 six 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 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
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 hypglycemia.
The Tribunal is mindful of the safety of both the Appellant and the motoring public
The Tribunal agrees with the CCMTA Standard that “no further hypoglycaemic episodes in the next six months” requested by the Registrar is reasonable given the evidence before it.
The Appellant may wish to complete the Registrar’s Diabetes Assessment Form with his specialist physician for consideration of restoration of his driving privileges.
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;
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective August 26, 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 confirmed.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, M.D., Member
Released: September 16, 2014