Licence Appeal Tribunal
FILE: 9105/MED
CASE NAME: 9105 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
9105 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: October 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 “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Appellant is appealing the suspension of his Class “G” licence. His licence was suspended on August 24, 2014.
The following is a summary of the facts presented to the Tribunal on October 9, 2014.
The Appellant is diagnosed with Insulin Dependent Diabetes.
On November 23, 2005, an emergency room physician, for the reason of a hypoglycaemic event, filed a Medical Condition Report.
The Appellant’s Class “G” licence was suspended on January 3, 2006.
A Diabetic Assessment was provided by the Appellant’s endocrinologist dated September 4, 2008. This report indicated that the Appellant had achieved greater control of his diabetes as evidenced by his blood glucose monitoring and haemoglobin A1C levels. The physician indicated that the Appellant had hypoglycaemic awareness (i.e. he could tell when his sugar was low) and that his symptoms were shakiness and tremulousness. The report indicated that there had been a severe hypoglycaemic episode in May 2007 under the circumstance of “eating less than usual”.
The licence was re-instated on September 18, 2008.
A second Medical Condition Report was filed on March 2, 2009 for reasons of hypoglycaemia. The form states “hypoglycemic episode while driving, car went off road, found slumped over wheel”.
The Appellant’s licence was suspended for a second time on April 7, 2009.
The Appellant’s endocrinologist filed a Diabetic Assessment form. This report indicated that the Appellant did have hypoglycaemic awareness and his warning symptoms were “don’t feel right”. The form documented three severe hypoglycaemic episodes (one in April 2009, and two in September 2009). The reasons given (on the form) for the episodes were that the Appellant had been upset and had not eaten at regular intervals. A letter from the Appellant’s endocrinologist dated August 9, 2010, indicated no further hypoglycaemic episodes and stable glucose control.
The licence was re-instated on September 2, 2010.
The Appellant’s licence was suspended for a third time on October 16, 2013, after his endocrinologist contacted the MTO regarding a further episode of hypoglycaemia.
In his testimony at the hearing, the Appellant said that he had voluntarily disclosed this episode to his endocrinologist as he was afraid of what was happening. In the following Diabetic Assessment form on January 23, 2014, the Appellant’s endocrinologist reported an episode of hypoglycaemia in “spring 2012”. It is unclear if this is the episode for which she had contacted MTO in October 2013 or if this was another episode. Again the Appellant’s endocrinologist indicated that he did have hypoglycaemic awareness in the form of “feels different”, “slight shaking” and “feels off”.
The licence was re-instated on March 7, 2014.
The Appellant’s licence was suspended for a fourth time on August 24, 2014, after an ER physician filed a Medical Condition Report for hypoglycaemia dated June 22, 2014.
His licence remains suspended.
The Appellant provided a copy of his most recent glucometer readings with his Notice of Appeal. This document shows no hypoglycaemic episodes between August 6, 2014 and September 4, 2014. With regard to the most recent episode of hypoglycaemia, the Appellant reported during the hearing that he had eaten a small meal, gone for a run, came home, drank some juice, and then was talking on the phone to his sister. His sister noticed that he was speaking strangely. The Appellant noted that he felt going for a run was a “stupid decision”. When questioned directly about his hypoglycaemic episode, the Appellant said that the attack had snuck up on him.
The Appellant told the Tribunal that he is normally “on top of my sugar” and that he takes his glycemic control very seriously. It is clear that the Appellant regularly attends his endocrinologist and participates actively in his glycemic control. This is evidenced by his submitted glucometer readings which show a general pattern of him checking his glucose twice or more a day. His endocrinologist indicates in her communication that the Appellant is adhering to his treatment plan. There appear to have been dose adjustments to his insulin made over the years to try and minimize his hypoglycaemic episodes. He also demonstrated an awareness of the consequences of hypoglycaemic episodes while driving in that he stated he had been lucky in 2009 that nobody had been hurt.
The Registrar’s Agent indicated that, considering the Appellant’s numerous hypoglycaemic episodes over the years and the fact that the most recent episode was on June 22, 2014, the Registrar’s position is that six months of glucose stability is required to re-instate the licence.
The Appellant asked that the Tribunal take in to account the circumstances of his most recent hypoglycaemic episode and the fact that he usually has very good glucose control.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s 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:
- (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
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is suffering from a condition, which is likely to significantly interfere with his ability to operate a motor vehicle safely.
The Tribunal appreciates that the Appellant makes a reasonable effort to control his diabetes and that there may have been specific reasons why most of his hypoglycaemic episodes occurred.
The fact remains that there have been at least seven and possibly eight episodes of severe hypoglycaemia in the past nine years. There have been four licence suspensions during that time for hypoglycaemia.
The Appellant and his endocrinologist state that he has hypoglycaemic awareness. The number of episodes and the Appellant’s specific report that the last episode had caught him by surprise raise concern that the Appellant may be at risk of further similar episodes, therefore interfering with his ability to drive a motor vehicle safely.
Given the above reasons, it is reasonable to require, in the interests of public safety, a 6-month period of glucose stability before the Appellant’s licence is reinstated.
DECISION
Upon the application by the Appellant to appeal the Registrar’s decision, effective August 24, 2014, 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
Katherine Whitehead, M.D., Member
Released: October 22, 2014