Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9537/MED
CASE NAME: 9537 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
9537 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: May 28, 2015
REASONS FOR DECISION AND ORDER
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”).
INTRODUCTION
The 77-year-old Appellant has been diabetic since 2004. He was the driver and sole occupant of his car on January 27, 2015. He was driving the car and then the next thing he remembers was being removed from his car and placed in an ambulance.
The Registrar received a Medical Condition Report (MCR) from a hospital Emergency Room (ER) physician dated January 27, 2015, reporting pursuant to Section 203 of the Highway Traffic Act (HTA).
The ER physician stated the Appellant had one episode of hypoglycemia, while on normal insulin regime, and that the car was pulled over to the side of the road.
FACTS
In a letter dated January 30, 2015, the Registrar suspended the Appellant's driving privileges, effective February 9, 2015, under Section 47(1) of the HTA because of his reported condition of syncope/ loss of consciousness.
The same letter asked the Appellant to attend his treating physician and provide additional medical information for the Registrar's Medical Review Section.
The Appellant's physician responded almost immediately in a letter dated February 9, 2015, stating the Appellant had been his patient since October 2014, and attached clinical records and laboratory data from a local hospital for 2013 and 2014.
This material was reviewed by the Registrar and in a letter dated March 26, 2015, additional information was requested of the Appellant, specifically, confirmation of:
episode-free for over six months
re-establishment of stable glycemic control and
repeat Hb AIC
The Appellant sent a Notice of Appeal, dated April 22, 2015, referring to his doctor's medical report (February 9, 2015) and his driving record.
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:
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’s Submissions
The Registrar has made the case that the Appellant's driving privileges should remain suspended. The Registrar was correct in suspending the Appellant's driving privileges after receiving an unsolicited MCR dated January 27, 2015.
The Appellant's previous physician had retired in October 2014. The only medical information provided to the Registrar by the Appellant is from his new doctor and is dated 13 days after the event. (February 9, 2015 )
The Registrar refers to the guidelines of the Canadian Council of Motor Transport Administrators (CCMTA), August 2013, at page 167. Ontario Regulation 340/94, Section 14(2)(a) states the CCMTA guidelines may be considered in determining whether a driver should be licensed. The guideline specific to these facts is as follows.
Section 7.6.4, Episode of Severe Hypoglycemia -- Non-commercial Drivers states:
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
Condition for Maintaining 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 six-month anniversary of the hypoglycemic event is July 27, 2015 and, as of the hearing date, barely four months have passed. The Registrar's Agent clarified that re-instatement of the Appellant's driving privileges will not automatically occur on July 27, 2015.
The Appellant still needs to provide the medical information requested by the Registrar in the letter dated March 26, 2015. This information should be sent closer to July 27 , 2015.:In particular, the following information is required.
confirmation of re-establishment of glyemic control
confirmation of no hypoglycemic episodes since January 27, 2015.
a recent Hb AIC level
The Appellant’s submissions
The Appellant is retired and needs his driver's licence for personal reasons -- shopping, groceries, appointments etc. He believes his driving privileges should be re-instated now for two reasons.
Firstly, he has been diabetic since 2004 and kept logs of his blood sugar determinations for over 10 years, and the values have consistently been within the normal range.
The Appellant states when he begins to sweat, he senses his blood sugar may be low and he immediately has something to eat -- candies, etc. These sweating incidents occur monthly. He doesn't remember sweating on January 27, 2015, while driving his car. He states he has not had a previous episode of syncope/loss of consciousness
Secondly, he states he is a safe driver because he has a clean driving record -- no demerit points and no criminal convictions.
The Tribunal notes, as the Registrar’s Agent correctly points out, that the suspension of the Appellant's driving privileges is for medical reasons and has nothing to do with the Appellant's driving record.
The Tribunal is mindful of the safety of both the Appellant and the driving public.
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
The Tribunal recognizes the Appellant has been diligent in the management of his Type II diabetes mellitus. Circumstances, however, prove that despite careful monitoring of his blood glucose levels, accidents, ie. hypoglycemia, can, and did, happen. The Appellant has no recollection of the moments leading up to the loss of consciousness on January 27th nor did he recollect experiencing any warning signs. The Tribunal finds, on the facts before it, that the CCMTA guidelines provide an appropriate standard.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant 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 February 9, 2015, 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: June 11, 2015