10242 v. Registrar of Motor Vehicles, 2016 CanLII 50102

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-07-05

FILE:

10242/MED

CASE NAME:

10242 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:

Kevin Flynn, M.D., Member

APPEARANCES:

For the Appellant:

KC., Agent

For the Respondent:

Steve Grootenboer, Agent

Heard in by teleconference:

June 27, 2016

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

Evidence for the Respondent

The Appellant, age 20, has Type 1 diabetes, which is managed by an insulin pump.

On the morning of February 7, 2016, while staying at the home of a friend, he awoke with symptoms of hypoglycaemia. He attempted to correct his low blood sugar by drinking orange juice and taking some glucose tablets. Upon finding that the symptoms did not respond, his friend called Emergency Services (EMS). Before the arrival of EMS, the Appellant passed out and had a seizure. EMS administered intravenous glucose and he was conscious before arrival at the Emergency Room.

On April 1, 2016, when he applied for his Class G driver’s licence, he reported the episode of hypoglycaemia with loss of consciousness and was disqualified from taking the G2 test.

His endocrinologist, Dr. G., completed a Medical Condition Report on April 5, 2016 in compliance with section 203 of the Act, based on examination the same date. The report stated the condition as:

Diabetes Type 1 controlled

Re: Driver’s test disqualification of April 1, 2016 at [location, examiner A.], [the Appellant’s] Type 1 diabetes is under control. The Hypoglycaemic event of February 2016 was an anomaly. [Appellant] is hypoglycaemically aware and he does NOT present a high risk to safety, nor is it dangerous for him to operate a motor vehicle. Please waive and clear his file.

He has been my patient since August 27, 2014.

The Ministry of Transportation’s Medical Review Section received this Report, and on April 10, 2016, the Registrar informed the Appellant that he must contact his physician and have a Diabetes Assessment Form completed and forwarded to the Medical Review Section.

Dr. G. completed the Diabetes Assessment Form on May 4, 2016. In summary, the assessment reported as follows:

• The condition is diabetes Type 1, treated with insulin

• There has been no change in insulin therapy and monitoring indicates adequate blood glucose control

• During the past 30 days blood glucose has been below 4 mmol/L less than 10%

• In the past 6 months his A1C has been less than 7%, consistent with blood sugar logs

• He has adequate understanding of diabetes (i.e. through diabetes education) and the close relationship between insulin, oral medications, diet and exercise.

• He is generally compliant with respect to diet, self monitoring, attendance at the doctor’s office, lifestyle; exercise/rest

• He is aware of early symptoms of hypoglycaemia,(i.e. palpitations, shakiness, anxiety, sweating, hunger, tingling, numbness)

• He has not experienced any episodes of hypoglycaemia unawareness in the past 12 months

• In the past six months he has experienced an episode of severe hypoglycaemia requiring outside intervention

• He has regained adequate glycaemic control

• He has no complications of diabetes.

• He has not been prescribed medications/treatment for any condition

• He is very reliable and responsible

On May 17, 2016, the Registrar informed the Appellant that after considering all the relevant facts available, it had been decided that his driving privilege is suspended under section 47(1) of the Act.

The Appellant was requested to take the letter of suspension to his physician, specialist or nurse practitioner, and have the following information forwarded to the Medical Review Section:

• Confirmation that he has not experienced any severe hypoglycaemic reactions for a period of six months, and

• A recently conducted HbA1C result must also be provided with confirmation that the level is congruent with his blood logs, and

• Confirmation that stable glycaemic control has been re-established.

Mr. Grootenboer on behalf of the Respondent cited the following in support of the Registrar’s position:

1. The Canadian Council of Motor Transport Administrators, (CMMTA) Guideline 7.6.4, applicable to episodes of severe hypoglycaemia while sleeping (non-commercial drivers):

STANDARD: Non-commercial drivers are eligible for a licence if

• Treating physician indicates stable glycaemic control re-established and authority determines are fit to drive. Time required to re-establish glycaemic control varies individually

• No further severe hypoglycaemic episodes while awake or asleep within the past 6 months

• Conditions for maintaining a licence are met.

2. Report by the Ombudsman, “Better Safe Than Sorry”, into how the Ministry of Transportation administers the process for obtaining and assessing information about drivers who may have uncontrolled hypoglycaemia (April 2014):

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 Canadian Council of Motor Transport Administrators standards for driving.

3. The Canadian Diabetes Association Journal of Diabetes, Issue 39 (2015),

p. 349, states:

Persons with diabetes treated with insulin who have had their licence temporarily suspended for severe hypoglycaemia or hypoglycaemic unawareness may be considered for reinstatement of their licence if the following are met:

1. No episode of severe hypoglycaemia in last 6 months

2. No evidence of hypoglycaemic unawareness in last six months

3. With reference to the Appellant’s submission for accommodation, the decision of the Licence Appeal Tribunal in File #4463 considered the 1999 decision of the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights (1999), better known as the Grismer Decision. The Tribunal in case #4463 considered whether reasonable accommodation can be made to the Applicant’s (cardiac) condition. Mr. Grootenboer noted that in determining if accommodation can be made for a condition that is of a constant and physical nature, it is fundamentally different when the condition is of a sudden and disabling event.

4. Section 203 of the Highway Traffic Act requires every legally qualified medical practitioner to report to the Registrar the name and clinical condition of a condition that may make it dangerous for the person, 16 and over, to operate a motor vehicle.

6 Section 14 of Ontario Regulation 340/94, section 14, requires that the holder of a driver’s licence must not suffer from a condition that is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

On behalf of the Appellant, KC, the Appellant’s father who acted as his agent at this hearing, questioned why the Ministry made a decision to suspend without a more detailed investigation of the Appellant’s medical history.

Mr. Grootenboer responded that the Registrar’s decision was based on the medical information made available by the Appellant. The onus for submitting medical information lies with the Appellant, since the Registrar is not permitted for privacy reasons to solicit medical information directly from the Appellant’s health care practitioners.

Evidence for the Appellant

In response to the Tribunal’s request for his activities in the 24 hours prior to the hypoglycaemic event, the Appellant stated that he had officiated at a hockey event the previous day. He was quite active, and his caloric intake consisted of food provided for the event. This was not in keeping with his regular diet. He did not make any adjustment to his insulin dosage.

After this incident, the Appellant informed his endocrinologist about the hypoglycaemic event and was surprised later when he received notice of suspension. He submitted that the Registrar failed to obtain more information surrounding the event and his history of diabetes. He claims that the Ministry failed to take into account his ability to manage low blood sugar and hypoglycaemic events. His only previous hypoglycaemic event was at age 9.

He is currently a counsellor at a summer camp for diabetic children. When asked by the Tribunal when he last attended a formal session at the Diabetes Education Centre, he replied that his knowledge for guiding children with diabetes is educational for him as well as for the children. He has discussed the hypoglycaemic event with his endocrinologist.

He submits that the Grismer Decision about human rights accommodation held that each driver must be assessed according to the driver’s individual condition. The Ministry should interview the driver and his clinician in order to make an intelligent assessment of the circumstances. In his situation, he stated that the risk is highest in the morning and that he took appropriate steps to correct this. Also, the Ministry should have taken into account his driving record, which would show that he has been a safe driver.

He states that his endocrinologist reported that he was now stable and compliant and fit to drive. His endocrinologist also supports the position that his diabetes is not uncontrolled. His last HbA1C on record was less than 7%, as documented by Dr. G. in the Diabetes Assessment Form on May 4, 2016. He has not submitted an up-to-date HbA1C.

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 physical condition or 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.

Submissions on behalf of the Respondent

Mr. Grootenboer reiterated the submissions made by him above:

1. Each appeal is judged on the evidence and submissions separate from previous decisions, which do not set binding precedents.

2. The Grismer Decision does not apply in a situation where the driver is unconscious and unable to make accommodation for his condition.

3. The CCMTA Guideline 7.6.4 in this case is endorsed by the Canadian Diabetes Association regarding a period of six months free from hypoglycaemic events

4. The Registrar acted appropriately in requesting the Appellant to take the letter of suspension to his physician and to have a diabetes assessment conducted. It is the responsibility of the Appellant to provide medical evidence in support of reinstatement.

5. The Appellant has failed to provide the information requested by the Registrar on May 17, 2016.

Submissions on behalf of the Appellant

The Appellant’s submissions were made as part of providing his evidence. In addition, he cited a number of Tribunal decisions from past appeals.

1. LAT File #8481, where the Tribunal set aside the suspension before the mandatory six months when the Appellant had a clear imbalance between increased activity and hypoglycemia. Corrective steps were in place.

2. LAT File #8886, where the Tribunal set aside the suspension on the grounds that severe hypoglycaemia did not occur.

3. LAT File #9641, where the suspension was set aside before the six months when the Appellant recognized the link between increasing his insulin in anticipation of increased caloric intake and a delay that occurred before he was able to eat.

APPLICATION OF THE LAW TO FACTS

The Tribunal finds that the Registrar was justified in issuing a suspension of the Appellant’s driving privilege upon information received that he had suffered a severe hypoglycaemic event on February 7, 2016. This notification was corroborated by a Medical Condition Report by the Appellant’s endocrinologist on April 5, 2016, two months following the event.

The Tribunal notes that the Diabetes Assessment Form completed by the endocrinologist on May 4, 2015 did not include a “cause and effect” for the severe hypoglycaemia. Dr. G. did not elaborate on the factors that led to the severe hypoglycaemia and the steps taken to prevent a recurrence. Furthermore, in his Notice of Appeal, the Appellant did not identify the most likely reason for the hypoglycaemic event – i.e., the increased activity on the day before the event plus the change in his caloric intake the same day without adjustment of his insulin dosage. It was only upon questioning by the Tribunal that the Appellant provided information about the events that led to his loss of consciousness and seizure.

In the absence of a full awareness of the cause of this severe hypoglycaemic event, and a plan to prevent a recurrence, Dr. G.’s May 4, 2016 report was not enough to justify a departure from the CCMTA guidelines, and it was reasonable for the Registrar to make its request on May 17, 2016 for additional information and confirmation. The Appellant has not provided this additional information, which may well have provided enough support to justify an earlier reinstatement of his licence.

The Tribunal finds that this is an appropriate case to apply the guideline of at least six months of stability following a severe hypoglycaemia, as supported by CCMTA Guideline 7.6.4, and the Canadian Diabetes Association. While the Tribunal is not bound by the CCMTA guidelines, there generally should be a good reason for departing from these guidelines. The Appellant has not shown enough evidence or reasons for doing so. While the Tribunal recognizes that some inconvenience or even hardship is caused to the Appellant by not being permitted to drive, this cannot be a factor to influence the Tribunal’s findings and decision under this legislation, which is focused on safety.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from a physical condition or disability 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 May 25, 2016 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

Kevin Flynn, M.D., Member

Released: July 5, 2016