H.C. v. Registrar of Motor Vehicles, 2019 CanLII 63330

Licence Appeal Tribunal

Date: 2019-06-25

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

H.C. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicators: Dr. Katie Awad, Member Marisa Victor, Member

Appearances:

For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: Teleconference May 29, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant is an 85-year-old widower with Type II diabetes and is insulin dependent. On March 1, 2019 he had a hypoglycemic incident while driving his vehicle. He pulled over, parked his car and passed out. He regained consciousness at the hospital where he was being treated. As a result of the incident, the hospital submitted a medical condition report to the respondent and the appellant’s licence was subsequently suspended.

2The appellant appeals the suspension.

3The question we need to determine is whether the appellant suffers from a medical condition, in this case Type II diabetes, that is likely to significantly interfere with his ability to drive safely.

4For the reasons that follow, we find that the appellant’s diabetes is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the respondent’s decision to suspend the appellant’s driver’s licence.

ISSUE

5The issue in this appeal is whether the appellant suffers from Type II diabetes such that it is likely to interfere with his ability to drive safely.

LAW

6The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

7The respondent has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1) of O. Reg. 340/94 (the Regulation) states that a holder of a driver’s licence must not suffer from any physical condition likely to significantly interfere with their ability to drive safely.

8Section 14(2)(a) of the Regulation allows the respondent to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Standard) when determining whether the requirements of s. 14(1) are met.

9The respondent relied on section 7.6.4 of the CCMTA Standard. That section is for those with an episode of severe hypoglycemia - non-commercial drivers and applies to severe hypoglycemia while sleeping. The CCMTA Standard states there that a non-commercial driver is eligible for a licence if:

a. Treating physician indicates whether stable glycemic control has been re-established; and

b. No further severe hypoglycemic episodes while awake or asleep within past 6 months

10We may take the CCMTA Standards into consideration, although they are not binding on us.

EVIDENCE

Uncontested Evidence

11It was uncontested that the appellant suffered a hypoglycemic event on March 1, 2019. The appellant readily admits that he skipped lunch and felt-light headed while driving which prompted him to pull over. He also admits that he regained consciousness at the hospital and was treated for hypoglycemia.

Respondent’s Evidence

12The respondent relies on the CCMTA Standard that suggests a six-month period free of severe hypoglycemic episodes and stable glycemic control. The respondent agrees that the appellant has stable glycemic control. The only issue remaining is the six-month period free of further severe hypoglycemic episodes.

13The respondent reviewed the medical evidence including the medical condition report submitted by the hospital, as well as the completed diabetic assessment form submitted by the appellant’s family doctor.

14The respondent submitted that a person with one hypoglycemic incident was at higher risk of a subsequent episode and that age also increases the risk. The respondent was satisfied that the appellant does not have hypoglycemic unawareness, another factor which would increase the risk of future events.

Appellant’s Evidence

15The appellant explained his treatment regime for his Type II diabetes. He checks his blood glucose level three times a day and keeps track of the readings in a personal log. He testified to his readings for the day before the incident, March 1, 2019 and the day after the incident. The numbers recorded demonstrate that his glucose levels returned to normal very quickly after the incident on March 1, 2019.

16He testified that on March 1, 2019 he made a mistake. He had a glucose reading of 4.2 at noon and took insulin. He was scheduled to visit a family friend in hospital and had to visit between 1 pm and 1:30 pm and as a result he missed lunch. While driving home, after the visit, he was fully aware that he felt shaky and light-headed and as a result he pulled over. He regained awareness at the hospital where he was fed cookies and released. His glucose level was at 13.4 that evening, 10.3 the next morning, and then stabilized at approximately 6 at lunch time on March 2, 2019.

17The appellant testified that he had never been hospitalized for his Type II diabetes, or any other reason other than for his appendix when he was a child.

18Following the incident, on March 6, 2019 he obtained an A1C glucose test from the laboratory that confirmed his glucose levels had returned to normal.

19On March 26, the appellant’s family doctor completed and submitted a diabetes assessment form. The family doctor, who has been treating the appellant since 2011, included a note which stated that the appellant “is typically very diligent with blood sugar numbers. He forgot to have lunch on one occasion resulting in a hypoglycemic episode. He has no history of cognitive issues.”

Analysis

20There is no dispute that the appellant had a hypoglycemic episode while driving and that this was a significant event. However, the appellant has established that he has been and continues to be a diligent patient who is active in his diabetes treatment.

21The appellant established that he takes his glucose readings three times a day and his records show that he has very consistent and controlled diabetes. He visits his doctor every three months and has bloodwork and an A1C glucose lab test done then as well. The respondent agrees that the appellant does not have hypoglycemic unawareness, which decreases the chance the appellant will have a subsequent hypoglycemic episode.

22The appellant also provided an explanation for the reason he skipped lunch on the day of the incident. The appellant spoke openly regarding what happened and took responsibility for the accidental lapse in skipping lunch. The appellant was adamant that this was an incident that will not occur again. He has been an insulin dependent diabetic for ten years and this was his first hypoglycemic incident. His testimony was supported by the excellent blood glucose records he takes three times a day. We find his evidence persuasive that this was a one-time lapse of judgment.

23The evidence of the appellant’s family doctor is also significant. The family doctor’s note supports the appellant’s testimony that he is typically a diligent patient. Although age may be a factor in some cases, here the family doctor wrote, unprompted, that the appellant does not have any cognitive issues. We find the family doctor’s evidence strongly supports the appellant’s testimony.

24Although not binding on us, the CCMTA Standard provides guidance as to when a person with diabetes should resume driving after a hypoglycemic event requiring medical assistance. It suggests a six-month period free from further hypoglycemic incidents prior to resuming driving. The CCMTA Standard in this case, however, does not address all the nuances of the appellant’s case. Further, we find that the appellant’s evidence in this case shows he is at low risk for another incident and therefore the six-month period free of hypoglycemic episodes is not necessary.

25The respondent has failed to establish that the appellant has a condition that is likely to significantly interfere with his ability to drive safely.

ORDER

26For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is set aside.