Date: 2019-07-24

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:

Derek van der Kooy

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Derek van der Kooy, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: June 24, 2019

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence on February 23, 2019, under s. 47(1) of the HTA for diabetes as a result of receiving a medical report that the appellant had hypoglycaemia requiring intervention of a third party or producing loss of consciousness on February 11, 2019.

B. PRELIMINARY ISSUE:

2Registrar’s agent said he did not receive the laboratory results report dated April 9, 2019 or the email from appellant’s endocrinologist Dr. Advani dated May 30, 2019 submitted by appellant. Registrar’s agent confirmed he would proceed with the hearing without having these documents available to him. The hearing proceeded and these documents were marked as exhibits.

C. ISSUE:

3The issue in this appeal is whether the appellant has a medical condition, specifically diabetes, likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant have diabetes?

(b) Is the appellant’s medical condition, specifically diabetes, likely to significantly interfere with his ability to drive safely?

D. CONCLUSION:

4For the reasons that follow, we find that the appellant suffers from a medical condition, specifically diabetes, but that this medical condition is not likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

E. LAW:

5The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

6One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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

7Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

8Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

9The Registrar has the burden of establishing the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

F. EVIDENCE AND ANALYSIS:

(a) Does the appellant have diabetes?

10Registrar filed the medical report of Dr. Beams, an emergency room physician, dated February 11, 2019, which diagnosed the appellant with “hypoglycaemia requiring intervention of a third party or producing loss of consciousness” and a police motor vehicle collision report, which confirmed that the appellant lost control of his vehicle due to a medical condition. Appellant’s driver’s licence was suspended by the Registrar on February 23, 2019 due to the reported medical condition of diabetes.

11At the beginning of the hearing, appellant confirmed that he does not contest that he has diabetes or that he had a hypoglycaemic event on February 11, 2019.

12We accept the admissions of the appellant in his testimony and find based on his evidence that the appellant has diabetes.

(b) Is the appellant’s medical condition, specifically diabetes, likely to significantly interfere with his ability to drive safely?

13We find that although the appellant does suffer from diabetes, this medical condition is not likely to significantly interfere with his ability to drive. Therefore, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

14Registrar filed a diabetes assessment report provided by appellant’s endocrinologist, Dr. Advani, dated April 18, 2019, which confirms that appellant has longstanding type 1 diabetes and has had previous episodes of severe hypoglycemic unawareness. Dr. Advani reported that appellant is now using a continuous blood glucose sensing device recommended by him and that there have been no severe hypoglycemic episodes since. Dr. Advani’s report confirms appellant is being treated with insulin and answered “yes” to the question “Do monitoring and assessment indicate adequate blood glucose control?” Dr. Advani also noted that the appellant is generally compliant, adherent to the prescribed treatment, has regained adequate glycemic control, and has had no complications.

15Appellant filed laboratory results report dated April 9, 2019. Dr. Advani in his email dated May 30, 2019 clarified that the laboratory results show appellants A1c was 7.0% which means that the appellants average blood sugar reading in the last 60 days was 7 mmol/litre. This number is in the higher normal range indicating excellent blood sugar control. It lends support to the appellants contention that there has been no hypoglycaemia and that his diabetes is well controlled.

16Appellant testified that after the February 11, 2019 episode he started to use a Dexcom G5 continuous blood glucose monitoring device on the recommendation of Dr. Advani, his endocrinologist. This monitor sends information to appellant’s phone and sounds alerts if his sugar starts to drop too low or go too high. These alarms are set at levels that are in the safe range so an alert is given long before any clinical symptoms would be evident. The low alert is set for 5 mm/l and upper sugar level set at 14 mm/l. If appellant gets a warning about low sugar, he has something to eat. Appellant testified that each 12 hours the monitor made him do a blood test on himself and the monitor matched the result to its reading. This testing assures accurate results. He confirmed he is faithful in carrying his phone with him at all times.

17Appellant said that in the past he has been unaware of hypoglycemia and the monitor now takes care of that. Appellant testified he has been trained to use the device and how to calibrate it twice a day by a diabetic nurse and that she is available to him at all times for advice, if necessary. Appellant said that he calibrates the monitor twice a day and has found that it is almost always dead on. Appellant is aware that the sensor has to be changed every two weeks and the transmitter for his phone needs to be replaced every three months. Appellant testified that he is comfortable using this technology and has a good understanding of it. He has a post-graduate science education and is a professor at a Toronto medical school.

18Appellant testified that he has not had a hypoglycemic event since February 11, 2019. Appellant said he will keep glucose tablets in his vehicle with him which he can take while driving or he will stop driving if necessary and have something to eat. Appellant has access to his support team which includes his endocrinologist, his diabetic nurse and his spouse who is a doctor. Appellant is aware that some drugs can interfere with the operation of the monitor and takes only medication prescribed and vitamins. Appellant is also now taking long acting insulin.

19The Registrar submits that appellant’s diabetes is severe enough that he should not be permitted to drive at this time and questioned whether the appellant has achieved glycemic control.

20The Registrar’s position is that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to diabetes (chapter 7) and particularly Guidelines 7.6.4, 7.6.5 and 7.6.6

21Guideline 7.6.4 applies to a non-commercial driver who has had an episode of severe hypoglycemia while sleeping and provides that such a driver is 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 severe hypoglycemic episodes while awake or asleep within past 6 months

• Conditions for maintaining a licence are met…driver must test blood glucose immediately before driving and approximately every hour while driving and the driver 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

22Guideline 7.6.5 applies to a non-commercial driver who has had an episode of hypoglycemia unawareness within the past year and provides that such a driver is eligible for a licence if:

• Has been 3 months since the episode

• Treating physician indicates glycemic awareness regained and have stable glycemic control

• Conditions for maintaining a licence are met…driver must test blood glucose immediately before driving and approximately every hour while driving and the driver 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

23Guideline 7.6.6 applies to a non-commercial driver who has persistent hypoglycemia unawareness and provides that such a driver is eligible for a licence if:

• Has been 3 months since the last episode of hypoglycemia

• Treating physician indicated stable glycemic control and takes steps to ensure they do not become hypoglycemic while driving

• Conditions for maintaining a licence are met….retains blood glucose log and reviews with treating physician at intervals physician feels necessary to monitor continued glycemic control, tests blood glucose levels immediately before driving and approximately every hour while driving and doesn’t begin or continue to drive if blood glucose level falls below 6.0 mmol/L and doesn’t resume driving until blood glucose rises above 6.0 mmol/L after food ingested

24Respondent’s agent submitted that we may take into consideration all of the above medical standards even though the respondent admits that appellant was not sleeping when he had the hypoglycemic event on February 11, 2019. We do not accept this argument. The Standards are specific. Guideline 7.6.4 applies to severe hypoglycemia while sleeping. This is not what happened to the appellant and therefore Guideline 7.6.4 is not applicable to appellant.

25Guidelines 7.6.5 and 7.6.6. do apply to the appellant and he substantially complies. At the time of the hearing more than four months have passed since the episode. Appellant’s treating physician, Dr. Advani, reported on April 18, 2019 that the appellant is now using a continuous blood glucose sensing device, there have been no severe hypoglycemic episodes since, appellant is being treated with insulin, that monitoring, and assessment indicate adequate blood glucose control, appellant is generally compliant, adheres to prescribed treatment and has regained adequate glycemic control.

26We accept the evidence of the appellant and Dr. Advani that blood glucose control has been re-established. Appellant’s blood glucose is now being monitored continuously. Appellant’s testing of his blood glucose exceeds the testing required by Guidelines 7.6.5 and 7.6.6. “immediately before driving and every hour while driving” as a condition for maintaining licence. A warning is sent to appellant’s phone if his blood glucose falls below 5 and he has something to eat. The warnings from the monitor make future hypoglycemia unawareness unlikely. Appellant has not had a hypoglycemic event since February 11, 2019. Appellant’s April 11, 2019 laboratory results show A1c at 7.0%. Appellant said he will keep glucose tablets in his vehicle with him which he can take while driving or he will stop driving if necessary and have something to eat. Appellant has post-graduate scientific education, is knowledgeable about his monitor, has been trained to calibrate his monitor and does so twice a day to ensure it is functioning. Therefore, undetected malfunction of the monitor is unlikely. Appellant has access to his support team, which includes his endocrinologist, his diabetic nurse and a spouse with medical ability. Appellant is aware that some drugs can interfere with the operation of the monitor and takes only medication prescribed and vitamins. Appellant is also now taking long acting insulin. All in all, appellant has made significant changes to his management of diabetes. He knows how to use the monitor and how to react to the warnings it may give. In this particular case, waiting for a full six months is not necessary.

27It is the Registrar’s burden to prove that the appellant’s medical condition is likely to significantly interfere with appellant’s ability to drive safely at this time and we find that this has not been proven on a balance of probabilities. We find based on the totality of the evidence that the appellant’s medical condition, specifically diabetes, is not likely to significantly interfere with his ability to drive safely at this time.

G. ORDER:

28For 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.