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:
Raymond Kennedy
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Erica Weinberg, Member
Appearances:
For the Appellant: Raymond Kennedy, Appellant
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: April 1, 2021
A. Overview:
1Raymond Kennedy (the “appellant”) appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).
2The issue in this appeal is whether the appellant’s reported medical condition of diabetes mellitus (“DM”) is likely to significantly interfere with his ability to drive a vehicle safely.
3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. Therefore, I confirm the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
4The issue in this appeal is whether the appellant suffers from a medical condition, specifically DM, which is likely to significantly interfere with his ability to drive a vehicle safely.
5To answer that question, I will address the following issues:
a. Does the appellant suffer from DM?
b. If the appellant suffers from DM, is it likely to significantly interfere with his ability to drive a vehicle safely?
C. LAW:
6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).
7Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.
8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
9On appeal, the Registrar has the burden, on a balance of probabilities, of establishing that the licence should remain suspended.
10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
D. PRELIMINARY ISSUES:
11During the hearing, I formed the opinion that additional submissions were required in order to come to a fair and just decision.
12Both parties consented to and were ordered to exchange and file with the Tribunal the requested documentation by 5:00 p.m. April 12, 2021. The formal Order for additional submissions was released to the parties on April 6, 2021.
13On April 7, 2021, the appellant provided the Tribunal with information from his optometrist which stated that the appellant has required glasses for driving since November 2005.
14On April 7, 2021, the Tribunal received information from the respondent that as a result of COVID-19 and reduced staffing at the Ministry of Transportation, retrieving unredacted copies of the appellant’s driver’s licence renewal applications for the past 8-10 years would take a minimum of three weeks. Further to this email, the respondent informed the Tribunal that the records requested could not be provided as driver’s licence renewal application records are no longer microfilmed or retained by the Ministry of Transportation.
E. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from DM?
15I find, on a balance of probabilities, that the appellant suffers from DM.
16The appellant’s family doctor, Dr. G., completed a Diabetes Assessment form (“DA” form) on January 27, 2021. This form indicated that the appellant has Type 2 DM, treated with both oral medications and insulin.
17The appellant testified that he has had DM since 1987, is on an oral diabetic medication and has been using both long-acting and short-acting insulin, in addition to the oral medication, to control his DM for the past six years.
18Based on the above, I find on a balance of probabilities that the appellant suffers from DM.
b. If the appellant suffers from DM, is it likely to significantly interfere with his ability to drive a vehicle safely?
19The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.
20The appellant testified that on December 13, 2019, he had a motor vehicle accident. This is verified in the Extended Driver Record Search for Criminal Code Convictions, Discharges and Other Actions submitted as evidence (“Disobey traffic signal light-red”).
21Under s. 16(b) of the Regulation, the Registrar may require any holder of a driver’s licence who has reached the age of 70 and is involved in an accident to complete successfully the applicable examinations prescribed in s. 15 and to demonstrate that they continue to meet the qualifications prescribed in s. 14.
22Under s. 15(2) of the Regulation, the examination may include the applicable level 2 exit test in the case of a person fully licensed to operate a Class G or M motor vehicle.
23On December 2, 2020, the appellant presented himself for a G2 exit examination.
24A page of a “Record of G2 Examination” form (“G2 exit” form) was submitted as evidence. The G2 exit form indicated that the appellant requires glasses or corrective lenses for driving and that he suffers from or has been advised by a physician that he suffers from “diabetes requiring insulin to control”.
25The appellant testified that he was asked the medical-type questions on the G2 exit form by the staff at the centre.
26By letter dated December 18, 2020, the Registrar indicated that the appellant has DM which may affect his ability to drive safely and requested that his physician complete a DA form.
27On January 27, 2021, Dr. G. completed the DA form. On the DA form Dr. G. indicated the following regarding the appellant:
he has Type 2 DM treated with oral medications and insulin;
he demonstrates good knowledge of the condition and its management;
monitoring and assessment indicate effective blood glucose (“BG”) control and A1C results are consistent with his BG logs;
he has not experienced any episodes of hypoglycemia unawareness in the past three months and has not had more than one reported episode of hypoglycemia unawareness in the past 12 months;
he experienced one reported episode of severe hypoglycemia requiring outside intervention in the past six months (“November 11, 2020 –emergency room visit – which is where initial report was filed”);
he has regained adequate glycemic control;
medications were adjusted and there have been no recurrences of severe hypoglycemia; and
has diabetic retinopathy.
28By letter dated February 2, 2021, the Registrar suspended the appellant’s driver’s licence, effective February 12, 2021, with the reported medical conditions of DM and visual impairment. In this letter the Registrar requested:
confirmation of a 6-month free period from any further episodes of hypoglycemia;
completion of another DA form; and
specific visual tests to be completed.
29The appellant testified that on the morning of November 11, 2020, approximately 2-3 hours after breakfast he and his wife decided to go for a drive in “the country”. He stated that his BG level was fine at breakfast (in the 6-7 mmol/L range) and he had taken both his oral diabetic medication, his long-acting insulin and any as needed short-acting insulin according to his BG level. He testified that he checked his BG level, as he always does, with his Freestyle Libre system prior to getting behind the wheel of the car and nothing seemed out of the ordinary.
30He further testified that at some point while driving he started to feel “warm” and “funny”, stopped the vehicle to take off his jacket, then started “sweating” and eventually pulled over to have his wife drive them home. The appellant estimated that it took 10-15 minutes for his wife to drive home. Once parked in their garage his wife called for an ambulance. He testified that at no time during this event did he or his wife consider checking his BG with his Freestyle Libre system, which he had in the car. When questioned why he did not, he stated that neither he nor his wife recognized his symptoms of feeling warm or sweaty as an indication that he may be hypoglycemic. The appellant further elaborated that the two or so times in 2020 that he noted he was hypoglycemic (stating when he checked his BG on these occasions it was 3.6 or 4.4 mmol/L) his symptom was being “a little shaky”. The appellant further testified that on the morning of November 11, 2020 he did not even consider taking the “sugar pills” that he keeps in the car in response to his symptoms.
31The appellant stated that when the ambulance arrived, the attendant determined his BG was 1.7 mmol/L, treated his severe hypoglycemia on the scene and transported him to hospital where he remained from approximately 12 p.m. - 8 p.m. He stated that investigations at the hospital indicated that his white blood cell count was elevated, but no infection was found.
32Furthermore, the appellant testified that 2-3 days following the incident of severe hypoglycemia requiring intervention of a third party, he saw Dr. G. in-person at her office. He stated that his long-acting insulin was decreased slightly (from 40 units to 36 units daily with breakfast).
33The appellant testified that neither the emergency room (“ER”) physician nor Dr. G. indicated to him that he should not drive following the incident of severe hypoglycemia requiring intervention of a third party. As per the evidence before me, the appellant continued driving following the incident on November 11, 2020, attended his G2 exit examination on December 2, 2020 and had a speeding offence on February 2, 2021 prior to the suspension of his driver’s licence for medical reasons on February 12, 2021.
34On March 15, 2021 and following the case conference on March 25, 2021, the appellant submitted additional information to the Registrar. These submissions included a number of recent visual tests by an optometrist, a letter of support from Dr. G. dated March 7, 2021, and an A1C graph, including values from May 2020, October 2020 and March 8, 2021.
35The appellant is of the opinion that he is an excellent driver having been driving for 65 years, has lived with DM for 33 years, has never had a motor vehicle accident because of his DM and takes his DM management very seriously at all times, including with respect to driving. He stated that he is aware that he is to: check his BG prior to driving; keep his BG greater than 6.0 while driving; check his BG hourly on longer drives; and can pull over to do this when needed. He also stated that Dr. G.’s letter of March 7, 2021 is supportive of his driver’s licence appeal.
36Although Dr. G. in her March 7, 2021 letter states that she is supportive of the appellant’s appeal to regain his driving privileges, I note some significant inconsistencies in what she wrote with respect to the appellant’s DM/DM management and the appellant’s verbal testimony.
37Dr. G.’s March 7, 2021 letter states that on November 11, 2020 the appellant presented to the ER with an episode of symptomatic and severe hypoglycemia that was noted after breakfast. “He was sweaty and shaky and appropriately checked his sugars.” Furthermore, she stated that the appellant is “well versed in avoidance, recognition and appropriate therapeutic intervention for hypoglycemia” and is “well versed in all aspects of DM management”. The appellant testified that he was not shaky during the hypoglycemic event on November 11, 2020, did not recognize that he was suffering from hypoglycemia, did not personally check his BG at any time during the event and it was the ambulance attendant who took his BG and determined he was suffering from severe hypoglycemia.
38In addition, in her January 27, 2021 completed DA form, Dr. G. stated that the appellant’s ER visit of November 11, 2020 was “where [the] initial report was filed”. At the hearing the respondent confirmed that no Medical Condition Report (“MCR”) was filed by any physician regarding the appellant’s episode of hypoglycemia requiring intervention of a third party. Under s. 203(1) of the HTA, a prescribed person, such as a physician, is mandated to report patients identified with certain high risk medical conditions, functional impairments or visual impairments that may make it dangerous to drive. As an adjudicative member who presides over appeals of driver’s licences suspensions for medical reasons, I am aware that the Registrar frequently becomes initially aware of individuals who have been identified with certain high risk medical conditions, functional impairments or visual impairments that may make it dangerous to drive when it receives unsolicited MCRs from prescribed persons. Furthermore, I am also aware that the MCR is a publicly available form and am familiar that on this form there is a field that specifies hypoglycemia requiring intervention of [a] third party or producing sudden loss of consciousness as a condition to be reported under the category of sudden incapacitation. As previously stated, the Registrar did not become aware of the appellant’s condition of Type 2 DM controlled with insulin until his G2 exit examination on December 2, 2020 and did not become aware that he suffered an episode of hypoglycemia requiring intervention of a third party until Dr. G. completed her DA form on January 27, 2021, some two and one half months after the incident.
39As per its March 30, 2021 letter to the appellant and confirmed at the hearing, the Registrar no longer has concerns regarding the appellant’s February 2, 2021 reported medical condition of visual impairment and its impact on the appellant’s ability to drive safely.
40Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “CCMTA Standards”) [February 2021] 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.
41The Registrar is currently of the opinion that in order to reinstate the appellant’s driver’s licence it requires: confirmation that he has not experienced any severe hypoglycemic reactions and his condition has remained stable for a period of six months; a newly completed DA form; a newly conducted A1C result which is consistent with his BG logs; and confirmation that stable glycemic control has been re-established. The respondent referred to 7.6.4 of the CCMTA Standards (Episode of severe hypoglycemia – Non-commercial drivers) and confirmed that the six-month period of stability they are looking for is from November 11, 2020 going forward.
42Although I am not bound by the CCMTA Standards I find they describe important considerations when making a driver fitness evaluation. They emphasize making a risk analysis of all relevant sources of information. Chapter 7 of the CCMTA Standards (Diabetes – Hypoglycemia) states that decisions about DM and driving should be based on assessment of individual medical history and circumstances including: treatment modality; incidence of hypoglycemia; incidence of hypoglycemia unawareness; and presence of chronic complications of DM. This is consistent with Dr. G.’s statement in her March 7, 2021 letter that “It is well known that safety to operate a motor vehicle should be assessed on a case by case basis”.
437.7 of the CCMTA Standards (Type 2 diabetes – All drivers) states that a condition for maintaining licence includes “report[ing] to the authority if begins insulin therapy”. The rationale for this is that there is a significant increase in risk for hypoglycemia associated with insulin therapy and thus it is intended to ensure that drivers on insulin therapy meet the more stringent driver fitness standards and conditions for driving.
44The evidence before me indicates that, on a balance of probabilities, for approximately six years from the time the appellant started insulin therapy to control his DM until the day of his G2 exit exam on December 2, 2020, he did not report to the authority that he began insulin therapy. When specifically asked about previous driver’s licence renewal applications, the appellant stated he did not recall any medical-type questions of any nature on the applications. Furthermore, he stated that he thought the first time anyone asked him the medical-type questions was on the day of his G2 exit examination. In addition, the appellant stated that he has vision tests every two years, confirmed following the hearing that he has required glasses for driving since November 2005, yet this condition was not until recently indicated on his driver’s licence and “he doesn’t know why”.
45I prefer the verbal testimony of the appellant over the written evidence submitted by Dr. G. in her March 7, 2021 letter, with regards to the events that occurred on the morning of November 11, 2020. The appellant personally experienced these events, while Dr. G.’s information was obtained second-hand or even third-hand. The appellant clearly testified that while driving that morning he felt warm and sweaty, “did not realize that he was hypoglycemic”, “did not recognize this as hypoglycemia as it never happen that way before”, did not check his BG, himself, at any time and did not eat anything in response to his symptoms.
46Although Dr. G. stated that the appellant is well versed in all aspects of DM management, is well versed in the recognition of hypoglycemia and has access to a Diabetes Educator at her Family Health Team, I find, on a balance of probabilities, that the above demonstrates that the appellant is not well versed in the recognition of hypoglycemia as it relates to himself. Common early symptoms of hypoglycemia include: palpitations, shakiness, anxiety, sweating, hunger and tingling. On a balance of probabilities, these common early symptoms of hypoglycemia would have been taught or explained to the appellant by Dr. G. or the Diabetes Educator at Dr. G.’s Family Health Team. On November 11, 2020, some six years after starting insulin therapy, the appellant was unable to recognize his symptom of sweating as an early symptom of hypoglycemia.
47Furthermore, I find that the above demonstrates, on a balance of probabilities, that the appellant’s insight into the early symptoms of hypoglycemia as they relate to himself, is limited. Insight is an important consideration when determining fitness to drive, especially as it relates to episodic impairments of functional ability to drive such as episodes of hypoglycemia.
48Thankfully, the appellant had enough self-awareness on the morning of November 11, 2020 to eventually ask his wife to drive them home because he “felt funny”. Had the appellant been driving alone that morning, the consequences of his unrecognized severe hypoglycemia may have been far more serious to himself or to the public.
49As per the CCMTA Standards, for anyone with DM, a history of severe hypoglycemia, hypoglycemia unawareness, and low BG levels are consistent predictors of future hypoglycemia. In addition, the CCMTA Standards state that research has demonstrated that anyone treated with insulin is at greater risk of hypoglycemia, that individuals taking insulin have an elevated risk of crashes and there is a relationship between hypoglycemia and crashes.
50I acknowledge the burden that the lack of a driver’s licence is having on the appellant, especially on his independence. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.
51After a careful consideration of the totality of the evidence before me, and based on the above, I find on a balance of probabilities that the appellant’s reported medical condition of DM is likely to significantly interfere with his ability to drive a vehicle safely.
52The appellant disclosed at the hearing that he was diagnosed in January 2021 with atrial fibrillation, a form of heart disease. As driver’s are required to self-disclose medical conditions on driver’s licence applications, I highly encourage the appellant, on any future driver’s licence renewal, to read all the medical-type questions thoroughly and to answer them accurately prior to signing and dating the application. Signing and dating the application is certification that the statements on the application are correct. As is stated on a driver’s licence renewal application, there is a penalty for making a false statement that may include a fine and/or imprisonment and/or driver’s licence suspension.
F. ORDER:
53For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Released: April 16, 2021