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:
Chad Ott
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Erica Weinberg, Member
APPEARANCES:
For the Appellant: Chad Ott, Appellant
For the Respondent: Sanjay Kapur, Agent
Observers1: Jan Dymond and Susan Rai
Heard by Teleconference: May 25, 2022
A. Overview:
1Chad Ott (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”), effective March 14, 2022.
2The issue in this appeal is whether the appellant’s reported medical condition of severe hypoglycemia 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.
4Accordingly, I confirm the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.
B. ISSUES:
5The issue in this appeal is whether the appellant suffers from a medical condition, specifically severe hypoglycemia, which is likely to significantly interfere with his ability to drive a vehicle safely.
6To answer that question, I will address the following issues:
a. Does the appellant suffer from severe hypoglycemia?
b. If the appellant suffers from severe hypoglycemia, is it likely to significantly interfere with his ability to drive a vehicle safely?
C. LAW:
7Under 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”).
8Under 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.
9A person whose licence is suspended under these provisions may appeal the Tribunal under s. 50(1) of the HTA.
10On appeal, the Registrar has the burden, on a balance of probabilities, of establishing that the licence should remain suspended.
11Following 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. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from severe hypoglycemia?
12I find, on a balance of probabilities, that the appellant suffers from severe hypoglycemia.
13On March 2, 2022, the appellant’s endocrinologist, Dr. G., sent the Ministry of Transportation an unsolicited Medical Condition Report (“MCR”). On the MCR Dr. G. indicated that the appellant has Type 1 diabetes (“DM”) and had two episodes of severe hypoglycemia requiring outside assistance in the past week.
14By letter dated March 4, 2022, the Registrar suspended the appellant’s driver’s licence effective March 14, 2022 with the reported condition of severe hypoglycemia.
15The appellant testified that he was diagnosed Type 1 DM nearly 15 years ago. He acknowledged and described the two severe hypoglycemic events requiring outside intervention, both of which occurred towards the end of February 2022, approximately 4-5 days apart. He testified that the first episode occurred during daytime hours and the second episode occurred overnight during his sleep. In both cases a family member called 911, and his blood glucose (“BG”) was measured and treated on the scene by the paramedics who arrived. The appellant testified that during his first episode his measured BG was 3.9 mmol/L and he was treated with oral glucose tablets. During the second episode, the appellant stated that his measured BG was 1.9 mmol/L and he was treated with intravenous glucose.
16Based on the above, I find on a balance of probabilities that the appellant suffers from severe hypoglycemia.
b. If the appellant suffers from severe hypoglycemia, is it likely to significantly interfere with his ability to drive a vehicle safely?
17The 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.
18As per its March 14, 2022 letter to the appellant, the Registrar is currently of the opinion that it requires a completed Diabetes Assessment form (“DA form”) from the appellant’s treating physician. The respondent stated that, by law, the Registrar can request that the appellant provide additional medical information, such as a completed DA form, to ensure he is able to drive a motor vehicle safely.
19The appellant stated that he has been unable to get a doctor’s appointment to have the DA form completed but has an upcoming appointment with his endocrinologist on June 3, 2022.
20Furthermore, the respondent stated that the Registrar is also relying on Chapter 7 and specifically 7.6.4 of the CCMTA Standards, “Episode of severe hypoglycemia – Non-commercial drivers”. I note that this CCMTA Standard also applies to severe hypoglycemia while sleeping and states that non-commercial drivers are eligible for a licence if:
no further episodes of severe hypoglycemia within the past 6 months;
earlier re-licensing can be considered if an appropriate specialist indicates that glycemic control has been re-established; and
conditions for maintaining a licence are met.
21The appellant denies having hypoglycemia unawareness. He stated that his first symptoms of hypoglycemia (a feeling of being shaky or hyper-attentive), occur at about a BG=4.6 mmol/L. At a BG=3.8-4.0 mmol/L he starts to feel tired.
22The appellant initially testified that he typically checks his BG prior to driving. However, it became apparent on further questioning that this was frequently not the case.
23The appellant testified that he would not usually check his BG on workday mornings, prior to driving to work. He stated that on workday mornings, he would consume a coffee with milk and sugar (i.e., no full breakfast), assume that his BG would not be low because of the coffee, and not check his BG before getting behind the wheel.
24On the morning of his first severe hypoglycemic episode in late February 2022, the appellant testified that he consumed his coffee as usual, did not check his BG prior to driving and drove to work (about a 10-minute drive). When questioned, he stated that it ‘was possible’ that he ate a granola bar at work that morning. At approximately 12:30 p.m., without checking his BG, he proceeded to drive to a Subway restaurant (about a 10-minute drive), picked up food to take home to eat, then drove home and parked in the driveway. The appellant testified that once he parked the vehicle in the driveway, he felt very tired and decided to take a nap in the vehicle with the doors locked. He stated that he attributed his fatigue to stress at work and it did not occur to him to check his BG. Apparently, at approximately 1:20 p.m., his mother came outside to his parked (and locked) vehicle and called 911.
25On the evening prior to his second episode of severe hypoglycemia in late February 2022, the appellant testified that he took his BG at about 10:30 p.m. and fell asleep on the couch by about 11:00 p.m. He does not recall the BG reading. Apparently, at around 1:30 a.m. his mother saw the appellant shaking, she called 911.
26As per Dr. G.’s MCR, after assessing the appellant on March 2, 2022, she prescribed him a ‘flash glucose monitor with an alarm function, and changed his basal insulin to Tresiba to try to help with this’ (i.e., episodes of severe hypoglycemia).
27The appellant testified that he is currently using a Freestyle Libre 2 system (“system”), has set the system to have an alarm for BG=4.5 mmol/L, his basal insulin is currently Tresiba and, because of his new system, he checks his BG more frequently. He admitted to not downloading any data from his system but was able to read, at the hearing, some data such as his average BG in past 90 days and the number of ‘low’ values in the past 90 days. The appellant stated that he has not had a blood test for HbA1C performed since he began using the system. In his Notice of Appeal, the appellant wrote, “The new monitoring system for BG has also shown me how my medications work and how it affects BG levels. With this knowledge I am more equipped and ready to keep BG levels in an acceptable range throughout the day and night.” Furthermore, the appellant elaborated on how he has changed his eating habits since March 2022 by consuming less ‘junk food’ and replacing it with better food choices.
28When questioned about when he last saw a diabetic educator, the appellant described the services that were available to him when he was under the care of a pediatric endocrinologist.
29The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s severe hypoglycemia is likely to significantly interfere with his ability to drive a motor vehicle safely.
30Although not bound by the CCMTA Standards, they may be persuasive. I note that, as per the ‘rationale’ for 7.6.4 of the CCMTA Standards, severe hypoglycemia indicates a lack of glycemic control and the potential for further hypoglycemic episodes. The fact that the appellant had two episodes of severe hypoglycemia withing 4-5 days of each other, is consistent with this fact. Furthermore, as per the CCMTA Standards, severe hypoglycemia can lead to an episodic impairment in the functions necessary for driving and a driver cannot compensate for this. 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.
31When asked why he had not taken any BG readings prior to driving on the morning of his first severe hypoglycemic episode, he stated that he had not eaten food prior to driving. I note that the appellant was, and is still on, a basal (or background) insulin. Despite having Type 1 DM for almost 15 years and having had the opportunity for extensive DM education during his adolescence, I find that the above statement made by the appellant, indicates on a balance of probabilities, that he still lacks sufficient appreciation, knowledge or insight into the use of different insulins for his overall DM management. The appellant seems unaware that his basal insulin, alone, can drive down his BG resulting in hypoglycemia.
32Moreover, I note that under 7.6.2 of the CCMTA Standards (Type 1 or type 2 DM treated with insulin – Non-commercial drivers), the “conditions for maintaining a licence” are:
remains under regular medical supervision to ensure that any progression in their condition or development of chronic complications does not go unattended;
stops driving immediately if hypoglycemia is identified or suspected;
does not drive when glucose level is below 4.0 mml/L;
does not drive until at least 40 minutes after successful treatment of hypoglycemia, and BG level has increased to at least 5.0 mml/L; and
when driving, tests BG immediately before driving and approximately every 4 hours while driving, and have an available source of rapidly absorbable glucose.
33The evidence before me indicates that, at a minimum, the appellant had not previously been fulfilling the entirety of the fifth bullet in the “conditions for maintaining a licence” for any non-commercial driver who uses insulin to treat their DM.
34Furthermore, I note that in 7.6.4 of the CCMTA Standards, the “conditions for maintaining a licence” are stricter and include “must test BG immediately before driving and approximately every hour while driving”.
35I commend the appellant for his recent improvements in his diet and exercise and I encourage him to continue with these endeavors.
36However, as of the date of the hearing, it is just under three months since the appellant switched basal insulins and started with his system following two episodes of severe hypoglycemia. The appellant has yet to have his first post-system appointment with Dr. G., have his system’s data downloaded for Dr. G. or her staff to review or interpret, nor has he yet had a new HbA1C level documented to compare to his previous values. Moreover, Dr. G. has neither indicated that the appellant’s glycemic control has been re-established nor has she yet expressed her support for early re-licencing.
37I acknowledge the burden that the lack of a driver’s licence is having on the appellant. 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.
38After 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 severe hypoglycemia is likely to significantly interfere with his ability to drive a vehicle safely.
E. ORDER:
39For 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
Erica Weinberg, Member
Released: May 31, 2022