Date: 2022-09-20

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:

Jaylen Hendricks

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Jaylen Hendricks, Appellant Jami Sanftleben, Representative

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: September 2, 2022

A. Overview:

1Jaylen Hendricks (the “appellant”) appeals the suspension of his Class G2 driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), effective June 26, 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 suspension to 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.

12Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (the “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.

D. PRELIMINARY ISSUE:

13During the hearing, it became apparent that the September 1, 2022 certified copy of the appellant’s “Extended Driver Record Search for Criminal Code Convictions”, submitted as evidence, indicated that the appellant had two recent suspensions for medical reasons with difference suspension numbers. The respondent agreed that these suspensions corresponded to letters issued by the Registrar dated June 16, 2022 and July 11, 2022, both of which stated the same reported medical condition.

14At the hearing, I requested a post-hearing submission from the respondent to clarify the situation.

15On September 9, 2022, the respondent submitted an updated and corrected certified copy of the appellant’s Extended Driver Record Search for Criminal Code Convictions, reflecting that the appellant had only one suspension for medical reasons.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from severe hypoglycemia?

16I find, on a balance of probabilities, that the appellant suffers from severe hypoglycemia.

17On June 12, 2022, emergency physician, Dr. H., sent the Ministry of Transportation an unsolicited Medical Condition Report (“MCR”). On the MCR Dr. H. indicated that the appellant had an episode of hypoglycemia requiring intervention of a third party or producing loss of consciousness.

18By letter dated June 16, 2022, the Registrar suspended the appellant’s driver’s licence effective June 26, 2022 with the reported condition of severe hypoglycemia.

19The appellant testified that he was diagnosed 11 years ago with Type 1 diabetes (“DM”). At the time of the June 2022 incident (“the incident”) the appellant managed his DM with an insulin pump and a FreeStyle Libre 2 continuous glucose monitoring (“CGM”) system. The appellant testified that around 3 a.m. on June 12, 2022 he “woke up” with paramedics around him. He stated that his mother, heard the headboard of his bed shaking, observed the appellant having a seizure, gave the appellant emergency treatment to raise his blood glucose (“BG”), and called 911. The appellant stated that his BG was 2.6 mmol/L when measured by the paramedics. He was transported to hospital where he stayed for about six hours.

20As a licensed and duly qualified physician in the province of Ontario¹, I am aware that a BG level below 3.9 or 4.0 mmol/L is considered hypoglycemia and when a BG level falls below 2.8 mmol/L, a person may lose consciousness or have a seizure.

21Furthermore, The CCMTA Standards define severe hypoglycemia as “hypoglycemia that requires outside intervention to abort, or that produces an alteration in level of consciousness or loss of consciousness. The altered or reduced level of consciousness prevents a person experiencing severe hypoglycemia from taking appropriate action”.

22Based 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?

23The 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.

24As per its August 29, 2022 letter to the appellant, the Registrar is currently of the opinion that it requires confirmation that the appellant has not experienced any severe hypoglycemic reactions and that his condition has remained stable for a period of six months.

25The respondent’s representative stated that the Registrar is relying on the CCMTA Standards, which are used throughout Canada. He pointed to 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.

26The appellant spoke to his target BG range for different times of the day. He explained that he did have alarms/signals set on his FreeStyle Libre 2 CGM to detect “highs” and “lows”, but sometimes his CGM would not produce alarms/signals. He estimated that his CGM failed to produce alarms/signals for low BG readings at least twice per week. He testified that previously it was not unusual to have one “low” signal during the day and 1-2 “low” signals during the evening/night. The appellant testified that there were no “low” signals on his CGM prior to the incident on June 12, 2022. The appellant also spoke to the fact that the FreeStyle 2 CGM “does not talk” to his insulin pump (i.e., shutting off his basal insulin if his BG readings are too low).

27The appellant testified that he spoke with his endocrinologist, Dr. D., on June 13, 2022 (the day following the incident) and Dr. D. recommended changes to the settings on the appellant’s insulin pump. This was followed up with email correspondence a few days later with members of his “DM team” at Dr. D.’s office and an in-person visit to Dr. D.’s office on July 26, 2022. The appellant stated that: the DM team “signed off” on his CGM BG readings on that visit; they did not look at his insulin pump data; no further changes were made to his DM management; and his next appointment is on September 27, 2022.

28The appellant pointed to recent letters and a completed form submitted by Dr. D., specifically:

• Dr. D.’s June 22, 2022 letter which stated that the appellant “has very good glycemic control which has improved lately. It is quite stable. It is unfortunate that he has had a hypoglycemic episode recently which resulted in the suspension of his driver’s licence. This looks like a rare incident. His insulin pump settings have been reviewed and readjusted. It is unlikely that a hypoglycemic episode will happen again”;
• the completed June 23, 2022 Diabetes Assessment form, where Dr. D. wrote that the appellant “is on an insulin pump and has adjusted his settings and is not getting any more hypoglycemia”;
• Dr. D.’s July 26, 2022 letter, which was similar to that of June 22, 2022, with the addition of a statement that the appellant’s recent A1C level of 7% reflects good glycemic control and coincides with the self monitoring values that he is reporting; and
• Dr. D.’s August 25, 2022 letter which was very similar to that of July 26, 2022 with the addition that the letter was written at the request of the patient.

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 I am 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. 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.

31I accept the appellant’s testimony that his and other people’s safety on the road is key. He testified that he always checks his BG with a glucometer prior to driving and does not rely on the reading on his CGM for this. He denies having hypoglycemic unawareness while awake and can “feel it” (i.e., hypoglycemia) “in the high 3’s” with symptoms such as sensations in his muscles, trembling and being sweaty. He admitted to feeling hypoglycemic while driving in the past but stated that in those instances he pulled over to the side of the road and ingested Skittles or juice.

32However, I note that, as per the appellant’s testimony, the appellant has neither seen, spoken to, nor submitted BG data to Dr. D. or his team since July 26, 2022. The appellant testified that, following the case conference, he left a message with Dr. D.’s receptionist to obtain Dr. D.’s August 2022 letter. Moreover, the appellant did not submit any August 2022 BG data to the Registrar or the Tribunal.

33The appellant’s BG data submitted as evidence was “Sensor & Meter Overview” data from his insulin pump (not his CGM). The data for the period of April 28-June 28, 2022 (which would have included the day of the incident) revealed an average number of BG readings per day of 2.1 and no BG “readings below target”, the lower end which appears to be 3.9 mmol/L. The data for the period of June 28-July 27, 2022 (post incident) revealed an average number of BG readings per day of 3.7, with two readings below target (2%) and a number of BG readings that appear to be slightly above 3.9 mmol/L.

34As of the date of the hearing it has been approximately 2.5 months since the appellant’s incident of severe hypoglycemia requiring outside intervention. I acknowledge that one week prior to the hearing, the appellant began using a different make of CGM which “talks” to his insulin pump. I also acknowledge that Dr. D., in his July and August 2022 letters, stated that he “would appreciate if [the appellant’s] driver’s licence is reinstated at the earliest possible instance”.

35However, I have before me only 1.5 months of BG data post incident as described above. I find that 1.5 months of BG data post incident is insufficient to ensure the appellant is not having ongoing or significant issues with hypoglycemia. 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.

36I 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.

37After 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.

F. ORDER:

38For 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.

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.