Date: 2022-09-27

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:

Cole Graham

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Cole Graham, Appellant

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: September 20, 2022

A. Overview:

1Cole Graham (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 July 31, 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 not met 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 vehicle safely.

4Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence.

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 ISSUES:

13While marking the Exhibits, it became apparent that the respondent had not received the entirety of the appellant’s submissions. Two submissions were forwarded to the respondent’s representative via the Tribunal and she was given an opportunity to view them prior to proceeding with the hearing.

14In addition, during the hearing it became apparent that the appellant’s name was incorrectly recorded in the Registrar’s documents.

15I requested that the respondent’s representative have the Registrar’s documents corrected following the hearing.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from severe hypoglycemia?

16I find, on a balance of probabilities, that the appellant does not suffer from severe hypoglycemia.

17On July 15, 2022, emergency room (“ER”) physician, Dr. S., sent the Ministry of Transportation an unsolicited Medical Condition Report (“MCR”) and a copy of the ER record. On the MCR Dr. S. indicated that the appellant suffered from sudden incapacitation due to hypoglycemia requiring intervention of third party or producing loss of consciousness.

18By letter dated July 21, 2022, the Registrar suspended the appellant’s driver’s licence effective July 31, 2022 with the reported condition of hypoglycemia unawareness.

19Following the receipt and review of a September 8, 2022 completed Diabetes Assessment (“DA”) form, the Registrar continued the appellant’s suspension but changed the reported medical condition to severe hypoglycemia.

20The 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”.

21As a licenced and duly qualified physician in the province of Ontario¹, I am aware that a blood glucose (“BG”) level below 3.9 or 4.0 mmol/L is considered hypoglycemia.

22The appellant testified that he was diagnosed with Type 1 diabetes (“DM”) about two years ago. At the time of his July 15, 2022 visit to the ER, the appellant managed his DM with a daily subcutaneous (“sc”) injection of a long-acting insulin (Toujeo 28 units), multiple sc injections of a rapid-acting insulin (Novo Rapid), a FreeStyle Libre continuous glucose monitor (“CGM”) and a glucometer. He stated that there had not been any major change to his long-acting insulin for about one year and that he aims to keep his BG between 5.0 mmol/L and 10.0 mmol/L.

23The appellant testified that he went to the ER on the morning of July 15, 2022 because of an intense cramping pain in his side and back, plus nausea. He stated he was quite concerned about these symptoms because of previous information from his DM team. The appellant stated that the pain continued following the ER visit, that he did not work for about one week and that he saw his family physician, Dr. R., during this time.

24I note that the appellant’s “Presenting Complaint” on the ER record was listed as hypoglycemia, his BG measured in the ER at 0759 hours was 9.5 mmol/L and 12.2 mmol/L when measured by the appellant at 0500 hours. Furthermore, I note that the “Incident History”, which, on a balance of probabilities was recorded by the Triage nurse, says, “3 occasions in past month of ‘passing out’. Yesterday reading was 6.6 – drove –within 20 min[utes] sudden drop – pulled over. Sugar was 2.0.”

25The appellant candidly admitted that he “struggled” with his blood sugars on July 14, 2022 but testified that the information stated on the “Incident History” of the ER record was not accurate.

26The appellant testified that around 5-6 p.m. on July 14, 2022 he left work and his BG prior to driving was 6.6 mmol/L. About 20-30 minutes into his drive he: felt “flushed” (his main symptom of hypoglycemia); pulled over; measured his BG which was 3.2 mmol/L; drank “Sunny D”; re-measured his BG 10-15 minutes later which was 4.6 mmol/L; drank another “Sunny D”; re-measured his BG 10-15 minutes later which was 7.0 mmol/L. He estimated that he was at the side of the road for about 30 minutes prior to resumption of his driving. The appellant stated that this was the only time since he was diagnosed with DM that he became hypoglycemic while driving.

27The appellant explained that his job is very physically straining (laying concrete foundations). He stated that he routinely monitors his BG during work hours, that his BG could be a bit low by lunch (3.9-4.8 mmol/L) and from time to time he would stop to consume something to raise his BG. The appellant estimated that his day/evening BG has been below 3.9 mmol/L only five to six times in the past year.

28At the hearing the appellant denied:

• hypoglycemia unawareness or uncontrolled DM;

• loss of consciousness, passing out, altered consciousness, confusion or feeling faint related to his DM at any time;

• “third-party” intervention (i.e., assistance by someone else to abort an episode of low BG) for his DM at any time;

• ever having a BG reading of 2.0 mmol/L;

• ever having a BG reading lower than 3.2 mmol/L;

• three episodes of hypoglycemia while driving in the month prior to his ER visit; or

• going to the ER on July 15, 2022 for hypoglycemia.

29The appellant testified that following the ER visit, he reduced his Toujeo insulin to 24 units/day as per Dr. S.’s instructions. However, after two weeks he increased his Toujeo to 26 units/day to gain better control of his DM. The stated that he had two recent visits to Dr. R.’s office where she reviewed his BG data from the app on his phone. He also stated that two weeks prior to the hearing he began a trial of a new make of CGM and that the BG data for those two weeks indicated that his BG was within target 98 per cent of the time.

30The appellant pointed to the two Exhibits which contained medical information from Dr. R. On the August 22, 2022 DA form, Dr. R. indicated that the appellant’s HbA1C is at target, he has good understanding regarding his sugars and DM management, and he denies episodes of hypoglycemia unawareness. On the September 8, 2022 DA form, Dr. R. also indicated that the appellant had not reported an episode of severe hypoglycemia requiring outside intervention in the past six months.

31I prefer the opinions of Dr. R. and the appellant, over that of Dr. S., that the appellant has neither had an episode of severe hypoglycemia requiring outside intervention in the past six months nor an episode of severe hypoglycemia producing an alteration in level of consciousness or loss of consciousness. Although I cannot explain the discrepancies between what is written on the ER record and the appellant’s testimony, the appellant’s testimony was consistent and unwavering. He candidly admitted to a single episode of hypoglycemia while driving on July 14, 2022. Based on my knowledge, I am of the opinion that the appellant acted quickly and appropriately to manage this situation. Furthermore, based on my knowledge and the CCMTA Standards, this single episode of hypoglycemia while driving as described by the appellant is not considered severe hypoglycemia. The appellant neither lost consciousness, had an altered level of consciousness, nor did he require intervention of a third-party to abort the episode. Moreover, as per the appellant, Dr. R. reviewed the appellant’s BG data on the appellant’s app on his two recent visits to her office and the ER staff did not do so on July 15, 2022.

32Based on a careful consideration of the above, I find on a balance of probabilities that the appellant does not 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?

33Having found, on a balance of probabilities, that the appellant does not suffer from severe hypoglycemia, I do not need to determine if such condition is likely to significantly interfere with the appellant’s ability to drive a vehicle safely.

34Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence.

F. ORDER:

35For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside 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”.