Licence Appeal Tribunal File Number: 15318/MED

In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.

Between:

Caitlin Rodgerson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

Caitlin Rodgerson, Self-Represented

For the Respondent:

Sharon Nelson, Representative

Stephen Grootenboer, Representative

HEARD by teleconference: November 16, 2023

OVERVIEW

1Caitlin Rodgerson (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend their Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating healthcare provider that the appellant suffers from a medical condition that may affect their safety to drive.

2The Registrar (the “respondent”) has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states that a holder of a driver’s licence must not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely. Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.

3The Registrar takes the position that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They acknowledge that they are a person living with type 1 diabetes but deny that they suffer from a medical condition which interferes with their ability to drive safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

procedural fairness ISSUE DETERMINED during the course of the hearing

6During the course of the hearing, it became apparent that the Registrar intended to rely on a second reported condition, namely hypoglycemia unawareness and its corresponding CCMTA Standard, to support their position to maintain the suspension of the appellant’s driver’s licence. The respondent’s representatives stated that on the September 26, 2023 completed diabetes assessment form, Dr. B., the appellant’s long-standing family physician, indicated that the appellant had experience an episode of hypoglycemia unawareness in the past three months and the appellant had a reported episode of severe hypoglycemia requiring outside intervention in the past six months. The respondent’s representatives further indicated that the two conditions (i.e., severe hypoglycemia and hypoglycemia unawareness) go hand-in-hand, with the appellant’s hypoglycemia unawareness leading to their severe hypoglycemia; and the two conditions referred to the same medical event, that being on September 9, 2023.

7I also took note of the facts that:

• in the Registrar’s written submissions, including the Ministry’s letters dated: September 15, 2023 (original suspension letter); October 6, 2023 (following the review of Dr. B.’s completed diabetes assessment form); and November 9, 2023 (following the case conference on November 2, 2023), there was no mention of a second condition of concern. The Ministry’s only reported condition in their written submissions was severe hypoglycemia;

• the case conference report and order refers to only one condition of concern, that being severe hypoglycemia;

• on November 11, 2023, the appellant exchanged new medical information to be relied on for the hearing in accordance with the terms set out in the case conference report and order;

• when marking the Exhibits, I confirmed with the respondent’s representatives that there were no additional written submissions from the Registrar; and

• the CCMTA Standard with respect to hypoglycemia unawareness was contained in the respondent’s written submissions.

8The respondent’s representatives were unable to answer why the Registrar’s written submission made no mention of the second condition (hypoglycemia unawareness). However, they stated that they were relying on this second condition, its corresponding CCMTA Standard and the fact that this CCMTA Standard was stricter than the CCMTA Standard corresponding to severe hypoglycemia, specifically that the CCMTA Standard for hypoglycemia unawareness does not provide consideration for early re-instatement of a driver’s licence.

9After a careful consideration of the above, I find that allowing the Registrar to add the allegation that the appellant suffers from hypoglycemia unawareness to its grounds for maintaining the suspension of the appellant’s licence would be procedurally unfair for the following reasons:

• an appellant has the right to know the case against them. The appellant received no notice from the Registrar that there was a new or second condition of concern and did not have a reasonable opportunity to present evidence and arguments in response to the allegation;

• the duty to provide proper notice is ongoing. A party whose rights or interest are at stake must be told of any relevant issue that arises prior to and during the course of a hearing in order to participate meaningfully in the process and that did not occur in this case; and

• the Registrar will not suffer significant prejudice if the allegation is not added. The Registrar may, if it wishes, decide to suspend the appellant's licence on the basis of hypoglycemia unawareness in the future. Doing so would achieve the Registrar's mandate of ensuring that the appellant does not drive when it is not safe for them to do so and would provide the appellant with the appropriate notice of the Registrar's reasons so that they can respond adequately to the allegation.

10Based on the above, I will not consider the allegation that the appellant suffers from hypoglycemia unawareness in determining whether the Registrar has proven that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ISSUES

11The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

12To resolve that issue, I will address the following questions:

i. Is the appellant a person living with type 1 diabetes and who suffered an episode of severe hypoglycemia?

ii. If so, is this medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

13The respondent bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes”.

RESULT

14Having considered all the applicable evidence and submissions and for the reasons that follow, I find that the appellant is a person living with type 1 diabetes but they do not suffer from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and I set aside the Registrar’s decision to suspend their driver’s licence for medical reasons.

ANALYSIS

Is the appellant a person living with type 1 diabetes and who suffered an episode of severe hypoglycemia?

15I find that the Registrar has proven on a balance of probabilities that the appellant is a person living with type 1 diabetes and who suffered an episode of severe hypoglycemia.

16The Registrar’s position is supported by reports completed by Drs. M. and B.

17In the September 9, 2023 unsolicited Medical Condition Report, emergency room physician, Dr. M., indicated that the appellant suffered from sudden incapacitation due to hypoglycemia requiring intervention of a third party or producing loss of consciousness.

18In the completed diabetes assessment form, dated September 26, 2023, Dr. B. indicated that the appellant: has type 1 diabetes which is treated with insulin; experienced episode(s) of hypoglycemia unawareness in the past three months; and had a reported episode of severe hypoglycemia requiring outside intervention in the past six months.

19The appellant does not deny that they: have been living with type 1 diabetes for 12 years; treat their diabetes with insulin, an insulin pump and a continuous glucose monitor (“CGM”); and suffered an episode of severe hypoglycemia while sleeping at around 11:00 a.m. on September 9, 2023. The appellant explained the events which included: they had woken up at 9:30 a.m. with no symptoms of hypoglycemia [low blood glucose (low “BG”)]; they went back to sleep; a friend checked on them around 11:00 a.m. and noticed their reduced level of consciousness; the friend gave them intranasal glucagon; the EMS were called; they were given glucose by the EMS because their BG level was still a bit low; and they were taken to hospital by the EMS. The appellant is not aware what their BG level was when taken by the EMS.

20Although the CCMTA Standards are not binding on the Tribunal, they 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 talking appropriate action”.

21I find that the Registrar has established on a balance of probabilities that the appellant is a person living with type 1 diabetes who suffered an episode of severe hypoglycemia.

Is the appellant’s medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

22I find that Registrar has not proven on a balance of probabilities that the appellant has a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

23In response to Dr. M.’s Medical Condition Report, the Ministry sent the appellant a letter dated September 15, 2023, advising that the appellant’s driving privilege had been suspended for the reported condition of severe hypoglycemia. This letter also advised that when the appellant’s condition improved, they should have their treating physician complete a diabetes assessment form.

24In the September 26, 2023 completed diabetes assessment form, Dr. B. indicated that: the appellant has no chronic complications of diabetes; they demonstrate good knowledge of their condition and its management; that monitoring and assessment indicate effective BG control; A1C results are consistent with the appellant’s BG logs; and the appellant has regained adequate glycemic control.

25In the Ministry’s October 6, 2023 and November 9, 2023 letters to the appellant, they indicated that in order to consider re-instatement of the appellant’s driver’s licence they require: confirmation that the appellant has not experienced any severe hypoglycemic reactions and that their condition has remained stable for a period of six months since the episode of severe hypoglycemia on September 9, 2023; that a recently conducted A1C result must also be provided with confirmation that the level is congruent with their BG logs; and confirmation that stable glycemic control has been re-established.

26As previously stated, on November 11, 2023, prior to the hearing and in compliance with the case conference report and order, the appellant submitted additional documents they wished to rely on for the hearing, including: two narrative letters from treating healthcare professionals, additional laboratory data and CGM/pump data. The Registrar did not provide any written letter or written response to this new information prior to the hearing.

27The respondent’s representative initially argued that a sudden loss of consciousness from severe hypoglycemia can and will interfere with a driver’s ability to safely operate a vehicle and presents a safety risk to other road users.

28The Registrar relies on the CCMTA Standards, in particular Chapter 7.6.4 (Episode of severe hypoglycemia – Non-commercial drivers). Chapter 7.6.4 provides that non-commercial drivers suffering from severe hypoglycemia may be eligible for a licence:

• if there have been no further episodes of severe hypoglycemia within the past six months;

• earlier re-licensing can be considered if an appropriate specialist indicates that glycemic control has been re-established; and

• if the conditions for maintaining a licence are met.

29The respondent’s representatives acknowledged that the CCMTA Standards for severe hypoglycemia allow for the consideration of earlier re-licencing if medical information indicates that glycemic control has been re-establish. However, they emphasized that it had only been two months since the appellant’s episode of severe hypoglycemia and that this is insufficient time to determine whether glycemic control has been re-established.

30The respondent’s representatives stated that the Driver Medical Review department had accepted the appellant’s November 11, 2023 submissions as being favourable for earlier re-licencing.

31The appellant argues that their diabetes is well-controlled and properly managed, their A1C levels are in an appropriate range and that all persons living with type 1 diabetes have or experience high and low BG levels.

32The appellant advised that when they left to visit a friend’s cottage on September 8, 2023, they had inadvertently left the transmitter part of their CGM sensor charging at home. They testified that this had never happened before. The appellant further stated that they put their insulin pump on “day off basal” or “temporary basal” [mode(s) in which the appellant gets less basal insulin during the day and night], continued to treat and monitor their BG by finger prick readings, and prior to going to sleep their BG was fine. As previously stated, at 9:30 a.m. on September 9, 2023, when the appellant initially woke up, they had no symptoms of hypoglycemia. The appellant stated that their BG must have decreased rapidly between 9:30 a.m. and 11:00 a.m.

33When questioned about their diabetes management and driving, the appellant answered questions appropriately and candidly acknowledged that at least 95% of the time they check their BG level before driving. The November 6, 2023 narrative letter from Nurse M., a certified diabetes educator at the clinic the appellant attends for her diabetes, states, the appellant “is extremely cognizant of safety guidelines living with type 1 diabetes”.

34While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

35Although I am not bound by the CCMTA Standards, I find them to be reasonable. The CCMTA Standards state that severe hypoglycemia causes an episodic impairment of the functions necessary for driving for which a driver cannot compensate. Although research has established clear links between diabetes, hypoglycemia and motor vehicle crashes, decisions about 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 diabetes.

36The appellant candidly admitted that in their 12 years living with type 1 diabetes, they had one other episode of severe hypoglycemia, that being approximately one and one-half years ago. In that instance, as the appellant’s BG level responded more quickly to intervention and they did not attend hospital following the event.

37The appellant testified that they: have hypoglycemia awareness at all times while awake; have hypoglycemia awareness most of the time while sleeping; regained hypoglycemia awareness on September 9, 2023 within 40 minutes of the episode; and have had no instances of hypoglycemia unawareness since this time. I also take note from the appellant’s CGM/pump data in evidence and their testimony, that on November 4, 2023: they had BG in the hypoglycemic range starting at around 4 a.m.; they woke up; and they appropriately drank juice boxes until the hypoglycemia resolved. Furthermore, the appellant testified that this CGM/pump data was discussed with Nurse M. at their appointment on November 6, 2023, that neither Nurse M. nor the appellant could determine a reason or cause and that Nurse M. indicated no adjustment in insulin pump settings was required.

38The rationale behind Chapter 7.6.4 of the CCMTA Standards states that severe hypoglycemia indicates a lack of glycemic control and the potential for further hypoglycemic episodes.

39I find that in the circumstances of this case, the evidence does not point to a lack of glycemic control being the main cause of the appellant’s episode of severe hypoglycemia on September 9, 2023. Dr. M., in the Medical Condition Report, wrote, “Patient normally wears CGM and insulin pump. Patient forgot monitor sensor thus leading to episode”. Dr. B. in their November 1, 2023 narrative letter wrote, “I do believe that had she had her monitor with her, this episode would not have happened”. In addition, the appellant’s CGM/pump data for the 30-day period of March 15, 2023-April 13, 2023 shows good glycemic control. Moreover, as previously stated, no treating healthcare provider has recommended a change to any of the appellant’s insulin pump settings since the episode.

40I agree with the respondent that it has been a little more than two months since the appellant’s episode of severe hypoglycemia.

41However, the evidence indicates that the appellant has fulfilled the criterion for earlier re-licensing according to Chapter 7.6.4 of the CCMTA Standards. As previously stated, in the completed diabetes assessment form, Dr. B. indicated that monitoring and assessment indicate effective BG control and that glycemic control has been re-established. This is re-confirmed in Dr. B.’s November 1, 2023 narrative letter which reads, “Her blood sugar has been well controlled since this episode”. Furthermore, I note that the appellant has submitted two A1C levels since the episode, both of which are in an appropriate range.

42Based on the totality of the above, I do not accept the respondent’s representatives’ submission that further time and medical information should be submitted in order to ensure public road safety.

43I am satisfied on a balance of probabilities that the appellant’s medical condition is not likely to significantly interfere with their ability to drive safely.

Conclusion

44I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

45For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.