Licence Appeal Tribunal File Number: 14681/MED

In the matter of an 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 licence pursuant to Section 47(1) of the Act

Between:

Adrian Lachowski

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Katie Awad, M.D., Adjudicator

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Did not attend October 18, 2023

For the Respondent:

Stephen Grootenboer, Representative

HEARD: September 6 and October 18, 2023

OVERVIEW

1Adrian Lachowski (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “respondent”) to suspend his Class G 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 physician that the appellant suffers from hypoglycemia.

2Section 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 physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class. Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely hypoglycemia, that is likely to significantly interfere with his ability to drive safely.

4The appellant appeals the suspension under s. 50(1) of the Act. The appellant states in his Notice of Appeal that he was diagnosed with diabetic keto acidosis, not hypoglycemia.

5The hearing commenced on September 6, 2023 but was adjourned to allow the appellant more time to submit medical information about his alleged medical condition.

PRELIMINARY ISSUE: Appellant did not attend the hearing on October 18, 2023

6On October 18, 2023 when the hearing resumed, the appellant did not attend the hearing despite having been given notice of the hearing by the Tribunal. We waited 30 minutes for him to attend the hearing.

7The appellant had not submitted any further medical information to the Tribunal for the hearing on October 18, 2023, despite having been granted a previous adjournment for the purpose of doing so and despite informing the Tribunal that he had an appointment with his physician scheduled for the beginning of October 2023. The appellant had not contacted the Tribunal indicating that he could not attend the hearing on October 18, 2023 or asking for a further adjournment.

8During the 30 minutes that we waited for the appellant to attend the hearing, Tribunal staff contacted the appellant’s telephone and left him a voice mail message and sent him an email asking him to attend the hearing by telephone. Tribunal staff also confirmed that notice of the hearing had been given to the appellant and also a reminder sent October 16, 2023.

9After 30 minutes had passed and the appellant failed to attend the hearing on October 18, 2023, we asked for submissions from the respondent.

10The respondent submitted that the Tribunal should dismiss the appellant’s appeal but also acknowledged that the respondent was prepared to proceed with the hearing if the Tribunal should so rule.

11After considering the submissions of the respondent, we ruled that the hearing should proceed in the absence of the appellant given that the respondent has the burden to prove that the appellant’s driver’s licence should remain suspended due to his alleged medical condition.

12As a result, we proceeded with the hearing in the absence of the appellant.

ISSUES

13The issue in dispute is whether the appellant suffers from a medical condition, namely hypoglycemia, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

14Resolution of that issue requires us to address the following questions:

i. Does the appellant suffer from hypoglycemia?

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

RESULT

15For the reasons set out below, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from hypoglycemia

16We find that the appellant suffers from hypoglycemia.

17The evidence presented at the hearing supports the respondent’s position that the appellant suffers from a medical condition, namely hypoglycemia.

18The respondent’s position is supported by Dr. Carter’s April 1, 2021 medical report. Dr. Carter is an emergency room physician at a hospital where the appellant was examined on April 1, 2021. Dr. Carter diagnosed the appellant with hypoglycemia requiring intervention of a third party or producing loss of consciousness.

19The appellant in his Notice of Appeal denies that he suffers from hypoglycemia and submits that he was diagnosed with diabetic keto acidosis, not hypoglycemia. This is at odds with Dr. Carter’s report and the appellant did not submit any medical information at all, including any medical which supports his Notice of Appeal.

20The appellant failed to attend the hearing on October 18, 2023 and submitted no evidence in support of his appeal for the hearing.

21As a result, we find that the Registrar has established on a balance of probabilities that the appellant suffers from a medical condition, namely hypoglycemia based on the only medical evidence before us, Dr. Carter’s report.

The appellant’s medical condition is likely to significantly interfere with his ability to drive safely

22We find that the appellant’s medical condition, specifically hypoglycemia is likely to significantly interfere with his ability to drive safely.

23The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA”) and argues that the licence suspension should be confirmed by the Tribunal. Section 14(2)(a) of the Regulation allows the respondent to consider the CCMTA when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA into consideration, although they are not binding on us. The Registrar relies on chapter 7.6.4.

24Chapter 7.6.4 of the CCMTA recommends that a non-commercial driver who has had an episode of severe hypoglycemia be considered eligible for a driver’s licence if there have been no further episodes of sever hypoglycemia within the past 6 months, earlier if an appropriate specialist indicates that glycemic control

has been re-established, and conditions for maintaining a licence are met. Conditions for maintaining licence include blood glucose testing, not driving for at least 40 minutes after successful treatment of hypoglycemia and blood glucose has increased to at least 5.0 mmol/L, and notifying their health-care provider as soon as possible.

25The CCMTA explains that the neuroglycopenic symptoms associated with sever hypoglycemia can significantly impair the sensory, motor and cognitive functions required for driving.

26Although we are not bound by the CCMTA, we find them to be reasonable and we are persuaded in this case that we should follow the CCMTA because the considerations set out are important to ensure that drivers do not present a safety risk to themselves or others while driving.

27Again, Dr. Carter’s report is the only medical evidence before us at this hearing. In our view, re-licencing at this time is not appropriate because the appellant likely presents a safety risk to themselves or others while driving.

28The Registrar’s position that the appellant’s hypoglycemia makes him unsafe to drive is supported by Dr. Carter’s diagnosis and the CCMTA.

29We find on the basis of the medical evidence provided that the Registrar has met the burden of proof in this case.

Conclusion

30We find that the appellant suffers from a medical condition, namely hypoglycemia, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

31For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: November 24, 2023

__________________________

Dr. Katie Awad

Adjudicator

__________________________

Avril A. Farlam

Vice-Chair