Licence Appeal Tribunal File Number: 15301/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:

Christopher Lechner

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Christopher Lechner, Self-Represented

For the Respondent:

Stephen Grootenboer, Representative

HEARD by teleconference: December 5, 2023

OVERVIEW

1Christopher Lechner (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar” or the “respondent”) to suspend their Class AC licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a police report indicating that on August 17, 2023, the appellant was involved in a motor vehicle accident (“MVA”) and that the appellant’s driving ability is likely compromised due to a medical episode.

2The Registrar 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 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. 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 2 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.

ISSUES

6The 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.

7To resolve that issue, I will address the following questions:

i. Is the appellant a person living with type 2 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?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Is the appellant a person living with type 2 diabetes and who suffered an episode of severe hypoglycemia?

10I find that the Registrar has proven on a balance of probabilities that the appellant is a person living with type 2 diabetes and who suffered an episode of severe hypoglycemia.

11The Registrar’s position is supported by reports completed by the appellant’s long-standing family physician, Dr. T.

12In a September 19, 2023 Medical Report, Dr. T. indicated that the appellant: has type 2 diabetes treated with oral medication and a once-daily injection of a long-acting insulin; had one episode of hypoglycemia [low blood glucose (“BG”)]; had an episode of decrease in cognition; and rarely has hypoglycemia. In a November 19, 2023 completed diabetes assessment form, Dr. T. indicated that the appellant: had one or more episodes of hypoglycemia unawareness in the past three months and had a reported episode of severe hypoglycemia requiring outside intervention in the past six months. Furthermore, in a November 19, 2023 narrative letter, Dr. T. indicated that they had reviewed the police and EMS reports from the August 17, 2023 event, and the appellant had an episode of low BG while driving that day, meeting the criteria for severe hypoglycemia.

13The appellant does not deny that they have been living with type 2 diabetes since 2012 and currently use both an oral agent and insulin for the treatment of their diabetes. The appellant accepts that on August 17, 2023 they suffered an episode of severe hypoglycemia while driving.

14Although 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”. I am satisfied that the appellant suffered an episode on August 17, 2023, which satisfies the CCMTA Standards’ definition of severe hypoglycemia.

15I find that the Registrar has established on a balance of probabilities that the appellant is a person living with type 2 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?

16I find that Registrar has 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.

17The Registrar’s representative argues that an episode of severe hypoglycemia, with an accompanying decrease in cognition, can and will interfere with the safe operation of a motor vehicle and presents a safety risk to other road users.

18The Registrar’s representative highlighted portions of police officer P.’s report including: the appellant was involved in a single MVA; witnesses stated they observed the driver swerving, running red lights and unable to control the vehicle; the driver drove off the roadway, hit a wooden sign and crashed the vehicle into the bushes; upon police interaction the driver was exhibiting signs of impairment but later learned that they suffered from a diabetic episode.

19The Registrar relies on the CCMTA Standards, in particular Chapter 7.6.7 (Episode of severe hypoglycemia – Commercial drivers). Chapter 7.6.7 provides that commercial driver’s, such as the appellant who holds a Class AC driver’s licence, 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.

20The respondent’s representative acknowledged that Chapter 7.6.7 of the CCMTA Standards allows for the consideration of earlier re-licencing, but emphasized that the appellant’s episode occurred just over three months ago, occurred while driving and resulted in a MVA.

21The appellant acknowledged that their diabetes played a part in the episode that led to the MVA but argues that their diabetes does not interfere with the safe operation of a motor vehicle.

22The appellant advised that on August 17, 2023 they: drove to work, stopped enroute for a breakfast sandwich, did not eat lunch; ate a chocolate bar during the work day; were fatigued from strenuous work by the end of the work day; did not have their glucometer with them to check their BG prior to driving home; did not feel any of their hypoglycemic symptoms (i.e., perspiration or tremors) which they may have when their BG is between 4-5 mmol/L; did not think their BG was low; estimated their BG to be in the 5 mmol/L range; decided to drive home at around 5 pm (approximately a one hour drive); do not recollect feeling any symptoms of hypoglycemia while driving; drifted into the shoulder of the road which pulled their car into the ditch about 20 minutes (or 30% of the way) into their drive home; struck a small wooden sign post as they went off the road and no other vehicles were involved; were uninjured; told a police officer within 30 seconds of meeting them that they thought their diabetes was an issue; were placed in handcuffs by police within the first 4 minutes of their arrival; and could not treat their diabetes (i.e., with a quick acting glucose product) because they were restrained. However, when questioned, the appellant acknowledged that they did not have any quick acting glucose product (e.g., tablets, fruit juice, etc.) within arms’ reach in their car and had no explanation for the absence of it in their vehicle.

23When questioned about hypoglycemia awareness/unawareness on August 17, 2023, the appellant testified that they: know the cycles of their BG; had no realization/symptoms of hypoglycemia prior to or while driving; and did not think there was the need to pull over to the side of the road prior to the MVA. Initially, the appellant denied having hypoglycemia unawareness, but later during the hearing ‘conceded’ that they were unaware prior to the MVA that their BG was low. Although the appellant did not submit as evidence the complete police and EMS report they obtained through freedom of information, they indicated that their BG was 2.9 mmol/L when measured by the EMS who were at the police station. As a licenced and duly qualified physician in the province of Ontario, I am aware that a BG level below 3.9 is considered hypoglycemia. I take notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The appellant stated that they were given granola bars and juice/beverages to increase their BG at the police station and they were not taken to hospital.

24The appellant indicated that they do not accept police officer P.’s witnesses’ reports as being valid. The appellant testified that: they do not run red lights; they do not think that they would run red lights even if/when suffering from severe hypoglycemia; they are/have been unable to question the witnesses; perhaps the witnesses observed another car, similar to their car, doing these things; and there is no video evidence.

25I acknowledge that police officer P.’s evidence is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence of police officer P. They were acting under their duty as an officer and would have taken contemporaneous notes of their observations and interactions with the witnesses, appellant and EMS. I find on a balance of probabilities, that prior to the MVA the appellant was witnessed swerving, running red lights and unable to control their vehicle. I also find, on a balance of probabilities, that the appellant does not recall these events secondary to the neuroglycopenic symptoms of their hypoglycemia at that time, or as Dr. T. indicated as a decreased cognition at that time. I know that neuroglycopenic symptoms of hypoglycemia are the direct result of impaired brain function due to low BG levels and can include confusion, sensation of warmth, weakness or fatigue, severe cognitive failure, seizure and coma. The CCMTA Standards make reference to both the autonomic (e.g., perspiration, tremors) and neuroglycopenic symptoms of hypoglycemia.

26The appellant argues that Dr. T. told them that they were fit to drive and they emphasized that the contents of Dr. T.’s November 2023 narrative letter fulfill the criterion for consideration of earlier re-licensing. The appellant emphasized that Dr. T. wrote: the episode was unprecedented; the circumstances related to the incident have been corrected to the point of being confident they will not repeat; the appellant has absolute understanding of their condition which they are well able to manage; their glycemic control is excellent; they adhere to their treatment plan rigorously; and the doctor has corrected the appellant’s driver’s licence application accordingly.

27The appellant also shared their plan going forward, including; having a second glucometer which would be in their car; checking their BG prior to driving all the time; ensuring that their BG is greater than 5 mmol/L prior to driving; ensuring that there is a readily available source of carbohydrates in their car at all times; and if their work is strenuous, they will take more breaks and consume more/appropriate food.

28Although I am not bound by the CCMTA Standards, I find them to be reasonable.

29Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

30Chapter 6 of the CCMTA Standards (Making a driver fitness determination) indicates that a risk analysis of all relevant sources of information should be considered, including, but not limited to: whether the impairment is persistent or episodic; the function that is impaired; and individual characteristics and abilities of each driver (e.g., commercial or non-commercial driver; whether the driver can compensate for any impairment; whether the driver has insight into the impact that their medical condition may have on driving; the driving record, etc.).

31Chapter 7 of the CCMTA Standards describes the effect of severe hypoglycemia on the functional ability to drive. As in the circumstances of this case, the neuroglycopenic symptoms associated with severe hypoglycemia can significantly impair the sensory, motor and cognitive functions required for driving, leading to an episodic, sudden incapacitation and, as such, compensation does not apply.

32I agree with the parties that Chapter 7.6.7 of the CCMTA Standards allows for the consideration of earlier re-licensing and I acknowledge that the appellant fulfills the criterion set out in Chapter 7.6.7 of the CCMTA Standards for consideration of earlier re-licensing. Dr. T. has indicated that the appellant’s glycemic control has been re-established and I take note of the fact that there have been no changes to the appellant’s diabetic medications, including insulin, since the episode. I also acknowledge that the appellant has a plan going forward to mitigate the risk of future episodes of severe hypoglycemia. However, as described below, despite the optimism, I find there should be a longer waiting period as set out in the CCMTA Standards.

33I acknowledge that Dr. T., in their November 2023 letter, indicates that the appellant has absolute understanding of their condition which they are well able to manage. However, I disagree. On August 17, 2023, the appellant did not, on a balance of probabilities, manage their diabetes well. As described above, the appellant admits to some of their mistakes or judgement errors on that day with respect to their diabetes management, which, on a balance of probabilities, led to the episode of severe hypoglycemia while driving.

34Furthermore, based on the evidence before me, I find on a balance of probabilities that the appellant currently lacks sufficient insight into or sufficient acceptance of the role that their hypoglycemia unawareness and severe hypoglycemia played in causing the MVA in August 2023. At the start of the hearing, the appellant denied they suffered from either hypoglycemia unawareness or severe hypoglycemia on August 17, 2023. Only later during the hearing, following questioning, did the appellant ‘concede’ that both of these events occurred.

35Moreover, I find on a balance of probabilities, that the appellant does not have sufficient insight into the impact that their medical condition may have on driving. In addition to not accepting the police witness statements as valid, the appellant argued that their driving was not relevant to the discussion. They emphasized that: their MVA was a minor accident, not a severe accident; many motorists have minor MVAs; no other vehicles were involved; they were not injured; their car had minor damage; and they are a safe driver with a clean driver’s abstract. I disagree. I find on a balance of probabilities that deceased cognition or losing awareness while driving, swerving, running red lights, being unable to control a vehicle and driving off the roadway is not a ‘minor’ incident. It is a very serious incident and it is only through good fortune that on August 17, 2023, no one was hurt.

36After careful consideration of all the evidence before me and based on the risk analysis outlined above, I accept the respondent’s submission that further time and medical information should be submitted is reasonable keeping in mind public road safety.

37I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

38I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant is a person living with a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

39For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.