Licence Appeal Tribunal File Number: 14633/MED

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

Between:

Jeremy Preston

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dr. Peter Savage, Member Rupinder Hans, Member

APPEARANCES:

For the Appellant:

Jeremy Preston, Appellant

For the Respondent:

Ian Sookram, Representative

HEARD: April 14, 2023

OVERVIEW

1Jeremy Preston (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend his Class G driver’s licence for medical reasons, specifically severe hypoglycemia, under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The Registrar has the authority under s.47(1)(g) of the Act to suspend or cancel a driver’s licence. One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the Act is if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

3The Registrar takes the position that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

4The appellant agrees that he suffers from severe hypoglycemia but denies that it interferes with his ability to drive safely and asks the Tribunal to set aside the Registrar’s decision to suspend his driver’s licence.

5Having considered all the evidence and for the reasons that follow, we set aside the decision 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 his ability to drive a motor vehicle safely.

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

i. Does the appellant suffer from a medical condition, namely severe hypoglycemia?

ii. If the appellant does suffer from severe hypoglycemia, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

RESULT

8We find the appellant does suffer from severe hypoglycemia but that it will not significantly interfere with his ability to drive a motor vehicle safely. We set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from severe hypoglycemia

9The evidence satisfies us that the appellant suffers from severe hypoglycemia. There is no dispute between the parties in this regard and both agree that the appellant suffers from severe hypoglycemia.

10We further note the medical evidence presented at the hearing also supports the conclusion including the Medical Condition Report (“MCR”), dated December 7, 2022, completed by Emergency Room physician Puja Chopra, at Trillium Health Partners Mississauga Site Emergency. The MCR states the appellant suffers from hypoglycemia requiring intervention of third party or producing loss of consciousness.

11Given the evidence before us, and the position of the parties, we find on a balance of probabilities that the appellant suffers from severe hypoglycemia.

The appellant’s severe hypoglycemia is not likely to significantly interfere with his ability to drive a vehicle safely

12The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s severe hypoglycemia is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find that the Registrar has not met its burden.

13The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) which provide that drivers suffering from an episode of severe hypoglycemia may be eligible for a licence if 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 conditions for maintaining a licence are met.

14Pursuant to s. 14(2)(a) of O. Reg. 340/94, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. We agree that uncontrolled bouts of severe hypoglycemia present a real risk to safe driving and we respect the CCMTA recommendations. However, while the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

15The appellant argues that the CCMTA Standards allow for a suspension of less than six months if certain conditions are met and he feels those conditions have been met. We agree with the appellant’s position.

16The CCMTA Standards state, and we accept, that severe hypoglycemia can occur for a number of reasons including reduced food intake, unusual level of physical exertion, and alteration of insulin dose.

17On December 6, 2022, the appellant experienced a hypoglycemia episode and loss of consciousness after he left his hockey game at 10 p.m. and drove his vehicle without checking his sugar level. The Motor Vehicle Collision Report dated December 6, 2022 states that his vehicle rear ended another vehicle before striking a concrete barrier and entering a ditch. He was taken to the hospital and the emergency room physician completed the MCR in accordance with section 203 of the Act.

18The appellant testified that, after the hockey game, he did not perform his typical blood sugar monitoring (finger pricking). He testified that he takes full responsibility for his mistake in not testing his sugar before he drove his car after the hockey game. He testified that he is profoundly sorry and will never let it happen again. The appellant testified that this was his only episode of severe hypoglycemia since his diagnosis about 9 years ago. He believes the accident was a one-off situation and not the norm for him.

19The Tribunal finds that the appellant took rapid and decisive steps to rectify the situation that led to his licence suspension. As for remedial and preventative measures, the appellant testified that he has put together a team of specialists including an endocrinologist, a dietician, diabetic nurses and his family doctor to monitor his medical condition and prevent another episode. His specialist, Dr. Amish Parikh, provided a supporting letter dated April 5, 2023 stating that he feels the appellant is fit to drive and supports the reinstatement of his licence. Dr. Parikh states that the appellant is working closely with the team at the diabetes management centre at Trillium Health Partners to improve his glycemic control. He states that the appellant’s glycemic control is stable and he is wearing a continuous glucose monitor.

20The appellant testified that after experiencing the hypoglycemia episode on December 6, 2022, he obtained a specialized blood sugar monitoring system, Dexcom System, and has learnt how to use it. A sensor is connected to him and advises him of his blood sugar level on his phone and also on a provided Dexcom device/unit. An alarm notifies him if his sugar level is too high or too low. He is able to check his blood sugar at any time, and routinely checks his Dexcom sensor about 15 to 20 times a day. He testified that before he drives, he checks his blood sugar to make sure it is at least at a 5 mmol/L. He testified that he needs to keep his phone or the provided transmitter about 6 feet from him to ensure an accurate reading.

21The appellant has taken steps to make the system fail safe with a backup device and extra chargers for his phone. The appellant testified that he has another transmitter device connected via Bluetooth that is his backup in case his phone runs out of battery or if he forgets it at home. He carries the small device with him. He testified that he is very responsible in keeping his phone with him as it provides good control of his blood sugar levels. During his workday, he carries his phone on him throughout the day, allowing him to check his blood sugar at any time. His workplace has made an exception to allow him to carry his phone during work hours. He has increased the sound level for his alarm so that it notifies him and he can hear the alarm. He testified that when the alarm rings he takes a break to eat granola bars. He carries three granola bars on him at all times so food is readily accessible. The bars are 30 grams of carbs each. He also keeps Dexcom sugar tablets in his car.

22The appellant testified that during his typical day he wakes up and checks his blood sugar level on his phone then eats breakfast. He checks his blood sugar before leaving for work and when he reaches his workplace. He also checks after leaving work and before bed. He finds the Dexcom System is very convenient and makes it easy to stay aware of changes in his blood sugar.

23The appellant testified that he was initially paying out of pocket for the Dexcom System and then he became part of the government sponsored program which gives him support for 2 years. He says his future plans are to continue with the monitoring system or something better as it is a very reliable system. He testified that he is committed to staying aware of his blood sugar level as he does not want a repeat of his past accident.

24The appellant testified that since the accident, he carries more granola bars with him and he ensures the Dexcom System is on him at all times. He goes to the gym three times a week and believes he is an active person. He testified that he knows that physical activity can bring down his sugar level. He also realizes that if he drinks alcohol his blood sugar is affected with an initial rise, followed by a drop and he is careful to monitor himself on occasions when he drinks alcohol. He drinks alcohol once a month and drinks mainly beer.

25The appellant testified that a dietician assists him in monitoring his insulin doses and he monitors how much activity he is doing so he can regulate. On a daily basis, he monitors and adjusts his insulin. He also touches base with his treating doctors and specialists on a monthly basis and they decide whether to adjust his dose. He continues to regularly visit his supporting nurses to monitor his blood sugar logs, insulin amounts, A1C reports, and Dexcom data.

26The Tribunal found the appellant to be forthright and credible. The Tribunal further notes that it has been about four months since his last episode and the appellant has clearly taken decisive steps to ensure that he is continuously monitoring his sugar level and has a supportive medical team to assist him. He understands and has embraced the new monitoring system and has ensured that he has access to the technology in his home, gym and workplace. He is continuously testing his sugar level. His blood work and follow up tests including HgA1C and blood glucose have been provided and show good control of his diabetes with no evidence of hypoglycemia. He also has alarm settings that will alert him if his blood sugar level gets too low. The Tribunal believes that the appellant has a strong understanding of his medical condition and has put together a well thought out and comprehensive plan to ensure ongoing control of his blood sugar level. He has also demonstrated his commitment to testing himself prior to driving a vehicle. The Tribunal also found persuasive the positive recommendations of Dr. Parikh.

27Given the above, and after careful consideration, we find the Registrar has not established that the appellant’s severe hypoglycemia is likely to significantly interfere with his ability to drive safely.

ORDER

28For the reasons set out above, pursuant to section 50(2) of the Act, we find the appellant does suffer from severe hypoglycemia but that it will not significantly interfere with his ability to drive a motor vehicle safely. We set aside the Registrar’s decision to suspend the appellant’s driver’s licence.