Kyle Chusroskie v. Registrar of Motor Vehicles, 2023 CanLII 87414

Licence Appeal Tribunal File Number: 15142/MED

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:

Kyle Chusroskie Appellant

and

Registrar of Motor Vehicles Registrar

DECISION AND ORDER

ADJUDICATORS: Dr. Peter Savage, Member Jeffery Campbell, Vice-Chair

APPEARANCES: For the Appellant: Kyle Chusroskie, Appellant For the Registrar: Ian Sookram, Agent

Held by teleconference: September 13, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Kyle Chusroskie (the “Appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar””) to suspend his Class GM2 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 physician that the Appellant suffers from a medical condition, namely seizure and severe hypoglycemia, which makes it unsafe for him to drive.

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 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 Appellant appeals the suspension under s. 50(1) of the Act.

4Pursuant 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

5The 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.

6To resolve that issue, we will address the following questions:

1. Does the Appellant suffer from medical condition, namely Severe Hypoglycemia?
2. If the Appellant does suffer from the above condition, is that condition likely to significantly interfere with his ability to drive a motor vehicle safely?

RESULT

7For the reasons set out below, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the Appellant’s driver’s licence.

ANALYSIS

The Appellant Suffers from Severe Hypoglycemia

8We find that the Appellant does suffer from severe hypoglycemia.

9The evidence presented at the hearing establishes that the Appellant suffers from a medical condition, namely, severe hypoglycemia.

10In his Notice of Appeal, the Appellant does not deny that he suffers from severe hypoglycemia.

11In support of its allegation that the Appellant suffers from severe hypoglycemia, the Registrar relies on the medical condition report (MCR) dated March 8, 2023 in which his family doctor, Dr. Richard Nishikawa advised that the Appellant suffers from “severe hypoglycemia episode with witnessed seizure”. In the MCR, Dr. Nishikawa advised that the “Episode recognized as perfect storm of too much activity, not enough nutrition and too much insulin. He had the episode while sleeping, he was not driving at the time”.

12Based on the evidence, we conclude that the Appellant suffers from severe hypoglycemia.

The Appellant’s Severe Hypoglycemia will not Interfere with his Ability to Drive a Motor Vehicle Safely

13We find that Appellant’s condition of severe hypoglycemia is not likely to affect his ability to drive a motor vehicle safely.

14On May 3, 2023, the Appellant attended the Emergency Room at Stevenson Memorial Hospital in Alliston, Ontario after having a tonic-clonic seizure at approximately 2:00 a.m. while sleeping. He experienced some confusion for 5 – 10 minutes. His mother administered 1 mg of glucagon IM and EMS was contacted. After his condition stabilized at the hospital ER, the Appellant was released with the recommendation to follow up with his family doctor.

15As a result of this episode, Dr. Nishikawa submitted the MCR dated May 8, 2023. Dr. Nishikawa attached a letter of the same date in which he stated that the Appellant “recovered quickly after appropriate measures…He is conscientious about monitoring frequently during day…Please take this into account in assessing fitness to drive.”

16On May 15, 2023, the Registrar advised the Appellant by letter of his suspension of driving privileges due to seizure: severe hypoglycemia. The letter said that, in order to consider reinstatement, the Registrar required confirmation that he has remained seizure free for a period of six months and that this period may be reduced to three months upon receipt of a favourable recommendation from his healthcare practitioner.

17In response to the Registrar’s requirement, the Appellant submitted a Diabetes Assessment dated June 26, 2023 in which his endocrinologist, Dr. Robina Rana, advised that the Appellant demonstrates good knowledge of the condition and its management, and monitoring and assessment indicates effective blood glucose control. She advised that the A1C results are consistent with the Appellant’s blood glucose logs. She further advised that the Appellant has regained adequate glycemic control. She stated that since the episode of May 3, 2023, the Appellant is also “now using Freestyle Libre 2 meter to follow BS with audio Alert alarms to improve Glucosamine control.”

18The Appellant also submitted a Seizures and Loss of Consciousness form dated July 24, 2023 in which Dr. Nishikawa advised that “[The episode of March 3, 2023] was provoked by low B.S. and his type 1 DM. This has been addressed by Diabetes Specialist & Free Style to return to unrestricted driving.”

19In response to the Seizure form, the Registrar, by letter to the Appellant dated August 1, 2023, updated the reported medical condition to that of severe hypoglycemia, no longer listing seizure as a medical condition justifying licence suspension. The Registrar advised that they require confirmation that he had not experienced any severe hypoglycemic reactions and that his condition has remained stable for a period of six months. They also required a recently conducted A1C result confirming that the Appellant’s level is congruent with his blood logs and confirmation that stable glycemic control has been re-established.

20In support of their requirements, the Registrar relies upon the CCMTA 7.6.4 in which drivers with severe hypoglycemia can be eligible for a licence if no further episodes of severe hypoglycemia occur within the past 6 months. Earlier licencing can be considered if an appropriate specialist indicates that glycemic control has been re-established.

21While the letter from the Registrar dated May 15, 2023 allowed for early registration upon a favourable recommendation, the letter of August 1, 2023 does not, but does add the condition of a recently conducted A1C result. Upon questioning, the Registrar’s representative did admit that the addition of the A1C result is internal to the Ministry of Transportation and is not found in the CCMTA. He also conceded that, to a reasonable person, this change in requirement along with the removal of the allowance for early registration, can be seen to be arbitrarily changing the rules mid-stream. In any event, the Ministry of Transportation criteria are not binding on the Tribunal.

22The Appellant testified that has been dealing with Type 1 diabetes for 15 years, and he has a good driving record. He stated that the episode of May 3, 2023 was at night and was the result of unique circumstances. Even though he had been monitoring his blood sugar levels prior, he now has upgraded to a Freestyle Libre 2 system on which he monitors his levels repeatedly on both his smartphone and a dedicated monitor.

23The Appellant advised that he always checks his glucose levels before driving. During longer drives, he stops and checks regularly.

24The Appellant submits that his family doctor and his endocrinologist both reviewed him carefully and had him return to their offices on more than one occasion for follow up prior to completing the Ministry of Transportation requested forms. The family doctor wrote that the Appellant was clear to return to unrestricted driving and the endocrinologist gave her verbal support at his most recent visit.

25We found the Appellant to be conscientious and honest. He understood not only the Ministry of Transportation’s mandate of keeping the roads safe, but also his family doctor’s requirement to report his condition in the MCR.

26We agree with the Appellant that he has fulfilled the initial requirements of the letter of May 15, 2023. He has shown himself to be diligent in working with his medical professionals and has upgraded his capacity to monitor his blood sugar levels. He has submitted the required forms to the Ministry.

Conclusion

27We conclude that the Appellant has met the requirement of CCMTA 7.6.4 in providing indications from his specialist (and his family doctor) that his glycemic control has been re-established, thereby allowing for his early re-licencing. This is congruent with the letter from the Registrar dated May 15, 2023.

28Based upon the above, we find that the Appellant’s medical condition is not likely to interfere with his ability to drive a motor vehicle safely.

ORDER

29For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the Appellant’s Class GM2 Licence.