Licence Appeal Tribunal File Number: 15116/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:

Dejan Dzodan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

Dejan Dzodan, Self-Represented

For the Respondent:

Stephen Grootenboer, Representative

HEARD by teleconference: September 11, 2023

OVERVIEW

1Dejan Dzodan (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 police report, indicating that the appellant's driving ability is likely compromised.

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 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, namely severe hypoglycemia, 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 by definition they suffer from severe hypoglycemia 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. Does the appellant suffer from severe hypoglycemia?

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

RESULT

8Having considered all the evidence 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

Does the appellant suffer from severe hypoglycemia?

9The evidence presented at the hearing establishes on a balance of probabilities the Registrar's allegation that the appellant suffers from a medical condition, namely severe hypoglycemia.

10The Registrar's position is supported by reports completed by Police Officer S. and the appellant's family physician, Dr. M.

11In the May 24, 2023 police report, Police Officer S. wrote, "Driving complaint that vehicle was stopped at green light and driver was passed out for a few minutes. Officer located vehicle approximately 1.5 km away now in motion. Vehicle was all over the road, speeds varying...Before traffic stop was conducted, vehicle struck a traffic light pole. Driver very drowsy, semi-coherent. Noticed glucose monitor on driver's left arm. EMS attended; blood sugar very low. Couldn't get it to rise, so transported to hospital...."

12I acknowledge that Police Officer S.'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 S. They were acting under their duty as an officer and would have taken contemporaneous notes of their observations and interactions with the EMS and appellant. In any event, the appellant did not challenge the fact that on the day in question, they were attended by a police officer and EMS at the scene, was transported to hospital and the same police officer spoke with them again at the hospital.

13In a completed diabetes assessment form, dated July 12, 2023, Dr. M. 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.

14The appellant does not deny that they have been living with Type 1 diabetes for over 45 years, treat their diabetes with insulin injections and that by definition they suffered an episode of severe hypoglycemia on May 24, 2023 while driving home from work after 5 p.m. They recall being told by EMS that their blood glucose ("BG") measured 2.9 mmol/L, having an intravenous inserted by the EMS and not taking any action, themselves, for a low blood glucose prior to the driving incident. As a licenced and duly qualified physician in the province of Ontario, I am aware that a BG level below 3.9 or 4.0 mmol/L 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.

15Although 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".

16I find that the Registrar has established on a balance of probabilities that the appellant suffers from severe hypoglycemia.

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

17I find that the Registrar has proven on a balance of probabilities that the appellant's medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely.

18The Registrar's representative argues that 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. They emphasized that in the May 24, 2023 police report, a member of the public reported the appellant as stopped at a green light and being "passed out" for a few minutes and that the appellant's vehicle subsequently struck a traffic light pole before the traffic stop was conducted. They further argue that in order to consider reinstatement 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; a recently conducted A1C result; confirmation that the A1C level is congruent with their blood logs; and confirmation that stable glycemic control has been re-established.

19Furthermore, the respondent's representative argues that this was the fourth time the appellant has been reported by police to the Ministry of Transportation (the "Ministry") for being medically unfit while driving, with three of these reports being in the past two years. They emphasize that these reports and subsequent medical information gathered indicate that the driving events reported by the police were directly related to poor diabetic management or hypoglycemia. The respondent's representative referred to:

i. a March 2005 incident where the appellant's vehicle was observed "swerving back and forth" on a major Ontario highway, at times crossing into the left shoulder, hitting a guardrail and being forced onto the shoulder and boxed in by the police cruiser. The police officer observed the appellant to be dazed and confused, they had difficulty answering questions and their speech was slow and deliberate. The appellant was "transported to hospital for treatment of a diabetic medical condition";

ii. a June 2021 collision report from police, where "internal coding" to the Ministry's Medical Review Department indicates that there was a medical issue. Dr. M. indicated in the subsequent September 2021 medical report that the appellant was now using "FreeStyle Libre" to avoid hypoglycemia;

iii. a December 2021 police "Driver Information Request For Driver's Licence Review" where the attending police officer indicated that the driver may not be able to safely operate a motor vehicle due to "loss of consciousness/black out". The description of the incident included: public reports of a male unconscious and breathing in their vehicle that had just hit the curb with the vehicle "in drive" in a busy parking lot; EMS attended the scene and confirmed that the driver was suffering from low blood sugar; appellant was not coherent; and appellant was transported to hospital. In a September 2022 completed Seizure and Loss of Consciousness form, Dr. M. indicated that "to the best of their knowledge...the most likely cause of the appellant's syncope was hypoglycemia due to improper use of insulin".

20In addition, the respondent's representative indicates that in the December 2021 police report, there was reference to another "similar incident" with a separate incident number, which appeared never to have been reported to the Ministry.

21I acknowledge that the information regarding this "similar incident" is double hearsay evidence and recognize that despite having the discretion to admit double hearsay evidence, tribunals must be cautious in doing so given that double hearsay evidence can be inherently even more unreliable. In this case, I have not admitted the "similar incident" described in the December 2021 report.

22Furthermore, the respondent's representative argues that, taking into account the appellant's driving history, it is prudent to ensure the appellant has fully regained control of their diabetes and its management prior to reinstatement of their driver's licence.

23The 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. It also states that earlier re-licensing can be considered if an appropriate specialist indicates that glycemic control has been re-established.

24The appellant does not deny that a driving incident occurred on May 24, 2023. They testified that they: did not check their BG on their continuous glucose monitor prior to driving; "felt fine"; did not have symptoms of hypoglycemia prior to or during their drive; were surprised that they were in "such bad shape" with a BG of 2.9 mmol/L as measured by the EMS; and indicated that in the past they "can work well at such a low BG". However, they deny losing consciousness during the incident and emphasized that they were able to walk to the ambulance on their own. The appellant referred to many contributing factors to the driving incident including seasonal allergies and exhaustion from both working longer hours and significant personal and family matters. In addition, the appellant argues that they were unaware that for one and one-half days around the time of the incident, their continuous glucose monitor was malfunctioning, i.e., the "transmitter was not communicating with the receiver" and they were not receiving any alarms to warn them of low BG.

25When questioned regarding their typical procedure for checking their BG either by finger prick or by continuous glucose monitor prior to driving, the appellant candidly admitted that this was not "standard" for them and they would only check their BG prior to driving if they suspected their BG might be low.

26Furthermore, when questioned about their "hypoglycemia awareness", the appellant admitted that they "do not feel the symptoms [of hypoglycemia] as well as 30-40 years ago". They stated that they rarely experience symptoms such as sweats or feeling cold (previously felt at BG 3.8-3.9 mmol/L), but sometimes can still sense low BG by a change in concentration. The appellant has told co-workers to watch for signs such as repetitive actions which they cannot stop or giving answers/saying things which make no sense. In addition, the appellant stated that they have unsuccessfully attempted to get a "hypo-dog", i.e., a medical alert assistance dog specifically trained to identify changes in their owner's BG levels.

27The appellant further argues that there are inaccuracies in the other police reports (2005, 2021) in evidence, specifically that they stopped their vehicle on their own and never lost consciousness. When questioned if it were possible that they do not remember all of the events because of their low BG and the potential effect of low BG on the brain, the appellant agreed that it was possible and commented that their ex-wife had expressed this to them in the past.

28The appellant shared their plan going forward with respect to their diabetes management. In addition to their long-acting insulin already being reduced, they have recently attended a Diabetic Education Centre, gained knowledge with respect to diet and insulin and now have an understanding of BG testing/checking prior to driving. The appellant has alarms set overnight to be woken up and test their BG, states they are committed to taking preventive glucose intake prior to driving and willing to check their BG at the frequency of a commercial vehicle driver; and plans to look at their BG readings/arrows/trends more frequently throughout the day rather than waiting for a beep or signal from their continuous glucose monitor.

29While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

30Although I am not bound by the CCMTA Standards, I find them to be reasonable. Severe hypoglycemia causes an episodic impairment on 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.

31Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case. I acknowledge that Dr. M. in their August 23, 2023 letter is supportive of earlier re-licensing and that they state that the appellant "represents an individual who is very well educated and under control" of their diabetes and its management. However, I find that other evidence does not support this statement. Furthermore, although I find that a malfunction in the appellant's continuous glucose monitor may have played a role in the May 24, 2023 driving incident, I find that other factors within the appellant's control (as described below) also played contributing roles. For both reasons, I find that a longer period of stabilization is required prior to the reinstatement of the appellant's driver's licence.

32Dr. M., on a September 2022 Ministry form, states, "the most likely cause of the appellant's syncope [loss of consciousness] was hypoglycemia due to improper use of insulin". I find that "improper use of insulin" causing syncope while driving, is not in keeping with a person who is very well educated or under control of their diabetes. I also take note of the facts that at the time of the appellant's syncopal episode, the appellant was using a continuous glucose monitor, albeit a different make, for their diabetes management and that the appellant does not recall previous education with respect to driving and diabetic management. In addition, in the two-year period from June 2021 through May 2023, the appellant had three driving incidents, all of which were directly related to poor diabetic management or hypoglycemia. Furthermore, the appellant testified that due to lack of insurance coverage for BG strips, they no longer have or use finger prick/BG strips to check their BG should they suspect inaccuracies or problems with their continuous glucose monitor. Moreover, the appellant testified that they: previously primarily relied on alarms/alerts from their continuous glucose monitor and did not regularly check their BG numbers and trends; seldom checked their BG by either continuous glucose monitor or BG strips prior to driving; relied on how they "felt" prior to driving; felt fine prior to driving on May 24, 2023; admits to reduced hypoglycemic awareness compared to 30-40 years ago; did not feel any hypoglycemia symptoms prior to or while driving that afternoon; and had an episode of severe hypoglycemia while driving which resulted in a driving incident. Dr. M., in the July 12, 2023 completed diabetes assessment form, answered affirmatively to the question, "Has the patient experience any episodes of hypoglycemia unawareness in the past three months." The CCMTA Standards define hypoglycemia unawareness as "the inability to recognize the autonomic symptoms of hypoglycemia or a failure of such warning signs to occur prior to impaired brain function". Certainly, the appellant's testimony is in keeping with them currently having, at minimum, reduced hypoglycemia awareness. I accept the respondent's submission that further time and medical information should be submitted is reasonable keeping in mind public road safety.

33I am satisfied on a balance of probabilities that the appellant's medical condition of severe hypoglycemia is likely to significantly interfere with their ability to drive safely.

Conclusion

34I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely severe hypoglycemia, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

35For 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.

Erica Weinberg

Adjudicator