Licence Appeal Tribunal File Number: 16386/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:

Brian Cooper

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Brian Cooper, Appellant

For the Respondent: Stephen Grootenboer, Agent

Held by teleconference: November 27, 2024

OVERVIEW

1Brian Cooper (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his commercial and GM driving privileges under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a requested driver’s medical report from a treating physician stating that the appellant suffers from a medical condition that may affect his ability to drive a motor vehicle of the applicable class safely.

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 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.

3The Registrar takes the position that the appellant suffers from a medical condition, namely hypoglycemia unawareness, that is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. The appellant does not dispute that he suffered hypoglycemia while sleeping and was therefore not aware. The appellant however denies that he suffers from any medical condition that would interfere with his ability to drive a vehicle of the applicable class safely.

5Pursuant to s. 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 hypoglycemia unawareness, and, if so, if this condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

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

i. Does the appellant suffer from hypoglycemia unawareness?

ii. If so, is this likely to significantly interfere with his ability to drive a vehicle of the applicable class 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 his ability to drive a vehicle of the applicable class safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from hypoglycemia unawareness?

10The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely hypoglycemia unawareness.

11The Registrar’s position is supported by:

i. a Diabetes Assessment Form dated October 2, 2024, completed by Dr. R.

12The Diabetes Assessment Form submitted by Dr. R, the appellant’s family physician, supports the Registrar’s position. Dr. R has checked affirmatively to the question on this form asking if the appellant experienced any episodes of hypoglycemia unawareness in the past three months. Dr. R supported this response with a written narrative that on Sept. 20, 2024, the appellant had a blood sugar of 2.9 mmol/L that was captured by the appellant’s continuous glucose monitor. Dr. R has additionally checked affirmatively to the question of whether the appellant has had more than one reported episode of hypoglycemia unawareness in the past 12 months.

13The appellant testified that he has had diabetes for over 20 years and for the last few years monitors his blood sugar through the use of Libre 2 sensor. The appellant testified that on September 30, 2024, he took an afternoon nap for several hours. When he awoke and checked his blood sugar around 5:30 pm, his blood sugar was within a normal range. However, at approximately 2:30 pm when he was sleeping his blood sugar was as low as 2.9 mmol/L. The appellant agrees he was unaware of this event and had no symptoms of hypoglycemia while sleeping but, asserts that his level of awareness of his blood sugar is different when he is awake.

14Under the Registrar’s cross examination, the appellant testified that his glucose monitor alerts when his blood sugar is below 3.9 mmol/L, but only when his phone is open. At the time of the hypoglycemic event on September 30, 2024, he was not using his phone, and hence it was not open and did not send an alarm. The appellant was questioned as to whether he had asked Dr. R for a supportive statement or to provide any further details on the reported hypoglycemic event to the Registrar, and he responded that Dr. R was aware of the suspension, had not offered to provide a supportive letter, and told the appellant that the Registrar had her contact information and could reach out if further information was required.

15Under cross examination the appellant testified he has type 2 diabetes that he manages with oral medications, long-acting insulin once daily and short-acting insulin with meals. The appellant was questioned regarding previous experiences with hypoglycemia and any associated symptoms. He testified that he has never had hypoglycemia before this described incident on September 30, 2024. He reported he understands symptoms of low blood sugar could be shaking, sweating or a headache, but he has never had these symptoms previously. The appellant was then questioned regarding Dr. R’s response on the Diabetes Assessment Form which indicated there had been more than one episode of hypoglycemia unawareness in the past 12 months. The appellant was not sure why Dr. R had responded affirmatively to that question. The appellant confirmed that Dr. R has been his family physician for several years and the primary physician responsible for managing his diabetes care. The appellant has an appointment with Dr. R at least every three months and during these diabetes appointments he shares the glucose monitoring data with Dr. R.

16The medical evidence before the Tribunal from Dr. R reports the appellant has had one episode of hypoglycemia unawareness with a blood sugar of 2.9 mmol/L and more than one reported episode within the past 12 months.

17The appellant’s position is that it is hard to be aware of his blood sugar while sleeping, but he does not disagree with the record on his glucose monitor which documented a hypoglycemic event that he had no awareness of until several hours later when he awoke.

18I find the medical evidence in this case clear and the testimony of the appellant supportive of the Registrar’s position. Based on the information available, I find that the Registrar has established on a balance of probabilities that the appellant suffered from more than one episode of hypoglycemia unawareness.

Does the appellant’s medical condition of hypoglycemia unawareness interfere with his ability to drive a motor vehicle safely?

19The Registrar relies on the CCMTA Medical Standards for Drivers (“CCMTA Standards”), in particular Chapter 7.6.5 (Episode of Hypoglycemia Unawareness, Non-Commercial drivers) and 7.6.8 (Episode of Hypoglycemia Unawareness, Commercial drivers). Both Chapters provide that drivers are eligible for a licence if: it has been 3 months since the last episode of hypoglycemia, a treating physician has indicated glycemic awareness has been regained and there is stable glycemic control and conditions for maintaining a licence are met.

20Section 14(2)(a) of the Regulation permits 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, but they are not binding.

21The Registrar emphasized that the CCMTA Standards document that hypoglycemia unawareness greatly increases the risk for hypoglycemia while driving. Therefore, they require that glycemic awareness be re-established before driving resumes and once this is achieved, more stringent monitoring guidelines are required temporarily to mitigate the increased risk of hypoglycemia.

22The relevant CCMTA Standards also provide that there is clear evidence to show that both non-commercial and commercial drivers with diabetes are at an increased risk of motor vehicle crashes and those that are taking insulin have an elevated risk of crashes. Further, a relationship between hypoglycemia and crashes has also been found. The CCMTA Standards document that the neuroglycopenic symptoms that are associated with severe hypoglycemia can significantly impair the cognitive functions required for driving and a driver cannot compensate from the episodic impairment from severe hypoglycemia. There are other studies noting mild hypoglycemia may also impair these functions. Thus, experiencing a hypoglycemic episode while driving would significantly interfere with a driver’s ability to drive safely and present a safety risk to the driver themselves and other road users. The CCMTA Standards outline the challenge posed by hypoglycemic unawareness, as the driver is unable to recognize the autonomic symptoms of hypoglycemia and thus treat with fast-acting carbohydrates before brain function is impaired, affecting insight, judgment, calculation, speech and memory. This is why the CCMTA Standards indicate that one of the conditions for maintaining a non-commercial licence for those with hypoglycemia unawareness is to test blood glucose immediately before driving and approximately every hour while driving, as without testing, the driver would have no awareness of the hypoglycemic state.

23The appellant argues that he does not suffer from a medical condition that significantly affects his ability to drive safely. The appellant submits that he has had diabetes for over 20 years and never experienced a hypoglycemic event previously and that suspending both his commercial and G class driving privileges was “harsh” for a “first-time offence.” The appellant submits that his estimated A1c is 6.2% and his 90-day glucose monitoring data from July 29 – October 4, 2024, was excellent with an average of 7.3 mmol/L and 94% of the time in range with time under 3.9 mmol/L being zero. He reported that he has reduced the short acting insulin he takes with meals and plans to wean himself off insulin in light of this suspension.

24Under cross examination the Registrar questioned the appellant on why his glucose monitoring data from July – October 2024 would report that his blood sugar was never below 3.9 mmol/L when the reported hypoglycemic event took place on September 30, 2024. The appellant responded that he had not downloaded the data from that day but, was able to show it to Dr. R on his phone.

25The appellant was asked regarding how long he has been taking insulin and reports that he was taking insulin for two to three years. He had come off insulin during this time and was then required to return to using insulin to control his blood sugars. The appellant was questioned about how he determines how much insulin to administer with each meal. The appellant indicated he does not count carbohydrates to determine how much insulin to give and it is “kinda a feel thing”. When asked to describe how he treats a low blood sugar, the appellant’s response was that he treats with sugar or honey but, could not identify how many fast-acting carbohydrates would be needed to consume, nor how long he would need to wait before resuming driving, nor what blood sugar he would target prior to resuming driving.

26The appellant was asked regarding his approach to managing blood sugars while driving. The appellant testified he checks his blood sugar when he wakes up, before each time he eats, and in the evening or approximately 4-5 times daily. For longer periods while driving he had no specific practice of monitoring. The appellant’s sensor does not alarm to alert the appellant of hypoglycemia unless he is using the phone while driving. The appellant’s practice of monitoring his blood sugar supports the Registrar’s position, as it falls short of the recommended frequency of every hour while driving outlined in the CCMTA Standards.

27As noted above, although not bound by the CCMTA Standards, the Tribunal may consider them when making its decision. The reason is that they are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses. While each appeal including this one must be judged on its own merits, I am persuaded to apply the CCMTA Standards here. My review of the evidence shows that the conditions recommended for relicensing for a commercial or non-commercial licence outlined in the CCMTA Standards have met.

28I acknowledge the appellant’s position that he does not have a medical condition that will affect his ability to drive and has reduced the amount of insulin he is taking with meals. However, I take note of the appellant’s testimony that he plans to wean himself off all insulin to avoid further risk of hypoglycemia. Given that he had been trialed off insulin in the recent past and returned to requiring multiple daily injections of insulin, the appellant weaning himself off insulin is concerning and does not suggest that there is stability in the management of his blood sugar levels, nor insight into what treatments are required to appropriately manage his diabetes.

29More concerning is that Dr. R checked ‘yes’ to the question asking if there has been more than one episode of hypoglycemia unawareness in the past 12 months, and the appellant’s testimony is that he has never experienced hypoglycemia ever before. By the appellant’s testimony, Dr. R has been his physician for many years and is the primary healthcare provider of his diabetes care. For these reasons, she is reasonably in a position to be able to accurately answer this question, and the appellant was unable to provide any explanation as to why she documented there had been more than one episode of hypoglycemic unawareness in the past 12 months. As such, I find it concerning not only that the appellant has experienced more than one episode of hypoglycemia unawareness in the past 12 months, but also that he does not recall or has not had any awareness that these episodes have occurred.

30Given the clear scientific data associating hypoglycemia with motor vehicle crashes, and that the appellant cannot describe having symptoms of hypoglycemia to alert him, I think that the CCMTA Standard of testing blood glucose immediately before driving and approximately every hour while driving is reasonable. The appellant’s testimony did not support that he engages in this practice of testing his blood sugar and the description of his Libre 2 glucose monitor did not support that he would consistently or reliably be notified when hypoglycemia was present. Hence, the appellant has no way of knowing when his blood sugar is low when driving. This makes me question the appellant’s understanding of and insight into how cognitive functions are affected by hypoglycemia and thus the seriousness of the condition and its potential consequences while driving.

31Furthermore, the appellant did not provide testimony consistent with being knowledgeable about managing a hypoglycemic episode while driving. He lacked details around the number of carbohydrates required to treat a hypoglycemic event, did not demonstrate awareness of how long he would need to wait to regain cognitive functioning before resuming driving, and had no target blood sugar prior to resuming driving.

32Lastly, I take note that while Dr. R reported the concern and was aware of the suspension and the challenges the suspension posed to the appellant, there was no statement or supplementary documentation that offered support for the reinstatement of driving privileges.

33I acknowledge the burden that the lack of a driver’s licence has on the appellant; however, I find the medical and scientific evidence in this case relevant and compelling. As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition of hypoglycemia unawareness is likely to significantly interfere with his 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, and that this condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class 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.

Released: December 10, 2024

__________________________

Dr. Isla McPherson, Member