bCitation: Djekic v. Registrar of Motor Vehicles, 2023 ONLAT MED 15425

Licence Appeal Tribunal File Number: 15425/MED

In the matter of 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:

Branislav Djekic

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Peter Savage, M.D., Adjudicator

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Jami Sanftleben, Paralegal

Ilana Djekic, appellant’s spouse and support person

For the Respondent:

Ian Sookram, Representative

HEARD: December 20, 2023

OVERVIEW

1Branislav Djekic (“appellant”) appeals the decision of the Registrar of Motor Vehicles (“respondent”) to suspend his Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) as set out in the Registrar’s letter dated September 26, 2023, after the Registrar received a police report following an incident on August 4, 2023. The September 26, 2023 letter from the Registrar states that the licence suspension is based on syncope/loss of consciousness and diabetes.

2Section 14(1)(a) of O. Reg. 340/94 under the HTA (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 HTA. The appellant states in his Notice of Appeal that he is appealing the September 26, 2023 decision of the Registrar.

4The appellant’s spouse and support person at the hearing, Ilana Djekic, attended the hearing and testified at the hearing with the consent of the Registrar.

PRELIMINARY ISSUES:

5At the case conference held December 6, 2023 it was discussed that the Registrar had also suspended the appellant’s driver’s licence effective November 20, 2023 under s. 32(5)(b)(ii) of the Act for failing to meet mandatory vision standards. At the case conference of this appeal, the Tribunal confirmed with the appellant that he understood he has two separate suspensions of his driver’s licence under different subsections of the HTA.

6As a result, the Tribunal’s December 7, 2023 Case Conference Report and Order ordered that the following would be heard as preliminary issues at the hearing:

i. Whether or not the Tribunal has jurisdiction to hear appeals of suspensions imposed under s. 32(5)(b)(ii) of the HTA; and

ii. If the Tribunal does not have jurisdiction under s. 32(5)(b)(ii) of the HTA, does it still have jurisdiction to consider an appeal of the action of the Registrar taken for other medical reasons.

7We asked for submissions from both parties on the preliminary issues.

8Both parties agreed that the Tribunal does not have jurisdiction to hear an appeal of a medical driver’s licence suspension under s. 32(5)(b)(ii) of the HTA for failing to meet mandatory visions standards but does have jurisdiction to hear the balance of the appeal.

9As a result, on consent of both parties, we advised the parties that we would not hear the appeal under s. 32(5)(b)(ii) of the HTA but would proceed to hear balance of the appellant’s appeal and the hearing proceeded on that basis.

ISSUES

10Both parties agreed that the issue currently in dispute is whether the appellant suffers from a medical condition, namely severe hypoglycemia and chronic renal/kidney disease, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

11Resolution of that issue requires us to address the following questions:

i. Does the appellant suffer from severe hypoglycemia and chronic renal/kidney disease?

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

RESULT

12For the reasons set out below, pursuant to subsection 50(2) of the HTA, we set aside the Registrar’s September 26, 2023 decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from severe hypoglycemia and chronic renal/kidney disease

13The appellant testified that he has had diabetes for 44 years. The medical evidence clearly confirms that the condition is diabetes and syncope secondary to hypoglycemia. The appellant also testified that he is now also seeing a nephrologist.

14We accept the admissions of the appellant in his testimony and find based on his evidence, and the medical information filed by the Registrar, that the appellant suffers from severe hypoglycemia and chronic renal/kidney disease. This is consistent with the submissions of the appellant’s legal representative that the appellant does not dispute the medical condition alleged by the Registrar.

The appellant’s medical condition is not likely to significantly interfere with his ability to drive safely

15We find that the appellant’s medical condition, specifically severe hypoglycemia and chronic renal/kidney disease, is not likely to significantly interfere with his ability to drive safely.

16Based on the evidence before us, it appears that the August 4, 2023 driving incident that resulted from the appellant’s hypoglycemic event was an isolated incident as it resulted from an abrupt change in the appellant’s schedule of insulin and meal. The appellant testified that he was sent home from work approximately one hour before his usual lunch break. He checked his blood sugar before driving home, found it to be within acceptable limits, and decided to do some errands on the way home. The appellant lost consciousness while driving. We find the testimony of the appellant as to what led to the incident to be credible and we accept his testimony because it is consistent with the report made by Dr. Wilson, the appellant’s long-time endocrinologist.

17In his October 6, 2023 report Dr. Wilson described the August 4, 2023 incident as an isolated occurrence resulting from an abrupt change in the appellant’s schedule of insulin and meal. Dr. Wilson opined that the appellant is quite capable of driving safely and recommends reinstatement of his driver’s licence.

18In his October 6, 2023 report, Dr. Wilson states that the appellant had poor glycemic control with elevated HbA1c levels until some three years ago when he was diagnosed with early diabetic chronic kidney disease and diabetic retinopathy and completely changed his outlook on managing his diabetes.

19The appellant went to an insulin pump, was started on continuous blood glucose monitoring using a Dexcom G6 system linked to his watch to provide him with information and warnings regarding high and low blood sugar, follows the guideline of “under 5 do not drive”, and carries glucose tablets and juice boxes. Dr. Wilson reports that the appellant’s glycemic control has been very tight, his HbA1c levels have come down dramatically and are almost in the normal range. Dr. Wilson reports that on August 4, 2023 the appellant states he did not get any warning regarding potential hypoglycemia from the Dexcom system which Dr. Wilson suspects was because the appellant was developing hypoglycemia at that time and did not recognize the symptoms which can occur when blood sugars are dropping quickly.

20Dr. Wilson’s October 6, 2023 report also confirms that he will recommend the appellant change his insulation calculations with meals to avoid potential hypoglycemic reactions. The appellant realizes that he has a 15 minute window between insulin and eating a meal or severe hypoglycemia can occur as demonstrated on August 4, 2023, and the appellant will not make this mistake again.

21The appellant also testified that he will not leave work without eating again should he have to leave before lunchtime and said that his employer is aware of his medical condition. He makes an effort to walk a lot at work, doesn’t drink, is careful what he eats, has meals close to the same time every day, sees his family physician regularly, now sees a kidney specialist once a year, and speaks to a diabetes health care professional every three months. The appellant testified that he has continuous glucose monitoring, has upgraded the monitoring device and his phone in an effort to ensure that he receives any necessary alerts. The appellant’s wife, a nurse, also receives alerts from his monitoring system. He has been taught “don’t drive under 5” by Dr. Wilson and abides by it, carries glucose tablets with him at all times, and doesn’t take long driving trips alone so that his wife can take over driving if necessary.

22The appellant testified that in the 12 months prior to August 4, 2023, his alarm went off approximately 20-25 times for low blood sugar and he is concerned as to why he did not receive an alarm on the day of the incident. This is what prompted him to upgrade his watch and monitoring device and is on a waiting list for the newest version.

23Ilana Djekic testified that she and the appellant have been together 18 years. She is a nurse and is the one who encouraged him to use the Dexcom and an insulin pump which the appellant testified had changed his life. Ms. Djekic confirmed that she can see the appellant’s blood sugar level on her phone. Ms. Djekic testified that she has never witnessed the appellant driving when he shouldn’t have been.

24We find the recommendation of Dr. Wilson to be compelling evidence given that he is the appellant’s long-time endocrinologist, has reviewed the August 4, 2023 incident with the appellant, and has knowledge of the kidney condition which has developed. The Registrar conceded at the hearing that it was Dr. Wilson that first mentioned the kidney disease to the Registrar in his report. The condition of chronic renal/kidney disease is only mentioned once in the medical evidence, the condition is noted to be improving and is only mild to moderate according to Dr. Wilson. This was done in the same report in which Dr. Wilson recommends reinstatement of the appellant’s driving licence.

25Dr. Wilson had a consultation with the appellant on December 8, 2023. Dr. Wilson’s report dated December 8, 2023 attaches recent blood work, restates that the incident was related to a mis-timing of his insulin administration versus when he was able to eat, confirms that the appellant has been re-educated on the action of the insulin in his pump, confirms his glycemic control is acceptable at this time and recommends that his driver’s licence be reinstated.

26We also find compelling the fact that the appellant has a support team around him including Dr. Wilson, his nephrologist, his family physician, diabetic educator, and his wife who is a nurse. Further, the appellant has made changes to his blood sugar monitoring system, upgraded the technology since August 4, 2023, has been warned about the dangers of low blood sugar, and admits he should have eaten something before driving home and has learned from his mistake. At the time of the hearing some four and one-half months had passed since the incident on August 4, 2023. There has been no other incident, before or since August 4, 2023.

27The Registrar’s position is that not enough time has passed since the incident, the appellant has a serious medical condition and the results of the incident could have been much worse.

28The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA”) and argues that the licence suspension should be confirmed by the Tribunal. Section 14(2)(a) of the Regulation allows the respondent to consider the CCMTA when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA into consideration, although they are not binding on us. The Registrar relies on chapter 7.6.4.

29Chapter 7.6.4 of the CCMTA recommends that a non-commercial driver who has had an episode of severe hypoglycemia be considered eligible for a driver’s licence if there have been no further episodes of severe hypoglycemia within the past 6 months, earlier if an appropriate specialist indicates that glycemic control has been re-established, and conditions for maintaining a licence are met. Conditions for maintaining licence include blood glucose testing, not driving for at least 40 minutes after successful treatment of hypoglycemia and blood glucose has increased to at least 5.0 mmol/L, and notifying their health-care provider as soon as possible. The CCMTA explains that the neuroglycopenic symptoms associated with severe hypoglycemia can significantly impair the sensory, motor and cognitive functions required for driving.

30Although we are not bound by the CCMTA Standards, we note that chapter 7.6.4 provides that if an appropriate specialist indicates that glycemic control has been re-established, earlier re-licensing can be considered. Dr. Wilson’s diabetes assessment dated October 6, 2013 confirms that the appellant has regained adequate glycemic control. As a result, and considering all of the evidence in totality, we find earlier re-licensing to be appropriate.

31In our view, re-licencing at this time is appropriate because the appellant does not likely present a safety risk to himself or others while driving given isolated nature of the August 4, 2023 incident, and the treatment and steps that have been recently been implemented as outlined in Dr. Wilson’s reports.

32Although the Registrar is of the view that the appellant’s medical condition makes him unsafe to drive, this view is not supported by Dr. Wilson or by the CCMTA standard.

33We find on the basis of the medical evidence provided that the Registrar has not met the burden of proof in this case.

Conclusion

34We find that the appellant suffers from a medical condition, namely severe hypoglycemia and chronic renal/kidney disease, but that this is not likely to significantly interfere with his ability to drive a motor vehicle safely.

35We make no decision or comment on any portion of the appellant’s appeal that could be considered to relate to the Registrar’s suspension of the appellant’s licence for failing to meet the mandatory vision standards found in Ontario Regulation 340/95, s. 18(2) under s. 32(5)(b)(ii) of the HTA as this is not before us.

ORDER

36For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision in the letter dated September 26, 2023 to suspend the appellant’s driver’s licence.