Back in January, a challenge was made to some unsuccessful IRP decisions. What had happened — and some of our readers were in this situation — was that following the Wilson and Richardson decisions from the BC Supreme Court, the Superintendent of Motor Vehicles stopped rendering decisions.
[T]he circumstantial evidence referred to by the petitioner leaves a bad taste in the mouth which simply does not go away on the basis of a consideration of all of the evidence.
Almost everyone who received an IRP and made arguments based on Wilson and Richardson received a letter from the Superintendent of Motor Vehicles stating that the adjudicator in their case could not render a decision in the 21 day time period, and that a decision would be rendered sometime in the future. That time was not specified.
What the letter did not say was that both Wilson and Richardson had been appealed.
Our Suspicions
Our suspicion at the time was that the Government was trying to buy time in the hopes of a successful appeal. After all, one of their main strategies throughout the IRP scheme has been to appeal anything they didn’t like. So we knew what was going on.
We encouraged the Government to follow the law. They didn’t do that.
For our clients we took advantage of the opportunity — making additional submissions based on any change in the law, pulling old files and sending in supplemental submissions on new evidence we found in the interim. But not everyone had new evidence, or grounds for new arguments. So some people sat in limbo for months. And months. And months.
The Hill Case
One person who fell into this category was Mr. Scott Hill. He waited eight months for the adjudicator to give his decision. He had made arguments about the Wilson and Richardson cases, and only one day after his hearing, the Superintendent told him they couldn’t render a decision.
When Mr. Hill ultimately got his decision, he decided to challenge the indefinite delay, and the delay in deciding the case. The reasons for judgment were given at the end of January, and were finally released yesterday.
The essence of the argument before the Court was that the Superintendent had deliberately delayed the decision until the Wilson case was overturned, rather than deciding it based on the law at time. In essence, the Superintendent wasn’t playing fair. We long suspected this to be the case, and other lawyers did too.
The judge rejected Mr. Hill’s argument. But in reading the decision, it was obvious that he wasn’t too happy about what had happened. He did not have evidence before him that the adjudicator (who had not provided evidence for the hearing) had done anything wrong, but I think it is evident that he shares our suspicions. He said:
In my view, it is extremely regrettable that there is no explanation from the adjudicator. It leaves me unable to determine, with certainty, why the delay occurred, and the circumstantial evidence referred to by the petitioner leaves a bad taste in the mouth which simply does not go away on the basis of a consideration of all of the evidence.
Having said that, findings of fact cannot be made on the basis of a bad taste, nor need they be based on certainty. On the totality of the evidence, I conclude that the most likely reason for the delay was indeed to seek legal advice with respect to Wilson and Richardson. There is nothing wrong with that, so long as the motive was not to simply delay in the hope that the law would change.
While the petitioner argues that there was simply no need for legal advice because it was really a simple issue, I disagree with that. The question of whether such decisions were binding on adjudicators or, alternatively, might still allow for a different interpretation as to what is reasonable was a legitimate issue about which to seek legal advice.
Consequently, the unexplained delay issue is decided on the respondent’s side of the ledger, although, as I have said, with a bad taste in my mouth.
That’s strong language from a BC Supreme Court judge.
When we read this decision, and see the tactical position taken by Government in defending this case, one thing is obvious to us: the Government is able to hide behind privilege and the notion that “legal advice” given to a tribunal cannot be disclosed. So even if the legal advice were “Let’s delay as long as we can to see if we can take away this defence” no person would ever be able to get that information.
Shady Dealings
When we read Hill v. Superintendent of Motor Vehicles and think about the Government’s tactics, we’re left with a bad taste in our mouths too. It was apparent to us and anyone with a basic understanding of what was happening that this was what was occurring. But no person can ever prove it because the evidence is covered by privilege.
As lawyers, we understand the importance of lawyer-client privilege. But if legal advice is to act contrary to the rules of procedural fairness or to ignore the law because you don’t like it, then it isn’t proper legal advice and shouldn’t be shielded by privilege. Lawyers cannot counsel somebody to ignore the law, to obfuscate or to obstruct the process of justice.
This too has broader implications as we move away from courts and toward tribunals to resolve disputes. If the rules of the game are kept secret from the people appearing before the tribunal, and the tribunal can wait until the rules change, then we’re guaranteeing a broken justice system.
We’re opposed to that.
A bad taste in my mouth
It’s regrettable that the Government is able to hide behind this. Circumstances like Hill make us wonder what other instruction may or is most likely being given to the tribunal, about how to treat applicants unfairly. And while we will never know what actually happened and what the reasons for the delay in this particular case were, we’re left with a bad taste in our mouths.
And in our minds, our suspicions are confirmed.