End of the line for version 1 IRP legal challenges
In September we told you about how we ended up involved in the appeal of the remedy decision for the first version of the IRP scheme. The original challenge to the first version of the IRP scheme (what some call “IRP 1.0”) was advanced by a group of lawyers, us included, and handled by a firm we hired to mount the challenge. They succeeded and the law was struck down. The issue next was whether there was a remedy for the people who were punished while the unconstitutional law was still in place.
Many people had grand hopes in class-action lawsuits, buckets of money and that sort of thing. Then the court ruled that there would be no remedy. That decision was appealed to the BC Court of Appeal which agreed with the lower court: there would be no remedy.
Decisions of the BC Court of Appeal remain binding on the province unless overturned at the Supreme Court of Canada. Interestingly, a large number of BC Court of Appeal decisions get overturned if they make it to a hearing at the Supreme Court of Canada. Some might say that this is a concern.
Five years and a day after the law was first ruled unconstitutional, we had the final word on version 1 of the IRP scheme.
In any event, when the decision came down from the Court of Appeal all indications were that the lawyers involved were not going to try to appeal the decision to the Supreme Court of Canada. So we decided to get involved.
Time and money
This was a significant case that had the chance of changing the law and impacting a large number of people. When it comes to significant cases such as this one, we usually do them on our own time and with our own money. We decided to get involved with the remedy appeal to the Supreme Court of Canada.
Sacha represented one of the original litigants in the remedy appeals and he was supportive of our efforts. Kyla gave up a weekend to write the leave to appeal. We paid some money to agents and for other related fees. We filed our appeal at the Supreme Court of Canada.
To our surprise, counsel representing other litigants also applied for leave to appeal. After all of the documents had been filed by all of the parties, it was a matter of getting a panel of Supreme Court of Canada Justices to review the applications and make a decision as to whether we would get a hearing before the Court.
End of the line
On December 1, 2016, the decision came down. Five years and a day after the law was first ruled unconstitutional, we had the final word on version 1 of the IRP scheme. The Court dismissed the application for appeal. So it’s the end of the line.
If you were hoping for a remedy, such as having the fine refunded or the return of the money you paid for the interlock, it’s not going to happen flowing in any way from the Sivia decision. For anyone who didn’t dispute their IRP issued under version 1, your hopes have been dashed.
For our clients who filed appeals in BC Supreme Court relying not just on constitutional arguments but also with administrative grounds, some of the appeals will now go ahead. Both sides (us and the Government lawyers) held off pending the outcome of the remedy decision because we didn’t want to do unnecessary work. So there are a still a few people who will get happy calls from us in the months to come.
Lingering issues and loose ends
Some people who received IRPs in the weeks leading up to November 30, 2011 find themselves in a strange spot. In a few cases the driving prohibition was put on hold by the Superintendent of Motor Vehicles because they weren’t sure how to proceed. The Court suspended the declaration of invalidity of the IRP law until June 2012. These people had their driving prohibitions temporarily put on hold until the first remedy decision was rendered.
When the first remedy decision came down, the Government took the position that these people should then serve their driving prohibitions. That didn’t sit right with us. Sacha took that issue to BC Supreme Court. She was successful. The Court agreed that the law was in no force and effect after June 2012 and therefore nobody would need to serve a prohibition flowing from it.
The Government appealed that decision, but they seem to have abandoned the appeal because they’ve done nothing about it since filing the appeal long ago.
The IRP 1.0 on the driving record
We would like to get that appeal on because we think it might provide clarity with respect to the status of the record of the IRP on a person’s drivers abstract. When the declaration of invalidity took effect we think it should have caused the Superintendent to remove the record of the unlawful prohibition from each person’s driving record. Yes, based on the dismissal of the last case to the Supreme Court of Canada, there is no money coming back. IRP punishment, fines and costs are a fait accompli. But the fact of the record of the unlawful IRP dogging people beyond the declaration date is another issue in the sense that it’s ongoing punishment after the law is no longer on the books. It happens to be an issue that may never be addressed.
Class action lawsuits
There were two proposed class-action lawsuits we knew of. One was for IRP 1.0. That was completely killed as far as we can tell by the Supreme Court of Canada decision at the beginning of the month. The other, for unlawfully compelling people to take the RDP and get an interlock, was more or less carefully dismantled by the Government.
When we went public with the fact that the Superintendent of Motor Vehicle was unlawfully forcing everyone with a 90-day IRP to automatically be compelled to take the RDP course and get an interlock, they stopped doing it. Then they cancelled the program for around 13,000 people. Then they sent some people a series of releases to stop them from suing while promising them partial payment.
So they came up with a settlement scheme to placate many people who had been wronged and they managed to complicate the definition of who would be a class. In the end many people gave up their right to sue, including some people who were meant to be our class leaders.
This was a smart legal move on behalf of the Government – fracture the class. We don’t see any class action going ahead at this point because of the significant hurdles. This too is at the end of the line.
Constitutional challenge to IRP 3.5
We’re now on the third version of the IRP scheme. The second version was found to be valid law, but the third version, along with the major policy changes in the IRP program, have yet to be tested and from our perspective these changes take it right back to the point we were at on November 29, 2011. We think the law as it’s currently written and applied is unconstitutional for reasons similar to IRP 1.0. So in June 2016 Kyla filed a new constitutional challenge.
We’re trying to get a hearing started in BC Supreme Court but it’s been postponed. We think the Government is trying to drag it out until after the provincial election in May 2017.
Stay tuned for that one.
Appeals of unsuccessful decisions
We succeed in most IRP hearings these days. Sometimes our success rate surprises even us. When the prohibition is upheld, we look at the decisions and consider whether an appeal to BC Supreme Court is warranted in the particular case. When we do, often the Government lawyers will simply concede the appeal and the matter will go back for a new hearing. In other cases, particularly where the law is less clear, we need to conduct a hearing.
We’ve successfully appealed a large number of incorrect IRP review decisions. Our project to identify and create more defences has been underway from the start. We held off to some extent when the legality of the entire scheme was before the court. Now that many of those preliminary issues are resolved, we’re driving full steam ahead with our project of appealing review decisions to BC Supreme Court.