NOTICE to anyone who received an IRP since June 2012
If you received an IRP since June 2012, you need to read on and follow our instructions. It’s important for you. You may still have a chance to have your Immediate Roadside Prohibition revoked, removed from your license and get some of your money back.
Kyla Lee had not one but two major successes last week in our courts. She succeeded at the BC Court of Appeal last Thursday in the Macht decision which addresses a regular problem we see in decisions of the RoadSafetyBC tribunal. In that case the Court agreed that an issue that was the primary thrust of Kyla’s argument at the hearing level was central to the consideration, even if the adjudicator failed to see the connection. The Macht decision will have an effect on previous cases and the future of IRP adjudication, but it won’t have nearly the impact of Kyla’s next successful case.
If you received an IRP since June 2012, you need to read the Brandon decision. It’s important.
On Friday February 24, 2017, Kyla received another successful IRP judicial review decision, this time at the BC Supreme Court level. The implications of the decision, known as Brandon v. The Superintendent of Motor Vehicles (RoadSafetyBC), may be significant for potentially thousands of BC Drivers. If you received an IRP since June 2012, you need to read the Brandon decision. It’s important.
The Brandon decision:
In the Brandon case, the officer prepared the Report to RoadSafetyBC and swore the truth of the document before a commissioner for oaths. Turns out, however, that the documents that he purported to attach to the report were not in fact attached at the time of swearing the Report. The BC Supreme Court referred to this as “apparent perjury” meaning that the officer had apparently lied under oath. Bearing this in mind the Court went on to find that “[t]here was no properly sworn or affirmed report forwarded to the Superintendent, or placed before the adjudicator for consideration.”
What does it mean and how can it help?
This is huge. It means that if the officer indicated there were documents attached to the IRP Report to Superintendent at the time and date when they claimed to have sworn it, and in fact they were not attached at the time of swearing the Report, then the oath is invalid and the Report should not have been considered upon the review.
Who does it help?
In order to get the benefit of this decision, you must have been issued an IRP since June 15, 2012. You must have disputed your IRP and received a decision from the Superintendent of Motor Vehicles (or under their re-branded name “RoadSafetyBC”). The disclosure package must reveal that the officer attached documents after swearing the Report. This you can usually identify looking at dates recorded on faxes, in the narrative and on the Report. And it must be clear that the officer referred to documents being part of the Report that were not physically part of the report at the time they swore or affirmed the Report.
How many people will this help?
We’ve defended thousands of IRPs and this is somethings we’ve seen over and over. We have a bunch of judicial reviews already filed where this is one of the main issues. So for the clients who retained us to take it further and appeal the case to BC Supreme Court, you may be in luck.
Help for our former clients
If you were our client and we didn’t succeed for you on the review, chances are that we made this argument for you if it was applicable, and the Superintendent wrongly rejected us on that point. We’ve kept track of a handful of cases. Turns out we often succeed on other issues, so we’re not sure how many unsuccessful decisions we’ve had where this defence applied.
Obviously we can’t win every case. It’s angering when we have a valid argument yet we lose because the Superintendent of Motor Vehicles misapplies the law. When clients are gracious to us in defeat, we usually make a note of arguments that should have won the day in their case. When people are not nice, we don’t look twice at their file.
We will be doing a review of some completed files to see if the Brandon decision applies. We will not pull every file and review it because we simply haven’t the staff to do this.
How to determine if Brandon applies to you
The Brandon decision is seminal for the development of IRP law, not just because one officer committed apparent perjury. It has been one of the major issues that we have advanced for years and only now had the opportunity to get the matter to court. Over the weekend we discussed as an office how to handle the repercussions of this case. We decided that we will do our best in a future blog post to explain how to review the disclosure to determine if Brandon applies to you. For now we’re busy dealing with the cases in our office where we can get quick results for clients with outstanding IRPs.
One thing you should know about Kyla Lee
Kyla spends her time after hours going through files, reading RoadSafetyBC decisions, and selecting cases where there are important issues that need to be addressed in court by way of judicial review. When she argues in court it’s like a ninja with a Ginsu. Most of the precedent-setting decisions referred to are ones she argued, beginning with Buhr back from 2013 when, on her application, the Court ruled the Superintendent’s Report on Approved Screening Devices inadmissible.
Kyla forms short and long-term plans to deal with certain problems that we wish to address concerning the IRP scheme and administrative law. As an office we’re working at all times to bring greater fairness into what we see as a very unfair system.
We’re making plenty of headway. Stay tuned.