Just before Christmas we issued a Red Alert. We try not to be alarmist, but every once in a while the Government does something that requires a significant response. In this case, we needed to alert the people who read our blog of the letter we received from RoadSafetyBC. This is what the letter said:
December 12, 2014
Reference No. 506235
Dear Legal Counsel:
I write to inform you of an impending change to RoadSafetyBC policy concerning the Immediate Roadside Prohibition (IRP) program. Effective January 12, 2015, RoadSafetyBC will no longer accept applications for extension of the 7-day window to apply for an IRP review (Segers applications). RoadSafetyBC will continue to review Segers applications filed prior to January 12, 2015.
The Motor Vehicle Act does not require RoadSafetyBC to accept review applications beyond 7 days from the date of the prohibition. This policy change does not affect the process surrounding Segers applications for Administrative Driving Prohibitions.
Yours sincerely,
Sam MacLeod
Superintendent of Motor Vehicles
Why was this a red alert?
We figured that the reason they were doing this is because they want to stop people who later learn they were wrongly issued an IRP from coming back and applying for a hearing long beyond the 7-day limitation period. The law is set out in the Segers case for 90-day driving prohibitions. The Government hopes to argue in court that a Supreme Court case on the limitation period for 24-hour prohibitions should apply to IRPs.
We have strong legal arguments very similar to the arguments we advanced when we challenged the automatic referral to the RDP and IIP program
Why did they suddenly announce this right before Christmas? We figure that they wanted to get the jump on things by getting the new rule in place before the media caught wind of a couple of things playing out in the back rooms. By doing it over Christmas, they could look like they were giving effective notice but really catch most people off guard. We assumed that it was a strategic political decision. It’s a government, after all.
Our response
Many people who missed the 7-day window to apply for a review still have a strong argument to have their IRP overturned on the basis of the new evidence we’ve uncovered. We wanted to make sure anyone who missed the 7-days to appeal still had an opportunity to make the argument that their IRP should be revoked.
We don’t think the new no-Segers-application rule will stand up to a court challenge. Still, a court challenge is an extra step that puts the goal further out of sight. So in our view, anyone who missed the 7-day window to apply for review, so long as their case contained the right facts, should apply for an extension of the 7-days to file for a review. And we encouraged people in that situation to contact us.
A number of people did contact us. We reviewed disclosure for a few dozen people and in those cases we determined that many fell into the category.
On a side note, it was disconcerting to us to see how many people would have succeeded off the top if they had they contacted us within 6 days of being issued their IRP.
Segers applications
We wrote to RoadSafetyBC on behalf of a number of people to make Segers applications. We identified three cases which we would take to court in the event that we didn’t receive timely responses from RoadSafetyBC.
These would be our lead cases. We’re paying for them ourselves and we’re doing the work for free. There are important issues that need to be litigated.
We waited a month, and then another week for good measure and in the hopes of saving some money. Still, we received no response on any of the Segers applications. So we filed the Petition in court for the first of the three test cases. We waited a couple more weeks and still received no response to any of the Segers applications. So this week we filed a Petition in the second of our test cases and we’re putting together the documents for the third.
At the same time we’ve also filed a Petition to challenge the way in which RoadSafetyBC calculates the timeline to submit an application for reconsideration of the remedial requirements. A number of people have had their deadline land on a Sunday. This seems to be contrary to law, unless of course they extend the deadline to the following business day.
Mandamus applications
Our Petitions so far are seeking the remedy of a mandamus order, i.e. an order of the Court that RoadSafetyBC consider the Segers applications in a timely manner, which at this point is 4 weeks ago. We hope to argue these cases pretty soon. We have strong legal arguments very similar to the arguments we advanced when we challenged the automatic referral to the RDP and IIP program. We would be ready to argue it tomorrow if we could get it on.
On another side note, lots of people are waiting weeks and months for decisions of all sorts from RoadSafetyBC these days. This too seems to be political. With regards to IRP review decisions, we predict that there will be a flood of decisions when the FST has fully replaced the Alco-Sensor IV.
What’s the hold up?
We figure that the police are in a mad panic to replace defective Alco-Sensor IV Approved Screening Devices with the newer but still old Alco-Sensor FST.
Many police departments, such as New Westminster, ordered a bunch of FSTs last July when we revealed the problem to the media. We keep seeing the purchase of FSTs in receipts we obtain in FOI documents. Other police detachments bought theirs at about the same time.
Where is this going?
We expect to argue in court as we have at the RoadSafetyBC tribunal that the police in BC and the Government have known for years that many of the ASDs used since 2010 are defective. Still, they just kept using them. We figure that the Government wishes to avoid a class-action suit. They have methods to do this which have been fairly successful to date. It’s all about damage control.
What’s our angle?
Justice.