Crucial in any litigation is establishing facts. In criminal law a defence lawyer may simply need to call into question the facts that the prosecutor is attempting to prove. Not so in Immediate Roadside Prohibition cases. Establishing facts in an IRP case is much more complex and failure to do it right is often the difference between success and failure on review.
Do-it-yourselfers beware.
On Tuesday I was in BC Supreme Court when Kyla received another successful decision in an IRP judicial review. Her client tried to do his own IRP review hearing before the RoadSafetyBC tribunal. He had great facts and on the face of it we believed that he was innocent beyond any doubt. But he tried it as a do-it-yourselfer, ran his own IRP dispute and lost. Why? He failed to deal with a crucial point in the evidence.
As the judge pronounced his decision, one thing he made very clear is that there is no slack for amateurs. Just because a driver represents themselves or their lawyer misses proving a point of evidence, don’t expect there to be a more lenient standard when it comes to the IRP hearing. The RoadSafetyBC tribunal is free to assume that you know the law as well as an IRP lawyer. If you don’t, you can’t expect any help from the adjudicator.
At the hearing Kyla argued that the adjudicator’s reasoning was flawed. She argued that the path to the decision was mistaken on the face of the record because of certain evidentiary presumptions that the adjudicator expressed in her decision. Kyla also argued that if the adjudicator intended to make such evidentiary presumptions, the adjudicator had an obligation to tell the person at their hearing. In other words, if the adjudicator intended to rely on facts that the driver didn’t know had been already established, the adjudicator was obligated to bring this to the attention of the driver.
Establishing facts in an IRP case is difficult and we see mistakes others make in this regard nearly every day. In the case that Kyla appealed to BC Supreme Court, our client didn’t have a lawyer and he failed to establish the essential points that would show he was innocent. He is elderly. He wasn’t a lawyer. He simply missed some important facts and failed to put the important points in his submissions.
DIY risks in an IRP case compared to a criminal case
If this was a criminal case, and the judge was properly clued in, the judge might assist and ask the necessary questions to ensure that justice is done. When you appeal an IRP it doesn’t work that way. It’s up to the applicant to establish the facts in an IRP case, which is why amateurs and do-it-yourselfers often come away unsuccessful.
As I listened to the judge’s decision and the court confirmed that the obligation to establish the facts in question is solely on the driver, what became clear to me is that the IRP scheme, which was marketed by the Government as simple administrative process, is horribly lopsided when it comes to people who don’t have a lawyer. People are encourage to be do-it-yourselfers yet a self-represented driver will have no way of knowing whether they’ve established the facts that are the concern of the tribunal. If you defend yourself, it’s a trap and don’t expect to succeed. But they don’t want you to know that.
What are established facts in an IRP case?
Our client on this particular appeal represented himself at the original hearing before the adjudicator at RoadSafetyBC, and he failed to establish the facts necessary to get his IRP revoked. When he hired Kyla to appeal his case to BC Supreme Court she argued that the adjudicator should have disclosed to this fellow that the adjudicator was relying on facts that she concluded had been established. Furthermore, Kyla argued that it was unreasonable to claim that a court decision, which was unknown to the driver, could be relied on by the adjudicator to establish a fact in an IRP case.
On the first argument, the Court disagreed. The judge in the end said that there was really no duty to disclose the law or specialized knowledge to a person who appeals their IRP, even if they’re a do-it-yourselfer.
Immediate Roadside Prohibition review hearings are technical, complex and if you try your own and miss a point, too bad. That’s the law. The adjudicator isn’t there to help you present your evidence.
But, when it comes to establishing facts in an IRP case, the adjudicator is also limited.
Previous judicial decisions do not establish facts in later cases
On the second point, Kyla succeeded because the adjudicator relied on a previous judicial decision to assume a proven fact. The adjudicator’s reasoning was manifestly flawed because she relied on the Giesbrecht decision for the purpose of a point of evidence, rather than a principle in law. Because of this error, the BC Supreme Court judge concluded that the RoadSafetyBC adjudicator was wrong. The judge overturned the decision and sent the matter back for a new review hearing.
We succeed and the IRP will be revoked
Now that we have a new hearing for our client, we can fix the mistakes he made at the original hearing. Establishing facts in an IRP case is what we do every day. In this particular case the facts we will show conclusively that our client is innocent. Lucky for him Kyla stepped in to put right where the RoadSafetyBC tribunal went wrong. Good for her and good for our client.
Unfortunate, however, is that the Court reaffirmed that the RoadSafetyBC tribunal has no role in educating people about the facts and law they are relying on which is generally unknown to amateurs and people conducting their own IRP review.
Do-it-yourselfers beware.
Postscript
In the last few months we had to deal with significant offensives on our office and Kyla personally by the Office of the Superintendent of Motor Vehicles. They called into question her legal ethics in a really offensive and to us underhanded manner. When we first went to court, they denied that was the case, but they didn’t retract the assertion. When Kyla filed her affidavit in response, they wavered, waffled and tried to back away further, but they halfheartedly proceeded with their assertion in any event on the basis of nothing as far as we could tell.
It was disgusting as far as we were concerned, and it seemed to us that this was an attempt to stop us because we’re so good at what we do. The Court rebuked the Government for their position.
In another, in all other aspects disconnected case, the Government disclosed information to us in an FOI request that they later claimed was secret, privileged and not something that anyone should know. We disagreed. We felt that they only came to that conclusion when they thought again about the implications of these secrets getting out. They said the impugned FOI material was protected by solicitor-client privilege. We’re strong believers in solicitor-client privilege. Still, in our research and professional opinion, this secret material wasn’t protected by that rule.
We told the Government, if they want to keep this secret, they should apply to BC Supreme Court for a declaration about the impugned material. In the meantime, obviously, we’d keep it to ourselves.
What astonished us was what the Government did next. Instead of simply applying to the Court for direction, as we recommended and would make sense, they did that but also asked the Court for an order to stop us from defending Immediate Roadside Prohibitions!
The Superintendent of Motor Vehicles (RoadSafetyBC) applied to BC Supreme Court for an order stopping us from doing our job basically because we know too much. Really.
Awful. So awful that when we went for the hearing, which took place in BC Supreme Court in Victoria early this month, the presiding judge appeared incredulous, (to us at least) put a lot of questions to the Government and when the matter continued in the afternoon, they abandoned that position.
We viewed these two cases as an attack on Acumen Law Corporation. The order sought was against our office and our lawyers individually.
This gives you some insight into what we’re dealing with on a day to day basis. You can listen to me speak to Shane Woodford at CNKW about a small portion of what we’ve gone through. As far as we can tell, this is a coordinated effort taken by the Government because we’ve exposed so many problems with the IRP scheme and because we’re so good at what we do.
Support
Ian Mulgrew wrote about some of this recently. Since then we’ve received nothing but support from lawyers, people in the legal community, police officers and basically everyone else who is paying attention. We really appreciate it.
We shouldn’t have to deal with these sorts of onslaughts from the Government just because we’re doing our jobs and doing it well.
In BC, these day this is simply the way it is.