One thing we’ve learned in the last few years in our battle with this BCLiberal Government over the IRP scheme is that you can’t trust this Government to do the right thing. In fact, you can’t trust this Government.
It’s not that every utterance of this Government is a lie. Certainly that’s not the case. But everything is political, and this Government is more concerned about protecting itself and maintaining power than things like justice or fairness.
In the last few weeks we’ve seen a great deal of evidence that the Government planning far down the road and doing everything it can to fracture the IRP class action suits that are now underway. How can they do that? By trying to break up the groups.
With respect to the individuals who were wrongly forced into the Interlock and Responsible Driver Program, there are really only two basic groups: those who didn’t participate in either “program” and those who did and paid out big money, went through the RDP and got an Interlock. For both groups there was no review process. These were automatic and mandatory programs. But the Government would like to fracture the groups so it’s less likely to be considered a class for the purpose of a class action. How are they doing this?
First they created a review process (a few years too late). Then, in their new review process, rather than admitting that they made a mistake and agreeing that individuals had been deprived of a review, they conduct a review and cancel the Interlock as of the date of the review. Instead of admitting that the person should never have had an Interlock requirement, which would easily keep them all in the same group for the purpose of the class action, they are now cancelling the Interlock as of the date of the review letter.
So what this means is that almost everyone will be in a slightly different situation. Then, when things head to court the Government lawyers can argue that this isn’t a class because the damages are so different for each person. You see what we’re getting at? By delaying the reviews, cancelling the interlock as of the date of the review date, making a portion of the people go through the RDP program and others not, they can make it so it looks less like a class. Do you think the Government is fair? No way.
What makes us come to the belief that this is what’s going on? You may recall a comment we made in a post on April 8 where we spoke of one of our clients for whom we had the Interlock requirement lifted but on the review they upheld the RDP requirement because our client had already paid for the course. In other words, it was appropriate in the Government’s mind for this person to take the RDP course because he had already paid for it. Had he not paid for it, presumably he wouldn’t have to take it.
So this is pretty absurd logic, but it reveals something important, i.e. the Government is in damage control and they’re trying to reduce the amount that they may have to pay out. Clearly they don’t want to refund money that was paid to a third party (Stroh) and they don’t want to open themselves to further liability by making people pay for the RDP course if they haven’t already paid. So it’s a litigation tactic. It’s got nothing to do with whether it’s appropriate to send this individual to the RDP course.
And of course, it’s very revealing. It shows that the issue that’s driving the decision making is money. The Government is doing whatever it can to reduce the amount of money it may be forced to pay in the class action suits that are now before the court.
Will their tactic work? In short, no. Firstly, because we deal with so many IRP files, we can show that this is what’s going on. The pattern is clear. Second, we’re litigating more test cases. Yes, once again we are picking a few cases to take to court. We have cases where 80-year-old drivers with perfect records and no problems with alcohol have been forced to go through the RDP simply because they already paid for it. We’re filing the documents in court on these cases within the next few hours.
So will the Government’s attempt to fracture the IRP class action suits succeed? We don’t think so. The issue is mustering the evidence to show the pattern in order to demonstrate that this is a deliberate attempt to fracture the IRP class action suits. Again, because we handle more IRP cases than any other office, we have the documents and we can demonstrate the pattern. We are confident that we can prove it.
One final note: thoughtful readers are asking us why we don’t simply make a Freedom of Information request to demand the memos and documents to reveal the Government’s strategy. And it’s a great question.
The answer is that the Government can refuse to release any document if it can be classified as legal advice. Simply put, solicitor and client privilege, which is intended to protect an individual’s ability to access the justice system by encouraging complete disclosure to lawyers without the fear that disclosure may prejudice the client in the future, is said to extend to communication between the Government and its lawyers. And because of this privilege, the Government can refuse to disclose anything that they can classify as legal advice.
On many occasions our requests for information have been refused because the Government claims legal privilege. Generally speaking, we think this stinks.
Sometimes it may be justified. On many occasions it seems to be an issue of political considerations. Which suggests to us that this Government isn’t interested in scrutiny, criticism or the basic principles of an open democracy.