Indefinite extensions: the court decision

Another big court decision was released Wednesday; this dealing with indefinite extensions of the 21-day window to render a decision. If you’re one of the thousand or so people in British Columbia who have a temporary drivers license because RoadSafetyBC hasn’t rendered a decision in your IRP case, this is your issue.

For our test case we didn’t want the perfect case. We wanted a case that was somewhat emblematic and which demonstrated the problems that arise when they put off the deadline indefinitely.

What appears to have happened is over the last few years RoadSafetyBC has simply stopped rendering decisions in cases where they don’t like the outcome under the current state of the law. Their hope is that they can change the law, manipulate it, by finding a test case with good facts to justify upholding the prohibition.

The actual practice is that the hearing is conducted and the adjudicator or someone else brings the case to the attention of their supervisor. The supervisor talks to the government (legal services branch) lawyers. The lawyers then tell them what to do.

In the case that for us confirmed the last parts of this (the #VictoriaPapers), we could see that a lot of work would go into the test case files in which the adjudicator at RoadSafetyBC would uphold the decision perhaps hoping a self-represented person would then appeal it to BC Supreme Court or some such thing.

So they pick and choose the ones they like, that they think have facts that will most support their case if appealed to BC Supreme Court, and they render a decision in that key case. Then, all of the other cases that were likely winners under the current version of the law are put on hold.

It’s wrong in our view, but more on that in a week or two. If you read the Hill decision, you can see that the court had an inkling of what was going on. That case had been put on hold until the law changed. Then a decision was rendered to uphold the prohibition. Not a fair system, but that’s what happens when you have a secret system.

Prohibition on hold

What does it mean to have the prohibition on hold? The Motor Vehicle Act s. 215.5 (7) says:

If the superintendent is unable to send the decision to the applicant within the 21 day period set out in subsection (6), the superintendent may extend that period for a period determined by the superintendent.

So increasingly, as we’ve said, they simply don’t render a decision in the 21-day period by exploiting this section of the Act. Certainly is wasn’t intended for this purpose — to twist and turn and connive to uphold prohibitions. But that’s what they do.

We say that’s wrong

We didn’t think it was appropriate for RoadSafetyBC not to render decisions for this purpose, so we started looking at their process.

What they were doing in most cases is they’d fax us a letter saying that they couldn’t render a decision in the 21-day time frame and therefore they were issuing a driver’s license that would be good until they finally got around to rendering a decision. The time frame was left open ended in many cases. In others, they would issue a temporary license for a few months, then another and so on, each with a new deadline date. Some of these go back over 2 years.

Indefinite extensions: our first test case

Of course we knew what was going on. We deal with IRPs 7 days a week. Kyla came to the conclusion that the indefinite extensions, that is where RoadSafetyBC stated that the prohibition was put on hold until they rendered a decision, was illegal. She was of the view that they had no authority to issue indefinite extensions. We discuss these issues very thoroughly in our office and soon we were all in agreement that we would run a test case to challenge the indefinite extensions.

We picked our test case. Of course, we’re not a tribunal that claims to be independent so we can pick whatever case we like as our test case so long as our client is on board. The one we picked had a mixed bag of facts. We didn’t want the perfect case – we had some of them too. We wanted a case that was somewhat emblematic and which demonstrated the problems that arise when they put off the deadline indefinitely.

The court decision

Kyla made the argument in BC Supreme Court in March and on May 10, 2016, the BC Supreme Court issued its decision. We were successful. The judge agreed that the decision of the adjudicator to issue an indefinite extension was unreasonable. It was without lawful authority. It was wrong. And for the hundreds of other people in British Columbia with an indefinite extension, you too have been wronged.

You can find the entire decision here: Plouffe v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 821

Other people and other test cases

Some cases we can chose to appeal as test cases and others we argue because we believe it’s in the public interest and our clients instruct us to appeal. Obviously we don’t always succeed, but we think our track record is excellent.

We have test cases currently before the court where we’ve already conducted the hearing and we’re waiting for a court decision. Others we’ve just filed in the last few weeks so we’re simply getting started. We have appeals where we expect to succeed and others that likely won’t go our way.

Kyla is the lawyer who conducts most of the IRP court appeals now. She’s developed a knack, memorized much of the case law and she can make the best argument with relative ease.

Normally we don’t discuss the appeals we conduct until a decision is rendered. In this case we’re very glad the court agreed with us that the indefinite extensions are not authorized in law. Congratulations Kyla. We have another test case waiting to be heard to deal with certain extensions for a fixed time period. As far as we’re concerned, these too may be unlawful.

For that decision you’ll need to wait a few more months.