The BC Supreme Court rendered a decision today that we’ve been waiting for concerning old Immediate Roadside Prohibitions. This affects anyone who had an IRP under version 1, where the hearing took place after June 30, 2012. This will be good news for a number of people. The important decision on adjourned IRP hearings confirms what we argued in each of these cases: the Superintendent of Motor Vehicles (now RoadSafetyBC) had no jurisdiction to conduct hearings under IRP scheme version 1 after June 30, 2012.
Some background:
The first version of the Immediate Roadside Prohibition law was ruled unconstitutional with regards to Fail IRPs. This decision came November 30, 2011. The Court decision is referred to as “Sivia 1” in some later cases.
It was chaotic in the days and weeks that followed. The RoadSafetyBC tribunal or OSMV registry or someone over there in Victoria made the decision not to conduct hearings on IRPs issued in Fail cases that were given out by the police in the weeks shortly before the decision.
Instead of conducting hearings or rendering decisions, people who disputed their Fail IRPs issued in the weeks before Sivia 1 received a letter saying that the OSMV was adjourning their case generally. No decisions were rendered and hundreds of people were stuck in limbo.
Months passed with no word from the OSMV concerning what they would do about these old, yet unresolved IRPs. We were of the view that they were null and void because the law no longer existed. We hoped that the OSMV would see it our way. After all, the declaration that the law was invalid went into effect on June 30, 2012.
Then toward the end of 2012 people started receiving letters from the OSMV saying that a hearing would take place. The OSMV was going to force people to conduct re-hearings or new hearings for old IRPs.
We were aghast. We wrote about it here on our blog: Another hearing for an old IRP
In the following blog post we went on to further explain the problem. If the law was no longer in effect and the IRP was disputed, and the law had been changed, we asked which law applies? Of course, we figured that we knew the answer (duh).
Today the BC Supreme Court gave the answer.
The important decision:
We said that it was unfair and contrary to principles of natural justice to conduct hearings and render decisions in these cases. The BC Supreme Court ruled:
[67] I am aware that an unfortunate consequence of this decision is that some driving prohibitions and penalties that were initially justified will be set aside. However, procedural fairness is a cornerstone of modern administrative law (Dunsmuir at para. 79). The concept of procedural fairness has been held to include the procedural requirements mandated by natural justice, and an “essential feature of fair procedure is that the content of the procedure is clearly defined, and known in advance by the parties subject to it” (Guy Régimbald, Canadian Administrative Law (Markham, Ont.: LexisNexis Canada, 2008) at 230). I therefore consider that this result is preferable to the petitioners being denied their right to the review that they relied upon – a denial of natural justice and procedural fairness in the truest sense.
The Court went on to make a declaration that the Superintendent of Motor Vehicles had no authority past 30 June 2012 to confirm the Driving Prohibitions under provisions of the Act that were declared unconstitutional and quashed the IRP, the monetary penalties and any remedial program requirements that potentially flowed from IRPs in this category.
What it means and who benefits:
This is a very important IRP decision that will have substantial implications for a certain group of people. The Court has held that the OSMV essentially broke the law by rendering decisions applying an unconstitutional law after the declaration striking down the law came into effect.
We made this argument in every case we argued of this group. We’re now going back through our files to identify those who benefit from the decision. On our preliminary review this afternoon, we see that we succeeded in most of the re-hearings that we conducted.
If you conducted your own review and lost (typical) and you fall into this category, give us a call. If you had a lawyer do it for you, you might want to phone them and let them know of the decision so you can figure out your next steps. And of course, if you want to get us to look at your case we’re happy to do so.
We’ll continue to review our files to identify any unsuccessful OSMV reviews in this category and we hope to contact everyone within the next two weeks.