It slices, it dices, it makes small piles and then rejects evidence

One perpetual complaint we have with the process at RoadSafetyBC is the manner in which they weigh evidence. If you receive an Immediate Roadside Prohibition or Administrative Driving Prohibition (IRP or ADP) your appeal is held before a delegate of the Superintendent of Motor Vehicles. The problem with the process is that findings of fact are made which often can’t be reconciled with the evidence.

In these cases, we often appeal to the BC Supreme Court and if necessary to the Court of Appeal. Kyla Lee has appealed more IRP cases than any lawyer in the province. Back when the IRP legal scheme came out in 2010, we discussed how we would structure our entire approach to challenging IRPs and the problematic aspects of the law. We decided that we needed to appeal decisions in court and Kyla really took that to heart.

When it comes to weighing evidence, as far as we’re concerned the review process lacks suitable means to make determinative findings of fact. There is no cross-examination, minimal disclosure and in fact, the matter is decided just on the admissible documents before the delegate. So how can an adjudicator possibly make finding of fact?

The direction from the Courts is that the adjudicator (the delegate) must consider the evidence as a whole. At the same time, they must think about the credibility and value of each part of the evidence. In the end what we often see is the adjudicator slices and dices the evidence, and then rejects the evidence as a whole. Which is what happened in the McCabe case.

Slicing and dicing isn’t supported by our Courts

Kyla took one case to BC Supreme Court where the adjudicator upheld the IRP by looking at three crucial pieces of evidence from three sources and then rejected each of them. The rejection of the evidence was troubling. Findings of fact can be geared to a certain result which is a particular concern for us and with respect to this tribunal, it’s been a concern of the Court. In this case, the three findings of fact concerning three separate witnesses were each assessed on their own and then each rejected. After that, the adjudicator went on, purportedly to consider all of the evidence while at the same time having rejected three of the most important pieces of evidence. Kyla looked at it and thought it was wrong. So she filed the appeal.

(A little off topic)

Departing from the narrative here, it’s important to bring something to your attention, and that is there is an appeal process available to everyone who is not successful at their IRP or ADP hearing. If you dispute your IRP or ADP hearing yourself, you will probably lose and it’s also probable that you will fail to generate the necessary record to succeed on further appeal. But there is an appeal.

The reason that it’s important to tell you that is because an official government document says “There is no appeal available for an IRP review decision.”

In a document published by RoadSafetyBC entitled Immediate Roadside Prohibition Review Policies the BC Government states:

“An IRP review decision is a final decision. There is no appeal available for an IRP review decision.”

This is wrong. There is an appeal procedure and it’s called a judicial review. It’s not a new hearing but it is an appeal process.

Back to slicing and dicing evidence

When this particular case was appealed by Kyla by way of a judicial review, the Supreme Court agreed with Kyla that the adjudicator had rejected piecemeal the evidence of three sources, then proceeded to weigh the other evidence to ultimately uphold the prohibition. The Supreme Court agreed that the pathway to the decision was wrong and sent the matter back for a new hearing.

Unfortunately, it doesn’t always end there. In most cases, everyone in the room knows that the Government has what appears to be a policy of further appealing every successful BC Supreme Court decision in IRP cases. Is that a bad policy? We think so but that’s the topic of another blog post.

We think the reason that the government says, wrongly, in their official document that there are no appeals is because they’re doing everything to make appeals very difficult. Kyla and Brandon are not discouraged just because it’s difficult.

Decision of the Court of Appeal

Today the BC Court of Appeal ruled on the practice of slicing and dicing. The decision isn’t published yet, but in essence, the top court in our province ruled that this practice is not part of the proper reasoning process in weighing evidence. An applicant seeking a review of their Immediate Roadside Prohibition is entitled to have the evidence considered as a whole.

This was another nice success for Kyla Lee at the Court of Appeal – congratulations to her. More than that, however, it’s an important decision for tribunals across the province. The practice of slicing and dicing the evidence, then rejecting relevant evidence in this manner, is in effect no longer a consideration of the whole of the evidence.

IRP lawyers from start to finish

We were long established as impaired driving lawyers when the IRP scheme was introduced and without a doubt, our office has had more effect on changing the IRP system than anybody. If you’ve received an Immediate Roadside Prohibition and it’s important to you that you keep your license, give us a call, shoot us an email or text us your documents by going here.