We apologize for the sporadic posting lately. Between our numerous successful judicial reviews of IRP decisions, fighting the Government for fair disclosure and impartial hearings, and just doing our regular work, we haven’t had much time to update our blog.
This case is likely to end up at the Supreme Court of Canada. We’ve decided we’re in it for the long haul. And so we keep fighting.
But we do have a number of updates on important issues. So sit down, stay tuned, and read on. This is a mega IRP update.
Remedies Appeal for Version 1 IRPs
For those people who received IRPs between September 20, 2010 and November 30, 2011 they may recall that the Fail provisions of the legislation were confirmed to be unconstitutional by the Supreme Court of Canada in October, 2015. Those who received IRPs for Warn or for refusal have been resolved a long time ago.
The question that has remained is whether those people who had to endure the consequences of an unconstitutional IRP are entitled to remedies. Last week, the Court of Appeal released a judgment on the issue in a case called Jaswal. You may have seen our tweets with Kyla’s blog post on the topic.
The short version is this: even though these people were issued IRPs under an invalid law, they are not entitled to any compensation. They are not even entitled to have the IRP removed from their driving record. This is disappointing to us for a number of reasons. The major concern from Government and expressed by the Court is that this would result in a significant financial outlay for Government, in light of the pending class action. However, removing the IRP from the driving record and cancelling any outstanding consequences like remaining days of driving prohibitions or remedial program referrals, and eliminating any fines due but unpaid to Government doesn’t cost the Government money.
It seems to us like the fair thing to do. But hey— this Government has demonstrated time and again that the fairness of the IRP system is a low priority.
This means that the class actions filed — both for damages as a result of the IRP scheme itself and for the Interlock and RDP programs are probably no longer viable. If you were expecting a windfall as a result of those Government actions, then you shouldn’t be holding your breath.
We are currently reviewing the judgment, the materials filed, and consulting with the lawyers who argued the case to determine whether there is any possibility of seeking leave to appeal to the Supreme Court of Canada. The lawyers have 60 days from the date of the judgment to file the application, so it will take some time. Expect an update to the IRP update on whether we end up involved in an appeal to the Supreme Court of Canada.
If you received an IRP between September 20, 2010 and November 30, 2011 and you are curious how this applies to you, here’s the simple breakdown:
- If you fought your IRP with the Superintendent of Motor Vehicles and lost, you may have an argument in BC Supreme Court about the reasonableness of your decision. We are reviewing old files for those who have outstanding Petitions in BC Supreme Court over the next few weeks, and will be in touch with you if you have an argument. If you did not appeal your losing IRP decision to the BC Supreme Court but you want us to take a look at it now please give us a call.
- If you did not fight your IRP but you filed a Petition to the Court to challenge the IRP after the fact, you may be out of luck. It will depend on whether the parties at the Court of Appeal apply for leave, if leave is granted, and what the Supreme Court of Canada rules, if leave is granted.
- If you did not fight your IRP and you did not file a Petition to the Court then you are out of luck at this point. That may change, and you’re in the same position as those in Group B.
Delay to IRP Decisions
Part of what has been eating away at the time in which we would otherwise write this blog has been our challenges to the delay in rendering IRP review decisions. Both Paul and Kyla have been interviewed by the media recently about these delays. You may recall Kyla’s successful decision in Plouffe v. The Superintendent of Motor Vehicles.
Since that judgment was released a few things have happened. Most importantly, clients who received indefinite extensions like those before the Court in Plouffe have been given a date by which decisions will be rendered. We cannot say whether this means you will receive your decision by that date or whether there is a further extension coming after that. We’ve also filed a challenge to the Government’s ability to grant subsequent extensions after a first extension is heard. Our view of the legislation is that it permits one extension only.
If you’ve received an IRP decision after an indefinite extension you’re also probably wondering whether you have an appeal. There is a question that remains unanswered after our successful challenge — what happens to people who cannot get the remedy of a date for a decision, which is what the Court ordered in Plouffe? We’ve filed appeals in those cases. Kyla will be arguing that in August, and it will likely be some time before a decision is rendered. If you got a decision after an indefinite extension, call us. We can appeal your decision and if you are entitled to a remedy then you will receive one.
Rest assured, if your file is still out there we are continuing to advance arguments if possible in your case. For anyone who received their IRP after June 1, 2015, we are not permitted to provide subsequent submissions to the tribunal. This is the subject of yet another challenge. We are busy fighting for your right to a fair hearing.
Reasonable decisions?
The last update about the delay is this: in the hearing in the Attorney General v. Lee case, the Court appeared concerned about the practice of the Government in not advising people of the reasons for the extension. This was also a concern in Hill v. The Superintendent of Motor Vehicles. In Committee, the Solicitor General said they were providing reasons. “[W]e are dealing with the backlog, which will address the court’s concern. We’re also now giving reasons why there’s a delay to the drivers in the process here.” (May 12, 2016 in Committee)
They still aren’t giving reasons.
We see this as a significant unfairness and a defect in the process, against the rules of transparency in administrative decision-making. If you’re our client and you’ve received an extension we are making submissions to the tribunal about this issue.
Defective Breathalyzers
Many of our clients who are awaiting decisions are those in the defective ASD group. We are still receiving information from our FOI requests to the RCMP and police departments about these devices, and we are still trying to submit it to the Superintendent. Obtaining the documents has proven to be difficult. Several of our complaints about late disclosure or unreasonable extensions of the time to respond to disclosure requests were recently closed as well-founded complaints by the RCMP Access to Information complaint department.
So material is still coming in by the truckload.
We are of the view that this may still be a live issue. The problem that arises in these cases, and as the judge identified in the Guglielmini case was connecting the general to the specific. That is, it’s easy to say that there is a general problem with these devices based on the vastness of the disclosure. Proving that there is a specific problem in any individual case is more complex.
We see this as similar to holding up a snowball in the U.S. Congress and telling the House that because it’s snowing there must not be global warming. Yes, the problem may not be evident today or in a specific case, but that doesn’t mean that it is not an overall problem affecting numerous people.
The other problem we often encounter is obtaining material in any given case. Because we didn’t know when a decision would come in any indefinite extension file, we couldn’t prioritize whose specific devices we investigated when. We have thousands and thousands of pages of records, but matching them to a specific file is a time-consuming task (we’ve spent hundreds of unpaid hours). We’ve been working on it consistently. Although our main concern was to stop the police from using defective breathalyzers in the first place, we’re still trying to get justice for people who were issued IRPs based on breath samples into these ASDs.
Attorney General v. Lee
You may have been wondering why we have not released the material that the judge ordered we could use in the Attorney General v. Lee case. The Government has filed an appeal of the decision. The original lawyer who argued their case is no longer on the file, and new lawyers have been hired to take over. Interestingly, the new lawyers are also counsel on a very significant appeal Kyla will be arguing in August. We can’t quite figure that one out. But our recent string of successes on these appeals might be why.
We discussed the appeal in the office at length. It was expensive and stressful for us to hire a lawyer to defend ourselves in the original case. It took our time and our energy. The Government backed away from their position of disqualification mid-trial, so our asses are no longer on the line. Personally, we haven’t got much of a stake in it, other than to obtain the evidence. But we also owe it to everyone who depends on us to fight these big battles to keep fighting this. So after long discussion we decided we weren’t going to back down now.
This case is likely to end up at the Supreme Court of Canada. We’ve decided we’re in it for the long haul. And so we keep fighting.
A boost to our confidence and something that has helped replenish our resources has been the award of 1/3 special costs in the original hearing. That’s a significant recovery of the money we spent fighting this. That money came from our own pockets. It’s also exceedingly rare that costs are awarded against Government. In this case, the judge characterized the decision to seek disqualification as “ unnecessary and excessive, and deserving rebuke in the form of a partial order of special costs.” (British Columbia (Attorney General) v. Lee, 2016 BCSC 974)
We were very pleased with that. For us that’s the happiest part of the IRP update because we’ve been financing this fight with money from our grocery money jar.
And we live to fight another day.
There’s more to come in the coming days, including another mega IRP update on two significant appeals we were successful on and how that will play out for many clients still in limbo awaiting a decision.