Many of our clients come to us with questions about information they have been told by agents at the ICBC Driver Services Centres regarding their Immediate Roadside Prohibitions. What we’ve noticed is a deeply disturbing pattern of incorrect, inaccurate, and misleading information provided to people who are interested in defending their IRPs. Unfortunately, misinformation from ICBC is very common. The purpose of this blog post is to correct that misinformation.
Limitation Periods:
One of the main complaints we receive from clients – often those who have missed the 7-day timeline to file for review of their IRP – is that they were told something else by the staff at ICBC.
Here’s the skinny: you have seven days from the date of service to file for review of your IRP. If you were driving at 11:50 p.m. on a Tuesday, but you weren’t served your IRP until 12:40 a.m. on a Wednesday, you have seven days from Wednesday to file for review. The date of service is located on your blue IRP paper on the bottom portion, under the heading “Certificate of Service.”
The limitation period isn’t calculated like normal calendar days. If you were served the IRP on a Wednesday, the last day to file for review is Wednesday the following week. You have until the end of the day on Wednesday to file for review.
What about IRPs served on the weekend? By operation of law (the Interpretation Act), Saturdays count as a business day, so if you are served your IRP on a Saturday, you have until the end of the following Saturday to file for review. However, Sundays do not count. So if you were served your IRP on a Sunday, you have until the end of the day on Monday the following week to file for review. Similarly, government holidays do not count, so if you were served your IRP on a Sunday and the Monday that is supposed to be your last day is a holiday (Thanksgiving, for example) you have until the following Tuesday to file for review.
If you are at ICBC and you are being told anything else, give us a call. We will straighten them out.
Defences:
ICBC staff are not lawyers. They are not adjudicators. They do not issue IRPs. They do not know the defences available to you. Do not allow any ICBC agent tell you that because of some circumstance of your case, you do not have a defence. That is not their job, and they are not supposed to be giving legal advice.
We have spoken with a number of people who have informed us that ICBC agents have told them that their case is hopeless and they will lose. Many people decided not to challenge their IRP because they were discouraged by ICBC employees. Of course we encourage our clients to press on, and we are often successful because, unlike the agents at ICBC we are lawyers who defend IRPs and WE KNOW THE LAW. We are the lawyers who deal with IRP cases every single day.
DO NOT under any circumstances allow anyone at ICBC to make any notes or marks or amendments on any of the documents that the police gave you. If there is no box ticked on your Notice of Driving Prohibition, you may have a defence to your IRP. Under no circumstance should you allow ICBC staff to amend your Notice. They should not be doing this, but we have seen cases where the ICBC Driver Services employee made changes to disclosure and “patched up” the police officer’s defective evidence.
If you are at ICBC and this happens, take good notes. Make sure you get the name and any identifying information about the agent who you dealt with and provide it to us as soon as possible.
Filing for Review:
Recently, staff from our office went to ICBC to file an Application for Review for a client who could not make it to ICBC. There was no disclosure in the system at the time for the IRP. The ICBC agent told our staff member (good luck with that) that because the police had not yet submitted the police report, she could not file the review hearing application.
This is absolutely wrong. Not only is missing disclosure an excellent defence, but the application MUST be filed within the seven days. If you are being told that you cannot file for review and you are within your seven-day limitation, you must insist that a review hearing be filed. Otherwise, you sacrifice your right of review. Demand that the agent phone our office.
48 Hours:
Many people who are scheduling a written IRP review hearing are told that they must submit their arguments at least 48 business hours before the hearing date and time. This is wrong. It is also incredibly problematic: many written hearings are scheduled only three or four days after the date the review application is filed. Most people are unable to prepare evidence and submissions in such a ridiculously short period. To require people to do so would be procedurally unfair.
You have until 9:30 a.m. on the hearing date and time to submit your argument. It can be faxed directly to the adjudication department.
Similarly, people have been told that if they wish to have a lawyer represent them at the hearing, they must advise ICBC 48 hours prior to the hearing. Again, this is completely wrong. As long as your lawyer is available and willing to take on the case, they can represent you and take conduct of your matter up to the moment of the hearing. You cannot be denied your right to legal counsel because you did not inform ICBC you wanted to be represented as a lawyer.
We think that this as a ploy to discourage people from hiring lawyers. It follows a pattern we see with this BC Government – they don’t want people to have lawyers because they can take advantage of people who don’t have lawyers. As far as we are concerned, you should not be doing your IRP yourself. You should be hiring a lawyer familiar with this area of law and with hearings before the OSMV tribunal. This is a complicated and nuanced law in an unbalanced system where the evidence is stacked against you. You should be seeking legal advice.
Vehicle Impoundment/IRP Review:
You do not need to file two separate applications in order to have an IRP review hearing. Some clients have been told that in order to dispute their IRP, they must also file the Vehicle Impoundment Application for Review.
The Motor Vehicle Act clearly states that the OSMV must hold a review hearing if you file the prescribed form, pay the fee, and file within the seven days. You do not need to file two separate applications.
The point is that ICBC isn’t there to help you.
Ultimately, the point is simple: you need legal advice to deal with your IRP. If you are encountering any problems dealing with the staff at ICBC or if something seems fishy while you are there, call our office. We are available to assist you. We do not want to see you miss your opportunity for review of your IRP because you were misinformed by ICBC.