As we review old case files that are headed to Court, we have noticed that in a number of IRP review decisions, new law may change your old IRP.
Because the IRP scheme is still relatively new, poorly thought out and filled with flaws, we see a lot of decisions from the OSMV that need to be appealed to BC Supreme Court. People have had their evidence rejected for ridiculous reasons that often betray what’s going on at the OSMV tribunal. Spencer and Gillies were the first important Court decisions that started to question the way evidence is parsed to uphold driving prohibitions at almost all cost. Court decisions have come out chastising the tribunal for some of their regular practices. These Court decisions make new law that are precedents in later judicial reviews.
We have identified a number of older IRP decisions that would be overturned on judicial review because the law has changed. In a number of cases the original decision of the OSMV adjudicator was wrong in law and now there is a Supreme Court case that would cause the tribunal’s decision to be overturned.
For example, if your evidence was rejected because the police officer gave his evidence in a form on the date of the incident and you gave your evidence at the hearing, this is a clear mistake in law. The OSMV tribunal made this mistake over and over again for months. For a while it was their number one way to reject your IRP Application for Review.
In Swaby there was no evidence that the device used was an Approved Screening Device. The OSMV tribunal has always rejected this as an argument on the hearing. They switch the onus to the Applicant to prove the device wasn’t an Approved Screening Device. In Swaby the Court confirmed again that the onus is on the police to justify the prohibition and that it is not up to the Applicant to disprove essential elements of the allegation.
The important thing here is that if you have an old IRP review decision, it may be worth appealing it now bearing in mind that the law has changed and is still changing to recognize the defences that lawyers such as ourselves identified over two years ago. Look over the review decision again and if your evidence was rejected for spurious or non-nonsensical reasons, you may want to consider appealing it.
We have identified a number of review decisions that cannot stand in light of subsequent Court cases. The lawyers for the Government are at the point now where they would rather throw in the towel than try and justify some of the embarrassing review decisions in Court. As a result in a few cases they have consented to our Petitions.
Our advice is that you read over your old review decision. If it seems particularly unfair or the evidence was rejected for some specious reason, it may be worth appealing in Court. If you want us to review your case, give us a call.