As we explained in the last blog post, many people who disputed an Immediate Roadside Prohibition and lost at the tribunal level are now in a good position to succeed because of recent BC Supreme Court rulings. Now is the time to appeal your IRP review decision because the rulings will apply to many, perhaps most, of the decisions made by the OSMV going as far back as 2010. If you’re successful, it means the IRP comes off your record and the BC Government will write you a cheque. Here’s how we’re doing it:
Getting started: How we appeal your IRP review decision
Many cases are absolutely worth appealing, but not all. We start by getting the entire record of the original IRP hearing including the police report, evidence submitted, written submissions if they exist and any other material that the tribunal relied on at the original hearing. We get this from the OSMV because we need the official version.
Next we go through it and give it a close read. We’re looking for clear errors made by the OSMV tribunal. Some of the most important errors that they made over and over again and which are great grounds to appeal are:
1. In cases before September 2013, the adjudicator relied on the Superintendent’s Report on Approved Screening Devices. This was a mistake that the tribunal made going back to 2010. All of the decisions can be appealed where this report was relied on in the OSMV delegate’s reasons. It’s a clear mistake on the face of the record. The decision is unreasonable, meaning the IRP can be successfully appealed. This argument came about due to the Buhr decision.
2. In IRPs issued since June 15, 2012, if the jurat is defective and the adjudicator upheld the prohibition nevertheless, then you’re looking great on the appeal. The jurat is the signature block on the main Report to Superintendent document. It’s the page with the check boxes that are there to substitute real evidence. If you look at the bottom and something seems amiss, call our law office to talk about appealing that IRP. This argument came about due to the Murray decision, and it’s a silver bullet to get your IRP overturned in many cases.
3. Few or no symptoms of alcohol impairment? Police officer doesn’t say anything about his or her opinion about your sobriety? In cases where the driver blows Fail or Warn and the officer does not record an opinion and reasons for an opinion (which is most cases), then now is the time to appeal your IRP review decision. In Richardson, the BC Supreme Court agreed with us that this is a test set out in the Motor Vehicle Act and the OSMV tribunal is the body with the jurisdiction to revoke your IRP on this basis. We’re certain that this is the correct view of the law. Still, we are anticipating that the Government will appeal the decision. They’ve got an uphill battle against a powerful army, i.e. the lawyers at Acumen Law Corporation.
4. Was your evidence rejected because the OSMV tribunal preferred the police evidence over yours for some foolish and unsubstantial reason? This is hugely common. In recent cases appealed to the BC Supreme Court a chief observation is that the OSMV tribunal works backward to justify the pre-determined result. We’ve complained about this for years here on our blog. The tribunal makes findings of fact to justify the result. Historically they could count on the BC Supreme Court to rubber stamp the findings of fact. This is a big failing of our justice system. The BC Government has exploited this quirk and degraded our justice system markedly as a result. The IRP review tribunal accentuates the danger of shunting this sort of decision making to tribunals of this sort. We hope the OSMV tribunal is the lowest point of this dark turn in our justice system. The BC Supreme Court is calling them out in recent court decisions, so this kind of “reasoning” is now a good grounds of appeal.
Identifying the arguments is the first step. As stated, we do that by reviewing the entire record. Then we have to talk. An appeal often makes sense, but not if the end result is a loss. A rehearing is the most common remedy if you’re successful on the appeal. Will you succeed at the rehearing?
Nothing is ever certain, but rehearings can be reasonably close to certain these days, particularly with the first 3 arguments above because there is little wiggle room for the OSMV. Often, bearing in mind the case law, they simply can’t uphold the prohibition.
What happens if you succeed and the IRP is revoked? That’s when the BC Government must pay you back for towing, storage, fines, fees, etc. If you think about the Responsible Drivers Program and the Interlock, and the costs of the entire IRP, particularly when it remains on your driving record for all time, the small cost of the appeal is a no-brainer.
Status update: Examining old review decisions
We’ve been going through client files to find review decisions that can be appealed. We’ve found quite a few. We’ve also succeeded so often in the last year that there is not as many as we originally thought from our office.
We’re also taking on cases where people conducted their own hearing or when another lawyer or law office acted at the IRP review hearing.
What we’ve found so far is that explaining the process over the phone takes a lot of time. So it may be weeks before we contact everyone.
If you’ve already close to deciding that you want to appeal the OSMV decision, give us a call and we’ll expedite your case.