If you are issued an Immediate Roadside Prohibition under BC law (a roadside driving suspension for blowing Fail, Warn or refusal) you can appeal the prohibition. On the front of the Notice of Prohibition in very small print is an explanation of the right to challenge the prohibition and to have a hearing concerning whether the prohibition should continue.
Aside from the fact that it’s written in small print, the text is designed to be difficult to understand. For greater clarity we have duplicated the text of the Notice of the Right of Review. Below we explain what the IRP fine print really means.
The Fine Print
IMMEDIATE EFFECT OF PROHIBITION AND RIGHT OF REVIEW
You are immediately prohibited from driving for the period set out in this notice of prohibition. You have the right to have this driving prohibition reviewed by the Superintendent of Motor Vehicles (the “Superintendent”) under section 215.48 of Motor Vehicle Act. An oral hearing is available only if the prohibition specified above is for 30 days or longer, and only if you specifically request one at the time you apply for a review. Filing an application for review does not stay the driving prohibition.
Within 7 days of the date of service of this Notice of Driving Prohibition you may apply to the Superintendent to review the prohibition. If you apply for a review you must: (1) file an application with the Superintendent at any Driver Licensing Centre, in the required form and manner, and containing all the required information; (2) pay all required fees; and (3) if the peace officer did not take your driver’s licence or permit to operate a motor vehicle, surrender it to the Insurance Corporation of British Columbia, or if applicable, file the required statutory declaration stating that the licence has been lost, stolen or destroyed.
When you apply for a review, the date and time for the review will be scheduled. If you intend to have a lawyer represent you, it is your responsibility to ensure the lawyer is available for the scheduled review. The scheduled review date will not be changed except in extraordinary circumstances.
When you apply for a review, copies of all available evidence concerning this prohibition will be disclosed to you unless you refuse the disclosure. If all relevant information is not available at the time of application, you must provide a fax number to which the documents can be sent, or make arrangement to collect the information or have it collected on your behalf from a Driver Licensing Centre.
You may attach to your review application any statements or other evidence that you wish the Superintendent to consider. You may also provide it separately to the Superintendent. In order to ensure that all of your written evidence is considered, you must provide the material to the Superintendent in advance of the scheduled review.
If you request an oral hearing and, without prior notice to the Superintendent, fail to appear on the date and at the time and place arranged for the hearing, your right to an oral hearing is deemed to have been waived.
What the fine print really means:
The fine print on the Notice of Prohibition for an IRP is designed to be confusing. The process gives us the impression that they want people to be afraid of the process and confused because people who are afraid and confused are less likely to dispute their driving prohibition. Don’t be afraid. We help people with driving prohibitions every day. Don’t be afraid. We can help.
IMMEDIATE EFFECT OF PROHIBITION AND RIGHT OF REVIEW
The title mixes two distinct issues. The right of review is completely separate from the effect of the prohibition but it’s less likely you’ll read the full title when you see the first half. We think that this is designed to confuse the reader. It’s tricky language.
The Right of Review
It’s not actually a right because you must pay for it. The Notice says:
You have the right to have this driving prohibition reviewed by the Superintendent of Motor Vehicles…
When it says “review” what they mean is you can have a hearing with an adjudicator at the Office of the Superintendent of Motor Vehicles. To confuse matters, they don’t refer to themselves as The Superintendent of Motor Vehicles, but rather as RoadSafetyBC. They changed their name as part of a rebranding exercise but the legislation still uses the old name.
The “review” is a mini trial. One of the RoadSafetyBC tribunal members will consider the evidence of the police and the person applying for the hearing as well as the submissions, typically from the lawyer. The tribunal member will eventually issue a written decision either revoking or upholding the driving prohibition.
So “review” in this context means a hearing before a Government adjudicator who does not represent you who and is not responsible for your best interest. They will not help you. They are not there to help you find evidence to help your case or assist you to make your argument.
“Stay” the driving prohibition
The Notice say that “Filing an application for review does not stay the driving prohibition.” Most people don’t have a clue what that means. What is “stay” in this context?
This is legal jargon. When they say “Filing an application for review does not stay the driving prohibition” it means that the prohibition is not lifted by simply paying the money for a hearing. The prohibition is only lifted if you are successful at the hearing. Do not conclude that you may drive just because you filed for a review of the driving prohibition.
The prohibition remains in effect while the adjudicator at RoadSafetyBC considers your case. Just because you file for a review, it doesn’t mean you can start driving.
If you’re successful challenging your IRP, then you can go get a new license at no cost.
The Review Instructions
The document says “Within 7 days of the date of service of this Notice of Driving Prohibition you may apply to the Superintendent to review the prohibition.” The term “may” was formerly viewed as having flexibility to deal with the inevitable situations where, for some unanticipated reason a person couldn’t apply for the review within 7 days.
What this sentence now means is that IF YOU MISS THE 7 DAYS, regardless of the reason (a coma, heart transplant or what have you) you are absolutely barred from challenging the IRP because the Government won’t allow you to appeal your IRP. Is it mean and unfair? Yes. When this matter went to the Court of Appeal the law as it stands was upheld. The Court acknowledged that it may be particularly unfair but also recognized that the Government can write unfair laws.
Filing for a review
The fine print makes it sound difficult. Filing for the review is not particularly difficult. What is difficult is reviewing the disclosure, developing and argument and conducting the hearing. Filing for the hearing is very easy.
The Notice says that you can: “file an application with the Superintendent at any Driver Licensing Centre…”
“Driver Licensing Centre” is not a phrase we normally use in British Columbia. If you Google it, chances are that the first hits you’ll get are from Alabama.
This gives the impression that the BC Government is trying to make this difficult and confusing.
To actually file for review, all you need to do it is go to an ICBC Driver Services office or Service BC location.
The required form and manner
The Notice suggests that you need to have a pile of paperwork ready before going to ICBC Driver Services. It says that it must be “in the required form and manner…”
This, is misleading. The “form” is one they have at ICBC Driver Services. We have these forms in our office.
Containing all the required information
All this means is that you need to fill out the form! The required information is your identification information and the name and number of your lawyer if you’ve already got one. Not much more than that is required. So when they say “all the required information” it may scare people away with unknown hurdles.
If we are your lawyers, we take care of all of this for you so long as you contact us early enough in the process.
Statements or other evidence
The IRP fine print says that “[y]ou may attach to your review application any statements or other evidence that you wish the Superintendent to consider.” This statement leads the reader to the conclusion that you need to have all of your evidence ready before you go to ICBC Driver Services to apply for a review. That is not true. You can get your evidence in until shortly before the hearing starts which is usually about a week after you apply for the review.
It then goes on to say “[y]ou may also provide it separately to the Superintendent” but it doesn’t tell you how you can do this. Again, the purpose appears to be to obfuscate and to make the process needlessly difficult so you won’t dispute your IRP.
What it really means is that you can drop off your evidence and submissions to ICBC Driver Services or fax it to RoadSafetyBC so long as they get it before the hearing so the adjudicator has it before them when the hearing commences.
Needless legal jargon
The fine print concerning the IRP right to review is like most fine print: it is there to protect the people who wrote it, not you. With respect to Immediate Roadside Prohibitions the fine print also has the effect of making it seem really difficult to file to appeal an IRP.
What you need to know if you have an IRP
You have only seven days to file you application for review. Filing is something we do every day. The difficult part is identifying defences and putting together winning submissions that put you in a position to succeed in challenging the prohibition.
More people would succeed in challenging their IRP if they disputed their IRP, defended their rights and challenged the police version of events.
If you want us to help you handle the review of your IRP, call us right now and we’ll get started. We’ve protected the driving privileges for thousands of people from around British Columbia. Give us a call.