Some version of the IRP law will remain in place in BC, at least for the next few years. That’s the obvious conclusion from the Supreme Court of Canada decisions and the decision in Bro.
Without a doubt aspects of the IRP constitutional challenges could have been handled better. That’s not to say that anyone did a poor job.
For us we’ve spent the last 10 days dealing with the reverberations of the SCOC decisions. On a personal level there is the emotional commitment to the ongoing challenges to the IRP scheme. Operating with the knowledge that two levels of court had already decided the constitutional issues in a particular and consistent manner, we weren’t betting on a change. So the news wasn’t a surprise.
There’s a reason we stopped encouraging clients to forward constitutional arguments in petitions after Sivia/Goodwin was decided at the BC Court of Appeal. In our opinion our clients were better off to put their efforts into succeeding with the RoadSafetyBC tribunal. Also, for our clients it made better financial sense. And we became very good at what we do (for example, in August 2015, like July, more than 52% of all successful IRP review decisions for the entire province were handled by our office).
So although we’re sad, generally speaking we’re not regretting the decision we made to make ourselves the best at IRP defence.
Regrets
Without a doubt aspects of the IRP constitutional challenges could have been handled better. That’s not to say that anyone did a poor job – the legal work was at a very high level. Looking back, however, the lawyers involved in the challenge at the beginning, which included our office, failed in a number of fundamental ways.
A story of success is far more interesting than a story of failure. So don’t expect a best seller to come from the story of how the constitutional challenges to the IRP scheme failed to knock down a bad law. Lawyers rarely teach each other how they could do things better when they lose a case. It’s the type of introspective exercise that few find pleasant. Still, for us the lessons learned are invaluable. And perhaps, for us, it’s easier to tolerate.
How we win IRP appeals
When the IRP law first came out, our success rate was very low. We could see over and over innocent people who were issued IRPs, but despite running all reasonable arguments the prohibitions would be upheld and the innocent drivers would be screwed.
We figured that this was wrong and we had an obligation as lawyers to figure it out and put things right. To that end we examined the losing decisions. We talked about them and worked up strategies. We refined our method of collecting evidence. We collected outside material (which has been very useful). And we began to design our arguments with the view of building an evidentiary record that would expose bad reasoning at the tribunal level when we subsequently appeal the case to BC Supreme Court.
We studied why we lost and now we win more IRP appeals than any other law firm (in the last few months more than ALL other BC law firms COMBINED) which is to the obvious benefit of our clients.
Many tasks ahead
The immediate reverberations of the SCOC decisions is that many outstanding cases have been resolved. It’s just a matter of filing the paperwork. For example, anyone who appealed their IRP decision to BC Supreme Court on Wilson grounds only will have no option but to discontinue their appeal. These cases are finished.
People who appealed their IRP review decision on constitutional grounds to BC Supreme Court for IRPs issued after June 15, 2012, should speak with their lawyer, whoever that is, to determine whether there are other meritorious arguments. If there aren’t any, now is the time to discontinue the appeal. If there are meritorious arguments, now is the time to size up the arguments to determine whether it is worth investing more to advance the appeal.
Thinking things through
For people who were issued Fail IRPs under the first version of the law, nothing is really clear. All of this talk of class action lawsuits and possible remedies still needs to be addressed by the Court of Appeal.
As far as we’re concerned the law was illegal from the start and the people who were given IRPs for blowing Fail from September 20, 2010 to November 30, 2011 should get it removed from their license, their money back, their increased insurance premiums refunded as well as a settlement for their suffering in the range of $15,000. That would be fair.
But we don’t expect fair from this BC Government and they play dirty. If you want proof, just look at the FOI scandal.