The 7-Day Period to Apply for Review of Your IRP

Did you apply for a review within the 7-day period?

It is the first question we need to address for every new client with a 90-day Immediate Roadside Prohibition for ASD Fail because, to date, the interlocutory remedies are only available to people who lost on review. What does this mean? If you filed for a review of your 90-day IRP for Fail with the Office of the Superintendent by attending ICBC licensing and paying for a hearing, then we can take the review decision and file an appeal (a Petition) in Supreme Court to stop the interlock and RDP until at least the end of June. But if you did not file to dispute the IRP, what can you do?

First, some background. The 7-day period to apply for review of your IRP is a limitation period. Usually limitation periods exist to protect the integrity of the litigation. The purposes are to provide certainty for parties in a potential dispute by delineating deadlines, and to ensure certainty in the law. So why was is there a 7-day period for IRPs? The Government is certainly not disadvantaged if the period exceeds the 7 days, aside from the loose suggestion that the OSMV should render its decision, typically upholding the prohibition, withing 21 days. The accused person who is already under a prohibition, however, is disadvantaged by virtue of the prohibition.

So the Government is not really disadvantaged in any significant way if you were to apply for a review after 20 days, 90 days, 190 days, etc. But in the legislation they limited it to 7 days. Why?

The sections of the Motor Vehicle Act dealing with the Administrative Driving Prohibition (ADP) have two general time periods that were adopted for the IRP scheme. If you receive an ADP the Notice of Prohibition is also a temporary driver’s license that permits you to drive for 20 days until the prohibition kicks in 21 days later (not so with an IRP). You have 7 days with an ADP to file for a Review at ICBC Driver Services. This permits the Office of the Superintendent to obtain and disclose the (typically scant) police report to the applicant, conduct the hearing and render a decision. The prohibition begins after 21 days, so it makes some sense.

When the IRP law was written, they adopted the same limitation period. Does a decision really need to be provided within 21 days with an IRP? No. But it should be provided promptly after the hearing if the Government is interested in being fair. Is there any reason that you should only be allowed 7 days to decide whether you should file for a review? The only reason we can think of is that 7 days is not enough time to properly investigate the matter in many cases and make an informed decision. So the Government manages to screw you by virtue of the fact that you missed the 7 days.

Right now many people (nice people like you and me) should not be forced to suffer the consequences of a 90-day IRP for Fail (which is unlawful due to the Charter violation) while waiting until June. So we have decided to do something about it.

Our first step has been to follow the accepted procedure and contact the OSMV to request disclosure of the Report to Superintendent (the 1-page police check-box report). Then we would write to request an extension of the 7-day period explaining the reasons why that is appropriate in each clients’ case.

We noticed in December that despite the request in the proper form, we stopped receiving decisions from the Office of the Superintendent. We cut them some slack because we know that they are in crisis mode down there. But then other developments caused us to believe that there were political decisions at play.

At first, the OSMV stopped sending us disclosure. We kept writing to request it because that is our job, and they simply refused to give it to us. We were told it was coming and they were just behind. Then we were told that we did not need it. Then we were told they simply would not give it to us or anyone. Now we are told that they will only give it to us with an official authorization from our clients; something never before needed which is their new trick/twist.

Obviously we could no longer cut them slack when we concluded that our clients were just being jerked around. So we are now preparing applications to Court for mandamus orders for each client. It is important that the Courts get to hear what is going on. We do not expect that the OSMV will extend the 7-day period — it would be uncharacteristic, but we will ask the Court for orders compelling them to consider our requests.

Unfortunately, this is the same office that will ultimately decide whether the 7-day period should be extended. So then we will also quickly appeal those decisions to Supreme Court.

Several reporters are now starting to dig into this story, so expect some action on it in the next week.

The 7-day period makes some sense for ADPs, but for IRPs it is only designed to impede justice. Which gives you yet another small insight into the way governments, and in particular this Government, view the people whom they govern.