It seems that most people who received a 90-day Fail Immediate Roadside Prohibition did not file for a review. We know that lawyers around British Columbia, quite reasonably, told people that there was no hope in winning, so no purpose in applying for a review. Others were sent away from ICBC after being told that they could not challenge the IRP on the basis of innocence. And some people learned enough about the scheme through the grapevine to know that the deck was stacked.
Our advice was to dispute any IRP to register your opposition with the scheme and then hope for a remedy from the Court at some future date. Again, it was hard to feel good about advising people to pay to make an argument that they would lose.
When the law was found to violate the Charter, we debated among ourselves and with other lawyers whether people who did not dispute their Fail IRP needed to do anything at all. Bearing in mind our experience with the Government, we decided that we should follow the steps laid out in the case law and request an extension of the 7-day period for our clients. This would permit us to ensure our clients put their name in the hat, so to speak, and it would allow us to get beyond the OSMV where we could then seek a remedy from the Court.
The Government had other plans. Instead of considering our requests expeditiously, as you would expect in any fair system where the person is being punished, they just stopped considering the requests. They stopped doing their job. So we decided to apply to the Court for a mandamus order to compel them to get to work.
Although we expect that we would succeed in our Petitions for mandamus orders, we do not expect to succeed on the requests for extension to file for review. We just want to ensure that we have closed off the argument when we go to Court, i.e. to ensure that the Government cannot simply say our clients are dis-entitled to a remedy because we did not follow procedure. But when they stopped rendering decisions, they managed to stop anyone from obtaining a remedy.
Lawyers for the Government have now conceded the point. They have told us that the OSMV has been instructed to consider these applications. Simply put, we would likely succeed on this point in Court.
So we wait another day or two. We received this confirmation last week, and we are still waiting. If we have no response Wednesday, we will begin filing many more Petitions seeking mandamus orders. We will be glad to have this issue dealt with in Court. Part of our purpose is to ensure that the Court knows how the system works.
You know how it works because you have been through it.