In the last few weeks, I have uncovered more evidence about the significance and expansiveness of this problem.
At the time I wrote the last post, I had about 250 files in my office without decisions. That number has since increased to over 400 files, all of which are people who are waiting for justice in their cases. And in the meantime, the IRP remains on their driving record.
Recent Developments in the Law
Another lawyer who was frustrated with the delay brought a case to BC Supreme Court. His client had argued the case at a time when the law was a certain way. By the time the adjudicator decided it years later, the law had changed against him. The lawyer argued that the Superintendent had deliberately delayed in the hopes the law would change. The Court dismissed the case, saying that there was not enough evidence to support that contention. However, this appeared to have been only a very narrow decision. The judge commented that the whole thing left a bad taste in his mouth.
A few weeks ago, I argued a different but similar case. I am currently awaiting a decision from the Court on the issue. In my case, the Superintendent had extended the time to render a decision indefinitely. This left my client in the position of having the Sword of Damocles hanging over his head, never knowing if and when a decision would be made in his case, and if and when the prohibition would be reinstated. My argument was essentially that the legislation did not permit the Superintendent to extend the time for a decision indefinitely, but only for a finite period.
The judge in my case has yet to render a decision, though he did note the irony of taking an indefinite amount of time to render a decision about an indefinite amount of time to render a decision.
New Evidence about the Delay
In a request I made pursuant to the Freedom of Information and Protection of Privacy Act a few weeks ago, I received a table showing the names of adjudicators and “re-assigned” adjudicators. It was in the context of something else entirely, so I sought out more information. I received a copy of a list, 30 pages long, showing every IRP case extended at the time, and the name of the original adjudicator along with a reassinged adjudicator.
You can download the documents here.
What is surprising, and disturbing, is that the majority of cases appear to be re-assigned. Rather than letting the adjudicator who originally heard or was assigned the case decide it, the Superintendent has re-assigned files to different adjudicators. At the same time I received this, I also received a decision from an adjudicator that was signed by someone other than the person who had signed the Notice of Extension eight months earlier. I began to grow concerned, understandably, that one of the very basic principles of administrative law was not being followed. That is, the person who hears the case must be the person who decides it. In order to have a fair hearing you have to be able to make your submissions to the person who will decide the case.
I wrote to the Superintendent to request clarification of the re-assignment policy, and to investigate further. Here is the response they gave me. I’ve also reproduced the pertinent part here:
“RoadSafetyBC Managers may occasionally reassign an adjudicator in written review hearings. These reassignments may occur for example, when the original adjudicator is on long term leave or has changed jobs. In all cases the new adjudicator will have all the evidence and written submissions.
For oral review files, if the adjudicator who was present at the oral review hearing is no longer available to render that decision, a new hearing would have to be scheduled.”
The problem is that what is in that letter simply isn’t the case, when the table of extensions is contrasted to it. For starters, the table reflects that adjudicators like Brenda M. have, in some circumstances, not had files re-assigned. Brenda M. retired over a year ago. Similarly, Alistair C. is now no longer at that department, and yet many of his files are still assigned to him. Meanwhile, files assigned to adjudicators such as Amy D., Brian H., Nikki C., and Julie D. (as examples) are reassigned in numerous cases. These adjudicators are not on long term leave and have not changed jobs. I have conducted hearings with each of them in the past ten days. And yet for some reason their files have been reassigned.
I can understand that the adjudicators have a significant workload. However, I too have a significant workload and I manage to make the submissions in my clients’ cases each time the law changes. So there is no conceivable reason that these files should be reassigned. It’s certainly not in keeping with what I have been told, that is that files are “occasionally reassigned… when the original adjudicator is on long term leave or has changed jobs.” That just isn’t the case.
The policy is also said by the Manager of Adjudication to be applied occasionally. But anyone with basic counting skills can see that this isn’t an occasional issue. A significant number of these files are reassigned. It isn’t an occasional issue at all, but appears to be a frequent practice. And it’s disturbing that the Government’s response simply doesn’t align with the factual reality in the records they disclosed to me.
It’s also disturbing that the Government has implemented a policy that requires drivers to file their application within seven days, after having been prohibited immediately, and requires that the applicant have all the evidence and submissions ready to be provided at the hearing, which hearing takes place about fourteen days after the prohibition has been imposed. And despite the promise of a decision within 21 days, they appear to be largely unable to implement that. It remains the biggest failing of BC’s DUI law, and it is a significant problem with fairness and transparency from the tribunal.
Anyone who expects to be treated fairly in these cases should be offended by this frequent and extensive reassignment of adjudicators.