Fairness Has Nothing to do With It: Another Disturbing IRP Policy Change

Last week, we received a decision in a case we argued challenging the seven-day limitation period for Immediate Roadside Prohibitions. Our clients in the challenge had not filed for review in the first seven days. They asked for an extension from RoadSafetyBC, but due to a policy change in their office, RoadSafetyBC determined that it would no longer accept extensions of the seven-day time period.

We challenged that policy change but were unsuccessful. You can read more about it here. We have also already filed an appeal in the BC Court of Appeal. One of the things that was evident in the decision of the Court, however, was that the decision not to allow the extensions of the seven days is just plain old unfair. The Court wrote this:

Nevertheless, I agree with the petitioners that the seven day period permitted to seek a review of a 90 day prohibition is not appropriate in all cases as a matter of policy and can be too short a period.  I also find that it would be appropriate for the Legislature to consider an amendment setting out an exception to the seven day period.  Clearly this regime is to be considered in the policy context of rapid determinations in the context of an effort to address the problems of driving while intoxicated.  Nonetheless, in unusual circumstances, it would seem to me appropriate to enable the Superintendent, in his or her discretion, to extend the seven day period to seek a review.  In my opinion, the present period can be too short a window in all circumstances and the Superintendent should have at least a discretion to consider an extension in extenuating circumstances such as those of Mr. Isinger and Mr. Derkuch.

After we received the decision, the Justice Minister spoke to the media, stating that fairness was always something the Government was concerned about, and that it is important to constantly be looking at the legislation in order to enhance fairness for drivers.

So what has the Government done to make the law more fair, since the ruling last week?

Improvements to the Fairness of the Scheme for Drivers
The Government has done absolutely nothing to make the law more fair. Remember when the Supreme Court of Canada ruling came out, and the Government said they were glad about the ruling and that they had a constitutional version in place? But then they went ahead and changed the law to make the process less fair? Doesn’t that seem disturbingly familiar? Well, after the ruling last week, the Government went ahead with another policy change.

One would expect that the policy change would be to allow some extra aspect of fairness in light of the concerns expressed by the Court. But that would be expecting too much of a system that has, time and again, failed drivers in enhancing the fairness of the process. This is a system that will not render decisions in the statutory time limit of twenty-one days, but will also make a policy decision to no longer allow late submissions from applicants after the hearing has concluded. So the law can change, and you are stuck with what you argued. Or you can find new evidence, but it’s too late to argue anything to do with it. Suffice it to say, I do not expect much from the system.

So after the ruling came out, it really didn’t surprise me that the Government had yet another disturbing policy change in the works. And it didn’t surprise me that this policy change was designed to eliminate fairness, rather than enhance it.

What is the Big New Policy Change
The best way to describe the new policy change is to show you the text directly off RoadSafetyBC’s website:

Effective December 21, 2015 RoadSafetyBC will no longer be providing disclosure documents outside of the review process. Only applicants that have applied for a review of a driving prohibition, vehicle impoundment, or licensing decision, and paid their hearing fees will receive disclosure documents. ICBC will provide the applicant with all disclosure documents available when the application for review is submitted. If RoadSafetyBC receives new disclosure materials after the application for review is submitted, RoadSafetyBC will disclose all of the new documents to the applicant or their representative.

Well, isn’t that just lovely. Now, you don’t get the opportunity in your extremely limited seven-day time period that cannot be extended to ask for disclosure. Neither you nor your lawyer can obtain the documents related to your review, so that you can seek legal advice before deciding if you want to have a hearing.

So rather than enhance fairness in a system that has yet again been criticized by the courts for the inadequacies in the review process, the Government made a behind-closed-doors policy decision that removes fairness from the system.

What’s so Wrong About the Policy Change
Essentially it’s a form of extortion: pay us $100 for a written hearing or $200 for an oral hearing, and we will let you know whether you might succeed in it. Pay us, and we will give you the evidence the police have against you. Pay us, and we will let you decide whether you have a case. Pay us, and we will let you look at your personal information.

Now sure, you can get the personal information for free by using the Freedom of Information legislation. If you want to wait 30 business days from the date of your request. And given that, as explained above, there are no extensions of the seven-day time limit, that is simply unfeasible for drivers.

It also limits the opportunity to obtain legal advice. Because a hearing date is set right then and there when you apply for review, the time period will necessarily be shorter for drivers in this position. Less time to consult with a lawyer, less time to mount a defence, less time to gather evidence, and less time to prepare a case. Factor in the fact that there are no late submissions permitted, and this really shows the unfairness that has been perpetuated yet again by RoadSafetyBC.

As a lawyer, I am also frustrated by the policy change because it was not communicated to our office. In the past, we have received correspondence from RoadSafetyBC regarding the policy change, and when it would take effect. It makes sense to send this to law firms like ours, because of the sheer number of Immediate Roadside Prohibition cases we do. We are impacted as much by the policy change as our clients our, and we should be given notice of it.

It will be interesting to see how this policy change plays out over the next few months, and how it factors into decisions that continue to address the adequacy of the review process and fairness in the system. We are already prepared to challenge this new policy change directly.

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