Several years ago, RoadSafetyBC had a problem with lengthy and indefinite extensions in rendering IRP review decisions. They cleared the backlog, for the most part, and cases are now generally decided within the twenty-one day timeframe. This is the time limit mandated under the Motor Vehicle Act.
However, there are still some occasions where the cases cannot be decided in this time period. In such occasions, the Superintendent may take an extension of the time to render a decision. The Superintendent may also release the vehicle and reinstate the driver’s license until such a time as a decision is rendered.
Until recently, the practice was that if the extension was short, typically a week or so, the vehicle would not be released and the license would remain prohibited. However, if the extension were longer then the Superintendent would reinstate the license. After all, the courts have repeatedly confirmed that these matters are meant to be dealt with expeditiously. And it renders the whole review process moot if the consequences are served in full or in large part before a decision is rendered.
I say until recently because this has now changed. And it is, in my opinion, totally wrong.
The obvious issues with putting the time period well into the future aside, the way this is happening is unacceptable.
First of all, the Superintendent’s adjudicators do not and have never given reasons as to why the decisions to extend are being made. There is never an indication whether it is due to the adjudicator’s upcoming Disneyland vacation, or whether it is due to a high volume of submissions or a complex legal issue or whether the adjudicators are seeking legal advice or waiting for the law to change.
And the absence of reasons means a lack of transparency. But that is far less offensive than the absence of reasons for why the vehicle remains impounded and why the license remains suspended even during a lengthy extension.
Such was the case for a recent client of mine, who has given permission to share his story but not his name. This individual had an extension for almost one month past the due date, with no reasons given. in the meantime, his vehicle remained impounded and his license remained suspended. Interestingly, the extension was going to last longer than the term of the impound, but per the working of the extension his impoundment was then extended to the decision date.
When I wrote to the Superintendent to protest the lengthy extension with no reasons, no release, and no reinstatement, the adjudicator referenced the client’s driving history. The adjudicator noted that the officer had indicated this client had a conviction, nearly fifteen years ago, for impaired driving and a few further alcohol-related interactions with police since then.
But this information was not before the adjudicator in the review hearing. It was information that the adjudicator had sought out after the review hearing and relied on to justify that conclusion. And it was now information that she ought not to have been aware of, that was now in her mind, when exercising her decision-making powers under Section 215.5 of the Motor Vehicle Act.
The same section of the Act that permits the adjudicator to extend the time to render a decision is the section that allows them to confirm or revoke a prohibition. And in making a decision under Section 215.5, the adjudicator is permitted only to consider the material set out at Section 215.49 of the Motor Vehicle Act. For convenience, this is generally the following:
Driving records may only be considered in the case of a 7-day or 30-day IRP, to determine whether a prohibition is a first or subsequent prohibition. They are not permitted otherwise, unless a party submits them.
But neither the police nor the applicant himself had submitted the driving record. Instead, the adjudicator conducted her own investigation into this document.
Oh, but it gets worse.
The document relied on by the adjudicator was not even the driving record. Had the adjudicator accessed the driving history from ICBC, she would have only received a snapshot of the past five years and much of what she relied on to refuse to release the vehicle and reinstate the license would not have been listed there.
Instead, she accessed an internal and otherwise inaccessible to the public ICBC document called a “Driver License Inquiry Report.” This document contained every interaction the client had with ICBC, including authorizing his parents to speak to them on one occasion, or referrals to remedial programs that were made, or queries for insurance history. This contained well more information than the public could obtain about themselves by going into ICBC.
And of course that the adjudicator was relying on this was not disclosed to the client until I objected as his lawyer.
The rules of administrative law require a few things. One of the most basic elements of administrative hearings are that a person is treated in a manner that is procedurally fair. This means, in part, that they must know what evidence is being considered in making a decision that affects them and they must be given the right to be heard about that evidence before the decision is made. Neither happened to this person.
And while that alone should leave you feeling sick to your stomach about fairness at the Superintendent’s office, it gets worse.
Remember that this person is having their decision considered by the adjudicator while all of this is going on. The adjudicator has now sought to justify a decision not to give someone a license back and release their vehicle on the basis of their “public safety risk” posed by their very dated record. A record that shows they served their sentence and complied with the conditions of relicensing. And all the while in a context in which the prohibition is under dispute.
The whole point of an extension is not to be punitive. It is supposed to be because the adjudicator needs more time to consider the submissions and evidence and arrive at a decision. If the decision is obvious: that is, if the prohibition is to be upheld or revoked, then there is no need for an extension. The adjudicator can simply render their decision.
But now the process is tainted. The hearing cannot be made fair again. This person’s driving history is being used by the adjudicator to say that he is a public safety risk — again based on something that happened fifteen years ago — if he were to have a license. What is says is that the adjudicator has already made up their mind. This person can’t get back on the road because if they were to go back on the road then they would endanger the public. Why? Because they have this IRP which shows that they continue to drink and drive.
If that is the reasoning of the adjudicator, then the fairness of the hearing has irreparably been compromised by the reliance on inadmissible and undisclosed evidence that should never have been considered. There is no evidence or assurance the adjudicator can disabuse her mind of these considerations in the review hearing itself. She has already engaged in a process of investigating, seeking out her own evidence, and then using it to render one of the available decisions under Section 215.5 of the Motor Vehicle Act.
There is a reason the Motor Vehicle Act limits considerations to only those factors set out in the legislation. It is to prevent this type of injustice from occurring.
And what’s more - that this happened in this case tells us that it has been happening in hundreds more. It calls into question the fairness of the whole system, which system completely lacks in transparency on these decisions.
The Superintendent of Motor Vehicles owes the public an explanation about whether the process it has been following is fair, or it should provide an assurance that this case is simply an anomaly, never to be repeated again.
Anything less calls into question the integrity of the whole system.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.