Unfortunately Adjudicators do not always provide well-reasoned decisions, or the right decision. So what do you do?
The only way to challenge or appeal the decision of an Adjudicator is seek judicial review by way of Petition to the Supreme Court of British Columbia At the hearing a Justice of the Supreme Court will review the Adjudicator’s decision and decide if your case was decided properly.
Pursuant to the British Columbia Court of Appeal’s decision in Nagra when considering your Petition the Justice will review the decision of the Adjudicator and determine whether the decision of the Adjudicator was reasonable. You might ask, what is reasonable? Just because you don’t like or you disagree with the Adjudicator’s decision, does not make it unreasonable. Reasonableness, as set out in the Supreme Court of Canada decision in Dunsmuir requires that there is justification, transparency and intelligibility in the decision making process. In short, what is reasonable will depend on the individual circumstances of each case. Some issues that could arise on judicial review include whether:
- the Adjudicator misapplied the burden of proof, or
- the Adjudicator made an error when applying the law, or,
- the Adjudicator’s reasoning process was manifestly flawed and biased.
How do you know if the Adjudicator’s decision is unreasonable? To begin the process you must be able to identify the errors or issues in the decision of the Adjudicator. This requires a firm grasp of the law and knowledge of recent judicial review decisions.
Things to know about Judicial Review:
You can make an application for a stay of the driving prohibition. After filing and serving your Petition seeking judicial review you can apply to the BC Supreme Court for a stay of the driving prohibition and corresponding penalties, pending the outcome of the hearing.
The police are not deemed to have a credibility advantage. In many judicial reviews the manner in which the Adjudicator resolved issues of credibility is of central importance. An Adjudicator is not able to presume a set of facts most favourable to the officer and they are required to weigh and consider all of the appropriate evidence.
You cannot raise new issues. If you or your lawyer didn’t make an argument or provide relevant evidence at the original hearing, British Columbia Court of Appeal’s decision in Vandale, prevents you from raising it on judicial review. Since the Justice hearing your judicial review is only considering whether the Adjudicator’s decision was reasonable they can only weigh arguments and evidence that were before the Adjudicator at the original hearing. This underscores the importance of retaining experienced counsel for your original hearing with the Adjudicator.
The remedy typically is a new hearing. If you are successful at the judicial review, usually the judge will direct a new hearing before a different Adjudicator. This means you have a second opportunity, in front of a different Adjudicator, to make your argument as to why the IRP ought to be revoked. In exceptional cases the underlying decision is revoked (quashed).
Mickelson & Whysall has been successful in overturning many IRP decisions for our clients. We stay current with the relevant law and have the skill and experience to assess your case. If you have had the misfortune of having your IRP upheld and are considering appealing it please contact our office and speak to one of our lawyers today.
New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9,
Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154
Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), 2013 BCCA 391