NASTY CLASH: Lawyers who dispute immediate roadside prohibitions accuse government of personal attacks
The Immediate Roadside Prohibition (IRP) was introduced in 2010 as the toughest impaired driving law in Canada.

The debate between lawyers and the B.C. Superintendent Of Motor Vehicles over the immediate roadside prohibition for impaired driving scheme has turned ugly.

The B.C. Supreme Court has scolded the superintendent for using “unnecessarily inflammatory and unfair” language to attack a Vancouver lawyer.

“The kind of language used by the Superintendent is to be avoided,” Justice Dev Dley chided.

“Those kinds of remarks cut to the quick. They raise questions of integrity. Their harm far outweighs any correlation to the advocacy process.”

The justice said the superintendent crossed the line with comments that legalist Kyla Lee committed professional misconduct during an IRP appeal.

During proceedings, the government alleged she had not provided all of the relevant material in her possession to the tribunal.

The lawyer remained upset and said Tuesday the government was “crossing all sorts of lines.”

In a Feb. 1, 500-page affidavit filed in the case, Lee said: “I am of the belief that the Attorney General and the Superintendent are engaging or attempting to engage in a personal attack on my character.”

She accused both of acting in bad faith as “part of a calculated attack … designed to impede my further success in disputing IRPs.”

The acrimonious clash is only the latest eruption of animosity between the bar and the superintendent over the controversial legislation introduced in 2010 as the toughest anti-drunk driving law in Canada.

Fellow lawyer at Acumen Law Corp., Paul Doroshenko, in January revealed the government had tried to silence his criticism by launching a professional complaint against him.

“It’s really awful — a personal attack for five years running,” he said.

“We don’t talk about it because on our end, we’re trying to reveal what’s going on without making it personal. But they’re trying to shut us down because we’re their #1 critics and we succeed in the most IRPs.”

In his case, the office of the superintendent objected to a blog post in which he disputed the administration’s claim the IRP regime saved lives.

Doroshenko argued there were other factors — primarily public awareness and enforcement — that reduced impaired driving deaths and challenged the data.

He pointed out that from Nov. 2011 to June 2012, when the IRPs were suspended after a court ruling they were unconstitutional, deaths and injuries still declined.

In Jan. 2015, ICBC’s corporate actuarial and advanced analytics department produced a report saying it was impossible to determine the impact of the scheme on road deaths because the data were too limited.

The report was secret until Doroshenko uncovered it in January.

“How dare they keep this from the citizens of BC!” Doroshenko posted on his website along with the report. “How dare they keep this from me while claiming and complaining that I’m the one being misleading with my, in fact, accurate blog posts! Dirty, dirty, dirty.”

Both lawyers have been at the vanguard of the legal fight over the law, representing thousands of clients and filing numerous Freedom of Information requests bedevilling the government.

The B.C. Supreme Court concluded in 2011 that the original legislation was constitutionally flawed because it lacked proper appeal mechanisms.

The Supreme Court of Canada later agreed.

Victoria amended the law in 2012 but there remain concerns about the law’s application and the zealousness of the superintendent.

Only three months ago, in December, the B.C. Supreme Court slapped the office for interpreting the law to prohibit drivers from adducing fresh evidence during an appeal of an IRP.

Both Doroshenko and Lee were involved in that case.

The legislation represents a pioneering approach by government that saves a lot of money by moving drunk driving charges out of court.

Though not penal in nature, the penalties were quite severe and the use of an administrative process was a marked shift in approach to drunk driving regulation that blended federal-provincial constitutional bailiwicks.

Justice Dley overturned the adjudicator’s decision in Lee’s case and sent it back for a new hearing before a different adjudicator.

The government is seeking a Supreme Court order to block her and Acumen from taking on further IRP cases.

But the neither the solicitor general nor the attorney general would comment on the case because it is before the court.

(The decision is available on the court website:

Source: Vancouver Sun


Last updated on: 2016-03-26 | Link to this post