On judicial review, the applicant, Siksika Nation (“Siksika”), sought to quash the decision of the Alberta Gaming and Liquor Commission (the “Board”) granting a liquor licence to the respondent, Walji Holdings Limited (“Walji”) on the grounds that the Board had exceeded its jurisdiction and breached the principles of natural justice. The Court, in light of the applicable law and the strict standard of review, found that the decision to grant the licence was not patently unreasonable and therefore did not warrant judicial intervention. However, the Court did note that the Alberta gaming and liquor legislation was deficient in failing to enumerate public interest as a consideration in granting licences but, being constrained by the wording of the legislation, had to dismiss the application for judicial review.

Administrative law – Decisions of administrative tribunals – Gaming and Liquor Commission – Permits and licences – Powers under legislation – Fresh evidence – Admissibility – Aboriginal issues – Judicial review – Procedural requirements and fairness – Natural justice – Failure to provide adequate reasons – Jurisdiction – Standard of review – Patent unreasonableness

Siksika Nation v. Walji Holdings Ltd., [2004] A.J. No. 78, Alberta Court of Queen’s Bench, January 28, 2004, Rawlins J.

The applicant, the Siksika Nation, heard of an application by the respondent, Walji Holdings Limited, to the Alberta Gaming and Liquor Commission (the “Board”) for a liquor licence. Siksika opposed the granting of a licence on the grounds that the health and welfare of its members would be negatively affected by the sale of liquor to its members, there had been no consultation with Siksika with respect to the application and its impact, and Siksika had not been given adequate notice of the hearing or sufficient details about the application to allow it to express its concerns to the Board. Both parties were given opportunity to file additional evidence and following a second hearing, the Board approved Walji’s application for the licence.

Siksika applied for judicial review of the Board’s decision and sought to introduce fresh evidence, including a petition signed by 151 residents of the area. The Court would not admit the fresh evidence as it was being asked to review the appropriateness of the Board’s decision and should rely on those facts only that were before the Board. Even if the Court had jurisdiction to allow the evidence, it should not be admitted on the basis that it was not relevant and did not bear on a decisive issue.

With respect to the standard of review, applying the pragmatic and functional approach, the appropriate standard of review was patent unreasonableness, or that the issue before the Board would be “left to the near exclusive determination of the decision-maker”.

The Board did not commit jurisdictional errors on any of the grounds enumerated by Siksika. In particular, Siksika’s reliance on Ontario cases to argue that the Board had a duty to consider the “public interest” issue or whether granting the licence was in the interest of the affected community, was rejected on the basis that the legislation in Ontario (and British Columbia) clearly requires such consideration whereas no clear provision exists in Alberta legislation. Although it was argued that a duty to consider public interest should be inferred based on the nature and purpose of the Act, the Court hesitated in making such a finding as it was more properly dealt within the Legislature than in the context of judicial review.

Similarly, the Board’s reasons were not inadequate. It referred to most of the evidence that was provided at the hearing, reviewed the arguments and issues and made its decision. It cannot be said that those reasons were patently unreasonable. Finally, the comment of the Board member (“I hope you don’t get into a numbers game, or you know, they’ve got 21 affidavits, you want 34 affidavits, that would not impress me”) did not constitute bias or prejudice such that it constituted a breach of the principles of natural justice.

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