The Court dismissed an application for judicial review holding that the lack of a transcript of a hearing before the Respondent Board did not violate the rules of natural justice

Administrative law – Motor vehicles – Suspension of driver’s licence – Judicial review – Failure to provide transcript of hearing – Evidence – Standard of review – Patent unreasonableness – Natural justice

Foster v. Alberta (Transportation and Safety Board), [2005] A.J. No. 1027, Alberta Court of Queen’s Bench, August 23, 2005, Romaine J.

The Applicant had been served with a Notice of Suspension of his driving licence pursuant to section 88(2)(c) of the Traffic Safety Act, following an arrest and charges for impaired driving. He appealed the suspension and was represented by counsel at an appeal that was held by way of oral hearing. The Transportation and Safety Board dismissed the Applicant’s appeal and confirmed his suspension by way of a written decision. The Board noted that the evidence presented by the Applicant did not establish his pattern of drinking. The Applicant, his counsel and an expert had all given inconsistent evidence regarding the number of beers which the Applicant had drank on the night in question. The Board also rejected the Applicant’s submission that a medication he was taking for low thyroid function may have affected his behaviour.

On judicial review, the Court first considered the appropriate standard of review of the Board’s decision. The Court held that the appropriate standard of review of an appeal from a finding of fact in which credibility is an issue is patent unreasonableness. Even so, the Court held that the Board’s findings would withstand scrutiny at the slightly more vigorous “clearly wrong” standard of review.

The Court considered whether the lack of a transcript of the hearing before the Board violated the rules of natural justice. Administrative bodies are normally not obligated to provide transcripts of their proceedings, but a Court must consider whether the record before it will allow it to properly dispose of the application for judicial review. If the decision that the Court must make can be resolved on the basis of evidence established through other means, the lack of a transcript will not offend the principles of natural justice. The Court rejected the Applicant’s argument that, given the lack of a transcript of the hearing, the Court would be unable to ascertain if the findings of the Board are supported by evidence. The Board’s written reasons provided sufficient detail of the evidentiary basis for the findings.

Finally, the Court considered whether the Board had erred in making findings of fact not supported by evidence. The Applicant had submitted that the Board assumed that he had consumed a further 4-1/2 bottles of beer. The Court rejected this, noting that the Board merely rejected the Applicant’s evidence of consumption of alcohol on the basis of its variability from time to time. While corroboration of alcohol consumption may arguably not be necessary in every case, all that Mr. Foster offered at the appeal, other than an expert report based on his own version of events, was his testimony. The Board rejected the Applicant’s evidence of his consumption of alcohol on the evening in question. It indicated clearly why it rejected this evidence and why the evidence of his counsel’s opinion did not help his case. The findings of the Board were supported by the evidence, and not patently unreasonable or even clearly wrong.

To stay current with the new case law and emerging legal issues in this area, subscribe here.