The Appellant, Mr. Foster, sought judicial review of a Transportation Safety Board (“Board”) decision, which upheld a three month administrative license suspension made because Mr. Foster was allegedly driving while exceeding the legal alcohol limit. The Court of Appeal dismissed the appeal. The appropriate standard of review of the Board’s decision was reasonableness.

28. November 2006 0

Administrative law – Motor vehicles – Suspension of driver’s licence – Decisions of administrative tribunals – Transportation Safety Board – Judicial review – Jurisdiction of tribunal – Appeals – Standard of review – Reasonableness simpliciter

Foster v. Alberta (Transportation and Safety Board), [2006] A.J. No. 1263, Alberta Court of Appeal, October 12, 2006, Ritter, Hunt and Berger JJ.A.

The Court of Appeal first considered whether the Court of Queen’s Bench judge had jurisdiction to consider the matter.

The Court of Appeal concluded that the Legislature expressly granted a right of appeal to this Court, under the Traffic Safety Act, R.S.A. 2000, c.T-6, for errors of law and jurisdiction. The reviewing judge, therefore, when considering the question of law relating to whether the lack of transcript caused unfairness, lacked the jurisdiction to conduct such as review. Since it lacked the jurisdiction to hear that issue, there was nothing from which to appeal.

The Court of Appeal also considered the issue of judicial review of the Board’s decision. It concluded that the Court of Queen’s Bench judge failed to conduct a proper Pushpanathan analysis. After reviewing the four factors in this analysis (whether there is a privative clause or statutory right of appeal, the expertise of the statutory delegate relative to that of the Court on the matter under review, whether the issue is one of fact or law, and the purpose of the statutory provision), the Court concluded that a high degree of deference should be given to the Board. The appropriate standard of review is reasonableness. Consequently, intervention with the Board’s findings of fact is only justified if the reasons given to support the findings do not, on the whole, support the decision. The Court held that the Board’s findings were not unreasonable. The appellant gave three different versions of event, and it was therefore, reasonable for the Board to conclude that his evidence was unreliable. The Court of Appeal dismissed the appeal.

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