Foster v. Alberta (Transportation and Safety Board), (2006) 397 A.R. 82 (CA)

• Judge: Hunt, Berger and Ritter, JJ.A.
• Neutral Citation: 2006 ABCA 282
• Citation: (2006), 397 A.R. 82 (CA),2006 ABCA 282,276 DLR (4th) 233,[2007] 3 WWR 78,397 AR 82,68 Alta LR (4th) 41,53 Admin LR (4th) 137,[2006] AJ No 1263 (QL),(2006), 397 AR 82 (CA),397 A.R. 82,276 D.L.R. (4th) 233,[2006] A.J. No 1263 (QL)
• Date: 15 June 2006
• Court: Court of Appeal (Alberta)

Foster v. Transportation & Safety Bd. (2006), 397 A.R. 82 (CA);

      384 W.A.C. 82

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. OC.063

Douglas Lyle Foster (appellant/applicant) v. Her Majesty the Queen in the name of the Transportation and Safety Board (respondent/respondent)

(0501-0247-AC; 2006 ABCA 282)

Indexed As: Foster v. Transportation and Safety Board (Alta.)

Alberta Court of Appeal

Hunt, Berger and Ritter, JJ.A.

October 12, 2006.

Summary:

Foster was charged with impaired driving. He appealed the suspension of his licence to the Transportation and Safety Board (the Board). The Board dismissed his appeal. He sought judicial review of the decision.

The Alberta Court of Queen's Bench, in a decision reported at 389 A.R. 362, dismissed the application. Foster appealed.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 573

The hearing and decision - Decisions of the tribunal - Transcripts - Foster appealed the administrative suspension of his driver's licence to the Transportation and Safety Board (the Board) - The Board dismissed his appeal - He sought judicial review, asserting that the Board's failure to record its proceedings and to make a transcript available breached its duty of fairness - The application was dismissed - Foster appealed - The Alberta Court of Appeal dismissed the appeal - The duty of fairness was a question of law - Section 49 of the Transportation Safety Act specifically granted a right of appeal to the Court of Appeal on questions of law - The Court of Queen's Bench lacked jurisdiction to judicially review the question of whether the lack of transcript caused unfairness - Since it had no jurisdiction to hear that issue, there was nothing from which to appeal - However, apart from the conclusion on jurisdiction, Foster's argument on this ground was without merit - Where the record before the court was sufficient to permit it to resolve the matter, the lack of a transcript did not offend the principles of natural justice - Foster was presumed to know what he had said and he had failed to identify any specific error made by the Board regarding his evidence - See paragraphs 12 to 24.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - Foster appealed the administrative suspension of his driver's licence to the Transportation and Safety Board (the Board) - The Board dismissed his appeal - His application for judicial review was dismissed - Foster appealed - The Alberta Court of Appeal considered the standard of review at the appellate level of judicial review - The court had to determine whether the reviewing judge had chosen and applied the correct standard of review - The question of what standard to apply was one of law, reviewable on a correctness standard - A judicial review judge had to determine the correct standard against which to review each alleged error - The reviewing judge had erred in law when she concluded that she did not need to determine the standard of review with finality because even if a clearly wrong standard was applied, the Board's findings withstood scrutiny - Given that there was a statutory right of appeal on questions of law, the court also raised the issue of whether the lower court had jurisdiction to determine such questions - Issues of jurisdiction were reviewable on a correctness standard - See paragraphs 7 to 10.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3202 ].

Administrative Law - Topic 3303

Judicial review - Bars - Appeal or review available - [See Administrative Law - Topic 573 ].

Courts - Topic 8345

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - [See Administrative Law - Topic 573 ].

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension (incl. impaired driving incidents) - [See Administrative Law - Topic 573 ].

Motor Vehicles - Topic 7225.3

Licensing and regulation of drivers - Licence - Suspension of - Administrative or summary suspension (incl. impaired driving incidents) - Foster appealed the administrative suspension of his driver's licence to the Transportation and Safety Board (the Board) - The Board dismissed his appeal - His application for judicial review was dismissed - Foster appealed, asserting that the reviewing judge erred when she upheld the Board's assessment of Foster's credibility - The Alberta Court of Appeal dismissed the appeal - The appropriate standard of review was reasonableness - The Board's credibility finding was not unreasonable - Foster gave three different quantities when relating the number of bottles of beer he had consumed before his two breathalyzer tests - Given the result of his tests, it was reasonable for the Board to conclude that his evidence was unreliable and did not provide an accurate account of his drinking - See paragraphs 25 to 32.

Motor Vehicles - Topic 7233

Licensing and regulation of drivers - Licence - Suspension of - Evidence and proof - [See second Motor Vehicles - Topic 7225.3 ].

Motor Vehicles - Topic 7240

Licensing and regulation of drivers - Licence - Suspension of - Appeals and judicial review - [See Administrative Law - Topic 573 and second Motor Vehicles - Topic 7225.3 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [paras. 7, 46].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [paras. 7, 47].

Voice Construction Ltd. v. Construction and General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; [2004] 7 W.W.R. 411; 2004 SCC 23, refd to. [paras. 7, 46].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 9].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4, refd to. [para. 10].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 13].

Baker v. Transportation Safety Board (Alta.) (2004), 355 A.R. 144; 2004 ABQB 244, refd to. [para. 13].

Easton v. Alberta (Transportation Safety Board), [2005] A.R. Uned. 490; 34 Admin. L.R.(4th) 283; 2005 ABQB 358, refd to. [para. 13].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [paras. 14, 34].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [paras. 14, 37].

Kirchmeir v. Boulanger et al. (2000), 271 A.R. 340; 234 W.A.C. 340; 2000 ABCA 324, refd to. [para. 21].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 23].

Gordon v. R. et al. (2002), 166 B.C.A.C. 285; 271 W.A.C. 285; 100 B.C.L.R.(3d) 35; 2002 BCCA 224, refd to. [para. 30].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 31].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353; 23 C.C.C.(3d) 118; 49 C.R.(3d) 35; [1986] 1 W.W.R. 577; 24 D.L.R.(4th) 44, refd to. [para. 40].

White v. Workers' Compensation Baord, Appeals Commission (Alta.)(2006),  400 A.R. 183; 2006 ABQB 359, refd to. [para. 49].

Pincher Creek (Town) v. Municipal Government Board et al. (2006), 406 A.R. 299; 2006 ABQB 513, refd to. [para. 49].

Pepper v. Transportation Safety Board (Alta.) et al. (2006), 403 A.R. 56; 2006 ABQB 303, refd to. [para. 51].

Gonzalez v. Driver Control Board (Alta.) et al. (2001), 328 A.R. 111; 2001 ABQB 757, refd to. [para. 51].

Driver Control Board (Alta.) v. Lupien (2001), 295 A.R. 291; 2001 ABQB 511, refd to. [para. 52].

Auger v. Driver Control Board (Alta.) (2002), 324 A.R. 153; 2002 ABQB 867, refd to. [para. 52].

Statutes Noticed:

Traffic Safety Act, R.S.A. 2000, c. T-6, sect. 48, sect. 49 [para. 11].

Authors and Works Noticed:

de Smith, Stanley Alexander, Judicial Review of Administrative Action (3rd Ed. 1973), p. 210, 211 [para. 36].

de Smith, Stanley Alexander et al., Judicial Review of Administrative Action (5th Ed. 1995), p. 491, para. 10-024 [para. 42].

Mullan, David J., Essentials of Canadian Law, Administrative Law (2001), pp. 230, 231 [para. 41].

Counsel:

J.S. Charnock, for the appellant/applicant;

S. McDonough, for the respondent/respondent.

This appeal was heard on June 15, 2006, by Hunt, Berger and Ritter, JJ.A., of the Alberta Court of Appeal. The reasons for judgment of the Court were delivered on October 12, 2006, with the following opinions:

Ritter, J.A. (Hunt, J.A., concurring) - see paragraphs 1 to 33;

Berger, J.A., concurring - see paragraphs 34 to 53.