Judicial Reviews (appeals) of a decision of a SafeRoads adjudicator can take 12-18 months to overturn. One of the biggest hesitations people have in challenging an adjudicator’s decision is the delay in achieving this outcome, and the real prospect of having served out the sentence before the decision is rendered. It is important to know that there is a way to get your license back at an early stage in the Judicial Review process.
To obtain your licence prior to the Judicial Review concluding, you need to apply for a “Stay of Licence Suspension Pending Appeal” (Stay Application). This also occurs at the Court of King’s Bench and is connected to the Judicial Review.
If our application is successful, the Court puts all parts of the suspension on ‘hold’ until the matter is heard by a judge.
Please note that The Notice of Administrative Penalty / Immediate Roadside Sanction will not show on your driver’s abstract while the stay is active. This is incredibly important for individuals requiring a clean driver’s abstract for employment or insurance purposes and is a huge advantage of this process.
How Quickly Can You Get Back your Licence?
You can file a Stay Application at the same time as you file for a Judicial Review. If the SafeRoads lawyers consent to your application, you can be back on the road in less than 30 days of filing the Judicial Review and Stay Application. If the SafeRoads lawyers don’t consent, a formal hearing needs to be held in the Court of King’s Bench to decide the issue.
Unlike the Judicial Reviews, Stay Applications are expedited and are heard as soon as possible (with court availability varying depending on where the application is filed).
Once a Stay Application is granted, you will be permitted to drive pending the outcome of the Judicial Review.
If we win the Judicial Review, the suspension will be gone forever. If we lose, you will have to commence serving the remaining balance of the suspension at that time. You will get credit for the time that you have already served while on suspension.
Criteria to get a Stay
Our lawyers have conducted countless Stay Applications and are well-versed in this area of law.
The Stay Application is not guaranteed, but is based on 3 factors, as decided in a 1994 Supreme Court of Canada Case. None of these factors is more important than the others. All three criteria must be met, and are as follows:
1. Do you have an argument on Judicial Review?
This argument does not need to be strong for the test to continue, it just needs to be one that can win the case, if successful. The stronger your argument, however, the stronger your chances to get a stay.
2. Will you suffer ‘irreparable harm’ if you do not get a stay?
The Court usually interprets this as whether you will lose your job or suffer other serious harm as a result of having to wait for your day in court if the suspension was not stayed.
3. What is the ‘balance of convenience’?
This asks the Court to balance the public interest against yours. Usually, this involves looking at the circumstances of your case and your driving record to determine whether you should be back on the road.
The SafeRoads government lawyers have recently been fighting hard against these, requiring our clients to get detailed evidence and present compelling arguments to get a stay. We are well-equipped to make those arguments and guide you in providing the documents we need to win.
Stay Application Checklist
To start work on your application quickly, our Stay Application Checklist outlines the things that we will ask from you to give you the best possible chance of success.
There are 4 steps to take to give you the best chances of success with the Stay Application.
1. Get a 10-year Driving Abstract
Obtain a 10-year driving abstract from any registry or online, as soon as possible. It should cost in the range of $30-40. This helps immensely in negotiations with the SafeRoads lawyers, and in convincing the judge you should be back on the road until the Judicial Review is decided.
2. Sign up for the prescribed educational course
We highly recommend applying for the course you are required to take per the Notice of Administrative Penalty (even though we are arguing that requirement should be stayed and later removed entirely). Doing so can help get consent from the government lawyer to get your license back, and it also speeds up the process later if the application is unsuccessful. It is a very persuasive step to us to convince the court that you will be a safe driver.
You can register at:
- 1st offence: Planning Ahead Course
- 2nd or 3rd offence: IMPACT Course
Please ask if you are not sure which course to sign up for.
If you do register, please register for the soonest date possible to show the court and the government lawyer that you need your license back ASAP.
Our understanding is that many locations allow for a 5-day cancellation and full refund, but we offer no guarantees. You are also not entitled to be reimbursed for the course if you pay for it, even if you later win the Judicial Review.
3. Get a Letter from your Employer/Clients & Provide Employment Contracts
A letter directly to us from your employer, clients or coworkers can greatly increase your chances of getting a stay.
The best letters will state:
- that you cannot have an interlock device installed into your work vehicle(s), and why; and,
- that they will have to terminate you if you don’t have your license reinstated in full.
The letter must be truthful, as it will form part of your sworn evidence to the court.
Typically, companies or clients do not allow interlock devices due to insurance, safety, or public image concerns, but the letter should be particular to your employment or industry.
We cannot write the letter, as it needs to be in their words to hold any real weight.
If you work for a ride-share company, another large company, or cannot obtain a letter for any reason, please provide any employment documents or information that shows that you need a license to be able to work.
4. Complete the Stay Questionnaire
The stay questionnaire below helps our lawyers gather initial information from you to get the application submitted quickly, without missing important details. We recommend you send us this information with as much detail as possible.
General Questions
- Do you have a criminal record?
- Have you ever been convicted of alcohol-related driving or received a suspension for it?
Employment Questions
- Where do you work and what do you do?
- How many vehicles do you use for work?
- Who owns those vehicles?
- Who drives those vehicles?
- Where are you normally driving those vehicles?
- How often are you driving those vehicles?
- Can they have interlock devices installed into them?
- If not, why not?
- Can you have an interlock device installed into any vehicle(s) and still work?
- Will you be fired if you don’t get a stay? Why?
Personal Questions
- Do you live and work in an urban or rural setting?
- Is it easily accessible by transit, taxi, or ride-share?
- Can you meet your non-work needs with a blow box installed? Why or why not?
- Are there others in your household or community that depend on your ability to drive?
- Are there others in your household or community who can drive you?
Our Experience with Licence Return Applications
We are pioneers in Stay Applications. Our lawyers, including Michael Oykhman, have been doing these applications since the outset of the SafeRoads program in 2021. In conjunction with winning the case of Demars v Alberta (Director of SafeRoads) at the Court of Appeal, Mr. Oykhman successfully argued for Mr. Demars’s stay of licence suspension pending appeal. This allowed Mr. Demars to keep driving for nearly three years while the case wound its way through the courts.
Neal Dixon also argued Garcia-Ahmadi v Alberta (Director of SafeRoads), 2023 ABKB 713, which greatly changed the test for a stay in SafeRoads proceedings in favour of affected drivers.
Most of our successes are unreported and never need to be argued in court. Most of the time, once we present the right information to the SafeRoads government lawyers, they consent to our application, and our clients start driving immediately. As always, every case is fact-specific, and it’s critical to have your unique circumstances reviewed by one of our lawyers.
