A taxi driver applied for judicial review of the License Appeal Board’s decision upholding the suspension of his taxi driver’s licence and the revocation of his taxi plates. The Court allowed the application on the basis that the City’s Chief Taxi Inspector had not properly submitted his decision to the Taxi Commission for review, which caused the License Appeal Board to lose jurisdiction. The Board had also failed in its duty to follow a rigorous procedure and provide a high degree of fairness.

Administrative law – Decisions of administrative tribunals – Permits and licences – Taxi Licence Appeal Board – Judicial review – Jurisdiction of tribunal – Procedural requirements and fairness – Evidence – Standard of review – Correctness – Remedies – Certiorari

Barr v. Calgary (City), [2006] A.J. No. 701, Alberta Court of Queen’s Bench, February 3, 2006, Coutu J.

The Appellant, a taxi driver, was alleged to have been involved in an illicit scheme to provide false documentation, including false driver’s licences and/or legitimate driver’s licences based upon false information and documents, in exchange for cash. The Chief Taxi Inspector decided to suspend the Applicant’s taxi driver’s licence immediately and later to revoke the three taxi plate licences that he held. The Chief Taxi Inspector had relied upon information received from the Calgary Police Service and heard submissions from the Applicant prior to rendering his decision, which was to the effect that the Applicant’s character or conduct as a principal of the driving school alleged to have been involved in the scheme, was such that he was unfit to drive a taxi.

The Chief Taxi Inspector’s decision was appealed to the License Appeal Board. In addition to considering the original grounds for the suspension and revocation of the Applicant’s licence and plates, the Board heard submissions that the Applicant had been subleasing his plates, contrary to a City by-law. The Board denied the appeal and upheld the decision of the Chief Taxi Inspector.

The Court considered whether the Board had lacked jurisdiction to hear the case on the ground that the Taxi Commission did not first review the Inspector’s decision pursuant to s. 10(3) of the Taxi By-law. The appropriate standard of review on this issue was correctness. The Court held that the subject of an appeal before the Board was the final decision of the Chief Taxi Inspector and such decision is not final until it is submitted to the Taxi Commission for review. By failing to take into account a mandatory consideration, the Board thereby lost jurisdiction.

The Court went on to consider whether the principles of procedural fairness had been violated. The Court reviewed the five factors identified by the Supreme Court of Canada in Baker v. Canada (Ministry of Citizenship and Immigration), [1992] 2 S.C.R. 817, to determine the degree of fairness to which the Applicant was entitled. The Court noted that the Applicant’s taxi plates, which had a value of approximately $150,000, and his right to continue in his employment, were at stake. Taken together, the factors suggested that the Board had to follow a rigorous procedure and provide a high degree of fairness. The Court found that that high standard had not been met in the following respects:

  • cross-examination of witnesses ought to have been allowed, since the credibility of witnesses was an issue and the decision turned on findings of fact made from conflicting evidence;
  • the Board relied heavily on the recital of notes taken by undercover investigators, which were pure hearsay;
  • the Applicant’s case was undermined and he had insufficient disclosure by the shifting of position by the Board on its usual practice and procedure, from merely reviewing the Inspector’s decision to making the decision;
  • the Board had breached the Applicant’s legitimate expectation that it would review the decision of the Taxi Inspector on appeal, when it essentially conducted a hearing at first instance and made new findings with respect to subleasing that were never before the Chief Taxi Inspector or the Commission; and
  • the Board’s reasons were insufficient in that they did not set out any findings upon which the Board had based its decision, nor did they explain any of its findings on credibility or give guidance with respect to the weight or consideration given to the evidence and submissions of the Applicant.

In the result, as there had been a violation of the principles of procedural fairness and because the Board incorrectly determined that it had jurisdiction to hear the appeal, the Court granted certiorari and quashed the decision of the Board.

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