The Court allowed, in part, the application for judicial review by several Vancouver taxi companies of seven decisions of the Passenger Transportation Board that permitted certain suburban tax companies, not licensed for the City of Vancouver, to pick up passengers in the Downtown Vancouver Entertainment District during certain peak weekend hours. While the Court found it was reasonable for the Board to hear the matters together, that the Board did not act unfairly in conducting a written hearing, and the determination of the boundaries of the Downtown Vancouver Entertainment District was within the Board’s jurisdiction, it was patently unreasonable for the Board to not permit the Vancouver taxi companies to make submissions on the suburban taxi companies’ application for temporary permits as the decision was arbitrary and failed to consider the interests of the Vancouver taxi companies. The Board’s concern that hearing these submissions would result in delay was not an acceptable justification. A refusal to hear a person who would be affected by a decision of the Board is prima facie failure to “hear the other side” and a breach of the audi alteram partem principle. As a result, the temporary permit application was remitted to the Board for reconsideration after hearing submissions of the Vancouver Taxi Company.

Administrative law – Decisions of administrative tribunals – Passenger Transportation Board – Taxis – Permits and licences – Hearings – Consolidation – Fairness – Judicial review – Standard of review – Patent unreasonableness – Delay – Jurisdiction

Yellow Cab Co. v. Passenger Transportation Board, [2013] B.C.J. No. 2321, 2013 BCSC 1930, British Columbia Supreme Court, October 23, 2013, S.F. Kelleher J.

Over nine months, the Passenger Transportation Board of British Columbia (the “Board”) made seven decisions, generally ruling that certain suburban tax companies, not licensed for the City of Vancouver, may pick up passengers in the “Downtown Vancouver Entertainment District” during certain peak weekend hours. There are four taxi companies operating 588 taxis in the City of Vancouver. There are a further 960 taxis operating in the suburban municipalities. Generally, taxis may only pick up passengers in the municipalities for which they are licensed, with limited and specific exceptions. The Board found there were issues associated with peak period taxi supply in Downtown Vancouver, including longer wait times, lack of cabs and trip refusals, especially for trips to the suburbs. The Board later heard an application from a number of suburban taxi companies applying to operate a percentage of their fleet in Vancouver during peak periods and “special days”. The Vancouver taxi companies opposed this application, and applied separately for authority to operate an additional 99 vehicles during weekends and peak periods. The Board, hearing the applications together, approved both the suburban taxi companies’ application and the Vancouver taxi companies’ application for 99 additional vehicles. The Vancouver taxi companies sought judicial review of the Board’s decisions.

The application was allowed in part. The standard of review was patent unreasonableness which meant openly, clearly, evidently unreasonable. Section 58 of the Administrative Tribunals Act, S.B.C. 2004, c.45 applied to the decisions of the Board. The Passenger Transportation Act contained a privative clause. The Supreme Court of Canada decisions on standard of review have not diluted or altered the applicability of the patent unreasonableness standard under s.58. With respect to procedural decisions, the applicable standard is “fairness”. It was reasonable for the Board to hear the matters together. The Board acted fairly when it decided to conduct a written hearing. The Board’s determination of the boundaries of the Downtown Vancouver Entertainment District was within the jurisdiction of the Board’s to make and based on their expertise. Thus, a wide measure of deference must be afforded. However, the Board made a patently unreasonable error in its exercise of discretion to not allow the Vancouver taxi companies the right to make submissions on the application by the suburban taxi companies. The decision was arbitrary. It is a fundamental tenet of administrative law that individuals who are affected by an administrative decision must be given the opportunity to present their case in some fashion (the principle of audi alteram partem). The Board’s concern about the resulting delay from hearing submissions was not acceptable justification. The matter was remitted back to the Board for reconsideration after hearing the submissions of the Vancouver taxi companies.

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