Seroya v Calgary (City), 2017 ABQB 157

Court of Queen’s Bench of Alberta Citation: Seroya v Calgary (City), 2017 ABQB 157 Date: 20170306 Docket: 1501 06201 Registry: Calgary Between: Harjit Seroya Applicant - and - The City of Calgary Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ Introduction [ 1 ] This is an application for judicial review of a decision to revoke five taxi plate licences issued by the City of Calgary. The Applicant submits he was denied procedural fairness.

He seeks to set aside the decision and have the licences reinstated. [ 2 ] For the reasons that follow, the application is dismissed.

Facts [ 3 ] The Applicant, Harjit Seroya obtained five taxi plate licences (TPLs) from the City of Calgary at various times starting in 1994. [ 4 ] In 2014, following complaints of several drivers that Mr. Seroya was engaged in the illegal practice of subleasing taxi plate licences (TPLs), the Livery Transport System of the City of Calgary decided to hold a review hearing. On May 1, 2014, the Livery Transport System of the City of Calgary notified Mr.

Seroya that he was required to attend a hearing to determine whether there had been a breach of the Livery Transport Bylaw ( Bylaw ). [ 5 ] The hearing was held on June 2 and 3, 2014, and Mr. Seroya was unrepresented. The Manager and Chief Licence Officer of the Livery Transportation System (“Manager and Hearing Officer”) issued a decision on June 16, 2014. [ 6 ] At the review hearing, the Manager and Hearing Officer received documentary evidence and heard the testimony of several witnesses that testified they drove one of the TPLs held by Mr.

Seroya. [ 7 ] The Manager and Hearing Officer found that the drivers paid between $ 10,500 and $ 11,000 annually to Mr. Seroya for the use of the TPLs held by him. He also found that Mr. Seroya compelled the drivers to give him their taxis for a number of times throughout the year free of any charge. Mr. Seroya would insist that all of the credit card receipts and debit transactions be paid to him in cash before the drivers were allowed to take their vehicles back. The Manager and Hearing Officer estimated that Mr.

Seroya made over $ 80,000 a year by illegally subleasing the TPLs. [ 8 ] The Manager and Hearing Officer did not find Mr. Seroya’s testimony and arguments to be credible notwithstanding the self-serving documents introduced as exhibits by Mr. Seroya. The Manager and Hearing Officer rejected Mr. Seroya’s defence that he was actually renting the taxis to the drivers. He found that Mr. Seroya did not own the vehicles because it was the drivers who paid for the vehicles, their maintenance, repairs and inspections. The drivers were never reimbursed for any of these expenses by Mr. Seroya.

The Manager and Hearing Officer also found that the drivers signed those documents under duress. Mr. Seroya threatened to remove the TPLs if the drivers did not comply with his demands or sign the documents. In some instances, Mr. Seroya would cover the content of the documents with his hand or force the drivers to sign blank pieces of paper. In other instances, he would allow the drivers to read the documents, but would coerce them to sign the documents without providing them with a copy.

The Manager and Hearing Officer found that, in order to provide for their families, the drivers felt they had no choice but to sign the documents and pay the money Mr. Seroya demanded. [ 9 ] The Manager and Hearing Officer found that Mr. Seroya collected $ 600 from each driver for legal fees and costs in relation to legal advice he never sought. Based on the testimony of one of the witnesses, the Manager and Hearing Officer found that Mr. Seroya was concerned about the outcome of a recent taxi investigation that had revealed that the practice of subleasing taxis is a huge problem in Calgary.

By seeking these legal fees, Mr. Seroya was trying to convince the drivers of the legality of his practices. [ 10 ] The Manager and Hearing Officer concluded that Mr. Seroya had breached sections 99 and 100 of the Bylaw . As a result, the TPLs were revoked from Mr. Seroya, and the City of Calgary assigned them to the five drivers that had been subleasing them. The Hearing Officer also decided that Mr. Seroya would be ineligible to receive a TPL by any transfer or any other manner. [ 11 ] Mr.

Seroya appealed the Manager’s decision to the Licence and Community Standards Appeal Board (“Appeal Board”), and the matter was heard on October 28, 2014. He was initially unrepresented, but had counsel at the hearing. [ 12 ] The Appeal Board confirmed the Manager’s decision and issued written reasons on December 11, 2014. The Appeal Board found that the decision sufficiently disclosed the findings of facts to support the Manager’s reasons.

The Appeal Board at para 50 states as follows: The Decision may have been more effectively organized if the portion entitled “Findings of Facts was instead called “Evidence Received at Hearing” or something to that effect and the portion entitled “Decision” utilized language to the effect of “I find” instead of “I submit”.

However, this appears to be precisely the level of scrutiny that Madam Justice Picard was warning against in Lor-AL Springs where she reminded us that members of administrative tribunals do not necessarily have legal training and it would be unwise to send back a decision where the rationale is reasonable but not perfect. [ 13 ] The Appeal Board at para 55 concluded that the Manager’s decision was reasonable and entitled to deference: The Hearing Officer heard the hearing evidence and determined that the Drivers made payments to Mr. Seroya for use of the TPLs, which is contrary to the LT Bylaw.

The Hearing Officer was within his jurisdiction to make this determination and to order the revocation of the TPLs. We see no reason to interfere with the determinations and orders made by the Hearing Officer as contained in his Decision. [ 14 ] On August 15, 2016, Mr. Seroya filed an originating application for judicial review of the Manager and Hearing Officer and Appeal Board’s decision, asking this Court to set aside the decision and reinstate his TPLs.

Preliminary Issues [ 15 ] The Respondent’s submissions raise three preliminary issues: 1) Was the originating application filed and served within the limitation period?

2) Was the originating application served on the proper administrative body? 3) Are the issues of lack of procedural fairness and breach of natural justice properly before this Court? Was the application for judicial review filed and served within the limitation period? [ 16 ] Under Rule 3.15(2) of the Alberta Rules of Court , “an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act”. [ 17 ] The Respondent submits that Mr.

Seroya did not file and serve the application for judicial review within the limitation period. [ 18 ] The Appeal Board’s decision was delivered orally on October 28, 2014. The Appeal Board issued its written reasons on December 11, 2014. The application for judicial review was filed on June 4, 2015 and served on the City of Calgary on June 5, 2015. [ 19 ] Whether or not the application for judicial review was filed and served within the six-month limitation period depends on when the limitation period began to run.

Particularly, it depends upon whether the limitation period began to run on the date the Appeal Board delivered its decision orally or on the date Mr. Seroya received the Appeal Boards’ written reasons. [ 20 ] The following subsections of the Procedural Manual for Licence and Community Standards Appeal Board are relevant: 61. A decision of the Board is the final determination of an appeal. Reasons are the Board’s explanation of they made the decision they made. 62.

When a Board exercises a statutory power so as to adversely affect the rights of a party, the authority shall furnish to each party a written statement of its decision setting out:

a) the findings of fact on which it based its decision; and

b) the reasons for the decision. 65. Decisions of the Board may be given orally by the Chair immediately upon conclusion of the hearing or at the conclusion of the hearing the Board may decide to reserve its decision and to present its decision and reasons in writing. 66. Where oral reasons are delivered, the Board will provide a written confirmation of their decision. [ 21 ] Based on the above provisions, a decision of the Appeal Board is final only when it provides to the parties a written statement setting out both (

i) the findings of fact on which it based its decision and (ii) the reasons for the decision. [ 22 ] Even though Mr. Seroya became aware of the Appeal Board’s decision at the end of the hearing on October 28, 2014, it was only on December 11, 2014 that he received a written confirmation of the decision that included the Appeal Board’s findings of facts and reasons. Therefore, he received the Appeal Board's final decision on December 11, 2014 and the limitation period began to run on this date. [ 23 ] I am satisfied that Mr.

Seroya brought this application for judicial review within the six-month limitation period. Was the originating application served on the proper administrative body? [ 24 ] Rule 3.15(2) of the Alberta Rules of Court , states as follows: An originating application for judicial review must be served on

(

a) the person or body in respect of whose act or omission a remedy is sought, (

b) the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require, and (

c) every person or body directly affected by the application. [25] The Respondent submits that the originating application was not served on the proper parties. The City Administration issuedthe decision to revoke the TPLs and the Appeal Board confirmed that decision. Therefore, the Respondent claims the originatingapplication should have been served on both the City Administration, which is the respondent directly affected by the application, andthe Appeal Board, which is the decision-maker in respect of whose act or omission a remedy is sought. [26] Mr.

Seroya served the originating application on the City of Calgary on June 5, 2015. Although the City Administration andthe Appeal Board are represented by different legal counsel and perform different administrative functions, these are merely internaldivisions of the same administrative body. They are not separate legal entities and both departments fall under the City of Calgary. [27] I am satisfied that service on the “City of Calgary” as specified in the originating application satisfies Rule 3.15(2).

Are the issues of lack of procedural fairness and breach ofnatural justice properly before this Court? [28] The Respondent submits that the only ground of appeal raised by Mr. Seroya before the Appeal Board related to the adequacyof the Hearing Officer’s reasons for his decision to revoke the TPLs. Although Mr. Seroya identified a number of issues in the Notice ofAppeal, he subsequently retained counsel who limited the grounds of appeal before the Appeal Board. Therefore, Mr.

Seroya is nowbarred from raising new grounds for review. [29] According to the Respondent, it would not be appropriate for this Court to decide the issue of procedural fairness because itwould mean circumventing the jurisdiction and expertise of the administrative body. The Respondent relies on Alberta Teachers’Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19, for the proposition that this Court should not bypassthe legislated appeal mechanism and should refuse to address issues that were not raised by Mr.

Seroya before the Appeal Board. [30] I agree that judicial review is a discretionary remedy of last resort. Internal remedies within the administrative frameworkmust generally be exhausted before seeking judicial review from the court. Also, courts should be cautious when dealing with mattersthat the legislators considered more appropriate to leave with the specialized administrative bodies than with the courts.

Similarly, courtsshould exercise restraint before intervening on matters within the jurisdiction of the administrative body that have not yet been dealt withby it. (Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19 at para 76; Harelkin vUniversity of Regina, (SCC), [1979] 2 SCR 561). However, the role of the courts is to supervise administrative bodies,and ensure that their decisions are made fairly. No person’s right to be heard should be seriously prejudiced by unfair procedures.

Acourt will not defer to an administrative body on issues of procedural fairness and natural justice when the actions of the administrativebody amount to an injustice. [31] In this case, Mr. Seroya raised in the Notice of Appeal many issues concerning the fairness, bias, conflict of interest, andimproper conduct of the Manager and Hearing Officer, as well as the fairness of the Manager and Hearing Officer’s final decision. TheCertified Record of Proceedings (“Record”) clearly indicates that Mr. Seroya complained several times about the fairness of theprocedure before the Manager and Hearing Officer.

Among other issues, he complained about the lack of disclosure of certaindocuments, fairness of the decision, and the general process. Although Mr. Seroya’s grounds of appeal were subsequently limited in hissupplementary submissions before the Appeal Board, I am not prepared to dismiss this application for judicial review on that basis. [32] I am satisfied that Mr. Seroya has exhausted all the internal remedies within the administrative framework, and I will proceedto address the issues raised in his application.

Issues [33] There are two remaining issues: 1) Whether the decision of the Manager and Hearing Officer to revoke the five TPLs was made in breach of the principles ofprocedural fairness and natural justice; 2) Whether the decision to revoke the five TPLs was fair. Standard of Review [34] Following Dunsmuir v New Brunswick, 2008 SCC 9 and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,decisions from quasi-judicial tribunals will be reviewed on either a correctness or reasonableness basis.

Reasonableness is generally thestandard of review of decisions of specialized and knowledgeable tribunals when dealing with questions of fact or law if it is in relation

to the

interpretation of its “home” statute or statutes. [35] Issues of procedural fairness are almost invariably reviewed on a standard of correctness.

The reviewing court evaluateswhether the proceedings met the level of fairness required by law independently without any deference to the tribunal (Moll v College ofPsychologists, 2011 ABCA 110 at para 50; Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry,2016 ABCA 354 at para 5; Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19). [36] No deference is given to the tribunal on the scope of fairness, but “the proper handling of the Court’s line of inquiry mayinvolve deference to the tribunal in the

interpretation of its rules of evidence and procedure or on issues of fact” (Ho v AlbertaAssociation of Architects, 2015 ABCA 68 at para 19). Analysis 1) Did Mr. Seroya receive the level of procedural fairnessrequired under the law? [37] Mr. Seroya submits that he was not accorded procedural fairness, particularly as the decision to revoke the TPLs severelyimpacted his economic interests. He raises several issues in relation to the manner in which the hearing was conducted. Insufficient Notice [38] Mr.

Seroya submits he did not have sufficient information of the matters in issue before the hearing because the Notice wasdeficient. Therefore, he did not have the opportunity to prepare a full answer and defence to the allegations. [39] The Notice of the hearing that was sent to Mr. Seroya on May 1, 2014 indicates as follows: “The hearing is to determine if there has been a breach of the Livery Transport Bylaw 6M2007

Section 100 which states: Except as specified in this Bylaw no Person shall charge or pay any fees, levies or charges whatsoever for the use of only a T.P.L. orA.T.P.L. except for the fee for the renewal of the T.P.L. or A.T.P.L. charged by the Livery Transport Services pursuant to the Bylaw. [40] Despite the lack of extensive particulars in the notice of the proceedings, whether Mr. Seroya was unfairly prejudiced in hisdefence depends upon whether he was aware of the case against him. Procedural fairness will only be violated by inadequate particularsif Mr.

Seroya was deprived of knowledge of the facts alleged to constitute misconduct, and was thus deprived of knowledge of his caseto meet and his consequent ability to respond. Focusing on whether Mr. Seroya was aware of the case he had to meet, rather thanexclusively focusing on the Notice of the proceedings, is consistent with how courts generally approach charges laid by an administrativebody (Hesje v Law Society of Saskatchewan, 2015 SKCA 2 at paras 50-51).

In the context of charges brought against a professionalperson by his governing body, Cory J. held that most cases should not be approached as though they were counts in an indictmentalleging offences contrary to the Criminal Code (Re Stevens and Law Society of Upper Canada, (ON SC). [41] The Notice refers to the violation of

section 100 of the Bylaw but the hearing also involved a complaint relating to

section 99and 101 of the Bylaw. Mr. Seroya was ultimately found to have breached both sections 99 and 100 of the Bylaw. These sections provideas follows:

Section 99 A person who is the holder of a T.P.L. or A.T.P.L. must be the Owner of the Motor Vehicle to which the T.P.L. or A.T.P.L. is joined.

Section 100 Except as specified in this Bylaw, no Person shall charge or pay any fees, levies or charges whatsoever for the use of only a T.P.L. orA.T.P.L. except for the fee for the renewal of the T.P.L. or A.T.P.L. charged by the Livery Transport Services pursuant to this Bylaw.

Section 101 A person holding a T.P.L. or A.T.P.L. may levy fees for legitimate services that they render in connection with a use of the Taxi orAccessible Taxi to which the T.P.L. or A.T.P.L. is joined. [42] Mr. Seroya’s contention that he did not know the case he had to meet because the particulars did not specify the precise scopeof his alleged misconduct is not defensible on the evidence. Even assuming the Notice of the hearing was defective, I am not satisfiedthat it raises a “serious possibility” of prejudice to Mr. Seroya. The evidence discloses that Mr.

Seroya knew the case against him wellbefore the hearing began. First, he knew that the complaint involved the illegal subleasing of TPLs under

section 100 of the Bylaw as thiswas specified in the Notice of the hearing. Second, there is correspondence between Mr. Seroya and the Livery Transportation Servicesthat occurred in the spring of 2014 confirming Mr. Seroya’s awareness of the specific facts alleged to constitute a breach of the Bylaw. Inone letter dated May 12, 2014 addressed to the Manager and Hearing Officer, Mr. Seroya explained that the driver’s accusations werefalse. He denied that he was subleasing the TPLs and denied that he had collected any money from the drivers. In another letter sent to

the Manager and Hearing Officer on the same day, Mr. Seroya provided his own

interpretation of several provisions of the Bylaw,including sections 99, 100 and 101. There is no doubt that Mr. Seroya appreciated the issues before the Manager and Hearing Officer.There was no element of surprise or confusion. Bias of the Manager and Hearing Officer [43] Mr. Seroya submits that the relationship between the Manager and Hearing Officer and counsel for the City Administrationwas sufficiently close to impair the ability of the Manager and Hearing Officer to be impartial and raise a reasonable apprehension ofbias. Mr.

Seroya claims that, because of this relationship, the Manager and Hearing Officer was under the misapprehension that counselfor the City Administration was acting as counsel for the Manager and Hearing Officer. Mr.

Seroya also claims that counsel for the CityAdministration was in a position to unfairly influence the Manager and Hearing Officer before he had the opportunity to present hisposition and evidence. [44] The common law test for bias is what a reasonable informed person would conclude viewing the matter realistically andpractically, and whether he or she would think that it is more likely than not that the decision-maker would not decide fairly (R v S (RD), (SCC), [1997] 3 SCR 484; Roberts v R, 2003 SCC 45 at 60). The evaluation of a reasonable apprehension of bias is ahighly fact specific exercise.

The standard may vary depending on the context and the type of functions performed by the administrativedecision-makers (Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at 47;Roberts v R, 2003 SCC 45 at 77). [45] In Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 atparas 20-24, the Supreme Court of Canada held that the degree of independence required of a government decision-maker or tribunal,like all principles of natural justice, may be ousted by express statutory language or necessary implication.

It is not open to a court toapply a common law rule in the face of a clear statutory provision. It is Parliament or the legislature that determines the nature of atribunal’s relationship to the executive. Courts engaged in judicial review of administrative decisions “must defer to the legislator’sintention in assessing the degree of independence required of the tribunal in question”. This principle reflects the fundamental distinction between administrative tribunals and courts.

Superior courts, by virtue of their role ascourts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutionalindependence (…). Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for thepurpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. Theythus may be seen as spanning the constitutional divide between the executive and judicial branches of government.

However, given theirprimary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the compositionand structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimesattract Charter requirements of independence, as a general rule they do not.

Thus, the degree of independence required of a particulartribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must berespected. [46] Similarly, the Supreme Court of Canada in IWA v Consolidated-Bathurst Packaging Ltd., (SCC), [1990] 1SCR 282 held that the rules of natural justice must take into account the institutional constraints of administrative tribunals.

It isunrealistic to expect administrative tribunals “to abide strictly by the rules applicable to courts of law”. [47] In light of the above principles, the relationship between the Manager and counsel for the City Administration must beexamined in its legislative context, taking into consideration the institutional constraints faced by the Livery Transport Services.

TheCalgary City Council was authorized under the Municipal Government Act, RSA 2000, c M-26 to pass the Livery Transport Bylaw,which Bylaw deals with Calgary’s taxi and limousine business. [48] The Bylaw ascribes the Manager the power to act as both the decision maker of the Livery Transport Services as well as theperson ultimately responsible for investigation and enforcement of the Bylaw (see

Part 5 and

Part 8 of the Bylaw). Under

section 160 ofthe Bylaw, the Manager decides whether a licence should be issued, suspended or revoked. Similarly, the City of Calgary’s in-housecounsel has overlapping roles and may act in more than one capacity. In-house counsel acts as a legal advisor to the Manager of theLivery Transport Services and the Livery Transport Services itself, prosecutes all instances of Bylaw breaches, and acts as for the CityAdministration when presenting a case for adjudication. This necessarily implies that the case put forward by counsel for the CityAdministration is adjudicated by the Manager of Livery Transport Services.

I find that these are institutional constraints that bythemselves do not give rise to a reasonable apprehension of bias, and to which this Court must defer. [49] Counsel for the City Administration made it clear that at the hearing she was not representing the Manager and HearingOfficer but rather the City Administration. Also, I find there was nothing improper about counsel describing at the outset to the Managerand Hearing Officer the evidence she was going to present and rely on. It is clear that the City Administration’s case was that Mr. Seroyawas illegally subleasing the TPLs. [50] Mr.

Seroya submits the Manager and Hearing Officer had a private conversation with one of the witnesses, Mr. Richard. Mr.Seroya submits this conversation raises a reasonable apprehension of bias. [51] Mr. Richard is the President of Association Cabs Ltd., one of the largest taxi companies in Calgary, and it is reasonable toinfer that he would regularly communicate with the Manager and Hearing Officer in relation to his taxi business. Mr. Seroya provided noevidence to support his allegation or suggesting that Mr. Richard and the Hearing Officer had a private conversation about Mr. Seroya’shearing. [52] During Mr.

Seroya’s questioning of Mr. Richards, the Manager and Hearing Officer referred to the need to “clean up theillegal subleasing” in the city. In addition, while Mr. Seroya was being examined by counsel for the City Administration, the Hearing

Officer told him he was “not worried about him” because he had a job. Mr. Seroya submits that these comments raise a reasonable apprehension of bias and suggest the Hearing Officer was not impartial at the review hearing. [ 53 ] The Record indicates that the above statement relating to the need to address the practice of illegal subleasing was made after Mr. Seroya asked why Mr. Richards had been called to testify at the hearing. Mr. Richards testified that the purpose of his evidence was to provide the Manager and Hearing Officer with insights on what is happening in the taxi industry.

He testified that subleasing has become a huge problem in Calgary and there has been violence associated with this practice. It was in this context that the Manager and Hearing Officer recognized the need to address the problem of illegal subleasing in the taxi industry. I do not find that this recognition is evidence of bias of the Manager and Hearing Officer or that he was not impartial in ultimately finding that Mr. Seroya had illegally subleased the TPLs. [ 54 ] Similarly, the Hearing Officer’s comment that he was not worried about Mr. Seroya was made after Mr.

Seroya complained that his TPLs had been assigned to other taxi drivers. The Record indicates that the Hearing Officer was trying to explain to Mr. Seroya that, although his TPLs had been revoked, he was still employed by the City of Calgary as a bus driver and had a good salary with benefits.

The decision of the City of Calgary to assign the TPLs to the drivers that had been illegally subleasing them was made after considering that without the TPLs those five drivers would have been unemployed. [ 55 ] I find that, in this context, the Manager and Hearing Officer’s comments fail to raise a reasonable apprehension of bias. Expectation [ 56 ] Mr. Seroya submits he had a legitimate expectation that a process approximating standard legal procedure would be implemented at the hearing due to the impacts of the decision to revoke the five TPLs held by him.

He argues the Manager and Hearing Officer should have permitted him a more rigorous adverse examination process, and submits he did not have the chance to cross- examine witnesses but was only permitted to ask “clarifying” questions after those witnesses had provided their evidence. [ 57 ]

Section 160 of the Bylaw provides as follows. 1) The Manager may, with or without a hearing refuse to issue a licence or suspend and revoke any licence granted pursuant to this Bylaw. 2) If the Manager holds a hearing to determine whether a licence should be issued, suspended or revoked, the Manager may:

a) determine the process and procedures for any hearing;

b) hear evidence in accordance with standard legal procedures set by the Manager;

c) make inquiries and gather evidence in accordance with standard legal process as part of the hearing;

d) receive evidence of relevant past convictions, LTS inspector’s orders, warnings, complaints or similar evidence of prior behavior of a person;

e) determine the weight to be given to any evidence before the Manager;

f) request any person to attend at a hearing and to provide that request to any person, and draw adverse inferences from any person’s failure to attend;

g) cause a record of the hearing to be made;

h) seek the advice of counsel, mechanics, other regulatory bodies, or any person with a particular expertise; and

i) direct that all officers of a corporate appellant obtain the written recommendation of the Chief of Police. [ 58 ] The Manager and Hearing Officer has broad discretion under this

section and he may hear evidence in accordance with standard legal procedures set by him. Under this section, the Manager also has discretion to revoke the TPLs without holding a hearing, and may determine the process and procedures for any hearing. [ 59 ] The duty of procedural fairness is flexible, variable and depends on the context ( Baker at paras 22 and 33 ). Due to the significant discretion that the Manager and Hearing Officer has under

section 160 of the Bylaw , I find that Mr. Seroya had no reasonable expectation he would adopt a hearing procedure similar to the ones of the courts. [ 60 ] Mr. Seroya was granted (

i) a hearing, (ii) the right to be represented by counsel or an agent, which he refused (iii) the opportunity to present evidence and question witnesses, (iv) the opportunity to present oral and written arguments, and (

v) written reasons for the decision. The decision of the Manager in this case to determine the appropriate process and procedures under

section 160 of the Bylaw is entitled to deference by this court. [ 61 ] In any case, Mr. Seroya fails to explain in what way he was specifically prejudiced by the process, and how asking clarifying questions might differ from cross-examination. The Record indicates that Mr. Seroya was not deprived of the opportunity to challenge the evidence against him, regardless of the term used. The Record shows that the Manager and Hearing Officer also showed him

leniency in permitting him to ask the same question several times to the same witnesses. [62] Mr. Seroya also complains that the Hearing Officer found the testimony of the taxi drivers to be more credible than histestimony. Under

section 160 of the Bylaw, the Manager and Hearing Officer has discretion to determine the weight to be given to anyevidence before him. In any case, issues of credibility, or ascribing weight to the evidence, are findings of facts for the Hearing Officerthat are entitled to deference by the reviewing court. Improprieties [63] Mr. Seroya submits he did not have access to all the evidence or the full witness list before the hearing.

At least one documentwas introduced at the hearing without prior disclosure, and he was not provided advance notice of one of the witnesses. [64] It is important to say at the outset, that courts have held on a considerable number of occasions that a proceeding before anadministrative decision-maker need not be absolutely perfect in order for it to comply with the duty of substantive or procedural fairness.The Supreme Court of Canada in R v Harrer, (SCC), [1995] 3 SCR 562 at para 45, observed in a general sense that afair trial “must not be confused with the most advantageous trial possible from the accused’s perspective” or with “the perfect trial”.

In the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, whilepreserving basic procedural fairness to the accused. [65] A court will interfere with a tribunal decision because of procedural errors committed by the tribunal only if those errorsresulted in manifest unfairness or actual prejudice to the applicant’s right to be heard. [66] Regarding the argument that Mr. Seroya was not provided with full disclosure or access to the documents, the Recordindicates otherwise. The Manager and Hearing Officer clarified to Mr. Seroya that it was Mr.

Seroya’s responsibility to identify therelevant information to his defence and gather the documents. In any case, the Manager and Hearing Officer made several efforts togather documents for Mr. Seroya during the hearing and there is no evidence suggesting that Mr. Seroya was refused any documents hehad asked for. One document was introduced without prior disclosure, and counsel for the City Administration indicated to Mr. Seroyathat he could adjourn if he needed time to review the document. Mr.

Seroya did not object to the admission of any documents and deniedthe offer of an adjournment. [67] Similarly, although Mr. Seroya was not aware that one of the witnesses would be testifying he did not ask for an adjournment. 2) Was the Manager and Hearing Officer’s decision to revokethe five TPLs fair? [68] Mr. Seroya never owned the five TPLs. The Bylaw makes it clear that the TPLs are property of the City of Calgary, and aregranted as a privilege to applicants that meet and maintain certain eligibility requirements. [69] Under

section 161 of the Bylaw, the Manager may revoke or suspend a licence with or without a hearing if: 1) The Manager has reason to believe that the licensee has failed to comply with this or any other bylaw or statute, regardless ofwhether the licensee has been convicted of an offence; 2) The Manager has reason to believe that any certificate, authority, licence, condition, approval or any other document orqualification under any bylaw or statute on which the issuance of the licence was based has been suspended, cancelled, revoked or notcomplied with; and 3) The Manager has reason to believe not revoking or suspending the licence would pose a danger to the safety, health or welfare ofthe public or not be in the interest of the livery industry. [70] In his decision, the Manager and Hearing Officer relied on the written submissions and testimony of several drivers who alltestified that they drove a taxi using one of the TPLs held by Mr.

Seroya. They testified that they paid between $10,500 and $11,000annually to Mr. Seroya for the use of the TPLs. They testified that they were forced by Mr. Seroya to sign documents under duress. Atthe hearing, Mr. Seroya’s only defence was that he was not subleasing the TPLs but was renting them. The Manager and Hearing Officerrejected Mr. Seroya’s defence. He found that Mr. Seroya was not credible, had falsified self-serving documents, and had illegallysubleased the TPLs contrary to the Bylaw. Therefore, he decided to revoke the TPLs from Mr.

Seroya. [71] The Record clearly indicates that the Manager and Hearing Officer had reason to believe Mr. Seroya had breached the Bylaw.I find that his decision to revoke the TPLs is reasonable and entitled to deference. Conclusion [72] Based on the evidence, I conclude that Mr. Seroya has failed to persuade me that he was prejudiced in his defence or that theManager and Hearing Officer made a reviewable error in his decision to revoke the TPLs. [73] Mr. Seroya’s application to set aside the Manager’s decision revoking his five taxi place licences is dismissed.

[ 74 ] If the parties cannot agree on costs, they may come before me at a time mutually agreeable to be arranged through my legal assistant Heard on the 12 th day of October, 2016. Dated at the City of Calgary, Alberta this 6 th day of March, 2017. A.D. Macleod J.C.Q.B.A. Appearances: Mr. Richard Jones for the Applicant Mr. Nathan W. Irving for the Respondent