2012 MBCA 75, 2012 MBCA 75

Citation: 2127423 Manitoba Ltd. o/a London Limos Date: 20120807 v. Unicity Taxi Ltd. et al., 2012 MBCA 75 Docket: AI 11-30-07556 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier BETWEEN : 2127423 MANITOBA LTD. o/a ) S. G. Soronow and LONDON LIMOS ) W. S. Gange ) for the Appellants (Applicant) Respondent ) ) M. S. Minuk - and - ) for the Respondent ) 2127423 Manitoba Ltd. o/a UNICITY TAXI LTD. and ) London Limos DUFFY’S TAXI

(1996) LTD. ) ) B. T. Jones (Objectors) Appellants ) for the Respondent ) The Taxicab Board - and - ) ) Appeal heard: THE TAXICAB BOARD ) February 6, 2012 ) Respondent ) Judgment delivered: ) August 7, 2012 STEEL J.A. 1 This is an appeal by leave from a decision of The Taxicab Board (the Board) where it granted additional licences to the applicant, 2127423 Manitoba Ltd. o/a London Limos (London Limos), over the objections of two taxi companies, Unicity Taxi Ltd. (Unicity) and Duffy’s Taxi

(1996) Ltd. (Duffy’s). 2 Leave to appeal was granted on the two following questions: 1) Did the failure of the Board to provide any information to the objectors, other than a one-page

summary, amount to a breach of the duty of fairness and the rules of natural justice? and 2) Did the failure of the Board to provide reasons amount to a breach of the duty of fairness and the rules of natural justice? Introduction 3 In December 2010, London Limos made an application to the Board for a taxicab business licence for six specialty vehicle limousines, eight executive cars, two standard limousines and one specialty vehicle limousine-bus. 4 Unicity and Duffy’s (the Objectors) are taxicab dispatch companies that filed oppositions to the application for additional licences by London Limos. 5 The Board provided the Objectors with

summary information regarding the application. However, the Board was not

prepared to disclose other material to the Objectors. Specifically, the Board refused to provide the Objectors with a copy of the businessplan upon which the application was based. At the hearing, London Limos tendered further binders of materials and documents insupport of its application. Aside from an agenda, the Board refused to provide this information to the Objectors, as well. 6 On April 8, 2011, the Board issued its disposition with respect to the application, granting the application made byLondon Limos in part. The Board granted eight licences and denied the application for nine other licences.

No written reasons for theorder were issued by the Board. 7 The Objectors submit that the Board exercises quasi-judicial powers when holding hearings into the issuance oflicences. They argue that the Board breached its duty of fairness and the rules of natural justice by failing to provide adequate disclosureto them of information submitted by London Limos. As well, they argue that the Board owes a duty to provide written reasons to permitthe participants to understand the rationale for the decision reached.

They ask that the decision be set aside with the direction that theBoard hold a new hearing. 8 The respondents say that the role of the Objectors at the Board’s hearing was not that of a party, but rather that of aparticipant entitled to present its reason for opposition to the Board, but not entitled to the same rights as those afforded to a party. Therewas no breach of procedural fairness in refusing to order production of the information sought by the appellants.

The respondents alsosubmit that the Objectors cannot argue that there was a breach of the duty of fairness for failure to give reasons when they did notrequest reasons from the Board. In any event, it is submitted that this was not a decision of a nature that required it to provide formalreasons. 9 I agree with the Objectors that the Board exercises quasi-judicial powers and, that it owes these duties to parties to thehearing. However, the Objectors are not parties and therefore, the content of the duty of fairness owed to them is not the same as thatowed to parties.

In the circumstances of this case, the Board did not breach the duty of fairness in the disclosure ordered. Assuming,without deciding, that reasons were required in this case, the record was an adequate substitute for reasons and the Board’s decision wasreasonable. Standard of Review 10 Both parties agreed that the standard of review is reasonableness with respect to both the issue of inadequate disclosureand lack of reasons.

I would prefer to deal with each issue separately. 11 If the Board has breached the duty of procedural fairness by failing to provide adequate disclosure, that breach is anerror in law and it must be remedied. So a discussion of this breach in terms of standard of review is not really the appropriateterminology. See for example London (City) v. Ayerswood Development Corp. et al. (2002), (ON CA), 167 O.A.C.120, where the court stated that (at para. 10): When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard ofreview.

Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. …. 12 The Supreme Court of Canada recently addressed the standard of review with respect to reasons in the case ofNewfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. Inthat case, Abella J. stated (at para. 22): It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they arerequired, there is nothing to review.

But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/resultof the decision should therefore be made within the reasonableness analysis.

DID THE BOARD ERR IN FAILING TO DISCLOSE THE BUSINESS PLAN OF THE APPLICANT? 13 The Objectors argue that the basic standard of natural justice requires that any documents that are to be relied upon bythe Board in making its decision must be provided to the participants. 14 They acknowledge that the Board must strike a balance between the right of the participants to understand the case thatis being presented and the right of the applicant to retain the confidentiality of its business.

However, in this case, the Objectors submit,the amount of information given to them did not allow them to understand the case they had to meet. They were therefore denied theopportunity to make full answer and, this was a breach of procedural fairness. 15 Several factors are critical when determining the content of the duty of procedural fairness owed to the Objectors in thiscase. First, the specific legislation must be considered. The cases cited by both parties were all decided in the context of their particularstatutory regimes.

Second, while a party to a hearing should receive some disclosure of the case they are to meet, the content of this dutyvaries along the procedural fairness spectrum depending on the facts and the nature of the question to be determined. Third, theappellants here were Objectors and not parties to the hearing and this will also affect the nature of the duty owed them.

16 Looking first to the legislation, we see that The Taxicab Act , C.C.S.M., c. T10 (the Act ), and the regulations provide no guidance as to which materials ought to be provided and which materials ought to be exempt from disclosure. They do not mandate disclosure nor do they discuss confidentiality. In fact, the Act and its regulations do not contain any provisions concerning objectors. There is no statutory mandate requiring the Board to hear from objectors. 17 That is not to say that no duty is owed to the Objectors at all. The Act does anticipate participants in the hearing in addition to parties.

For example, in granting leave to appeal to the Objectors, Chartier J.A. noted the distinction between the reference to “parties” and “participants” in a hearing in ss. 18 and 18.1 as compared to the reference only to “persons” in s. 19 of the Act . He held that for purposes of filing a notice of appeal, the word person (although not defined in the Act ) included a “participant” in the hearing ( 2011 MBCA 45 at para. 4 ). Regulations 18 The board may make regulations (

a) prescribing fees payable to the board by a person (

i) who is a party to, or participant in, a hearing or other proceeding, …. Costs of proceeding 18.1 The board may order a person who is a party to, or participant in, a hearing or other proceeding to pay one or more of the following: (

a) all or part of the costs of another person in respect of the hearing or proceeding; 18 While the Board has set up a process to hear presentations from objectors, it is within the Board’s jurisdiction to determine its own rules and, in particular, to determine the terms of the objectors’ participation in the hearing process, as well as the extent of the information to be disclosed.

Section 19 of the Act allows the Board to create rules concerning the standing of persons at hearings and the nature and conduct of hearings before the Board: Rule-making powers 19(1) The board may make rules governing practice and procedure for matters within its jurisdiction and for the keeping of records and documents, including rules in respect of (

a) applications; (

b) the standing of persons at meetings of and hearings and other proceedings before the board; (

c) the matters and circumstances in which notice to, and service upon, persons shall be required, and the form of notice and manner of service; (

d) the issuance and renewal of licences, permits, and exemptions; (

e) the refusal, suspension and cancellation of licences and permits and the imposition of penalties; (

f) the making of decisions and orders;

(

g) the consideration of matters, including the matters and circumstances in which hearings are required, and the nature andconduct of those hearings; and (

h) the maintenance of order in meetings of and hearings and other proceedings before the board. [emphasis added] 19 Next, the nature of the question to be determined here was one related to economic regulation. That places it lower onthe spectrum for the required level of disclosure than, for example, professional discipline issues. As Sara Blake explains, the nature ofthe hearing has an impact upon the degree of disclosure required, even to parties to the hearing. (Sara Blake, Administrative Law inCanada, 5th ed. (Markham: LexisNexis Canada Inc., 2011) at 37): The extent of disclosure varies along a spectrum.

At one end is simply a requirement that the person be told verbally the gist of thefactual subject and the nature of the decision to be made. Further along the spectrum is the requirement to give advance written notice ofthe nature of the decision to be made and the key facts upon which it will be based. To that requirement may be added the requirementto disclose the evidence to be presented to the decision maker.

At the far end of the spectrum, the party may be entitled to review allrelevant information (except privileged material) including material which will not be submitted to the decisions maker. 20 More disclosure is required where the mandate of a decision-maker is to adjudicate disputes or discipline wrongdoers. Professional discipline will attract a very high standard of disclosure to a party, as will situations where a Charter right such as liberty orsecurity of the person is at issue.

Less is required where the mandate is to “manage competing interests or to decide what is in the publicinterest when making regulatory or policy decisions” (ibid.). 21 Next, the position of the Objectors should be considered. The Objectors argue that they were not able to understand thecase that they had to meet and, that they were not allowed to make full answer and defence. I agree with counsel to the Board that thesesubmissions reflect a misunderstanding of the role of the Objectors in the Board’s proceedings. The Objectors were not parties to theproceeding.

There was no case that they had to meet, nor were they required to make full answer to the case of London Limos. 22 The Objectors were allowed to participate in the licencing hearing before the Board by virtue of the practice of theBoard in allowing objections to be heard, but that does not necessarily make them parties to the application and entitle them to the samerights. The fact that they do not have a direct interest in the proceedings and, are not a party thereto, should inform the demands ofnatural justice that are owed them.

The Board’s decision, in regards to both the issuance of licences as well as disclosure to theObjectors, has direct impact on London Limos while the Objectors admitted that they may only be “potentially impacted” by thedecision to issue new licences. 23 As the court stated in Canadian Transit Co. v. Public Service Staff Relations Board (Can) et al. (1989), (FCA), 99 N.R. 330 (Fed. C.A.) (at para. 27): It is clear to me that mere interest in the eventual outcome of a proceeding before a tribunal, whether financial or otherwise, is not initself sufficient to give an individual a right to participate therein.

The demands of natural justice and procedural fairness certainly do notrequire so much and in any event it would be impossible in practice to go that far. In my judgment, to be among the interested partiesthat a tribunal ought to involve in a proceeding before it to satisfy the requirements of the audi alteram partem principle, an individualmust be directly and necessarily affected by the decision to be made. His interest must not be merely indirect or contingent …. 24 Blake also writes that (at p. 39): The extent of disclosure may turn on what is at stake for a party.

A person whose interests will be directly affected by the tribunal’sdecision is entitled to greater disclosure than an intervenor. A complainant is entitled to greater disclosure than an intervenor orobjector. Objectors and members of the public who attend licensing or rate hearings may not always be entitled to receive copies of thematerial submitted by the applicant.

A business that intervenes in a competitor’s hearing may not be entitled to detailed disclosurebecause their interests are not at stake in the proceeding. 25 Le Dain J. (as he then was) differentiated between a party whose rights were being determined and an objector in thecase of Seafarers International Union of Canada v. Canadian National Railway, (FCA), [1976] 2 F.C. 369 (C.A.). The appellant in that case was also an objector at a hearing of the Canadian Transport Commission. Similar to the case at bar, theobjectors were permitted to adduce evidence and make submissions in support of their objections.

The appellants argued that “their rightto make objections necessarily included the right to know and to meet anything in the way of information that could be prejudicial totheir objections” (at p. 381). 26 Le Dain J. made the point that “[t]he right to make objections is one thing; the right to have the issue determined upon

the basis of the objections is another.” He stated that (at p. 381): …. The issue is not to be determined as between the party proposing to make the acquisition and an objector. An objector is entitled to afull opportunity to make his objection but not to meet every consideration that may form the basis of decision. 27 Another case dealing with disclosure to objectors was Re All Ontario Transport Ltd. and Ontario Highway TransportBoard et al. (1979), (ON SC), 26 O.R. (2d) 202 (H.C.J. (Div. Ct.)).

This case, decided under the Ontario StatutoryPowers Procedure Act, 1971, c. 47, involved an application for a licence to transport goods using public commercial vehicles.

In thishearing, 63 applicants intervened and requested information about the application before the Board pursuant to the Statutory PowersProcedure Act, which required parties to be furnished with reasonable information of any allegations regarding the “propriety of conductor competence of a party.” 28 Robins J. (as he then was) wrote that (at pp. 205-6): .… By objecting an intervenor obtains standing in the proceedings but in no sense places his own rights in jeopardy.

No legalconsequences can flow, as far as he is concerned, from whatever decision the Board may make on the application before it; no order canrun against him; none of his legally protected rights is subject to the decision ….

A carrier who voluntarily appears in opposition to a licence application, as the applicants have done, stands in a significantly differentposition before the Board than, say, a carrier who is there on a review of the terms and conditions of the licence under s. 8 of the PubicCommercial Vehicles Act or one whose operating authority is under review on a disciplinary basis pursuant to s. 10 or s. 12 of that statue. In such cases, the hearing may result in the carrier’s licence being amended, suspended or cancelled.

He is a necessary party; he isentitled to know the case he has to meet; and he must be afforded the procedural protection of s. 8 of the Statutory Powers ProcedureAct, 1971. But, in the instant case, as I have said, neither the licence nor the rights of the objecting carriers are in issue or subject to thedecision. 29 It should also be noted that the Objectors were business competitors to the applicants, a fact that will certainly affectthe degree to which disclosure of confidential business information should be made to them. The transportation industry in Winnipeg ishighly competitive.

On the Board’s website, when setting out the information necessary to be filed with the Board for a licenceapplication, the applicant is required to file a business plan that includes a list of the applicant’s customers, an outline of its finances anddetails of its future plans to attract and keep business. In return for providing such confidential information, the Board promises that: All the information in the business plan will be kept confidential and not shared with the taxicab industry or your competition.

Thisinformation will be used by the Taxicab Board to make a decision concerning your request for a taxicab business licence. Only theinformation on the cover sheet and the executive

summary will be shared with the industry. 30 London Limos’ business plan contained confidential information that, if disseminated, could harm London Limos’competitive advantage. The representative of London Limos’ expressed this fear clearly at the hearing when he stated: .… [W]e have the utmost respect for others in the industry. But there’s always this fear that they’re going to try to take our clients. Andonce they’ve – once they get our client in their vehicle, they have their business card there, they have everything else. And this is aconcern of ours.

I mean, this is part of the reason why I don’t want to share all this information with everybody because it is a verycompetitive industry. …. 31 Finally, the Objectors’ reliance on the CIBA-GEIGY Canada Ltd. v. Canada (Patented Medicine Prices Review Board)(T.D.), (FC), [1994] 3 F.C. 425, case is not warranted. That case dealt with a corporation whose pricing was subjectto review. CIBA-GEIGY was a party to the hearing and the subject of the review. Consequently, to advance its position, CIBA wouldnecessarily need to make a full and complete defence.

Notwithstanding the issues at stake, further disclosure was not ordered in thatcase. The court held that disclosure with respect to a situation of economic regulation is different than a case where individual rights arean issue. The court held (at p. 446): …. Law and policy require that some leeway be given an administrative tribunal with economic regulatory functions, if, in pursuing itsmandate, the tribunal is required by necessity to receive confidential information. It is not intended that proceedings before thesetribunals be as adversarial as proceedings before a court.

To require the Board to disclose all possibly relevant information gatheredwhile fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint. Fairness is always a matter of

balancing diverse interests. …. 32 It is within the context of the above-noted factors that I now turn to examine exactly what information the Objectors did receive. Before the hearing, the Board provided a page of

summary information relating to the application of London Limos. It also provided the names of the other companies that had filed opposition with the Board. 33 The Objectors attended the hearing of the application and were represented by counsel. Counsel for the Objectors heard the submissions by London Limos and was provided with the “agenda” of London Limos’ presentation. Counsel for the Objectors had the opportunity to cross-examine their representative on his presentation and on his material.

Counsel for the Objectors also made submissions to the Board, submissions that were partially successful since the applicant did not receive the full number of licences that were requested. 34 So, for example, a letter was read into the record at the hearing from one of the applicant’s customers indicating their need for more town cars.

There was also viva voce evidence from an expert in the hotel business indicating that Winnipeg was underdeveloped in the area of providing the type of service which London Limos wished to expand. 35 In particular, as set out by London Limos in their factum, during the course of the hearing the following information was disclosed by the Board or by London Limos: …. a. that Power Corporation of Canada (“Power Corp”) was a client of London [Limos]; b. the contents of a letter of reference written by Power Corp; c. that Power Corp often required its employees to travel separately and that this required multiple vehicles; d. that Greenwood Hotel was a client of London [Limos]; e. that London [Limos] had a signed contract with the Winnipeg Airport Authority; f. that London [Limos] was in compliance with its comprehensive general insurance policy; g. that London [Limos] and an entertainment company were in negotiations for a contract that required two stretch SUV’s to be on standby 30-50 hours per week; h. that London [Limos] was in the process of arranging advertising; i. that London [Limos] had contracts with three major airlines; j. that London [Limos] had contracts with various funeral homes; k. that London [Limos] had arrangements with transportation companies not located in Winnipeg, namely Montreal Limo, to accommodate their clientele while they were in Winnipeg; l. that London [Limos] undertook to not transfer any licenses it acquired pursuant to the hearing; m. that London [Limos] undertook to return to the Board any licenses acquired pursuant to the hearing if there was insufficient demand; n. that reliance on other Limousine companies was a threat to London [Limos’] high standards and posed the risk of exposing clientele to its competitors; o. that renting additional vehicles was cumbersome and inconvenient; p. that pre-booked arrangements constituted in excess of 97% of London [Limos’] business; q. that airport pickups constituted less than 3% of London [Limos’] business; r. a document showing the amount of business that London [Limos] has had to turn down because of a lack of vehicles; s. that the Children’s Hospital was a client of London [Limos]; t. that London [Limos’] application to the Board included statistics provided by the Board; …. 36 Taking all of this together, it provided the Objectors with information concerning London Limos’ existing clients,

existing contracts, potential contracts and potential marketing strategies. 37 Determining the extent of disclosure necessarily requires a balancing of the interests of the Objectors and LondonLimos. In this case, considering that the statute was silent on this issue, that the appellants were objectors and that, while increasedcompetition might in varying degrees have an impact on them, no legal rights of the Objectors were affected and that they did havesubstantial disclosure, if not before the hearing, then certainly during the hearing, I believe the Board fulfilled its duty of fairness in thissituation.

Reasons Must the appellant request reasons before they can complain of a breach of natural justice? 38 On April 26, 2011, counsel for the Objectors wrote to the Board and indicated that they would be seeking leave toappeal the decision of the Board. In that letter no request was made for reasons for decision, nor was the issue raised in any way. Theletter indicated that the issue for which leave was being sought was insufficient disclosure. The notice of motion for leave does not raisethe issue of reasons for decision either.

The issue was first raised in the motion brief of the Objectors on the leave to appeal application. 39 The respondents have argued that the failure of the Objectors to request reasons from the Board is a bar to appellatereview on this ground. Moreover, it is submitted that, if there is a duty to give reasons, that duty is owed only to the licence applicantsand other parties to the hearing, and not to the Objectors. 40 In Robert W. MacCauley, Q.C. & James L.H.

Sprague, Practice and Procedure Before Administrative Tribunals,(Toronto: Thomson Canada Limited, 2004) vol. 3 at 22-65: The case law following Baker [ (SCC), [1999] 2 S.C.R. 817] does appear to make at least one factor clear as a criteriafor triggering a duty to give reasons under the principles of fairness. It appears that before a person can claim a breach of the duty offairness arising out of a failure to give reasons, that person must first, unless the circumstances are such that the request is obvious andneed not be made explicitly, ask for such reasons.

If reasons are not requested, judicial review cannot be sought on the basis of theagency’s failure to give them. …. 41 In the case of Marine Atlantic Inc. v. Canadian Merchant Service Guild et al. (2000), 258 N.R. 112 (Fed. C.A.),Rothstein J.A. (as he then was) stated (at paras. 5-7): In Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 596; F.C.J.

No. 1301 (T.D.), Evans, J. (as hethen was), stated at paragraph 31 [sic]: “However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the dutyis owed and, in the absence of such a request, there will be no breach of the duty of fairness.” We agree with Evans, J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is anobligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the court maybe appropriate.

However, it would unduly complicate the administration of justice if parties could resort to the court to seek to quashorders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal. A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, requiredin the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in thecourt.

We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which theobligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the court without arequest for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannotrequest reasons from the Board. Such situations, we think, would be exceedingly unusual. 42 This principle seems to have been accepted in the Federal Court, as well as by appellate courts in Quebec and Ontario.

See United States v. Kissel, 2008 ONCA 208 at para. 34, 89 O.R. (3d) 481, and Maisonneuve v. Canada (Minister of Justice), 2006QCCA 977 at para. 31 (QL). 43 It is worth noting, that in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999]2 S.C.R. 817 at para. 4, there was a request for reasons (see para 4-5).

44 I do not think it is necessary to decide this case on the basis that reasons were not requested. Certainly, a failure torequest reasons does not bar appellate review in all cases. As Rothstein J. in Marine Atlantic indicated, there would be cases where theprinciple would not apply.

Also, it seems to me that if the duty of procedural fairness and natural justice has been breached then thefailure to request reasons should not prevent one from receiving a remedy. 45 However, when determining whether reasons were required in any particular circumstance, surely the failure of theperson complaining to ask for reasons may indicate that the rationale for the order is understood without written reasons. At a minimum,it is a factor for the court to take into account on an application for judicial review (see International Brotherhood of Electrical Workers,Local 1739 v.

International Brotherhood of Electrical Workers (2007), (ON SCDC), 86 O.R. (3d) 508 (Div. Ct.) atpara. 89). 46 Moreover, it must be remembered that, as Evans J. wrote in Liang v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 1301 (QL), the duty of fairness normally only requires reasons to be provided to the person whose interests are beingdirectly affected.

Lack of Written Reasons 47 Even assuming, without agreeing, that there was a duty here to provide reasons to the Objectors, the Board argues thatthe lack of formal written reasons does not in and of itself constitute a breach of the duty of procedural fairness in this particular case. Iagree. In this case, the record acted as a sufficient surrogate for formal, written reasons so that a person could understand the rationalebehind the Board’s decision. 48 In the case of Vancouver International Airport Authority v.

P.S.A.C., 2010 FCA 158, 320 D.L.R. (4th) 733, the FederalCourt of Appeal emphasized that, when determining the nature of reasons of administrative decision-makers in any particular situation, itwas important to keep a number of key principles in mind (at para. 17): The reasons of administrative decision-makers in situations such as this must fulfil these purposes at a minimum. As courts assesswhether these purposes have been fulfilled, there are a number of important principles, established by the authorities, to be kept firmly inmind: (

a) The relevancy of extraneous material. The respondent emphasized that information about why an administrative decision-maker ruled in the way that it did can sometimes be found in the record of the case and the surrounding context. I agree. Reasons formpart of a broader context. Information that fulfils the above purposes can come from various sources. For example, there may be oral orwritten reasons of the decision-maker and those reasons may be amplified or clarified by extraneous material, such as notes in thedecision-maker’s file and other matters in the record.

Even where no reasons have been given, extraneous material may suffice when itcan be taken to express the basis for the decision. Baker, supra, provides us with a good example of this, where the Supreme Court foundthat notes in the administrative file adequately expressed the basis for the decision. See also Hill v. Hamilton-Wentworth Police ServicesBoard, 2007 SCC 41 , [2007] 3 S.C.R. 129 at paragraph 101, 285 D.L.R. (4th) 620, for the role of extraneous materials in theassessment of adequacy of reasons. (

b) The adequacy of reasons is not measured by the pound. The task is not to count the number of words or weigh the amount ofink spilled on the page. Instead, the task is to ask whether reasons, with an eye to their context and the evidentiary record, satisfy, in aminimal way, the fundamental purposes, above. Often, a handful of well-chosen words can suffice. In this regard, the respondentemphasized that very brief reasons with short-form expressions can be adequate. That is true, as long as the fundamental purposes,above, are met at a minimum.

In this regard, the respondent cited the example of the Board sometimes issuing orders without reasons. Whether such orders are adequate depends on the facts of a specific case, but the methodology for assessing adequacy is clear: thepreambles, recitals and provisions of the orders, when viewed with an eye to their context and the evidentiary record, must satisfy, in aminimal way, the fundamental purposes, above. (

c) The relevance of Parliamentary intention and the administrative context. Judge-made rulings on adequacy of reasons mustnot be allowed to frustrate Parliament’s intention to remit subject-matters to specialized administrative decision-makers. In many cases,Parliament has set out procedures or has given them the power to develop procedures suitable to their specialization, aimed at achievingcost-effective, timely justice.

In assessing the adequacy of reasons, courts should make allowances for the “day to day realities” ofadministrative tribunals, a number of which are staffed by non-lawyers: Baker, supra at paragraph 44; Clifford v. Ontario MunicipalEmployees Retirement System (2009), 2009 ONCA 670 , 98 O.R. (3d) 210 at paragraph 27, 312 D.L.R. (4th) 70, 188 L.A.C.(4th) 97 (C.A.). Allowance should also be given for short-form modes of expression that are rooted in the expertise of the administrativedecision-maker. However, these allowances must not be allowed to whittle down the standards too far.

Reasons must addressfundamental purposes – purposes that, as we have seen, are founded on such fundamental principles as accountability, the rule of law,procedural fairness, and transparency. (

d) Judicial restraint. The court’s assessment of reasons is aimed only at ensuring that legal minimums are met; it is not anexercise in editorial control or literary criticism. ….

49 The above principles make several points clear. A simple order issued by the Board may be sufficient to fulfill the purpose of reasons and admit of effective appellate review depending on the context of the proceedings that gave rise to the order. Context includes many things, but most certainly includes the nature of the issues raised before the tribunal, the evidence adduced and the submissions made. 50 In this case, context would include the information contained in the disclosure

summary, the information made public at the Board hearing and, in part, confidential business information. It would also include the fact that the question being dealt with was one of economic regulation rather than, for example, one of professional discipline. 51 As well in this case, the entire proceedings were recorded and transcribed.

The test applied by the Board for considering whether to grant new licences is clear from the transcript of the hearing. 52 In that transcript, counsel for the Objectors indicates: … I’ve appeared before this tribunal many times and most significantly in the context of the hearings that you refer to with respect to Spring Taxi and (inaudible) and all kinds. And it’s always been understood within the jurisprudence of this board that the test is public convenience and necessity. And that has three components. The public purpose or demand or need for the service.

Secondly, the adequacy of existing services including the ability and willingness of existing operators to serve the identified public purpose for demand or need. And the effect that the additional service will have on existing operators. …. 53 This test is confirmed in the Act .

Section 8 reads as follows: Number of licences 8 In issuing licences the board shall consider the public convenience and necessity in respect of the number of taxicabs required in The City of Winnipeg; and to that end it may limit the number that may be operated under its authority at any one time, but may issue temporary permits permitting an additional number of taxicabs to be operated during stated seasons, during stated days, or for special occasions. 54 The record discloses that the Objectors understood the test to be applied.

While they understood the test, other than their objection, they did not present any evidence to support their objection that additional limousine licences were not needed to fulfill public convenience or necessity. London Limos’ presentation was directed at showing the need for additional licences. This is one of those situations suggested in Vancouver International Airport Authority where “[e]ven where no reasons have been given, extraneous material may suffice when it can be taken to express the basis for the decision” (at para. 17).

Obviously, that may not be the result in every situation depending on the nature of the question before the Board and the nature of the record available for appellate review. Conclusion 55 I have considered all of the above factors in coming to my decision. In the circumstances of this case, there was no breach of procedural fairness or natural justice with respect to disclosure as the Objectors are not parties to the application.

Indeed, they are competitors of the applicant and the information requested was confidential within the context of an administrative tribunal dealing with economic regulation of an industry. The Board balanced the interests of all parties and participants and disclosed a sufficient amount of information both before and during the hearing. 56 With respect to reasons, the history of correspondence makes clear that the Objectors’ real grievance was lack of disclosure. They never requested reasons from the Board until the notice of appeal was filed.

This is assuming that a duty to give reasons was owed to the Objectors, who were not parties to the hearing. 57 Even given the absence of formal written reasons in the context of this case and the nature of this question, there is a sufficient understanding of the rationale of the Board to allow for judicial review. Hearings before the Board are recorded, the transcript has been made available upon appeal, and that transcript records discussions between the chair and counsel and between counsel and the applicant. The test to be applied by the Board of “public convenience and necessity” is contained in the Act .

The evidence adduced was directed toward that goal, as were the submissions by both counsel for the Objectors and the applicant. It is clear that the Board was alive to the question at issue. Consequently, the record acted as a sufficient and adequate surrogate for reasons in the circumstances. The Board’s decision was reasonable and should not be interfered with. 58 The appeal is dismissed with costs to the respondent, London Limos. J.A. I agree: J.A.

I agree: J.A.