Brar v. The Taxicab Board, 2013 MBCA 103

Citation: Brar v. The Taxicab Board, 2013 MBCA 103 Date: 20131112 Docket: AI 12-30-07907 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) PRITPAL BRAR ) P. Brar ) on his own behalf Appellant ) ) B. T. Jones - and - ) for the Respondent ) ) THE TAXICAB BOARD ) Appeal heard and ) Decision pronounced: Respondent ) November 12, 2013 ) BEARD J.A. (for the Court) THE ISSUE [ 1 ] At the conclusion of the oral arguments, we granted the appeal with reasons to follow.

These are the reasons. [ 2 ] The appellant, Pritpal Brar (Mr. Brar), has appealed the November 22, 2012 order of the Taxicab Board (the Board) cancelling his taxicab driver’s licence. Leave to appeal that decision was granted by Hamilton J.A. on January 24, 2013, on the following question: Did the Taxicab Board err in law or breach its duty of procedural fairness by failing to give written reasons for its decision? THE FACTS [ 3 ] On August 27, 2012, the Board received a complaint that, while Mr. Brar was transporting a minor in his taxicab, he offered her money, alcohol and drugs to party with him.

If true, this would be contrary to ss. 10 (

a) and 30(2) (

f) of Taxicab Regulation , Man. Reg. 209/91. Mr. Brar’s taxicab driver’s licence was suspended on an interim basis, and a hearing was held on November 21, 2012. The next day, the Board issued its order cancelling Mr. Brar’s taxicab driver’s licence, the result being to take away his ability to drive his taxicab and, therefore, to earn a living. [ 4 ] While the Board issued a written order setting out its decision, it gave no reasons for coming to that decision. THE POSITIONS OF THE PARTIES [ 5 ] The Board acknowledges that reasons for the decision should have been given and that the failure to do so entitles Mr.

Brar to a remedy from this court. The Board’s position is that the only real question for appeal is the determination of the appropriate remedy. [ 6 ] Mr. Brar focussed his factum on the question that was referred for appeal, being whether the Board breached its duty of procedural fairness. He did not address the question of the appropriate remedy. [ 7 ] The Board acknowledges that there is more than one available remedy, one option being to quash the Board’s decision

and another being to order that the Board provide reasons. It argues that, in determining the appropriate remedy, a court must not simply quash the decision, but must look at all of the circumstances to determine the most appropriate remedy. [ 8 ] The Board takes the position that a consideration of the facts and circumstances in this matter should not lead to its decision being quashed, but, rather, to an order that it provide reasons for its decision. In that regard, it points to the following: - a full hearing was held and Mr.

Brar had the opportunity to appear and present evidence; - no issue was raised regarding either the fairness of the procedure followed by the Board during the hearing or Mr. Brar’s ability to fully present his case; - given that there has been a full hearing, a rehearing would involve unnecessary expense and delay; - there is a lack of finality in remitting the matter to the Board for a rehearing; - unlike in Friesen (Brian Neil) Dental Corp. et al. v.

Director of Companies Office (Man.) et al. , 2011 MBCA 20 , 262 Man.R. (2d) 197, this is not a case where an appellant could make a new application and the outcome could change based on a change in circumstances; rather, the hearing relates to a specific allegation on which there has already been a full hearing and any rehearing would relate to the same complaint and the same events; and - counsel for the Board advised us at the hearing of the appeal that the Board’s reasons have now been prepared and are ready to be signed and released immediately, if that is the order of this court. [ 9 ] The Board also argues that there is case law to the effect that a person may not appeal on the question of the failure to provide adequate reasons unless the party has first requested reasons from the tribunal, or, at least, that the failure to ask for reasons is a circumstance to be taken into account in determining the appropriate remedy.

For this, it relies on this court’s decision in 2127423 Manitoba Ltd. v. Unicity Taxi Ltd. et al. , 2012 MBCA 75 , 280 Man.R. (2d) 292 ( London Limos ). ANALYSIS [ 10 ] The issue of the appropriate remedy for a failure to provide reasons was recently considered by this court in Abetew v. Taxicab Board (Man.) , 2013 MBCA 19 , 288 Man.R. (2d) 288.

The Board took the same position in Abetew as it has before us, being that the only live issue was the appropriate remedy and that the matter should be remitted to the Board to provide reasons for its decision, rather than quashing the Board’s order. [ 11 ] This court was of the view, in Abetew , that “the failure of the Board to give any reasons for the cancellation of the appellant’s taxicab licence calls for a remedy that reflects this serious breach of procedural fairness” (at para. 13).

It also noted that “the appellant has been unable to earn his livelihood since the decision and that would continue [if the remedy only required the Board to provide reasons]” (at para. 13). The remedy in Abetew was to quash the Board order cancelling the taxicab driver’s licence, to order the reinstatement of that licence and also to confirm that, if the Board wished to proceed with the complaint, it would have to institute new proceedings. [ 12 ] We can see no reason why this court would order a remedy different from that in Abetew .

If anything, the circumstances in this matter are more serious than those in Abetew because, in this case, two appeals, being Abetew and Gidda v. The Taxicab Board , 2011 MBCA 64 , had been commenced challenging the Board’s orders cancelling taxicab driver’s licences, due to the failure to provide reasons, when the Board decided this matter on November 22, 2012; yet, it failed to heed those warnings and provide reasons to Mr.

Brar at the time of, or shortly after, the cancellation of his taxicab driver’s licence. [ 13 ] In both of those cases, the Board acknowledged that the ground of appeal had merit; yet, it failed to carry through with its obligation to provide reasons to Mr. Brar in this case in the same circumstances as the two earlier cases. It is important to impress upon the Board that, at least where it is ordering the very serious penalty of cancelling a taxicab driver’s licence and thereby depriving the holder of earning a livelihood, it must provide reasons for its decision. [ 14 ] The Board’s position is that, because Mr.

Brar did not ask for reasons, he should not be permitted to have his decision quashed and, thereby, be in a better position than the person who, instead of appealing, asks for reasons. As noted earlier, the Board is relying on this court’s decision in London Limos for this proposition. The requirement that there be a request for reasons is not a hard and fast rule. Steel J.A., for the court in London Limos , stated (at para. 44 ): …. Certainly, a failure to request reasons does not bar appellate review in all cases.

As Rothstein J. in Marine Atlantic [ (2000) 258 N.R. 112 (F.C.A.) ] indicated, there would be cases where the principle would not apply. Also, it seems to me that if the duty of procedural fairness and natural justice has been breached then the failure to request reasons should not prevent one from receiving a remedy. [ 15 ] The short answer is that, in this case, the Board has admitted that it breached its duty of procedural fairness and natural justice by failing to provide reasons, thereby entitling Mr. Brar to a remedy.

While the failure to ask for reasons is a circumstance to be considered, it is clearly only one of many. [ 16 ] There is another aspect of this case that relates to the need for reasons in this matter. Rothstein J.A., in Marine Atlantic Inc. v. Canadian Merchant Service Guild et al. (2000), 258 N.R. 112 (F.C.A.), stated (at para. 7 ): We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the court without a

request for reasons from the tribunal may be appropriate. .... [ 17 ] In this case, Mr. Brar states that a worker from Child and Family Services made the complaint to the Board about an incident involving a minor. He says that the minor did not appear at the hearing, so she did not testify in person, she was not questioned by the Board and Mr. Brar was not able to ask her any questions. The Board did not address this issue, either in its factum or in oral argument. Without reasons, however, there is no way to assess the appropriateness of the Board’s finding of misconduct on the part of Mr.

Brar, based, at least in part, on that untested complaint. This is a circumstance that is relevant to the determination of whether reasons are required, whether or not they are requested. [ 18 ] Even if one accepts that the failure to ask for reasons is a circumstance that supports the remedy of ordering reasons rather than quashing the order, the seriousness of the outcome to Mr.

Brar, being the cancellation of his taxicab driver’s licence and the loss of his livelihood, militates in favour of not giving too much weight, if any, to that failure. [ 19 ] For all of these reasons, we have found that the appeal should be granted and that the order of the Board cancelling Mr. Brar’s taxicab driver’s licence should be quashed. Mr. Brar’s taxicab driver’s licence should be reinstated, and, if the Board wishes to proceed with the complaint, it will need to institute new proceedings. DECISION [ 20 ] In the result, the appeal is allowed on the terms set out in para. 19 herein. J.A. J.A. J.A.