Jai Inder Singh Sandhu et al. v. Date:, 2013 MBCA 82

Citation: Jai Inder Singh Sandhu et al. v. Date: 20130910 The Taxicab Board, 2013 MBCA 82 Docket: AI 13-30-07977 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : JAI INDER SINGH SANDHU o/a ) M. S. Minuk and EMPIRE LIMOUSINE SERVICE ) J. B. Gisser ) for the Applicant (Applicant) Applicant ) ) B. T. Jones - and - ) for the Respondent ) THE TAXICAB BOARD ) Chambers motion heard: ) July 18, 2013 (Respondent) Respondent ) ) Decision pronounced: ) September 10, 2013 CHARTIER C.J.M. [ 1 ] The applicant operates a limousine service.

He moves for leave to appeal a decision of The Taxicab Board (the Board), which denied his request to renew three limousine licences. [ 2 ] Leave to appeal from an order of the Board may only be granted on a question of law or jurisdiction (see s. 19.2(1) of The Taxicab Act , C.C.S.M., c. T10 (the Act )). In addition, the applicant must show that, with respect to any question of law or jurisdiction, there is an arguable case of substance that ought to engage the court. To be “arguable,” the case must have a reasonable prospect of success (see Plaha v.

Taxicab Board (Man.) , 2010 MBCA 99 at para. 14 , 262 Man.R. (2d) 9 ). [ 3 ] The applicant submits that the Board committed either jurisdictional or legal error by basing its decision on a new airport contract that was not in evidence before it.

The applicant argues that the Board’s reasons for denial make it clear that it denied his request because it “felt that due to the new contract at the Winnipeg Airport there are sufficient vehicles at this time.” [ 4 ] While counsel for the Board concedes that the actual airport contract had not been tendered as evidence, it submits that a review of the transcript of the Board hearing demonstrates that the applicant was well aware of the airport contract’s existence, its effective date and its impact on the taxi industry.

Counsel for the Board argues that the actual issue raised by the applicant is factual in nature and is whether the Board had sufficient evidence before it to justify its finding that there is no need for additional limousines as “there are sufficient vehicles at this time.” [ 5 ] While it is trite to say that a finding of fact made in the absence of any supportive evidence is an error of law, I have not been convinced that is what happened in this case.

After considering the material filed, including the supplemental motion briefs, and the submissions of counsel, I have been persuaded, for the reasons which follow, that the issue raised by the applicant relates to one of evidentiary sufficiency as opposed to one of absence of evidence. The issue raised is therefore not a question of law or jurisdiction. [ 6 ] The issue before the Board remained whether or not there were sufficient limousine vehicles already licensed to justify acceding to the applicant’s requests. The applicant was of one view, the Board, by its decision, was clearly not of the same mind.

In my opinion, the Board’s decision was not made in the absence of any supportive evidence, as suggested by the applicant. The fact that the new airport contract existed or that it would necessarily result in less on-demand services at the airport was not contested by the applicant. [ 7 ] Moreover, at the hearing, the chairperson of the Board specifically asked the applicant whether, given the existence of the new airport contract, there was enough business to warrant the issuing of the requested licences.

At no time did the applicant argue that the impact of the new airport contract could not be considered because the contract had not been tendered into evidence. Rather, the applicant explained why he felt it did not affect his argument that there was a demand for additional licences. He acknowledged that, although the new contract would result in some loss of business, it was not sufficient to cause him concern with respect to the viability of the requested licences. In the end, the applicant’s issue is really one of evidentiary sufficiency.

At best, it is a question of mixed fact and law, not one of law or jurisdiction.

[8] Furthermore, the issues of whether the new airport contract, and whether the evidence of counsel relating to that contract,could be properly considered by the Board, were not raised at the Board hearing. They are being raised for the first time on appeal. Thiscourt recently reiterated the general rule of raising new issues on appeal in Harder v. Manitoba Public Insurance Corp. et al., 2012MBCA 101, 284 Man.R. (2d) 254. We stated (at para. 12): …. As Steel, J.A., wrote in Bates v.

Welcher (2001), 2001 MBCA 33 , 153 Man.R. (2d) 281; 238 W.A.C. 281; 2001 MBCA33 (at para. 32): “Normally, courts will not entertain new issues on appeal except under exceptional circumstances.” See also KaimanEstate v. Graham Estate (2009), 2009 ONCA 77 , 245 O.A.C. 130; 2009 ONCA 77, at para. 18. The basis for this generalrule is simple. Appellate courts review decisions to correct error.

If an issue is not raised in the first instance, it is difficult for anappellant to argue that the decision-maker committed an error on that issue. [9] In my view, this case does not fall in the “exceptional circumstances” category. As already stated, not only did theapplicant not object to the Board considering the impact of the new airport contract, he made a case that it would have little impact onhis business. [10] The application for leave is therefore dismissed. __________________________ C.J.M.