Sunshine Transit Service a/o Sunshine Date:, 2014 MBCA 33

Citation: Sunshine Transit Service a/o Sunshine Date: 20140325 Limousine Service v. The Taxicab Docket: AI 12-30-07852 Board, 2014 MBCA 33 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) A. E. Craft and SUNSHINE TRANSIT SERVICES a/o ) M. E. Bowman SUNSHINE LIMOUSINE SERVICE ) for the Applicant ) (Appellant) Applicant ) B. T. Jones ) for the Respondent - and - ) ) Chambers motion heard: THE TAXICAB BOARD ) March 13, 2014 ) (Respondent) Respondent ) Decision pronounced: ) March 25, 2014 MAINELLA J.A.

Introduction [ 1 ] This is an application for leave to appeal to this court pursuant to s. 19.2(1) of The Taxicab Act , C.C.S.M., c. T10 (the Act ), from a decision of the Taxicab Board (the Board) on the following proposed ground: The Board erred in law in its application of s. 8 of the Act , in particular in its consideration of the “public convenience and necessity in respect of the number of taxicabs required in The City of Winnipeg.” [ 2 ] For the following reasons the application is dismissed.

Background Application to Operate a Wheelchair Accessible Limousine Service [ 3 ] The applicant applied to the Board for a Specialty Vehicle Business Licence to operate a wheelchair accessible limousine service. There are currently no such limousine services in Winnipeg. The owner of the applicant (Mr. Jakeman) is also the operations manager of Dignity Transportation Inc. (Dignity), one of the taxi companies in Winnipeg that offers transit services for persons with special needs.

Dignity is licenced by the Board to operate five MV-1s which are vehicles specially designed to transport one wheelchair passenger and four other passengers. The applicant proposed to the Board to operate the limousine service using a luxury version of the MV-1, the MV-1 LX. The Hearing Before the Board [ 4 ] At the hearing on September 5, 2012, Mr. Jakeman argued that the Board needed to provide equal accessibility for disabled people to limousine services in Winnipeg.

In making its decision, he asked the Board to take into account the international human rights standards for persons with disabilities, set out in the United Nations, Convention on the Rights of Persons with Disabilities , 13 December 2006, 2515 UNTS 3 (No. 44910) (A/Res/61/106) (the CRPD ), which Canada has signed and ratified. He also submitted such a limousine service would improve making Winnipeg “truly accessible and provide transportation in all segments of society.”

[ 5 ] The business plan in support of the application suggested there was a demand for a wheelchair-accessible limousine service due to Canada’s aging population as well as anecdotal comments from clients of Dignity that they would use such a limousine service. The Board asked Mr. Jakeman for particulars of anticipated demand for a wheelchair-accessible limousine service in Winnipeg. He advised the Board he hoped to service funerals in addition to general calls from the public. [ 6 ] The two largest taxi companies in Winnipeg, Duffy’s Taxi and Unicity Taxi, opposed the application before the Board.

They argued that it did not meet the criteria to grant such a licence as set out in s. 8 of the Act . They said this was not a situation where the human rights of disabled people are not being respected or accommodated in the marketplace. They submitted that persons with special needs are currently well served by the various taxi companies who have wheelchair-accessible vehicles. Duffy’s Taxi and Unicity Taxi argued that the true issue raised by the application was not one of human rights, but regulation of transit services.

Their position before the Board was that there are too many licenced limousine companies in Winnipeg. The limited demand for limousines forces limousine operators to encroach on the market for taxis, thereby affecting the financial viability of existing taxicab operators. They submitted that there was no evidence of demand for such a specialized limousine service and before granting such a licence there should be a study done weighing supply and demand for such a market. [ 7 ] Winnipeg Limousine Service, a licenced limousine operator, also made submissions to the Board.

While originally opposed to the application, they indicated to the Board they were withdrawing their opposition because if there was a demand for such a service they too would want to apply for a licence for wheelchair-accessible limousine service. The representative of Winnipeg Limousine Service told the Board he was not sure such a service is currently financially viable, although it may be in time. [ 8 ] After the conclusion of the hearing, the Board issued a written decision, the operative part stated: “Unanimous decision of the Board that the application for one

(1) Specialty Vehicle Limousine Business Licence be denied.” Leave Application No. 1 and the Order of MacInnes J.A. [ 9 ] On October 4, 2012, the applicant filed an application for leave to appeal the Board’s decision to this court. Two proposed grounds of appeal were sought in the application.

The first ground regarding the Board’s application of s. 8 of the Act as stated previously, and a second ground: The Board erred in law and breached its duty of fairness and the rules of natural justice by failing to provide the applicant with proper, or any, reasons for its decision. [ 10 ] The application for leave to appeal came before MacInnes J.A. on January 31, 2013. Although requested, the Board had yet to provide its reasons for decision to the applicant.

The applicant was granted leave to appeal on the second proposed ground regarding the failure to provide reasons ( Sunshine Transit Service a/o Sunshine Limousine Service v. The Taxicab Board , 2013 MBCA 15 ). The court, however, deferred consideration of the first proposed ground of appeal (the Board’s application of s. 8 of the Act ).

MacInnes J.A. stated (at para. 9): While I was provided with a compact disk copy of the audio recording of the hearing before the Board, I am not prepared to grant leave in respect of the applicant’s allegation that the Board erred in law in its application of s. 8 of the Act , as I consider that allegation to be premature in light of the absence of reasons for the Board’s decision. The Reasons of the Board [ 11 ] On December 19, 2013, the Board provided the applicant with its written reasons for its decision.

After summarizing the submissions at the hearing and setting out s. 8 of the Act , the Board stated in its reasons: The Board considered the presentations made at the hearing and the documentary evidence provided to the panel. Following the hearing, the Board deliberated and found that Sunshine Limousine had not provided enough evidence of sufficient demand for the proposed service to justify granting the application. While Mr.

Jakeman indicated that he had talked to businesses that were interested in an accessible limousine service, he did not present a compelling case that there is sufficient demand to justify granting an additional limousine licence at this time. The Board found that there were many Speciality Limousines on the road already and many accessible taxicabs including 5 MV-1 vehicles which are similar in design to the MV-1 LX vehicle which is the subject of the current application. As a result, the Board felt that the needs of the public are being met by the industry as a whole at this time.

In particular, the Board also considered the needs of persons with disabilities regarding transportation and felt they were being met at this time. In considering the public convenience and necessity, the Board felt the application should be denied.

Leave Application No. 2 [12] On January 14, 2014, the applicant filed a second application for leave to appeal the Board’s decision to this court. Theapplicant again sought leave on the ground as to the Board’s application of s. 8 of the Act, not decided by MacInnes J.A. previously.

Theapplicant also proposed a new, third ground of appeal not previously raised: The Board erred in law and breached its duty of fairness and the rules of natural justice by failing to provide the Applicant with reasonsfor its decision dated September 5, 2012 until December 19, 2013. [13] Despite asking for leave to appeal on a proposed third ground in its notice of motion, the applicant made no submissionson the proposed ground in its motion brief in support of the leave application. [14] I was advised at the leave application hearing that, despite first seeking leave in the notice of motion filed with the court,the applicant has subsequently taken the position that it can argue the merits of the third proposed ground of appeal based on the ordergranting leave to appeal made by MacInnes J.A.

Its view is late reasons are no reasons because they are untimely. The respondentdisagrees and argues that the ground of appeal on which MacInnes J.A. granted leave on is now moot and, thus, the appeal also.

It saysif the applicant wants to challenge the timeliness of the Board’s reasons, it first requires leave under s. 19.2(1) of the Act as it originallysought in its January 14, 2014, notice of motion. [15] After canvassing the issue with the parties, and giving counsel for the applicant an opportunity to take instructions fromher client, counsel for the applicant confirmed she was not asking me to decide whether to grant leave to appeal on the proposed groundrelating to the timeliness of the Board’s reasons.

The parties understand that the respondent’s mootness objection to the applicant’scurrent appeal will be addressed by the panel hearing the appeal on the question of law which MacInnes J.A. has granted leave on. [16] The respondent conceded that it was appropriate for me to consider the application for leave on the issue of the Board’sapplication of s. 8 of the Act as that proposed ground formed part of the first application for leave filed within 30 days of the Board’sdismissal of the licence application, and there was delay in the Board providing its reasons.

Accordingly, for the purposes of s. 19.2(2)of the Act, I am granting the applicant an extension of time to file its application to seek leave on that one proposed ground of appeal. Position of the Parties The Position of the Applicant [17] The applicant says the Board made an error in law by interpreting s. 8 of the Act too narrowly because it failed toconsider the needs and interests of persons with disabilities for equal transportation services.

It says the issue is one of substance andwarranting attention by this court because: “[i]f the Board’s decision is allowed to stand, it may effectively foreclose access by personswith disabilities to a service that is currently enjoyed by other members of the public.” [18] The applicant says a reading of the English and French versions of s. 8 of the Act demonstrates a discrepancy; the Frenchversion requires broader interests be considered by the Board than does the English version.

It says that the French version of s. 8requires consideration in licensing decisions of the “public interest,” (l’intérêt public[s]) not just “public convenience and necessity.” The applicant argues, therefore, that the shared meaning of both official versions of s. 8 of the Act is that the Board must consider notonly “public convenience and necessity,” but also the “public interest” in any licensing decision. [19] The applicant says the expression “public interest” required the Board to consider the interests of society generally andthe interests of particular groups, such as the disabled (RJR - MacDonald Inc. v.

Canada (Attorney-General), (SCC),[1994] 1 S.C.R. 311 at 344). [20] The applicant argues the Board’s reasons demonstrate it failed to consider the necessity criteria of the “public interest.” It says it has a reasonable prospect of success on an appeal because, if the correct

interpretation of s. 8 is taken, mindful of the Frenchand English versions of the section, the values embodied in the Charter of Rights and Freedoms and Canada’s international obligationsunder the CRPD, it is in the “public interest” that disabled people have access to the same transportation services as anyone else, whichis not the case because there are no wheelchair-accessible limousines licenced in Winnipeg. [21] The applicant says although it did not raise the issue of the suggested proper

interpretation of s. 8 of the Act before theBoard, exceptional circumstances exist for leave to be granted on the proposed ground of appeal. Those exceptional circumstances aresubmitted to be that the applicant was not represented by counsel before the Board and that the technical expertise of the judiciary isrequired for the argument as it is based on the bilingual

interpretation of the Act. The Position of the Respondent [22] The respondent argues that the applicant did not raise the suggested

interpretation of s. 8 of the Act before the Boardbased on bilingual

interpretation of the Act in light of Charter values and international norms. Rather, the issue is being raised for thefirst time on appeal, which the respondent says is reason alone to deny leave on the proposed ground of appeal (Manitoba HousingAuthority v. Young, 2011 MBCA 68 at para. 25, 268 Man.R. (2d) 294).

[23] Alternatively, the respondent says the proposed ground of appeal does not raise a question of law or jurisdiction ofsubstance. The respondent says the proposed ground of appeal relates to an administrative tribunal’s

interpretation of its home statuteand does not raise a question of law with broader implications to the legal system. The respondent says deference is afforded generally toan administrative tribunal’s

interpretation of its home statute. Here, there is no important question of law outside the expertise of thetribunal that would lead to scrutiny on a standard of correctness (Manitoba v. Russell Inns Ltd. et al., 2013 MBCA 46 at para. 43, 291Man.R. (2d) 244). The respondent argues that the Board is quite capable of correctly interpreting its home statute to regulate the transitservice marketplace in light of the needs and interests of persons with disabilities. [24] Finally, the respondent says there is no arguable merit to the applicant’s proposed appeal.

The respondent says theapplicant is taking too literal an approach to the English and French versions of s. 8 of the Act. The discrepancy pointed out ismeaningless because the respondent concedes the Board is required to consider the needs and interests of disabled persons. Therespondent says the Board did in fact do so. Its reasons demonstrate the applicant failed to demonstrate there was a demand for thelimousine service, the Board has already licenced five MV-1 vehicles which are similar to the MV-1 LX, and the Board did not foreclosegranting such a licence in future if circumstances changed.

The respondent submits the applicant simply doesn’t agree with the result,which is not a question of law. Analysis and Decision Test for Granting Leave to Appeal [25] In Jai Inder Singh Sandhu et al. v. The Taxicab Board, 2013 MBCA 82, Chartier C.J.M. explained the test for grantingleave to appeal under s. 19.2(1) of the Act in the following manner (at para. 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 anarguable case of substance that ought to engage the court. To be “arguable,” the case must have a reasonable prospect of success (seePlaha v. Taxicab Board (Man.), 2010 MBCA 99 at para. 14, 262 Man.R. (2d) 9). New Issue Raised on Appeal [26] The role of an appellate court is to review decisions of other tribunals for error; absent exceptional circumstances itshould not consider new issues raised for the first time on appeal (Harder v.

Manitoba Public Insurance Corp. et al., 2012 MBCA 101 atpara. 12, 284 Man.R. (2d) 254). [27] L’Heureux-Dubé J. in R. v. Brown, (SCC), [1993] 2 S.C.R. 918, explained the prerequisites for raisinga new issue, including a Charter challenge, on appeal as follows (at p. 927): …. First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused fortactical reasons failed to raise the issue at trial.

Third, the court must be satisfied that no miscarriage of justice will result from therefusal to raise such new issue on appeal. [28] The second and third criteria discussed in Brown are germane here. [29] The applicant’s argument regarding the proposed argument of s. 8 of the Act could and should have been raised beforethe Board. The arguments of counsel for the applicant that the applicant did not have a lawyer before the Board, and the Board lackedthe necessary expertise to consider a statutory

interpretation argument are not persuasive. [30] The applicant did not have a lawyer before the Board by its own choice. Mr. Jakeman is an experienced businessmanfamiliar with the transit services industry. In the applicant’s business plan for the limousine application, it budgeted for legal, auditingand accounting costs for the operation of the limousine business. In hindsight, the strategy of not hiring a lawyer may not have beenwise because it did not lead to the desired result from the Board, however, that is not an exceptional circumstance within the meaning ofBrown.

If a party can raise a new argument in this court simply because of a conscious decision to not invest resources in a lawyer forthe hearing before the Board, the efficiencies and finality of the administrative process would be jeopardized. [31] In terms of expertise of the Board, it is well accepted that administrative tribunals, not the courts, have the primary rolein interpreting their home statute, in this case the Act. There is a presumption that review of such decisions by the courts will be on astandard of reasonableness, not correctness. As Moldaver J. explained in McLean v.

British Columbia (Securities Commission), 2013SCC 67 (at para. 33): ... [T]his Court has repeatedly indicated since Dunsmuir [2008 SCC 9, [2008] 1 S.C.R. 190], is that the resolution of unclear language inan administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice betweenmultiple reasonable

interpretations will often involve policy considerations that we presume the legislature desired the administrativedecision maker — not the courts — to make. Indeed, the exercise of that interpretative discretion is part of an administrative decisionmaker’s “expertise”.

[32] Like any court, an administrative tribunal in Manitoba must follow the rules of statutory

interpretation. The English andFrench versions of statutes are equally authoritative (s. 7 of The

Interpretation Act, C.C.S.M., c. I80). The task of the tribunal wheninterpreting bilingual legislation is to seek the shared or common meaning of the two versions. It is only if the tribunal determines thatthere is no shared or common meaning between the two versions that other techniques of statutory

interpretation should be employed toresolve uncertainty (Friesen (Brian Neil) Dental Corp. et al. v. Director of Companies Office (Man.) et al., 2011 MBCA 20 at paras. 24-26, 262 Man.R. (2d) 197; R. v. Dickson (W.A.), 2013 MBCA 58 at paras. 37-40, 294 Man.R. (2d) 103; Thunderbird Holdings Ltd. v.Manitoba et al., 2013 MBCA 78 at para. 56, 299 Man.R. (2d) 60; and J & R Property Management et al. v. Kenwell, 2011 MBCA 5 atpara. 38, 262 Man.R. (2d) 164). [33] I disagree with the suggestion by counsel for the applicant that an administrative tribunal, such as the Board, necessarilylacks the expertise to entertain a bilingual

interpretation submission of its home statute. [34] To the contrary, the law presumes regularity of the administrative process until otherwise demonstrated (Irvine v.Canada (Restrictive Trade Practices Commission), (SCC), [1987] 1 S.C.R. 181 at 208; and Ellis-Don Ltd. v. Ontario(Labour Relations Board), 2001 SCC 4 at para. 108, [2001] 1 S.C.R. 221). The law obligates administrative tribunals to considerbilingual

interpretation submissions and decide them in accordance with the rules of statutory

interpretation. It would be inappropriate toassume, as counsel suggests, that an administrative tribunal cannot fulfill the task that the law requires of it before being given anopportunity to consider the issue. [35] The application for leave, therefore, fails on the second criteria set out in Brown, failure to raise an issue at first instancedue to a tactical choice.

However, given the suggestion by the applicant that the Board’s decision “may effectively foreclose” access bydisabled persons to a service enjoyed by others, it is necessary to explain why no miscarriage of justice will result from the refusingleave to raise the new issue on appeal. [36] In my view, the applicant’s submission alleging error by the Board in its application of s. 8 of the Act does not raise aquestion of law for which there is arguable merit. [37] The argument of the applicant about s. 8 of the Act is based on the words read literally.

Section 8 of the Act states: Number of licences 8 In issuing licences the board shall considerthe public convenience and necessity in respectof the number of taxicabs required in The Cityof Winnipeg; and to that end it may limit thenumber that may be operated under itsauthority at any one time, but may issuetemporary permits permitting an additionalnumber of taxicabs to be operated during statedseasons, during stated days, or for specialoccasions.

Nombre de permis 8 Pour la délivrance de permis, laCommission prend en considération lanécessité et l’intérêt publics en ce quiconcerne le nombre de taxis requis dans laVille de Winnipeg; à cette fin, elle peutlimiter le nombre de taxis qui peuvent êtreexploités en vertu de son autorisation à unmoment quelconque, mais elle peutdélivrer des permis temporaires autorisantl’exploitation d'un nombre additionnel detaxis au cours de saisons ou de joursmentionnés ou pour des occasionsspéciales. [38] The applicant says there is discordance between the two versions because the English version does not require the Boardto consider the “public interest,” while the French version does (l’intérêt public[s]). [39] The fundamental flaw with counsel’s argument is the expression “public convenience and necessity” is a term of art, inthe regulatory context, that requires an administrative decision maker to consider the public interest in its decision.

The term “publicconvenience and necessity” is synonymous with “public interest” (Robert W. Macaulay, Q.C. & James L.H. Sprague, Practice andProcedure Before Administrative Tribunals (Toronto: Thomson Canada Limited, 2004) vol. 2 at 8-7). [40] In Memorial Gardens Association (Canada) Limited. v. Colwood Cemetery Company et al., (SCC),[1958] S.C.R. 353 the Supreme Court of Canada explained that the term “public convenience and necessity” is commonly usedexpression in legislation in a regulatory context.

Abbott J. stated (at p. 357): As this Court held in the Union Gas case [ (SCC), [1957] S.C.R. 185], the question whether public convenience andnecessity requires a certain action is not one of fact. It is pre-dominantly the formulation of an opinion. Facts must, of course, beestablished to justify a decision by the Commission but that decision is one which cannot be made without a substantial exercise ofadministrative discretion.

In delegating this administrative discretion to the Commission the Legislature has delegated to that body theresponsibility of deciding, in the public interest, the need and desirability of additional cemetery facilities, and in reaching that decisionthe degree of need and of desirability is left to the discretion of the Commission.

[emphasis added] [ 41 ] In his discussion of Abbott J.’s comments in Memorial Gardens , in Sincennes et al. v.

Energy and Utilities Board (Alta.) et al. , 2009 ABCA 167 , 454 A.R. 121 , O’Brien J.A. confirmed that the term “public convenience and necessity” in a regulatory context is synonymous with the consideration of the public interest (at para. 67): The same point, although somewhat differently expressed, was made by the [National Energy Board] in its decision in Emera Brunswick Pipeline , which was cited in the decision of the [Energy and Utilities Board]: “Throughout the jurisprudence and commentary on ‘public convenience and necessity’ and ‘public interest’, the phrase ‘public convenience and necessity’ has generally been treated as synonymous with public interest.

The public convenience and necessity test is predominantly the formulation of an opinion by the tribunal. This opinion must be based on the record before it; that is to say, the decision must be based not only on facts but with the exercise of considerable administrative discretion. Similarly, there are no firm criteria for determining public interest that will be appropriate to every situation.

Like ‘just and reasonable’ and ‘public convenience and necessity’, the criteria of public interest in any given situation are understood rather than defined and it may well not serve any purpose to attempt to define those terms too precisely. Instead, it must be left to the Board to weigh the benefits and burdens of the case in front of it. ….” (See also ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board) , 2006 SCC 4 at para. 106 , [2006] 1 S.C.R. 140, per Binnie J.) [ 42 ] Discordance between French and English versions of legislation requires review of the entire provisions, not just individual words. There must be actual conflict “before the toolbox of bilingual

interpretation can be opened” (The Honourable Mr. Justice Michel Bastarache et al., The Law of Bilingual

Interpretation (Markham: LexisNexis Canada Inc., 2008) at 50). When the English version of s. 8 of the Act is properly read, considering the regulatory significance of the wording used, there is no discord with the French version. [ 43 ] The reasons of the Board confirm they did consider the needs and interests of disabled persons, however, Mr. Jakeman “did not present a compelling case that there is sufficient demand” to justify granting a licence to the applicant at this time.

A finding by an administrative tribunal on a question requiring consideration of “public convenience and necessity” or the “public interest” is to be afforded deference by the courts ( Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 137 , [2008] 1 S.C.R. 190). I do not see how the Board’s finding amounts to a question of law reviewable in this court. Conclusion [ 44 ] While the applicant is granted leave to extend time to file his motion for leave to appeal on the proposed ground, the application for leave is dismissed. J.A.