Sunshine Transit Service o/a Sunshine Date:, 2014 MBCA 47

Citation: Sunshine Transit Service o/a Sunshine Date: 20140507 Limousine Service v. The Taxicab Docket: AI 12-30-07852 Board, 2014 MBCA 47 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : SUNSHINE TRANSIT SERVICES o/a ) K. R. Wittman and SUNSHINE LIMOUSINE SERVICE ) A. E. Craft ) for the Appellant (Appellant) Appellant ) ) B. T.

Jones - and - ) for the Respondent ) THE TAXICAB BOARD ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) May 7, 2014 HAMILTON J.A. (for the Court): [ 1 ] On September 5, 2012, the Taxicab Board (the Board) denied the appellant a specialty vehicle business licence to operate a wheelchair-accessible limousine service. The Board did not give reasons for its decision until some 15 months after the decision and the request for reasons from the appellant. By that time, the appellant had received leave to appeal under The Taxicab Act , C.C.S.M., c.

T10 (the Act ) on the following question ( 2013 MBCA 15 at para. 8 ): Is the Board’s failure to provide reasons, or sufficient reasons, for its order an error in law, and if so, what are the consequences of that error in relation to the order which it granted? [ 2 ] After receipt of the reasons for decision, the appellant made a second motion seeking leave to appeal arising from the Board’s reasoning and its application of s. 8 of the Act . This leave application was denied.

See 2014 MBCA 33 . [ 3 ] The Board argues that this appeal is moot given that it provided reasons and that it is not open to the appellant to now argue, as it does, that the Board breached its duty of procedural fairness because it failed to give timely reasons. [ 4 ] We agree that the appeal is moot and the appeal should be dismissed in light of the fact that the reasons have been provided and the motion for leave to appeal arising from those reasons was dismissed.

Nonetheless, the conduct of the Board is deserving of comment. [ 5 ] Recently, there have been a number of appeals that have demonstrated the Board’s disregard of its duty to give reasons for its decisions. See, for example, Abetew v. Taxicab Board (Man.) , 2013 MBCA 19 , 288 Man.R. (2d) 288; Brar v. Taxicab Board (Man.) , 2013 MBCA 103 , 299 Man.R. (2d) 231; and Gidda v. The Taxicab Board , 2011 MBCA 64 . [ 6 ] The parties and the public are entitled to know why the Board reaches a decision. As stated in Abetew (at para. 4 ):

... [R]easons for decision are important for three reasons: 1. to tell the parties and others why the tribunal made the decision it did; 2. to provide public accountability with a view to justice being done and being seen to be done; and 3. to permit effective judicial review. [ 7 ] A party’s right to seek leave to appeal under the Act is time restricted and must be made within 30 days of receipt of a copy of the decision or order of the Board. See s. 19.2(2) of the Act . A decision or order, without reasons, usually cannot be the subject of effective judicial review as demonstrated here.

Rather than seeking leave to appeal on a substantive question of law or jurisdiction, the appellant was required to seek leave to appeal for breach of procedural fairness based on the lack of reasons. As a result, the appellant incurred unnecessary expense and the motion took up valuable court time and judicial resources that would not have been the case if the Board had provided reasons for its decision. [ 8 ] In addition, we note that a party cannot re-apply to the Board until 120 days after the Board’s decision.

Just as a decision or order without reasons usually cannot be the subject of effective judicial review, neither can a decision or order without reasons usually permit an effective re-application to the Board. [ 9 ] The Board’s failure to give reasons for 15 months in this case was unacceptable and, moreover, reflects a pattern of conduct that cannot be condoned and we take this opportunity to express our disapproval. [ 10 ] Except for s. 19.3(2) of the Act , we would have ordered costs against the Board in favour of the appellant for the unnecessary motion for leave to appeal because of the lack of reasons.

However, s. 19.3(2) provides that, “Neither the board nor any board member is liable for payment of the costs in respect of an appeal.” [ 11 ] In the end, we must dismiss this appeal. J.A. J.A. J.A.