Gidda v. The Taxicab Board, 2014 MBCA 58

Citation: Gidda v. The Taxicab Board, 2014 MBCA 58 Date: 20140606 Docket: AI 13-30-07945 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : ) E. G. Rice AJAIB GIDDA ) for the Appellant ) Appellant ) B. T.

Jones ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: THE TAXICAB BOARD ) June 3, 2014 ) Respondent ) Written reasons: ) June 6, 2014 BURNETT J.A . [ 1 ] On September 3, 2009, the appellant’s taxicab licence was suspended by the respondent, the Taxicab Board (the Board), as a result of a report received from the Winnipeg Police Service alleging that the appellant had sexually assaulted two female passengers.

According to the report, on two occasions (July 27, 2009 and August 16, 2009) the appellant had placed his hand on the thigh or leg of a passenger while the passenger was sitting in the front seat of his taxicab. The police charged the appellant with two counts of sexual assault and two counts of sexual interference. [ 2 ] The criminal charges relating to the incidents in question were stayed by the Crown on January 10, 2011.

Shortly thereafter, the appellant applied to the Board for reinstatement of his taxicab licence. [ 3 ] A detective from the Winnipeg Police Service testified at the hearing before the Board, as did the appellant. Neither of the complainants testified or appeared before the Board. [ 4 ] The detective described the investigation conducted by the Winnipeg Police Service. He related the statements given by one complainant to him and a statement given by the second complainant to another police officer.

The detective had a sworn statement from one of the complainants, and he also provided evidence in relation to photo-pack identification and a logbook from the group home where one of the complainants resided. One of the Board members asked the detective for his opinion regarding the truthfulness of the complainants.

The detective expressed the view that he “found their disclosures to be extremely credible” and “absolutely credible.” [ 5 ] At the conclusion of the hearing, counsel for the appellant submitted that the Board should rely on the appellant’s direct evidence denying the incidents and should not rely upon the second and third hand hearsay and opinion evidence of the detective. [ 6 ] On May 18, 2011, the Board cancelled the appellant’s licence.

The appellant appealed that decision and was initially granted leave on the basis that the Board had failed to provide reasons. [ 7 ] The Board subsequently provided brief reasons which concluded: The Board considered the evidence presented at the Show Cause Hearing and the documentary evidence provided to the panel.

Following the show cause hearing, the Board deliberated and found that Mr. Gidda had contravened sections 30(1) and 30(2)(b), (

c) and(

f) of The Taxicab Regulation 209/91. In considering all of the evidence, including the testimony of the police officer, the Boardpreferred the evidence that the alleged incidents did occur. The Board has a mandate to ensure the safe operation of taxicabs in the City of Winnipeg and as such the Board must ensure the integrityof taxicab drivers. The Board considers the incidents described in this case to be a serious departure from the conduct expected of ataxicab driver. In the circumstances, the Board finds that the appropriate remedy is cancellation of Mr. Gidda’s licence pursuant tosection 14(1.6)(

d) of The Taxicab Act. [8] Pursuant to s. 19.2(1) of The Taxicab Act, C.C.S.M., c. T10 (the Act), a person can apply to a judge of the Court ofAppeal for leave to appeal from a decision or order of the Board on a question of law or jurisdiction.

There is no right to appeal on aquestion of fact or mixed fact and law. [9] On July 11, 2013, Hamilton J.A. granted leave to appeal in these proceedings on three questions of law, namely: 1) Did the Board err in law in relying on hearsay evidence for proof of the complaints? 2) Did the Board err in law in relying on opinion evidence of Constable Smith as to the credibility of the complainants? 3) Did the Board err in law in rendering a decision that was not within the range of possible outcomes, that is, that the decision does notmeet the standard of review of reasonableness? [10] On March 11, 2014, the appeal was adjourned for counsel to make further written submissions in relation to theadequacy/sufficiency of the reasons provided by the Board, including addressing the Supreme Court of Canada’s decision inNewfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708(Newfoundland Nurses). [11] I am satisfied that the appropriate standard of review in relation to all three questions is reasonableness: see Alberta(Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654. [12] I am of the view that this appeal must be dismissed. [13] With respect to the first question, it is well established that administrative tribunals may admit and rely on hearsayevidence “unless its receipt would amount to a clear denial of natural justice” (International Brotherhood of Electrical Workers, Local435 v. Manitoba Telecom Services Inc. et al., 2002 MBQB 284 at para. 6, 169 Man.R. (2d) 290). [14] The appellant had full opportunity to cross-examine the detective and was not denied the right to call any witness(Lischka v.

Criminal Injuries Compensation Board (1982), (ON SC), 37 O.R. (2d) 134 at 136 (H.C.J. Div. Ct.)). [15] Similar to the situation in International Brotherhood (see para. 14), appellant’s counsel did not object to theintroduction of the hearsay evidence at the hearing, nor did he request that any other witnesses be made available for cross-examination. [16] Turning to the second question, we are of the view that an administrative tribunal such as the Board can rely on bothexpert and lay opinion evidence. The Board is not bound by the strict rules of evidence applicable to court proceedings.

In particular, anadministrative tribunal can accept opinion evidence without complying with the same criteria that a court must follow (Robert W.MaCaulay, Q.C. & James L.H.

Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters CanadaLimited, 2004) vol. 2 at p. 17-14.6). [17] Thus the Board did not err in law in relying on the hearsay and opinion evidence of the detective. [18] As to the third question, the appellant says that it is not possible to determine why the Board favoured the detective’sevidence over his evidence, and therefore the Board’s decision was not within the range of possible or acceptable outcomes.

However,to find the decision unreasonable, impossible or unacceptable, I would have to conclude that the Board erred when it “preferred theevidence that the alleged incidents did occur”. Having found that the Board could rely on hearsay and opinion evidence, in my view, theBoard’s “preference” is a finding of fact or mixed fact and law and does not raise a question of law. But even if it did, …. … it could only be one closely intertwined with factual considerations.

Any error by the Commission in this case, if there is such,would relate to its assessment and weighing of the evidence, again not raising a question of law. The merits or lack thereof of any appealto this court, if leave were to be granted, would be determined almost entirely by a factual assessment, which is not to be undertaken bythis court on an appeal from the Commission. ….

( Van de Spiegle v. Talbot et al. , 2009 MBCA 119 at para. 13 .) [ 19 ] The essence of the appellant’s complaint in relation to the third question is that the Board’s reasons were inadequate or insufficient. I share the view, expressed in Dieppe (City) v.

Canadian Union of Public Employees, Local 4679 et al. , 2013 NBCA 53 , 407 N.B.R. (2d) 376, that incorporating an adequacy of reasons analysis into the reasonableness test “is a slippery slope” (at paras. 23- 24): In my view, incorporating the adequacy of reasons analysis in the application of the reasonableness test in the standard of review is a slippery slope for the development of administrative law. By applying an “adequacy of reasons analysis” reviewing courts could justify abandoning the principle of deference and foster review based on the correctness of the analysis.

In Newfoundland and Labrador Nurses’ Union and Construction Labour Relations v. Driver Iron Inc. , 2012 SCC 65 , [[2012] 3 S.C.R. 405], the Court rejected the proposition that adequacy of reasons constitutes a stand-alone basis for quashing a decision.

Abella, J., stated the following in Newfoundland and Labrador Nurses’ Union : Read as a whole, I do not see Dunsmuir [2008 SCC 9 , [2008] 1 S.C.R. 190 ] as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one for the result [...] [...] [...] [C]ourts should not substitute their own reasons [for those of the decision under review], but they may, if they find it necessary , look to the record for the purpose of assessing the reasonableness of the outcome. [paras. 14 and 15] [Underlining is mine.] Any use of “adequacy of reasons” analysis in administrative law is exceedingly limited given that the concept of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision” (para. 12). [Underlining is mine.] These instructions require the reviewing judge, when determining whether a finding falls within a range of possible acceptable outcomes, to consider reasons other than those enumerated by the tribunal which would support the finding. [ 20 ] I am required to pay respectful attention to the Board’s reasons and, while the Board should have explained its reasons for preferring the evidence of the detective and rejecting that of the appellant, in my view, the result falls within the range of acceptable outcomes when looked at in the context of the evidence, the parties’ submissions and the process (see Newfoundland Nurses at para. 18 ).

Here the record discloses that the Board was alive to the issues raised on this appeal, and the reasons explain, albeit minimally, the basis for its decision. [ 21 ] The Board did explain why it cancelled the appellant’s licence – it “preferred the evidence that the alleged incidents did occur”, and it found that the appellant had contravened ss. 30(1) and 30(2) (b), (

c) and (

f) of the Taxicab Regulation Man. Reg. 209/91. Having made those determinations, the Board exercised its statutory authority pursuant to s. 14(1.6)(

d) of the Act and cancelled the appellant’s licence. [ 22 ] For the foregoing reasons, the appeal is dismissed. J.A. I agree: J.A. I agree: J.A.