Q. What is the applicable standard of review?

Issue: The board is an administrative body established under the Passenger Transportation

Act and hence the decision of the body can be labeled as an administrative decision. The

question here is what standard of review will apply to the decision of an administrative

body?

Legal Rule: The Vavilov judgement clearly states, while determining the standard of review

which a court should apply where the merits of an administrative decision are challenged is

a “presumption of reasonableness”. However, this presumption can be rebutted in two

situations:

i. Where there is a clear indication of legislative intent that reasonableness standard

shall not apply or where the statue itself provides for appeal to a court and there,

appellate standard will apply.

ii. Where the rule of law requires that standard of correctness should apply, that is, in

case of jurisdictional disputes among tribunals, questions of constitutional or general

legal importance.

Application:

In the given case, the empowering statue that is, Passenger Transportation Act provides,

under S.62(1), provides for an application to the Supreme Court for setting aside of the

decision of the board, but what is important to note here that it is not in the form of an

appeal but a review because the statute empowers the Supreme Court not to make
modifications to the order but to directly set it aside. Hence, the case does not fall under the

first situation.

Further, as the question clearly involves the consideration of the decision of the board on

merits of the case and does not involve any questions related to the constitutional or

general legal importance, it is safe to say that in this case the rule of law does not demand

that the standard of correctness should apply.

Conclusion: After considering the abovementioned reasoning, it is hereby concluded that

the

standard of review which will be most suitable in the given circumstance is ‘reasonableness’.

Q. Apply the Standard of review to the Board’s decision.

Issue: Applying the standard of review to the board’s decision, is the decision reasonable or

not?

Legal Rule:The Supreme Court in the Vavilov judgement provides, the focus of

reasonableness review must take into account both decision maker’s reasoning process for

a decision as well as the outcome that was reached. To determine whether a decision is

reasonable, a reviewing court must ask whether the decision bears the hallmark of

reasonableness- justification, transparency and intelligibility, and whether it is justified in

relation to the relevant factual and legal constraints that bear on the decision.

The court further laid down two ways in which an administrative decision can be

unreasonable:

i. An unreasonable decision is based on internally incoherent reasoning.

bear on the decision. For instance, governing statutory scheme, submissions of the

party, effect on the parties, etcetera.

Application: The Board undertook its proceedings by mainly focusing on three conditions as

provided in Section 28(1) of the Passenger Transportation Act, which are:

i. Special public need for a service which is currently absent

ii. Fitness and capability of the applicant to provide such service

iii. Provision of sound economic conditions of service is allowed

Applying the reasoning of the Board to these parameters:

- Firstly, Uber and Lyft were successfully able to establish the absence of ‘ride-sharing’

in the passenger transportation market and also established the demand for the

same.

- Secondly, the fitness and capacity of the companies were not an issue of the

proceedings so it was not discussed and hence required no reasoning.

- Thirdly, the submitters fiercely opposed these companies as they speculated that

entrance of these companies would bring about negative impact on economic

conditions in the form of predatory pricing, increased congestion, increasing

accidents among others. But the board dismissed these submissions as being based

upon the experiences of other jurisdictions which the board stated, cannot be

compared to the legislative framework in British Columbia which is different from

those jurisdictions.

- Lastly, the board authorized its discretion by not fixing up the fleet size for these

companies. But, such discretion is within the legal constraints imposed by the

Section 26(1)(3),which deals with fleet sizes under Section 26(1)(3)(c)(iii) which starts
 with “The Board may establish …..” as opposed to the other provisions which starts

with “The Board must establish …..”, hence giving the board discretion. Further, the

board stated its reason for such discretion which is meeting the goal of public need.

Conclusion: Considering the abovementioned reasoning provided by the board and decision

reached by it on that reasoning, it can be safely assumed that the decision of the Board

stands the ground of the reasonableness standard of review.

Q. Assuming the common law duty of procedural fairness applies, what is the strength of

the duty owed to the petitioners?

Issue: What is the strength of the procedural fairness owed to the petitioners?

Legal Rule: To ascertain the degree of fairness obligation owed the petitioners the 5 Baker

principles will have to be applied to the facts of the case. They are as follows:

i. Nature of the decision made and the process. Here it has to ascertained whether

the decision was administrative, general or preliminary or temporary or whether

it was judicial or quasi-judicial or specific, or final. In the first instance, high

degree of procedural fairness is applied whereas in later case minimal to none

procedural fairness is required.

ii. Nature of the Statutory Scheme. Here, it has to be seen whether the statue

provides for procedural requirements like giving of a notice, oral hearings,

because in such a case procedural fairness degree will be high. Also, if the

empowering statue provides for an appeal or review, because if it does not the

decision is final in nature which makes the degree of procedural fairness very

high.
 iii. Importance of the decision to the individual. Here, if the decision is one which

affects the rights and interests of the parties then the procedural fairness is high

and if the decision is of not much significance to the parties then degree of

procedural obligation is low.

iv. Legitimate Expectation. Here is the authority makes a representation to the party

with respect to any procedural process which is within her legal power to

conduct then it gives rise to the legitimate expectation and it may become

necessary for that authority to conduct as a common law duty.

v. Choice of procedure made by the agency. Here, if the empowering statute

provides that the decision maker is free to decide its own procedure then it

represents discretion and deference must be practiced by the court and the

procedural fairness will be low.

Application:

Firstly, nature of the decision is closer to the judicial spectrum then that of the

administrative spectrum. Although, the operational policy provides for the proceedings to

be quick and informal but it actual functioning the adjudicating body, that is the board

follows formal procedure, that is publication of notice for received application, written

hearings and majority rule by voting among 9-member body, which are all professionals and

are appointed by Attorney General. Hence, such judicial and formal nature of the Board

amply supports the fact that obligation of procedure to be high.

Secondly, the statutory scheme provides for review to the Supreme Court under Section

62(1). Hence supporting claim for a lower degree of procedural fairness. However, the

statue provides for giving of notices, informing parties about official dates and written
hearings, this implies that there is some kind of procedural obligation upon the board.

Hence, there is intermediate duty of procedural fairness.

Thirdly, the submitters are all people working in the transportation business. The entry of

companies like Uber and Lyft are going to directly impact their livelihood as there will be

immense competition. It might also lead to some businesses in this field to go out of

business. On the other hand, for companies like Uber and Lyft entering new market is crucial

for growth, furthermore, entry of such private giants is good for economy of the province.

Because of such significant factors at stake it can be safely said that decision is one which

bears high procedural fairness.

Fourthly, the facts of the case clearly imply that there has been no promise by any of the

board members with respect to anything to any of the parties. Hence, doctrine of

procedural fairness does not apply in this case.

Lastly, the Board is granted full discretion with respect to the procedure of to be undertaken

by the Board and hence this implies that court should practice deference and hence, the

degree of procedural fairness is very low.

Conclusion: Taking in consideration all of the above matters it can easily concluded that

there lies an intermediate duty of procedural fairness in the given case.

Q. How strong are the petitioner’s arguments that they were denied procedural fairness on

the basis of participatory rights?

Issue: Whether the contention of the petitioners that they procedural fairness was denied

to them for lack of participatory rights holds any strength or not?

Legal Rule: It has been established by applying the Baker synthesis on the facts of the

present case that an intermediate degree of procedural fairness was owed to the

petitioners.
Further applying the common law doctrine of audi alteram states that the party affected by

the decision has the right to know the case against it and be provided with meaningful

opportunity to address it. This doctrine is also known as the content of duty of procedural

fairness, right to be heard.

Lastly, it was held in the case of Young v Central Health that in a case where a mid-point

duty of procedural fairness applies the decision maker is obliged to share any prejudicial

evidence with the petitioner and afford him the opportunity to respond before making a

final decision.

Application:

The Board held a closed hearing with Uber and Lyft which was on a phone call and which

lasted 35 minutes and further, a study was submitted to the court during that closed hearing

which provided impact of TNS in other Canadian cities as well as in Taxi industry.

Considering the facts of the case this piece of information targeted a very crucial point of

the proceedings. However, the submitters were not even informed of neither the phone call

or the submitted study. Applying the audi alteram partem doctrine here, it can be easily said

that participatory rights of the petitioners have been infringed because the lack of

disclosure has kept the petitioners to know the full case against them which is highly

prejudicial to their side of the case.

Conclusion: The case being one of intermediate procedural fairness, it can be safely stated

that the Board owed a duty to disclose prejudicial evidence against the petitioners and its

failure to do so have resulted in denial of participatory rights to the petitioners. Hence, the

contention of the petitioners that the participatory rights were denied to them holds

strength.

Q. Are there credible claims of reasonable apprehension of bias or lack of independence?

Legal Rule: