Considering Reconsiderations and the Procedural Rights of Market Incumbents

Here is a technical problem, discussed in Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 BCCA 329. When a decision-maker reconsiders, or refuses to reconsider a decision, what is the significance of the original decision for a judicial review application?

As a general rule:

[40]        Where a party has taken advantage of a tribunal’s reconsideration power, and the tribunal has undertaken the reconsideration, it is the reconsideration decision that represents the final decision of the tribunal. In such a situation, it is only the reconsideration decision that may be judicially reviewed, since it is the final decision of the tribunal.

Matters become complicated where a failure to ask for reconsideration is invoked by a respondent who argues that the applicant failed to exhaust alternative remedies (para. 39) or where leave is required for reconsideration. What, then, if leave is denied?

[44]        Where a denial of leave does not constitute a determination that the request for reconsideration lacks merit, it is my view that the initial administrative decision, and not the denial of leave, will be the appropriate target for judicial review. To hold otherwise would be to allow a tribunal, through procedural machinations, to oust the inherent, constitutionally-protected supervisory jurisdiction of the superior courts.

[45]        Turning to the case before us…the Board [has] only limited jurisdiction to reconsider its decisions. Reconsideration may only be undertaken where new information that was not available at the time of the initial decision has become available, or where there has been an error of procedure. The Board’s chair was not satisfied that either of these bases for reconsideration was applicable, so he denied leave. In doing so, he did not address the merits of the original decision, nor did he consider the issues that were later raised on judicial review. In the circumstances, it was open to the Vancouver taxi companies to seek judicial review of the initial Board decision. They were not required to review the denial of leave.

On the merits, the application was dismissed. The issue related to the grant of new taxi licences in the Vancouver area. Incumbents challenged the decision on procedural and substantive grounds. Procedurally, they were entitled to no more protection than the applicants for new licences:

[56]        At the same time, it must be recognized that the proceedings were concerned with the allocation of new privileges, and not with depriving parties of vested rights. While the Vancouver taxi companies appear to believe they have an inherent right to receive any new licences issued for operations in the City of Vancouver, that view enjoys no support in the statutory regime. While I acknowledge that the Vancouver taxi companies had certain practical advantages in their applications – in particular, knowledge and experience with the Vancouver market and an existing infrastructure – they did not occupy a privileged position in their quest for licences. They were not, in my view, entitled to any greater procedural rights than were other applicants.

Is this right as a matter of principle? If the applications were successful, incumbents would experience a dilution in the value of their licences, whereas new entrants would experience a windfall. The nature of the interest at stake is not the same.

In a pure situation of give-and-take, where a licence would be removed from A and allocated to B, we would surely have no difficulty in according greater procedural protection to A. Does the indirect nature of the effect on A’s licence mean that A is denied additional procedural rights? Surely there are situations — such as a ten-fold increase in the number of licences — in which A would properly be accorded greater procedural rights. Yet the Court offers no general principle that would allow us to distinguish these types of situation from the instant case — perhaps because it characterized the position of the incumbents as that they were “entitled to a first right of refusal” (para. 66).

In any event, based on the evidence, the decision was procedurally fair, reasonable and did not lead to a conflict between licencing regimes.

This content has been updated on September 10, 2014 at 12:46.