United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), 2002 ABCA 243

• Judge: Conrad, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 20, 2002
• Citations: 2002 ABCA 243;(2002), 312 A.R. 351 (CA)

United Taxi Drivers' v. Calgary (2002), 312 A.R. 351 (CA);

    281 W.A.C. 351

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. NO.002

The United Taxi Drivers' Fellowship of Southern Alberta, Rashpal Singh Gosal, Haringer Singh Dhesi, Charan Kamal Singh Gill, Aero Cab Ltd., Golden Cabs Inc., Superior Cabs Ltd., Supreme Cabs Ltd. and Air Linker Cab Ltd. (respondents/appellants) v. The City of Calgary (applicant/respondent) and Checker Cabs Ltd., Yellow Cab Limited, Mayfair Taxi Ltd., Alberta South Co-op Taxi Line Ltd. and Calgary Taxi Driver Association (interveners)

(98-17693; 2002 ABCA 243)

Indexed As: United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City)

Alberta Court of Appeal

Conrad, J.A.

September 20, 2002.

Summary:

The Calgary Taxi Business Bylaw allowed for a freeze on the number of taxi plate licences issued by the City's Taxi Commission and provided for a periodic redistribution of taxi plate licences through a lottery system. A number of taxi companies applied for a declaration that certain provisions of the Bylaw (i.e., ss. 7(1), 9(28)(b) and 9.1) were ultra vires the Municipal Government Act and contrary to the Charter, ss. 6, 7 and 15.

The Alberta Court of Queen's Bench, in a decision reported 217 A.R. 1, held that except for the administrative practice in the operation of the lottery scheme, the Bylaw was intra vires the City under the Municipal Government Act. Further the Bylaw did not breach ss. 6, 7 or 15 of the Charter. However, the administrative practice in the operation of the lottery scheme was in violation of the principles of impermissible municipal discrimination and was discrimination based on age contrary to s. 15 of the Charter. As a remedy the court ordered that the Taxi Commission must hold all future lotteries consistent with the court's reasons for judgment. The rights of existing licence holders under past lotteries should not be lost, rather the Commission should consider holding a new lottery for new licences equal in number to those issued under the discriminatory provisions. The taxi companies appealed, seeking to set aside the judgment below and to have sections of the Bylaw declared illegal. The City sought to have the appeal dismissed.

The Alberta Court of Appeal, O'Leary, J., dissenting, in a decision reported 303 A.R. 249; 273 W.A.C. 249, allowed the appeal and declared that certain parts of the bylaw exceeded the powers of the City as authorized under the Municipal Government Act. As a result, s. 7(1), portions of s. 9.1 and all of s. 9.2 of the Bylaw, which provided for freezing and limiting the number of taxi plate licences and for transfers from estates, were declared ultra vires. The court affirmed that the bylaw did not violate either ss. 7 or 15 of the Charter. The City applied to stay the judgment pending its application for leave to appeal to the Supreme Court of Canada and, if the leave application was not successful, for a stay for a period of 90 days after the Supreme Court decision.

The Alberta Court of Appeal, per Conrad, J.A., granted the stay until the Supreme Court could hear the application for leave to appeal. Should the application be refused, the stay would last for two weeks after that decision, as opposed to 90 days.

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - The Alberta Court of Appeal declared s. 7(1), portions of s. 9.1 and all of s. 9.2 of the City of Calgary Taxi Business Bylaw, which provided for freezing and limiting the number of taxi plate licences and for transfers from estates, ultra vires - The court rejected arguments that the bylaw violated either ss. 7 or 15 of the Charter - The City sought a stay of the decision pending its application for leave to appeal to the Supreme Court of Canada, and should the application be rejected, for 90 days thereafter - Conrad, J.A., of the Alberta Court of Appeal, granted the stay until such time as the Supreme Court could hear and rule on the application for leave to appeal - Should the application for leave be refused, the stay would last for two weeks thereafter.

Cases Noticed:

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (P.C.), refd to. [para. 6].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 6].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 6].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201, refd to. [para. 12].

Counsel:

R.C. Steele, for the United Taxi Fellowship, Gosal and Dhesi;

T.B. Bardsley, for the Calgary Taxi Driver Association;

G.I. Zinner, Aero & Air Linker Cabs;

L.J. Gosselin and S. Swinn, for the City of Calgary;

R.J. Wilkins, Q.C., for Checker Cabs et al.

This application was heard before Conrad, J.A., of the Alberta Court of Appeal, who delivered the following decision orally on September 20, 2002.