Giving Reasons in the Post-Dunsmuir Era
Chauffeur Permit Refusals: How Detailed Must the Reasons Be?
The British Columbia Supreme Court has recently released two decisions addressing the sufficiency of the reasons provided by Surrey City Council in its dismissal of two appeal applications for chauffeur permits.
The facts in each case are straightforward. In the first case, Ahmed v. Surrey (City), 2011 BCSC 694 [Ahmed], released May 31, 2011, Council upheld the RCMP’s refusal of Mr. Ahmed’s chauffeur permit renewal application. Rather than issuing reasons for its decision, Council simply provided the applicant with an extract of the minutes of the appeal. In assessing the sufficiency of Council’s reasons the Court noted (at para. 18) that “one would expect rather more by way of reasons from the Council than what was delivered”. However, the Court was nonetheless prepared to accept Council’s reasons as sufficient, because when taken with the record of evidence heard on appeal, the minutes clearly indicated the issues that were troubling the RCMP and Council.
In the second case, Johal v. Surrey (City) 2011 BCSC 710 [Johal], released June 6, 2011, Council also upheld the RCMP’s refusal of Mr. Johal’s chauffeur permit renewal application. However, in this case, Council gave no reasons per se for its disposition of the applicant’s appeal, nor did it provide the applicant with an extract of the minutes of the appeal. Instead, Council simply informed the applicant that it had resolved to uphold the RCMP’s initial refusal decision. In this case, the Court held that Council was required to actually provide basic reasons explaining its decision and therefore returned the matter to Council with a direction that it provide adequate reasons for its decision (the court was not, however, prepared to articulate what would constitute “adequate” reasons).
The outcomes in these two decisions can be reconciled by distinguishing the facts in each case. For example, in Ahmed, the minutes of the hearing were provided to the applicant and stood for Council’s reasons. Ultimately, the Court found that Council’s actual reasons for its decision were apparent from the Court’s examination of the whole of the record, which included the RCMP’s recommendations, as well as a staff report outlining Mr. Ahmed’s traffic violations. However, in Johal, Council simply indicated that it was upholding the initial refusal decision without providing any explanation as to why it was upholding that decision. The difficulty in Johal was that the RCMP’s initial refusal decision was founded on information (e.g. alleged criminal convictions) that was later found to be materially incorrect. Although the evidence at trial showed that there was additional information before Council pertaining to the applicant’s criminal history and traffic violations that may have justified Council’s decision, Council’s failure to provide this information to the applicant resulted in a finding that Council’s reasons were insufficient.
To date, the case law has clearly recognized that municipal councils are not Courts of law, and as such, their reasons will not be scrutinized with the same criteria as judicial reasons. However, councils are still required to act reasonably. This notion of reasonableness applies not only to the outcome of the decision, but also to the existence of justification, transparency and intelligibility within the decision making process. Therefore, it would be prudent for councils to take care when cancelling, suspending or not renewing permits and business licences to ensure that either basic reasons are provided or the evidence on the record warranting their decisions is articulated to the applicant in a transparent manner. Such transparency is especially important given the significant effect these decisions have on the applicants’ livelihoods.
Valkyrie Law Group LLP