COURT OF APPEAL FOR ONTARIO
ABELLA, GOUDGE and GILLESE JJ.A.
B E T W E E N:
CITY OF OTTAWA
Andrew A. H. Sherwood for the appellant
Prosecutor
(Appellant)
- and -
CHANDRAGO PAUL SEENANAN
J. Craig Morrison for the respondent
Defendant
(Respondent)
Heard: January 28, 2004
On appeal from the summary conviction appeal judgment of Justice James A. Fontana dated January 29, 2003, setting aside the conviction entered by Justice of the Peace Veronica M. Carmichael on July 2, 2002.
GILLESE J.A.:
1Chandrago Paul Seenanan earns his living as a taxi driver. After picking up a fare one evening, he was charged with the offence of “licensed taxicab driver operate[s] unlicensed taxicab”. He pleaded guilty with an explanation and was fined. After hearing about a case similar to his own, that had been dismissed, he launched an appeal. On hearing Mr. Seenanan’s appeal, Justice Fontana set aside the conviction and entered a verdict of not guilty. The City of Ottawa appeals from that judgment.
2For the reasons that follow, I would dismiss the appeal.
BACKGROUND
3Mr. Seenanan is a taxi driver. Before January 1, 2001, he was licensed by the former City of Gloucester. As such, he was entitled to pick up fares in Gloucester and drop them off within the former City of Ottawa but he was not entitled to pick up fares within the former City of Ottawa.
4Effective January 1, 2001, the City of Ottawa Act, 1999, S.O. 1999, c.14 (“the Act”), created a new City of Ottawa (“the new City”) through the amalgamation of 12 former municipalities, including Gloucester and the former City of Ottawa. The former municipalities were dissolved pursuant to s. 5(1) of the Act.
5As a result of By-law 2001-516, passed by the new City, Mr. Seenanan was obliged to comply with new licensing requirements. He satisfied all of the new requirements, at considerable personal expense, including payment of substantially higher licensing fees and upgrading his taxicab to a more recent model.
6He obtained a license from the new City. His licensing fees are paid to the new City and inspections of his vehicle are carried out by the new City.
7Thereafter, on June 30, 2002, in an area that is acknowledged to be within the old City of Ottawa boundaries, he stopped and picked up a fare. According to submissions that Mr. Seenanan made to Justice of the Peace Carmichael, after dropping off a fare at about one o’clock in the morning, he saw two women standing at the side of the road trying to flag down a cab. One of the women appeared to be very drunk and was being sick on the road. He said that he saw cabs pass by the women without stopping and that he picked them up because he felt sorry for them.
8Shortly after Mr. Seenanan picked up the fare, a by-law enforcement officer stopped him and issued a Certificate of Offence. The Certificate of Offence states that he is charged with the offence of: “Licensed taxicab driver operate[s] unlicensed taxicab” contrary to “City of Ottawa By-Law 2001-515, s. 42(2)”.
9Mr. Seenanan, acting on his own behalf, entered a guilty plea with an explanation at Provincial Offences Court. Justice of the Peace Carmichael reduced the set fine of $455 to $150.00 plus the victim surcharge after Mr. Seenanan explained the circumstances. No prosecutor was present for the City during Mr. Seenanan’s appearance before the Justice of the Peace.
10Approximately three months later, Mr. Seenanan learned that a similar case had gone to trial and been dismissed for reasons upon which he felt he was entitled to rely. He obtained an order extending the time to file an appeal.
11On appeal, Justice Fontana found in favour of Mr. Seenanan. He set aside the conviction and entered a verdict of not guilty.
12Justice Fontana reasoned as follows:
… the respondent city’s position gives rise to the effect that even though taxi operators have an obligation to comply and conform with the new requirements imposed by amalgamation, they are not, as yet, entitled to the benefit of such compliance – that is to say, accepting “pick-up” fares within that area which was the “old” City of Ottawa.
It cannot have been contemplated that applying s. 5(6) of the Act in this manner would bring about a result that is fundamentally inequitable and unfair.
Nor can the section be taken to shield the “new” City of Ottawa from its obligation to update the taxi licencing by‑law to conform to the realities of amalgamation.
Section 5(2) of the Act is clear when its says: “The City stands in the place of the old municipalities for all purposes” … [emphasis in the original]
The old pre‑amalgamation taxi zones have been dissolved and are no longer in existence. The charge, therefore, cannot stand.
13The new City obtained leave to appeal. It argues that, as a result of s. 5(6) of the Act, the licensing by‑laws of the former cities of Gloucester and Ottawa continue in force. Consequently, the new City argues, the geographical limitations contained in the licensing by-laws apply to prevent Mr. Seenanan from lawfully picking up fares in the old City of Ottawa.
14Section 5(6) reads as follows:
Every by‑law or resolution of an old municipality that is in force on December 31, 2000 shall be deemed to be a by‑law or resolution of the city council on January 1, 2001 and remains in force, in respect of the part of the municipal area to which it applied on December 31, 2000, until it expires or is repealed or amended to provide otherwise. 1999, c. 14, Sched. E, s. 5(6).
Amendment Of The Certificate Of Offence
15The City seeks, for the first time, to have the Certificate of Offence amended to “reflect the proper nomenclature of the Licensing By-law L6–2000”.1 It says that a “more appropriate wording” on the Certificate of Offence would show that Mr. Seenanan was charged under licensing By-law L6-2000, Schedule 19, s. 42(2). It notes that the wording of the offence, as set out on the Certificate of Offence, is consistent with s. 42(2) and argues that in light of the broad and curative amendment provisions contained in the Provincial Offences Act, R.S.O. 1990, c. P.33, the Certificate of Offence ought to be amended on appeal.
16It will be recalled that the Certificate of Offence states that Mr. Seenanan is charged with the offence of “Licensed taxicab driver operate[s] unlicensed taxicab” contrary to “City of Ottawa By-Law 2001-515, s. 42(2)”.
17By‑law 2001‑515 amends By‑law L6‑2000 of the old City of Ottawa. It was enacted and passed, by the new City, on December 12, 2001. By-law 2001–515 does not contain a s. 42(2) nor does it contain offence provisions.
18Section 6(1) of By‑law L6‑2000 provides that:
No person shall, within the limits of the City, carry on or engage in any of the trades, callings, businesses or occupations described in Section 2 hereof until he or she has procured a license so to do.
19Taxicab drivers are listed as one of the groups in s. 2 that requires a license. “City” is defined as the “City of Ottawa”.
20Section 42(2), in Schedule 19 to By‑law L6‑2000, stipulates that:
No licensed taxicab driver shall operate a taxicab which is not licensed pursuant to this by‑law.
21The City argued that this court has jurisdiction to grant the requested amendment pursuant to s. 34 of the Provincial Offences Act. The respondent took no issue with this submission. Sections 34(1) and (4), set out below, provide as follows:
34.(1) The court may, at any stage of the proceeding, amend the information as may be necessary if it appears that the information or certificate,
(a) fails to state or states defectively anything that is requisite to charge the offence;
(b) does not negative an exception that should be negatived; or
(c) is in any way defective in substance or in form.
(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
22In my view, despite able arguments from counsel for the City, a consideration of the factors set out in s. 34(4) militates against making the amendment.
Section 34(4)(a) – The Evidence Taken on Trial
23Section 34(4)(a) requires the court to consider the evidence taken on trial. There is no such evidence because there was no trial. The record before this court consists of Mr. Seenanan’s submissions to the Justice of the Peace, the submissions of both parties to the summary conviction appeal justice and those legislative provisions upon which the City wishes to rely. There is no evidence relating to either Mr. Seenanan’s license or the licensing status of his taxicab. The face of Mr. Seenanan’s actual license, which was handed to the court at the hearing of this appeal, shows that he possesses a license from “the City of Ottawa”. There is nothing on it to suggest that he is limited to driving in a particular geographical zone. There is no evidence relating to the process by which Mr. Seenanan applied for and obtained a license from the City of Ottawa. The City maintains that Mr. Seenanan is licensed by the former municipality of Gloucester while Mr. Seenanan says he is licensed by the new City. Similarly, there is no evidence about the taxicab that Mr. Seenanan was driving on the night in question. Was it licensed or not? If it was licensed, by whom, to whom and under what by-law or by-laws? This absence of evidence weighs heavily in an assessment of the other considerations, as will be seen. Its significance is magnified when considered in context – Mr. Seenanan is charged with a quasi-criminal offence and it is the City that bears the burden of proof.
Section 34(4)(b) – The Circumstances of the Case
24Section 34(4)(b) requires a consideration of “the circumstances of the case”. In my view, three aspects of the circumstances of this case are significant. The first relates to the record, which is far from complete. As already noted, there is virtually no evidence. Moreover, as discussed below, the record does not appear to contain all relevant legislative provisions. In the face of a seriously incomplete record, this court is asked to determine the validity of s. 5(6) of the Act. It is tantamount to being asked to rule on a hypothetical case, something this court has repeatedly declined to do and for good reason. See, for example, Gonyou v. Nova Chemicals [2001] O.J. No. 2093 (C.A.).
25The second aspect relates to the proposed amendment itself. At its core, the proposed amendment is flawed because it does not make clear the provisions that Mr. Seenanan is said to be breaching. Based on both the wording of the offence on the Certificate of Offence and the City’s factum, the City appears to accept that Mr. Seenanan is a licensed taxicab driver. The offence must, therefore, relate to the taxicab that Mr. Seenanan was driving on the night in question. The existing Certificate of Offence does not set out the provisions that relate to the licensing of a taxicab. We were referred to s. 6(1) of By-law L6-2000 but that section stipulates that a person requires a license to carry on certain trades in Ottawa; no issue is taken with the fact that Mr. Seenanan is a licensed taxicab driver. Other provisions must be relied upon to create the offence of driving an unlicensed cab. We have not been advised as to what those provisions are and they do not form part of the motion for amendment. I must confess that I cannot see why this court would permit an amendment, at this late stage in the proceedings, for the stated purpose of bringing it into conformity with the nomenclature on the Certificate of Offence. If an amendment is to be granted at this stage of the proceeding, subject to considerations of prejudice, surely it would be to make the charge conform to the evidence or to clarify the precise provisions that the respondent is said to be contravening.
26For example, in R. v. Lorenzo, [2002] O.J. No. 4850 (Ont. C. J.), the prosecution successfully sought an amendment at the close of its case in order to bring the offence as charged into conformity with the evidence. The amendment changed the offence provision from s. 140(1)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 to s. 144(7) of that Act. Several factors led to the conclusion that an amendment was warranted: the defence still had the opportunity to respond to the charge, as amended; there was a finding that the defendant had not been misled; and, any prejudice suffered could be easily remedied by an adjournment. In the case before this court, as discussed below, the respondent would be denied a meaningful opportunity to respond and the prejudice that would be occasioned cannot be remedied.
27The third aspect relates to the state of the City’s licensing by-laws. The City has chosen to enact a series of by-laws in the name of the dissolved municipalities rather than to enact city-wide requirements. This sort of patchwork approach leads to confusion that is not clarified by the record. No explanation of the licensing regime and how it has been changed appears on the record. It was not before the summary conviction appeal justice. In fact, the City representative advised Justice Fontana that the City licensing by-laws had not been amended. At page 8 of the transcript, the City representative said this:
Which to date, none of the taxi by-laws have been amended or appealed since amalgamation.
28However, at the time that Mr. Seenanan was charged, the City had made significant amendments to both the former City of Ottawa’s By-law L6-2000 and the former City of Gloucester’s By-law No. 41 of 1998 by means of by-laws 2001-515 and 516.
29The legislative provisions before the court raise numerous questions for which the record offers no answers or even suggested solutions. These include:
a) What by-law or by-laws govern the licensing of Mr. Seenanan as a driver and his taxicab? Did the new City amend them?
b) The Act dissolved the former municipalities but the new City passed by-laws 2001 – 515 and 516 as if the former municipalities of Gloucester and Ottawa had not been dissolved. What effect does such action by the new City have on the pre-existing licensing by-laws, if any? Does it matter that such activity appears inconsistent with the purpose of the Act, which was to create a single municipality?
Section 34(4)(c)—Misled or Prejudiced
30Section 34(4)(c) directs the court to consider whether Mr. Seenanan was misled or prejudiced in his defence by the errors or omissions. In my view, he was both misled and prejudiced. The respondent was misled because his defence in the court below was conducted on the basis that he was accused of having violated s. 42(2) of By-law 2001-515. In the face of a conflict between the wording of the offence on the Certificate of Offence and the legislative provisions referred to, Mr. Seenanan based his arguments before Justice Fontana on the inequity that arose from requiring him to comply with the licensing regime imposed by the new City while preventing him from taking the benefit of such compliance. Justice Fontana disposed of the matter on that basis.
31In addition, counsel for Mr. Seenanan raised a new issue before this court that calls into question the validity of the City’s licensing regime. He notes that By-law 2001-515 exempts licensed taxicab drivers from the former municipality of Vanier from the application of the former City of Ottawa’s licensing by-laws with the result that former Vanier drivers are free to pick up fares in the former City of Ottawa while former Gloucester drivers are not. Relying on the cases of R. v. Sharma, 1993 165 (SCC), [1993] S.C.J. No. 18 and Montreal (City of) v. Arcade Amusements Inc., 1985 97 (SCC), [1985] S.C.J. No. 16, he argues that the effect of the City’s new licensing regime is discriminatory and that the by-law is, therefore, invalid. The discrimination, he says, arises either from 1) the unequal treatment of the two groups of taxicab drivers, or 2) the fact that all Ottawa taxicab drivers are required to conform to standardized requirements but separate classes of work opportunities are maintained with reference to boundaries of now dissolved municipalities. As the Certificate of Offence did not make clear the legislative provisions upon which the City intended to rely, Mr. Seenanan was prejudiced in being unable to advance such an argument in the earlier stages of this proceeding.
Section 34(4)(d) -- Injustice
32Section 34(4)(d) directs the court to consider any injustice that would be done by the making of the amendment. In the circumstances of this case, to permit the amendment at this time would be to expose Mr. Seenanan to a different charge than that which he faced in the courts below, a clear injustice. In addition, the City submits that specific procedures and limitations apply when municipal by-laws are challenged. It follows that this court might be precluded from entertaining Mr. Seenanan’s challenge to the validity of the City’s licensing regime in the context of this appeal. To permit the City to amend so that it could rely on different legislative provisions in the face of the clear possibility that the respondent would be unable to challenge the validity of such legislation would also be an injustice.
33Accordingly, I would dismiss the motion to amend the Certificate of Offence.
CONCLUSION
34There is no s. 42(2) in By-law 2001-515 nor does By-law 2001-515 contain any offence provisions. Moreover, while there is evidence before this court that Mr. Seenanan is a licensed taxicab driver, there is no evidence before this court that he drove an “unlicensed” taxicab. On the record before us, I see no error in the result below and I would dismiss the appeal.
35In light of this conclusion, it is unnecessary to consider the validity of s. 5(6) of the Act. Moreover, in my view, there is an insufficient record before the court to make such a determination.
36If the parties are unable to agree on the matter of costs, they may make brief written submissions on the same within 15 days of the release of these reasons.
“E. E. Gillese J.A.”
“I agree R. S. Abella J.A.”
GOUDGE J.A.: (Dissenting)
37I have had the benefit of reading the reasons for judgment of my colleague Gillese J.A., which ably outline the background and circumstances relevant to this appeal. However, with great respect, I would reach a different conclusion. For the reasons that follow, I would allow both the amendment to the Certificate of Offence and the appeal and would restore the conviction.
THE PROPOSED AMENDMENT
38The Certificate of Offence given to the respondent on the night of the alleged offence charged him with “Licensed Taxicab Driver Operate Unlicensed Taxicab contrary to City of Ottawa By-law 2001-515 s. 42(2).” The Certificate alleges that the offence took place at 400 Dalhousie Street in Ottawa on June 30, 2002. The essence of the offence charged is that at the time and place specified, the respondent, a licensed taxicab driver, operated a taxicab that was not properly licensed.
39The amendment sought by the appellant would change the Certificate of Offence to provide that this conduct was contrary to By-law L6-2000 Schedule 19, s. 42(2) rather than By-law 2001–515 s. 42(2). The respondent takes no issue with the appellant’s assertion that the former is an offence provision, and I am prepared to proceed on that basis. It reads as follows:
42.(2) No licensed taxicab driver shall operate a taxicab which is not licensed pursuant to this by-law.
40The by-law referred to in the Certificate of Offence, By-law 2001-515, was passed by the new City of Ottawa after amalgamation. It amends By-law L6-2000 in various respects concerning the regulation of the taxicab industry. It does not however, contain either a s. 42(2) or a section describing the offence with which the respondent was charged.
41By-law L6-2000, which it amends, was passed originally by the old City of Ottawa. It regulated a wide variety of businesses in the old City, including the taxicab industry. Schedule 19 to that By-law dealt specifically with the licensing of taxicab drivers and taxicabs in the old City. At amalgamation, that By-law became a by-law of the new City by reason of s. 5(6) of the City of Ottawa Act, 1999, S.O. 1999, c.14 (the Act).
42In my view a number of considerations favour allowing the amendment. First, with the proposed amendment, the Certificate of Offence more accurately describes the offence charged, namely that on June 30, 2002 at 400 Dalhousie Street, the respondent, being a licensed taxi driver, operated a taxicab which is not licensed pursuant to L6-2000, the By-law under which taxicabs are licensed for operation in the area that was the old City.
43Second, this description conforms to the respondent’s understanding of the charge against him when he appeared before the Justice of the Peace. He made clear then that his taxicab was issued with blue plates which allowed him to pick up in what was the old City of Gloucester but not at 400 Dalhousie Street in what was the old City of Ottawa, and that he would need a red plate for his taxicab to pick up in that area. The respondent clearly understood the charge, namely that his taxicab was not licensed to pick up at 400 Dalhousie Street in what was the old City of Ottawa.
44Third, the respondent pleaded guilty at first instance. He did not challenge the allegation in the Certificate of Offence that he operated a taxicab which was not licensed to operate on June 30, 2002 at 400 Dalhousie Street in the old City of Ottawa. Hence there was no need for evidence. This explains the absence of evidence about, for example, who licensed the respondent’s taxicab or under what bylaw.
45Fourth, the respondent does not suggest that there is any evidence that he would have called if he had been facing the amended Certificate at first instance. Nor does his factum suggest that his plea would have been different. Nor does he argue that if the amendment is not allowed, the appeal should be dismissed because the Certificate of Offence is defective. Indeed, the amendment is sought by the appellant not in response to any challenge to the Certificate of Offence by the respondent, but merely “to provide for the appropriate nomenclature of licensing By-law L6-2000”. In argument, the only prejudice pointed to by the respondent was the cost of counsel to respond to the appeal. Our jurisdiction to award costs pursuant to s. 139(3) of the Provincial Offences Act, R.S.O. 1990, c.P.33 would seem to be the complete answer to this concern. In short, the proposed amendment would cause no prejudice that cannot be remedied.
46Finally, the proposed amendment does not adversely affect this Court’s ability to address the merits of this appeal. As Carthy J.A. said in granting leave, the proper meaning to be given to s. 5(6) of the Act is a question of broad importance. In my view, we should answer it if we can.
47In summary, I do not think that the respondent has been misled or prejudiced by the proposed amendment. The change can be made without injustice and in the circumstances of this case it should, in my view, be allowed.
THE MERITS OF THE APPEAL
48The merits of this appeal turn on the proper interpretation of s. 5(6) of the Act. It reads as follows:
5.(6) Every by-law or resolution of an old municipality that is in force on December 31, 2000 shall be deemed to be a by-law or resolution of the city council on January 1, 2001 and remains in force, in respect of the part of the municipal area to which it applied on December 31, 2000, until it expires or is repealed or amended to provide otherwise.
49In the judgment appealed from, Fontana J. appears to have concluded that, despite s. 5(6), amalgamation dissolved the old pre-amalgamation taxi zones such as the old City of Gloucester and the old City of Ottawa. As a result, he allowed the appeal because in his view, the respondent could no longer be barred from operating in the old City of Ottawa.
50In my view Fontana J. erred in doing so. The effect of s. 5(6) is to deem By-law L6-2000 (passed by the old City of Ottawa) to be a by-law of the new City of Ottawa and to remain in force in respect of the part of the municipal area to which it applied before amalgamation. That area, namely what was the old City of Ottawa, includes 400 Dalhousie Street. The respondent was therefore was prohibited by s. 42(2) of Schedule 19 of that By-law from picking up a passenger in the area of the old City of Ottawa unless his taxicab was licensed pursuant to By-law L6-2000. By his guilty plea the respondent acknowledged that his taxicab was not licensed under this By-law. Nor has he suggested either before Fontana J. or in this court that his taxicab was or is licensed under By-law L6-2000.
51While it is unnecessary to determine for this appeal, it appears that his taxicab is licensed under By-law 41 of 1998 of the old City of Gloucester which is also now a by-law of the new City of Ottawa because of s. 5(6) of the Act. It regulates the taxicab industry in the area of the new City that was the old City of Gloucester. This By-law has been amended by the new City of Ottawa by By-law 2000-516 which inter alia sets age standards for taxicabs. It appears that the new City has applied these standards throughout the new City by amending in like manner the taxicab by-law of each old municipality which amalgamated into the new City. All of these taxi by-laws also became by-laws of the new City pursuant to s. 5(6) of the Act.
52As a result, it appears that the respondent’s taxicab is now licensed by the new City of Ottawa pursuant to By-law 41 of 1998 of the old City of Gloucester to operate within the area of the new City of Ottawa that was formerly Gloucester. As well, the respondent has been forced by By-law 2001-516 to comply with the age of vehicle standards set by the new City of Ottawa.
53While this appears to explain the by-law under which the respondent’s taxicab is licensed, what matters for this case is that the respondent’s taxicab was not licensed under By-law L6-2000. It could therefore not be operated on June 30, 2002 at 400 Dalhousie Street in what was the old City of Ottawa because s. 5(6) of the Act makes s. 42(2) of Schedule 19 of that By-law applicable to that area of the new City of Ottawa.
54The respondent raises three arguments to the contrary. First he says that the appellant has imposed a series of city-wide requirements (for example on vehicle age) by amending the old taxi by-laws of the municipalities that were amalgamated by the Act. He argues on the one hand that by legislating in this way rather than enacting one city wide by-law the appellant has ignored one of the central purposes of amalgamation namely the creation of one big city. He argues on the other hand that by imposing city wide standards the appellant has in effect created one big city wide taxi zone and cannot rely on the old bylaws to “punish” the respondent.
55I disagree. This argument ignores the fact that s. 5(6) of the Act deems those old by-laws to be by-laws of the new City of Ottawa so that the appellant has created city-wide safety standards simply by amending its own by-laws. It also ignores the fact that s. 5(6) deems those by-laws in force in respect of the areas to which they applied before amalgamation, in each case the area of the former municipality. The new City was entitled to act as it did in creating city-wide standards, former municipality by former municipality. However, by doing so the new City did not remove the requirement that to operate in the area of the old City a taxicab must be licensed pursuant to By-law L6-2000.
56In passing, it can be noted that s. 5(6) of the Act provides that each old by-law remains in effect in respect of its part of the new City until it expires, is repealed or is amended to provide otherwise. There is no suggestion in this case that By-law L6-2000 has expired or been repealed or been amended to provide that it does not apply to its particular part of the new City.
57Second, the respondent argues that s. 5(2) of the Act which provides that “the city stands in the place of the old municipalities for all purposes” provides him with a defence. He says that since his taxicab is licensed by the new City of Ottawa he is entitled to operate as if he were licensed by the old City of Ottawa.
58Again, I disagree. Section 5(2) does not mean that whenever the new City of Ottawa issues a taxicab license that license must allow operations throughout the new City. This would negate s. 5(6) which continues the old by-laws for those areas of the new City to which they each applied before amalgamation, not to the whole of the new City. Only if the new City issues a taxicab license under by-law L6-2000 can it be operated lawfully within that area of the new City that was the old City. A taxicab license issued by the new City pursuant for the taxicab by-law of the old Gloucester (which is now a by-law of the new City) does not give the holder any such right.
59Finally, the respondent argues that the new City’s licensing structure is discriminatory because it now permits taxicabs licensed to operate in the area of the old municipality of Vanier to pick up in the area of the old City unlike those licensed to operate in the area of the old Gloucester.
60The simple answer to this is found in R. v. Sharma, 1993 165 (SCC), [1993] 1 S.C.R. 650 (S.C.C.) where on behalf of the court Iacobucci J. said this at p. 667:
I agree with Arbour J.A. that this case is governed by the decision of this Court in Montréal (City of) v. Arcade Amusements Inc., supra with respect to the discrimination in the by-law scheme. In that case, the Court held that the power to pass municipal by-laws does not entail that of enacting discriminatory provisions (i.e., of drawing a distinction) unless in effect the enabling legislation authorizes such discriminatory treatment. See also Rogers, The Law of Canadian Municipal Corporations (2nd ed. 1971), at pp. 406.3-406.4:
It is a fundamental principle of municipal law that by-laws must affect equally all those who come within the ambit of the enabling enactment. Municipal legislation [page 668] must be impartial in its operation and must not discriminate so as to show favouritism to one or more classes of citizens. Any by-law violating this principle so that all the inhabitants are not placed in the same position regarding matters affected by it is illegal.
The general principle does not apply where the enabling statute clearly specifies that certain persons or things may be excepted from its operation or expressly authorizes some form of discrimination.
61Here any distinction between taxicabs licensed pursuant to the taxi by-law of the former Gloucester and those licensed pursuant to the taxicab by-law of the former Vanier is expressly authorized by s. 5(6) of the Act which makes them applicable to that part of the new City to which they applied before amalgamation and authorizes the new City to amend any one of them to provide otherwise. The new City has done so with respect to the latter.
62I therefore conclude that s. 5(6) of the Act makes By-law L6-2000 applicable to the area that was the old City of Ottawa, and since the respondent’s taxicab was not licenced to operate under that By-law he was properly convicted.
63In summary, therefore, for these reasons, I would allow the amendment and the appeal and restore the conviction.
RELEASED: March 18, 2004 (“RSA”)
“S. T. Goudge J.A.”