[1] The petitioners in this application are taxi companies which currently hold all the licences to operate taxis in the City of Surrey in British Columbia. In these reasons I will refer to the petitioners as "Surdell". The respondent in these proceedings will be referred to as the "City of Surrey" or "Surrey". Surdell applies to strike out an amendment to the City of Surrey's Vehicle For Hire Bylaw, 1999 No. 13610, ("the Taxi By-law") which amendment specifies the use of an auction process for the issuance of new licences to operate taxi cabs. The petitioners say that the auction process specified in the Taxi By-law is not authorized by the Local Government Act, R.S.B.C. 1996, c. 323. The Local Government Act is the Act pursuant to which Surrey purports to derive its authority to enact the Taxi By-law.

[2] Each of the petitioners operates a taxi company in the City of Surrey.

[3] On July 9, 2001, the council of the City of Surrey adopted an amendment to the Taxi By-Law which increased the number of taxi licences Surrey was authorized to issue from 262 to 287.

[4] The Taxi By-law also provided that the newly created licences would be "offered to public bids from the taxi industry, provided that a Motor Carrier Licence is held by the bidder".

[5] On July 28, 2001, the City of Surrey placed an advertisement in a local newspaper offering for sale by auction 29 taxi cab licences pursuant to s. 6 of the Taxi By-law.

[6] The advertisement states, in part, as follows:

[7] It was the advertizement of this auction which prompted the application before me to strike out the provision of the Taxi By-law that authorizes the City of Surrey to sell new taxi licences at an auction.

[8] In earlier oral reasons for judgment pronounced on August 30, 2001, I granted the petitioners' request for an interim interlocutory injunction. That injunction ordered that the auction be suspended pending my judgment on the application to strike down the auction provision of the Taxi By-law.

[9] Mr. Siekham on his own behalf and on behalf of Super Shuttle Ltd. sought intervenor status in this action. He has filed neither a notice of motion nor affidavit material to support his application. He has simply filed an appearance in this action. Both Mr. Baker for Surdell and Mr. MacFarlane for Surrey take the position that this court has inherent jurisdiction to dispense with the filing of a notice of motion and affidavit material. Mr. Baker, on behalf of the petitioners, does not object to Mr. Siekham's being granted intervenor status. Mr. Baker says Mr. Seikham's perspective is not different than that of the petitioners, but that as a layman "he [Mr. Seikham] may have something interesting to say." Mr. MacFarlane, for the City of Surrey, opposes the application for intervenor status by Mr. Siekham. At the hearing of this matter I reserved my judgment on the application for intervenor status and indicated that the decision on intervenor status would be given in my reasons for judgment. I agreed to, and did, hear the brief submissions which Mr. Siekham made.

[10] Both counsel agree that the test for determining the granting of intervenor status is set out by Mr. Justice Oppal in Squamish (District) v. Great Pacific Pumice Inc., [2001] B.C.J. 518, 2001 B.C.S.C. 406. Factors which may be considered include the following:

[11] In his submissions as to the granting of intervenor status, Mr. Siekham advised that he is the owner of a company called Super Shuttle Ltd., which is licenced by the City of Surrey as a carrier for the purposes of a share-ride mini bus service.

[12] In these proceedings, which were argued in Chambers on the basis of affidavit evidence only, Mr. Siekham did not attempt to adduce any evidence. He made brief submissions, which imposed no additional significant burden on the litigation. Mr. Siekham has an indirect interest in the outcome of the petitioner's application in that he holds a licence for a type of service similar to a taxi service but not the same.

[13] Insofar as the petitioners are all of the current owners of taxi licences to operate in the City of Surrey, Mr. Siekham suggests that he brings a different and perhaps more public perspective to the issues before me. He submitted that "the petitioners wish to keep the licensing process within their existing cartel." Mr. Siekham argued that this is not in the public interest.

[14] In his reasons in the Squamish case, Mr. Justice Oppal cited Canadian Labour Congress v. Bhindi (1985), 61 B.C.L.R. 85 (C.A.) in which Taggart, J.A. said at page 87:

[15] Having heard Mr. Siekham, it seems to me that his submissions echo those of the petitioners and otherwise concern matters which are not directly before me. Although the public obviously has an interest in the manner in which the City of Surrey issues new taxi licences, the application before me turns on a narrow question of whether the impugned provisions of the Taxi By-law are authorized by the Local Government Act. Other than considering the legality of the taxi By-law authorizing the auction process, I am not determining the appropriate or fair process for the issuing of new licences, which I think is Mr. Seikham's real concern when he complains about "the cartel of taxi owners". In these circumstances I do not think it is appropriate to grant intervenor status, and I decline to do so.

[16] The relevant provisions of the Taxi By-Law which concern the licensing and regulation of taxis are as follows:

[17] The City of Surrey derives its authority to regulate and licence businesses, including the taxi business from the Local Government Act. The Local Government Act has several sections which are pertinent.

[18] A local government, in this case Surrey, derives its general corporate powers from s. 176 of the Local Government Act, which says:

(a) to make agreements respecting

(i) the local government's services, including agreements respecting the undertaking, provision and operation of its services, other than the exercise of its regulatory authority.

(ii) operation and enforcement in relation to the local government's exercise of its regulatory authority; and

(iii) the management of property or an interest in property held by the local government;

(d) to acquire, hold, manage and dispose of land, improvements, personal property or other property, and any interest or right in or with respect to that property;(emphasis added)

(2) In exercising its powers under subsection (1), a local government may establish any terms and conditions it considers appropriate.

[19] Section 657 of the Local Government Act specifically authorizes a local government to regulate carriers of persons which term includes taxi cabs:

(3) A bylaw under this section may establish different classes of carriers and make different provisions for different classes.

[20] Section 658 of the Local Government Act authorizes a local government to require and to issue business licences. This section governs all businesses, not just the taxi business, and provides as follows:

(a) prohibiting a business from being carried on unless the owner or operator holds a valid licence under this Division;

(b) providing for the granting, refusal, suspension and cancellation of licences for business;

(c) providing for the duration period of licences;

(d) providing that terms and conditions may be imposed on any licence, the nature of the terms and conditions and who may impose them;

(e) setting out the conditions that must be met before a licence is granted, the nature of the conditions and who may impose them.

(2) a bylaw under this section may

(a) establish different classes of business,

(b) make different provisions for different classes and different areas of the municipality, and'

(c) in relation to a provision under subsection (1)(c), provide that duration periods for different individual licences may be different based on the duration period of some other licence, permit, certificate or other authority that is required for the business or business activities to be carried on or for persons to engage in the business activities.

[21] The Local Government Act also deals generally with the licencing of all commercial vehicles. Section 666 includes, but is not limited to, taxi cabs and provides, in part, as follows:

[22] The Taxi By-law permits the City of Surrey to issue licences to taxi owners for the operation of taxis. Surrey taxi licences are renewable on an annual basis, are transferable and are subject to the licence holders meeting the conditions specified in the Taxi By-law.

[23] Section 6 of the Taxi By-law, which contains the impugned auction provision, does not reduce the licensing requirements provided by s. 4 of the Taxi By-Law and elsewhere. For example, the holder of a taxi licence purchased by auction would still be required to renew the taxi licence on an annual basis and pay the annual licence fee prescribed by the City of Surrey.

[24] The requirement that new taxi licences be purchased by auction is over and above the other taxi licensing requirements.

[25] Surrey explains in the supplementary affidavit of Sherstone, manager of by-laws and licensing for the City of Surrey, that the scheme of taxi licensing under the Local Government Act, the Taxi By-law, and the Commercial Vehicle By-law is such that up to four licences are required to operate a taxi.

[26] Each owner of a taxi must obtain a licence or permit pursuant to the Motor Carrier Act.

[27] Every business including one operating as a taxi business must obtain a licence under the general business licensing provisions of the Local Government Act, s. 658, if the local government by-law so requires.

[28] Every taxi must have a "vehicle for hire" licence, which is issued to the owner of the individual taxi cab and may be the same body as the holder of the general business licence or may be another individual or corporation.

[29] Every taxi must be licensed under the commercial vehicle provision of the Local Government Act, s.666, and the Commercial Vehicle Licensing By-law.

[30] There is nothing in s. 657 or s. 658 or s.666 of the Local Government Act which specifically permits any type of new license to be sold by auction.

[31] Counsel for Surdell referred to s. 666 of the Local Government Act, which relates to the collection of licensing fees for "commercial vehicles". Section 666 is included in the Commercial Vehicle division of the Local Government Act.

[32] The definition of "Commercial Vehicle" includes taxis. A licence issued pursuant to s. 666 is a commercial vehicle licence required by every type of commercial vehicle.

[33] Mr. Baker for Surdell argues that s. 666 is the section which empowers Surrey to issue a licence to a taxi cab owner. He argues that sections 657 and 658 confer a power to regulate a business but do not confer a specific power to issue licences. It is his position, therefore, that s. 657 and s. 658 of the Local Government Act do not empower the City of Surrey to pass a by-law to issue a taxi licence. That authority, Mr. Baker submits, is found only in s. 666, of the Local Government Act which in turn, does not empower the City of Surrey to establish an auction process.

[34] Mr. Baker argues that it is unnecessary for the Court to decide the correctness of Surrey's practice regarding the issuance of licences under s. 658 because, in any event, neither s. 658 nor s. 666 authorizes Surrey to pass a by-law to establish the auction process.

[35] I agree with Mr. Baker that it is unnecessary to undertake an analysis of whether Surrey's current practice of issuing business licences and taxi licences is a correct interpretation of the applicable sections of the Local Government Act. In my view, none of sections 657, 658, and 666 confer on a municipality the authority to establish a process to sell new taxi licences by auction. A power to sell by auction cannot be fairly implied from the power to licence and to regulate.

[36] Furthermore, for the auction price to be properly characterized as a license fee the auction price must bear a direct relationship to Surrey's cost of administering the licensing service. If there is an insufficiently close relationship between the amount of the licence fee and Surrey's administration costs, then the licence fee could constitute a form of taxation. Constitutionally a province and hence a local government may only impose a direct tax. A local government may only impose a direct tax, and only a direct tax that the local government is specifically empowered by statute to impose. The difference between a fee and a tax was described by the trial court in Urban Outdoor Trans Ad v. Scarborough (City) (1999),43 O.R. (3d)673, 2 M.P.L.R. (3d) 11, (Ont.S.C.J.), aff'd on appeal (2001),196 D.L.R. (4^th)304, 52 O.R. (3d) 593, at paragraph 31 as follows:

Major J. continued, at pp. 578-79:

[37] I turn then to the question of whether the variable fee bears a relationship to the services provided.

[38] In the first affidavit of Sherstone, filed by the City of Surrey, Sherstone deposes that City of Surrey taxi licence plates have been purchased in the market place well in excess of the City's reserve bid of $30,000. Sherstone says that sale prices have been quoted to him in the range of $120,000 to $150,000 and he annexes to his affidavit examples of advertisements for the private sale of taxi licences at $120,000 and $150,000.

[39] Surrey justifies the sale price at auction by arguing that the sale proceeds will be placed in a permanent reserve account in perpetuity. Surrey says that a reserve bid of $30,000 would result in an "annual rental charge" for a licence of $1200. Surrey says that this is a reasonable amount to cover the cost of the regulatory scheme that applies to taxis and to cover the cost of the use of infrastructure such as roads, police, fire, and ambulance services.

[40] As noted above there must be a nexus between a fee charged for a licence and the cost of administering that licence scheme. The fee must bear a relationship to the services provided, otherwise it will be construed as a tax. In Urban Outdoor, supra the impugned by-law established a process for the right to obtain new outdoor advertising sign permits by a tendering process similar to the auction in the case at bar. The by-law created a cap of issuing 20 new sign permits per year and established an auction process for allocation of permits. The by-law respecting the tendering or auction process for the new signs was struck down by the trial judge and that portion of the judgment was not appealed from. The Court held that the provisions in the by-law establishing a tendering process for new permits were ultra vires as the auction price could not be classified as a fee but rather a tax.

[41] At para. 61 of the trial judgment, the court held:

[42] Similarly in this case Surrey does not attempt to justify the fee based on the cost of the licensing process. It says that the fee can be justified on the basis of a contribution to the general infrastructure of Surrey. This is not adequate justification for the fee. A fee must not be used for general revenue or to benefit the community at large as to do so would be a tax. (See Urban Outdoor, supra, Court of Appeal decision at paras. 32 to 36). There is no authority granted by the Local Government Act to a local government to impose a "tax" such as the auction bid price. In my view the auction bid price cannot be a valid tax, and indeed Surrey does not suggest it is. I hold therefore that the variable fee proposed to be charged by auction cannot be justified by Surrey on the basis that it is a fee.

[43] Surrey submits that it is entitled to sell new taxi licences by auction pursuant to its general corporate powers found in s. 176 of the Local Government Act. Surrey says that a taxi licence is personal property within the meaning of that term found in s. 176(1)(d), which gives the local government the power to "dispose of . . . personal property".

[44] Surrey relies on the case of Re Foster, [1992] 89 D.L.R. (4^th) 555(Ont.Ct.Gen.Div.)). This case concerned the bankruptcy of a taxi driver. The bankrupt had pledged his taxi licence issued by the City of Mississauga to various creditors. The court had to deal with the issue of whether the taxi licence was "property" for the purposes of the Ontario Personal Property Security Act, R.S.O.1990,c.P.10.

[45] At paragraph 18 of the decision the Court held:

In Foster, supra the Court held that the taxi licence was personal property.

[46] I agree with the City of Surrey that a taxi licence, when it is has been issued to a licensee, as was the case in Re: Foster, is intangible personal property. It is then capable of being sold; it is then capable of being encumbered.

[47] Surrey relies on the affidavit of Kenneth Davidson who has expertise in the fields of accounting, finance, and government regulation of the transportation industry. Davidson says in his affidavit that, "a direct consequence of the regulation of the taxi industry is that the issuing jurisdiction creates the taxi licence as an asset having economic value at the point it is issued" (emphasis added).

[48] A taxi licence in the hands of the licensee is a type of intangible personal property; a "chose in action," that is, "it is a thing incorporeal and only a right." (see E.L.G. Tyler & N.E. Palmer, Crossley Vaines' Personal Property, 5^th ed. (London: Butterworths, 1973 at 11). The taxi licence confers upon its holder the right to carry on a taxi business to the exclusion of those who do not possess such a licence. Surrey has a power to issue such a licence to a licensee but before the licence is issued to a licensee no intangible personal property can be said to exist. It is the right to carry on a taxi business to the exclusion of others that is key to the licence being characterised as personal property. A taxi licence is not, as noted by Davidson in his affidavit, prior to issuance, a valuable commodity. The licence has no value to Surrey before it is issued. It is only when it is issued that it becomes a commodity in restricted supply. I find that prior to issuance a taxi licence is not personal property and hence Surrey cannot dispose of it as personal property pursuant to its general corporate powers.

[49] Although I have already determined that because the licence is not personal property before it is issued, it cannot therefore be sold by Surrey at auction or other means pursuant to s. 176 (1)(d), I will consider further Surrey's submission that the auction is the exercise of an implied power.

[50] Surrey argues that the auction process is the sale of intangible personal property by means of a public bid process. Surrey argues further that the money collected for a taxi licence plate represents the "proceeds of disposition," and Surrey may, pursuant to s.176(2), establish any terms and conditions it considers appropriate when disposing of an interest in property.

[51] The question which must be determined is whether s. 176(d) of the Local Government Act is sufficiently broad in its conferring of powers to enable the local government to create intangible personal property out of its licensing powers and then sell that property by auction.

[52] Section 3 of the Local Government Act provides that a general power is not to be interpreted as being limited by the specific power. Section 3 says:

[53] In this case, therefore, the general power in s. 176(1)(d) ought not to be interpreted so as to be limited by any specific power regarding business or taxi licensing in the Local Government Act.

[54] The basic rule for the interpretation of general municipal powers was set out in Ottawa Elec. Light Co. v. Ottawa [1906] XII OLR 290. There, Garrow, J.A. made the following observation:

[55] As noted in the quotation above, municipal corporations are not limited to the exercise of express powers; they may also exercise powers that are fairly implied or incidental to those powers. Implied powers may arise by "natural implication from a grant of express power or by logical inference from the purposes and functions of the corporation with which they must be in consonance." While any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, the courts "will give effect to an implication so strong as to amount to an actual expression"(see I.M. Rogers, The Law of Canadian Municipal Corporations, Vol. 1 (Toronto: Carswell, 1971) at 362).

[56] An auction of taxi licences is not a natural implication of the power to dispose of personal property nor can it be said to be a logical inference of that power of disposal.

[57] A local government has the power to regulate a broad range of activities. A municipality issues licenses or permits to construct buildings, to operate retail and service establishments, and to carry on many other endeavours. Its ability to limit the number of such licences may enhance the value of a licence. The municipality creates the "market" through its ability to limit the number of licences or permits in a specific area. The general corporate powers of s. 176 of the Local Government Act are not properly interpreted as authorizing a local government to employ its power to regulate and to license as a method of earning revenue beyond that closely related to its licensing costs. If the legislature had intended to enable a municipality by the sale of such licenses to raise revenue in excess of the cost of administering the licensing scheme the legislation, within its constitutional powers, would have said so.

[58] The relief claimed by the petitioners pursuant to Section 2(2)(b) of the Judicial Review Procedure Act is granted on the following terms:

a) A declaration that the power purported to be conferred by the following words of section 6 of the Surrey Vehicle for Hire By-law, 1999, No.13610 is ultra vires the Local Government Act, and an order quashing the said portion of the by-law;

b) An order in the nature of certiorari quashing the decision of the Respondent to auction Class "A" City of Surrey taxicab licenses.

[59] Costs will follow the event at scale 3.

"N. Garson, J."
The Honourable Madam Justice N. Garson