COURT FILE NO.: 263/09 and 264/09
DATE: 20090629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
File #263/09
AIRPORT TAXICAB (PEARSON AIRPORT) ASSOCIATION
Respondent on Motion for Leave (Applicant)
- and -
CITY OF TORONTO
Appellant Seeking Leave to Appeal (Respondent)
AND
File #264/09
B E T W E E N:
AIRPORT LIMOUSINE OPERATORS ASSOCIATION
Respondent on Motion for Leave (Applicant)
- and -
CITY OF TORONTO
Appellant Seeking Leave to Appeal (Respondent)
David E. Leonard and Marc Toppings, for the Airport Taxicab (Pearson Airport) Association
Michelle A. Wright, for the City of Toronto
Mark Veneziano and Naomi Loewith, for the Airport Limousine Operators Association
HEARD at Toronto: June 23, 2009
janet wilson J.:
[1] This matter involves a dispute about a by-law enacted by the City of Toronto which ended an exemption for certain airport taxis from the general requirement that all operators of taxis and limousines who pick up passengers in the City of Toronto be issued a business licence by the City. Under the exemption, it was not necessary to have a licence if the vehicle was only taking passengers to an airport operated by the Crown in right of Canada and the vehicle held a valid permit issued by the federal Minister of Transport under the Government Airport Concession Operations Regulations.
[2] The exemption was originally removed in April 2007 with the enactment of By-law 435-2007, which was repealed pending further study. In December 2007, a second by-law was passed, By-law 1425-2007, which is the subject of the current proceeding.
[3] The City of Toronto seeks leave to appeal the decision of Perell J. rendered May 25, 2009, dismissing the City’s request to quash a summons to witness to examine Councillor Howard Moscoe.
[4] The proceedings to date are outlined in 1 to 3 of the motion court judge’s reasons:
The Airport Taxicab (Pearson Airport) Association and the Airport Limousine Operators Association have each brought applications to quash City of Toronto By-law 1425-2007 (the “Exemption Removal By-law”) enacted by the City in December 2007. The Associations rely on a variety of grounds, including the ground that the by-law was enacted in bad faith.
In January 2008, the Associations each brought interlocutory injunctions to enjoin the City from enforcing the by-law, and Justice Low, in the context of that interlocutory motion, which she granted, found that there was a prima facie case of bad faith and a serious issue for trial that required a full factual record for a determination to be made. See Airport Taxicab (Pearson Airport) Assn. v. Toronto (City), [2008] O.J. No. 490 (S.C.J.).
After securing the interlocutory injunction, pursuant to Rule 39.03, both Associations served a summons to examine Councillor Howard Moscoe, who is the Chair of the City’s six-member Licencing and Standards Committee.
[5] The City makes two arguments with respect to the motions court judge’s decision.
- First, they argue his decision is contrary to the established principle that the intention of the legislative body can only determined by assessing their collective action. The motivation of council in enacting a by-law cannot be established through the evidence of one councillor obtained by way of examination after the by-law has been enacted.
- Second, the motions judge’s decision relied upon an erroneous understanding with respect to a fact. The comments giving rise to the summons were made by Councillor Moscoe at a meeting in April 2007, and not in the meeting of December 2007 when the exemption by-law under attack was finally passed.
[6] The City relies upon rule 62.02(4)(b) of the Rules of Civil Procedure and asserts that there is good reason to doubt the correctness of the order of the motions judge, and that the proposed appeal involves matters of public importance.
[7] Perell J., in his careful reasons at paras. 41 correctly enunciates the legal test and principles to determine whether a person’s words reflect individual motivation, or whether the evidence has an institutional quality. He adopts the test outlined by Goudge J.A. in Ontario Teachers’ Federation v. Ontario (Attorney General) (2000) 2000 14733 (ON CA), 49 O.R. (3rd) 257 (C.A.)
[41] At para. 32 of his Reasons for Decision, delivered for the Court, Justice Goudge (Doherty and Rosenberg, JJ.A. concurring) stated with emphasis added: “While the court can consider admissible extrinsic evidence of purpose, it must be careful to ensure that the evidence has an institutional quality that reflects the intention of the legislature and not just the individual motivation of a particular member of the government.” At para. 34, he stated, with emphasis added:
I acknowledge that the right to protest government action lies at the very core of the guarantee of freedom of expression. Thus, the court must be searching in its evaluation of the assertion that a legislative provision has as its purpose to punish those who speak out. I also acknowledge that the court can consider extrinsic evidence of purpose as part of that evaluation. However, this must be done within the context described by Bastarache J. The provision itself and its statutory context remain vital sign posts in the search for legislative purpose, because they are the actual manifestations of that purpose. Expressions of motivation by individual government actors must be scrutinized to see that they truly reflect legislative intent, rather than simply individual concerns. The former are appropriately part of the Charter analysis. The latter are left to be sanctioned at the ballot box.
[8] The facts of this case are unique and exceptional. I emphasize that there should be no danger of a flood of claims against the City Councillors performing their civic functions in the usual course. The comments of Councillor Moscoe speak for themselves in terms of their extraordinary nature:
- A video of the April 24, 2007 City Council meeting reveals that Councillor Moscoe asked his fellow council members, of which there are forty-five in number including the Mayor, “not to send the City into consultations or negotiations with their hands tied behind their back” and “to set right a grievance that has been simmering below the surface for thirty years.”
- After the vote, Councillor Moscoe spoke to the press and it is reported that he stated:
We have the hammer and we can begin to negotiate. I anticipate the City of Mississauga and the GTA will want to sit down and negotiate with us. They haven’t been interested very much in the past. Now we’ve got their attention.
[9] In light of the comments of Councillor Moscoe, the Association brought a court challenge to the initial by-law, By-law 435-2007, on various grounds including a claim of bad faith.
[10] After the application of the Associations was brought, Councillor Moscoe returned to the Licensing and Standards Committee and moved before City Council to repeal By-law 435-2007 for further study. Therefore, on September 26, 2007, the City repealed the by-law.
[11] However, no study was produced and in September, Councillor Moscoe moved the Licensing and Standards Committee a second time to recommend the enactment of the exemption removal by-law.
[12] On December 12, 2007, the City Council voted in favour of By-law 1425-2007. It is this by-law that is now under attack by the two Associations.
[13] It is admitted that the motions judge was mistaken in believing that the transcript of the meeting in evidence was from the December 2007 meeting at which the second by-law was considered, when it was from the April 2007 meeting. In my view, however, this factual error does not undermine the correctness of his decision.
[14] The motions court judge carefully considered the case law and concluded in the very unique facts of this case that he would decline to quash the summons to examine Councillor Moscoe. He notes at paragraphs 44 and 45 of his reasons that the issue is whether there is bad faith, not based upon an individual’s statement but rather upon institutional bad faith:
[44] There is another subtle point to note. In the application before me, I am not deciding that Councillor Moscoe’s intention – which itself remains to be determined – is necessarily the intention of the municipal council or that it amounts to acting in bad faith. All I am deciding is that having scrutinized the record, there is an institutional quality to Councillor Moscoe’s conduct such that it might be found to reflect the intention of the City Council. I sense that Justice Low was of a similar opinion, and she went no further in deciding that there was a serious issue about bad faith to be tried.
[55] The case at bar is not a case where an allegation of bad faith based on an individual councillor’s statements is being used as a fishing expedition to find evidence of bad faith by a municipal council. Rather, the evidence of the influential role and persuasive force of Councillor Moscoe, like the role of the Minister of Education in the Ontario Teachers’ Federation case, provides a foundation for the Associations to show the necessary institutional quality from which to argue that Councillor Moscoe’s evidence might be probative of whether the City’s council acted in bad faith when it enacted the by-law removing the airport exemption.
Conclusion
[15] I conclude that the motions judge correctly identified the appropriate principles and applied them to the unique facts of this case. There is no reason to doubt the correctness of this discretionary decision. Therefore, rule 62.02(4)(b) of the Rules of Civil Procedure is not engaged. He made an error with respect to the role Councillor Moscoe played the day the by-law was re-submitted, however this error does not undermine the conclusions reached. There was clearly no error with respect to the statements made by Councillor Moscoe in April 2007 or the statements he made to the press.
[16] For these reasons, the motion for leave to appeal is dismissed.
Costs
[17] If the parties are unable to agree on costs, they are to exchange brief written submissions as to costs within fourteen days of the release of these reasons. The Associations’ counsel shall file consolidated costs submissions. I will then fix costs.
JANET WILSON J.
Date of Release: June 29, 2009.
COURT FILE NO.: 263/09 and 264/09
DATE: 20090629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
File #263/09
AIRPORT TAXICAB (PEARSON AIRPORT) ASSOCIATION
Respondent on Motion for Leave (Applicant)
- and -
CITY OF TORONTO
Appellant Seeking Leave to Appeal (Respondent)
AND
File #264/09
B E T W E E N:
AIRPORT LIMOUSINE OPERATORS ASSOCIATION
Respondent on Motion for Leave (Applicant)
- and -
CITY OF TORONTO
Appellant Seeking Leave to Appeal (Respondent)
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Release: June 29, 2009.