Imperial Parking Canada Corporation v. Toronto (City), 2007 ONCA 649

CITATION: Imperial Parking Canada Corporation v. Toronto (City), 2007 ONCA 649

DATE: 20070921

DOCKET: C45552

COURT OF APPEAL FOR ONTARIO

WEILER, ROSENBERG and SIMMONS JJ.A.

BETWEEN:

IMPERIAL PARKING CANADA CORPORATION CORPORATION CANADIENNE DE STATIONNEMENT IMPERIAL

Applicant (Respondent on appeal)

And

CITY OF TORONTO

Respondent (Appellant)

Ansuya Pachai for the City of Toronto Neal J. Smitheman and W. Thomas Barlow for Imperial Parking Canada Corporation

Heard: April 10 and 13, 2007

On appeal from the order of Justice Elizabeth M. Stewart of the Superior Court of Justice dated May 23, 2006, reasons reported at [2006] O.J. No. 2079.

SIMMONS J.A.:

I. Overview

[1] The main issue on this appeal concerns whether a licensing by-law passed by the City of Toronto (the “City”) prohibiting commercial parking lots from issuing private parking tickets to vehicles parked without the parking lot owner’s consent applies to Imperial Parking Canada Corporation’s (“Impark”) activities in operating various commercial parking lots.

[2] Impark is the operator or manager of various commercial parking lots in Toronto. Some of these lots are unattended. Signs at the unattended lots advise persons who may wish to park at the lots that Impark offers space for public parking on the terms and conditions set out on the signs. The signs say that if a person parks without displaying a valid ticket or pass the rate is $69.55 per day (a rate well in excess of the usual parking rate) and that, in addition, the person’s car may be subject to being tagged or towed.

[3] On July 22, 2004, the City enacted By-Law 725-2004 (the “2004 Amending By-Law”). Amongst other things, the 2004 Amending By-Law amended the City’s licensing regulations in relation to businesses that operate commercial parking lots or perform parking enforcement services on private property by prohibiting the issuance of any form of demand for payment relating to unauthorized parking other than a parking infraction notice under Part II of the Provincial Offences Act, R.S.O. 1990, c. P.33.

[4] The City takes the position that the 2004 Amending By-Law applies to the actions of Impark in attempting to enforce payment of what the City views as a fine or penalty if a person fails to display a valid parking ticket. Impark disputes the City’s position, saying that it consents to people parking on its lots without proper advance payment and that the 2004 Amending By-Law does not therefore apply to its actions. Impark also maintains that the 2004 Amending By-Law is ultra vires the City’s licensing powers under s. 150(2) of the Municipal Act, 2001, S.O. 2001, c.25[^1] and that it should be quashed under s. 273 of the Municipal Act, 2001, for illegality.

[5] On May 23, 2006, on the application of Impark, Stewart J. issued a declaration that the 2004 Amending By-Law does not apply to Impark’s activities as an operator of commercial parking lots in Toronto. In particular, she found that the signs posted on Impark’s lots expressly state that Impark consents to the parking of cars without payment in advance and held that the fees that Impark collects are sums owing to it in contract rather than damages for trespass.

[6] Subsequently, on January 5, 2007, the application judge ordered that the City pay to Impark the sum of $90,000.00 on account of costs on a partial indemnity scale inclusive of disbursements and G.S.T.

[7] The City raises three issues on appeal:

i) did the application judge err by failing to appreciate that the true legal character of Impark’s conduct involves imposing fines or penalties for unauthorized parking and that the 2004 Amending By-Law applies to such conduct;

ii) did the application judge commit a palpable and overriding error in finding that Impark consents to parking without proper payment in advance by relying on Impark’s characterization of its activities without considering the whole of the evidence; and

iii) did the application judge err by issuing a declaration in circumstances where the determination of rights turns on individual fact situations?

[8] In addition, the City applies to introduce fresh evidence on appeal to demonstrate that, subsequent to the date of the application judge’s decision, Impark applied for a licence to perform parking enforcement services on its commercial parking lots. The City claims that this evidence directly contradicts the conclusion that Impark does not perform parking enforcement services at its commercial parking lots.

[9] Finally, the City seeks leave to appeal the costs award.

[10] For the reasons that follow, I would dismiss the appeal and the City’s application to introduce fresh evidence. While I would grant leave to appeal the costs award, I would dismiss the appeal relating to costs.

[11] Impark’s application in the court below was heard together with an application made by Municipal Parking Corporation (“Municipal”) requesting that the 2004 Amending By-Law be quashed. The application judge dealt with Municipal’s request in separate reasons and, in her reasons relating to Impark’s application, did not address Impark’s alternative grounds concerning the validity of the 2004 Amending By-Law. This appeal was heard at the same time as the appeal in Municipal Parking Corporation v. City of Toronto, [2006] O.J. No. 2080. Separate reasons relating to that appeal will be released concurrently with these reasons.

II. Background

i) Impark’s Business Activities

[12] As already noted, Impark is the operator or manager of various commercial parking lots in Toronto. In the material filed in support of Impark’s application, a representative of Impark provided a description of Impark’s business.

[13] In essence, Impark contends that, through its signage, it enters into a contract with its customers for parking services “whereby the customer chooses either to pay less by paying for the services fully in advance, or to pay more in arrears with the possibility of Impark towing the vehicle”. Impark’s representative claimed that the Federal Court of Appeal has made a ruling to that effect with the result that Impark is required to pay G.S.T. on all monies collected for parking services, including monies collected where the customer does not pay in advance.

[14] Impark’s representative also deposed that Impark has modified its signs since the Federal Court of Appeal decision, “to clarify the contractual and consensual nature of the terms of the Parking Contract.” He also said, “Impark consents to vehicle parking without displaying a valid pass or sufficient vouchers, on the terms set out in the signage displayed at each unattended Impark lot.”

[15] In her reasons for decision, the application judge summarized Impark’s description of its operation and business practices as follows:

(a) Many of the Impark lots in Toronto have no attendant on site. The parking service provided at unattended Impark lots offers persons who park there a choice of either paying in advance by purchasing and displaying parking vouchers obtained from a dispenser, or by paying a much higher amount to be recovered through a payment collection process if they park without a voucher or for a longer time than that for which their voucher applies. These options are displayed prominently on signs at each unattended Impark lot;

(b) The signs at unattended Impark lots in Toronto provide as follows:

Imperial Parking Canada Corporation (“Impark”) accepts no responsibility for loss, theft or damage to vehicle or contents. We do not take custody of vehicle but rent space only. Vehicles that do not display a valid ticket or pass may be tagged and/or towed away and held for storage charges, if applicable.

PLEASE READ CAREFULLY…THIS IS PRIVATE PROPERTY

GST #887315638RT0002

Impark is by this sign offering space for public parking. You accept this offer by parking on this lot. Do not park on this lot if you do not agree to these terms and conditions. All requirements of notice and acceptance are hereby waived by Imperial Parking Canada Corporation. If you park and do not display a valid ticket or pass the rate is $69.55 per day or portion thereof. In addition your car may be subject to being tagged and/or towed.

By parking on this lot, you grant permission to the Ministry of Transportation of Ontario to provide registered owner information, including name and address, for the vehicle you are driving, to Impark, it agents, for the purpose of collecting unpaid parking fees and violation notice fees.

(c) Impark employs personnel to patrol its unattended lots. In the event a vehicle is parked without displaying a valid or sufficient voucher, a notice is placed on the vehicle (a “Payment Notice”). The Payment Notice informs the person who parked the car that a contract debt is owed to Impark for the parking service;

(d) Impark claims that its form of Payment Notice has been designed to be distinct from the form of Parking Infraction Notice issued by the City of Toronto under Part II of the Provincial Offences Act;

(e) Each time a Payment Notice is issued, two digital photographs are taken: one of the dashboard of the car to show that no valid pass or parking vouchers are on display, and another of the car on the lot to show its licence plate;

(f) When a Payment Notice is issued, a database of unpaid Payment Notices is consulted by hand-held access. Impark may request the vehicle to be towed if there are unpaid Payment Notices for the vehicle. Impark states that it generally tows only vehicles parked in a stall designated for disabled customers without an appropriate permit, in a fire route, in front of a fire hydrant, blocking a driveway, blocking a door of a building, or those which have been parked for lengthy periods of time;

(g) The Payment notice provides instructions for payment and how to contact Impark, by telephone or by mail, to dispute the debt. Customers have the option of disputing the Payment Notice in writing;

(h) Depending on the nature of the dispute, Impark’s customer service representatives can insist on payment of the full amount, reduce the amount owing, or cancel the notice and issue a refund where appropriate;

(i) If the parking debt remains unresolved for six weeks, the vehicle owner information is searched through the Ontario Ministry of Transportation with which Impark has an agreement. The name and address of the vehicle owner is obtained, and a statement mailed; and

(j) If the parking debt cannot be resolved by negotiation, or where there has been no payment or other contact in respect of the vehicle, Impark’s usual course of action is to assign the parking debt to a collection agency. Some clients whom Impark manages parking lots have dictated to Impark that Payment Notices for their locations are not to be forwarded for collection.

[16] In contrast to what the application judge described based on Impark’s evidence, the City characterizes the notices that Impark describes as Payment Notices as private parking tickets that impose a fine or penalty on the owners of vehicles that have been involved in a parking violation (“parking violators”). The City relies on the fact that the notices refer to improper parking and a “violation”, as well as the fact that the amount claimed in the notices is well in excess of the standard rate for parking varies depending on when the notice is paid ($39.96 if paid within seven days, or $69.55 if paid thereafter).

[17] In addition to the claim for payment, particulars of the date, time and location of issuance, and a description of the vehicle tagged, Impark’s “Payment Notices” include the following statements:

NOTICE

We, IMPERIAL PARKING CANADA CORPORATION, hereby notify you that you have parked on private property without displaying a valid pass or sufficient dispenser ticket(s), or have otherwise improperly parked as detailed below.

Violation #:

THE LEGAL AUTHORITY TO CLAIM THE ABOVE AMOUNT AND/OR HAVE YOUR IMPROPERLY PARKED VEHICLE TOWED ARISES UNDER THE LAW OF CONTRACT AND THE LAW OF TRESPASS.

The above amount is a debt owing to Imperial Parking Canada Corporation and is claimed as an alternative to (or in certain circumstances, in addition to) having your vehicle towed and held for any applicable towing and storage charges.

If this amount remains unpaid for more than thirty (30) days, it will be forwarded to a debt collection agency for collection. We may also tow your vehicle from property managed by us and/or take legal action. Should this charge proceed to a debt collection agency, costs and interest will be added.

EXPLANATION OF AMOUNT

The amount of this Notice is a debt owing to Imperial Parking Canada Corporation and is set to cover lost revenues as well as the costs of patrol and preliminary collection. If this amount is referred to a debt collection agency, or if we take legal action to recover this amount, additional costs and interest may be added as permitted by provincial debt collection legislation.

[18] In further support of its position that the true nature of Impark’s actions is imposing fines or penalties on parking violators, the City relies on statements forwarded to the owners of vehicles to which Payment Notices have been issued indicating that the person’s “vehicle was parked on private property in contravention of the posted parking instructions.” These statements also say, “The legal authority to claim the amount due and/or have improperly parked vehicle towed arises under the law of contract and the law of trespass.”

[19] In addition, the City relies on Impark’s agreement with the Minister of Transportation in which Impark warrants that it shall not use vehicle information obtained from the Ministry for any purpose other than “locating the owners of ‘illegally parked’ vehicles.”

ii) Regulatory Scheme relating to Parking Enforcement on Private Property in the City of Toronto

a) The City’s Private Property Parking By-Law

[20] The City’s private property parking by-law is contained in Chapter 915 of the Toronto Municipal Code. Section 915-2B prohibits parking on private property without the consent of the property owner or occupant. Sections 915-3 to 915-6 provide for the removal of vehicles parked in contravention of the by-law. Section 915-7 creates a Provincial Offences Act offence of parking in violation of the by-law. It also stipulates that the owner of the vehicle is guilty of the offence even though the owner was not the driver of the vehicle at the time of the contravention (unless the driver had the vehicle without the owner’s consent).

[21] Apart from removal of vehicles, parking by-laws may be enforced by the issuance of parking infractions notices (“PINs”) under Part II of the Provincial Offences Act. In addition to police officers and parking enforcement officers employed by the Toronto Police Services, PINs can be issued by municipal law enforcement officers (“MLEOs”). MLEOs are persons authorized to enforce municipal laws and are appointed under s. 150 of the Toronto Municipal Code and s. 15 of the Police Services Act, R.S.O. 1990, c. P.15.

[22] The City’s private property parking by-law was enacted originally under the authority of s. 210 (131) of the Municipal Act, R.S.O. 1990, c. M.45. Effective January 1, 2003, s. 210 (131) was replaced by ss. 100[^2] and 100.1 of the Municipal Act, 2001. Section 100 of the Municipal Act, 2001, provided that, in relation to privately owned parking lots, a municipality could only regulate or prohibit parking without the owner’s consent where the owner or occupant of the land had filed their written consent to the application of the by-law with the municipal clerk and had erected a sign at the entrance to the land indicating the prohibition.

b) The City’s Business Licensing By-Law

[23] The City’s business licensing by-law is contained in Chapter 545 of the Toronto Municipal Code. Like many other categories of businesses, commercial parking lots are required to obtain a business licence from the City under s. 545-2.[^3]

ii) The 2004 Amending By-Law

[24] As noted, the 2004 Amending By-Law was enacted on July 22, 2004. It includes recitals indicating that it was intended as a response to abusive and misleading parking enforcement practices used by private parking enforcement agencies (“PPEAs”) and commercial parking lots. The practices referred to included issuing parking tags and invoices designed to resemble PINs and charging inflated and unjustified administration fees.

[25] The 2004 Amending By-Law changed the City’s licensing by-law in relation to businesses that operate commercial parking lots and PPEAs in five important respects.[^4] First, it amended the definition of Parking Enforcement Services to read as follows:

Parking Enforcement Services -- Any parking enforcement activity, including but not limited to the monitoring of property, issuance of tags, tickets or payment notices, and authorizing the towing of vehicles, carried on in relation to vehicles parked on private property without the consent of the owner or occupant of such property. [Emphasis added.]

[26] Second, it prohibited the owners of businesses that operate commercial parking lots from engaging in parking enforcement activities unless licensed as a PPEA or unless using the services of a licensed PPEA.

[27] Third, it required PPEAs to employ MLEOs and to ensure that their parking enforcement activities are undertaken by MLEOs only.

[28] Fourth, it prohibited issuing any “document, tag, ticket or notice, or request or demand for payment” to vehicles parked on licensed property (in relation to businesses operating commercial parking lots) or private property (in relation to PPEAs) “other than a parking infraction notice under Part II of the Provincial Offences Act, as amended, a Toronto Police Services tow card or other document as approved by the Chief of Police”.

[29] In relation to commercial parking lots, this prohibition was created by adding s. 545-269J to the licensing by-law. Section 545-269J provides as follows:

No person to whom this section relates [owners and keepers of public garages used as parking stations or parking lots], or any person employed, engaged or otherwise acting under the authority of a person to whom this section relates, shall issue any document, tag, ticket or notice, or request or demand for payment in relation to vehicles parking on the licensed premises, other than a parking infraction notice under Part II of the Provincial Offences Act, as amended, a Toronto Police Service tow card or other document as approved by the Chief of Police and the person to whom this section relates shall ensure compliance with s. 545-269I [the section prohibiting commercial parking lot owners from engaging in parking enforcement activities unless licensed as a PPEA or by using the services of a licensed PPEA].

[30] Fifth, the 2004 Amending By-Law set out a definition for the phrase “Issuance Of A Document” as follows:

ISSUANCE OF A DOCUMENT -- Shall include: to personally hand a document to the vehicle owner or driver, to leave a document on the vehicle with the intention that the vehicle owner will recover it, to mail it to the vehicle owner, or to cause the document to be delivered to the vehicle owner in any other fashion.

III. The Application Judge’s Reasons

[31] After describing the 2004 Amending By-Law in general terms and setting out Impark’s description of its business practices, the application judge turned to her analysis. She began by noting that “Parking Enforcement Services” is specifically defined under the 2004 Amending By-Law as being limited to activities carried on “in relation to vehicles parked on private property without the consent of the owner or occupant of the property.” She described Impark’s position as being “[i]n a nutshell, … that the vehicles with which it deals are parked on property with the consent of the owner or occupant of such property and therefore the By-Law amendment does not apply to it.”

[32] The application judge went on to describe the modern approach to the interpretation of municipal powers. She concluded, “[w]hen read as a whole and construed fairly and liberally, the By-Law Amendment is … designed to deal with what Toronto views as unscrupulous or overzealous private policing of private property on which vehicles have parked without permission.”

[33] Concerning the City’s position, she said:

On this Application, Toronto attempts to portray the scenario in which a customer of Impark parks without purchasing a voucher or overstays the limit provided for by a purchased voucher as being akin to a trespass. Accordingly, Toronto argues that once a customer has “overstayed his welcome”, a trespass has occurred and therefore the parking is done without the consent of the owner or occupant of the lot. In such circumstances, the By-Law Amendment is said by Toronto to extend to Impark’s business operations.

[34] Returning to Impark’s position the application judge stated:

As already noted, Impark’s position is that persons who park vehicles on its lots do so with the consent of the property owner. The rates imposed by it for so doing are more properly characterized as being among the terms of the parking contract which results. I agree with Impark’s approach to this issue.

[35] After reviewing Imperial Parking v. Canada, [2000] F.C.J. No. 1011 (C.A.), in which the court concluded that Impark is required to pay G.S.T. on its revenues because its dealings with its customers are contractual in nature, the application judge observed that “there may be circumstances in which it could be argued successfully that no contract for parking has been formed—perhaps in an individual case in which the doctrine of non est factum or mistake may apply”. However, she nevertheless considered “the proper characterization of Impark’s relationship with those who use its parking lots as being contractual in nature.” She said:

As a result, the fees which Impark collects are sums owing to it under contract and not damages for trespass. Trespass has little relevance to this situation, where the signs used by Impark state explicitly that Impark consents to the use of its parking spaces without payment in advance.

Accordingly, it must be concluded that the steps being taken by or on behalf of Impark to collect payment of its rates are not “Parking Enforcement Services” as currently defined in the By-Law Amendment. Under this construction of the By-Law Amendment, its provisions do not apply to the activities of Impark to collect unpaid parking fees or to tow vehicles in accordance with conditions posted on signs at the parking lot it operates.

IV. Analysis

1. Grounds of Appeal

i) Did the application judge err by failing to appreciate that the true legal character of Impark’s conduct involves imposing fines or penalties and that the 2004 Amending By-Law applies to such conduct?

[36] The City submits that the application judge erred by approaching the issue to be determined by her as involving a choice between whether Impark operates under the law of contract or the law of trespass. The City says that, in so doing, the application judge failed to apply contractual principles indicating that the true legal character of Impark’s conduct involves imposing fines or penalties on the owners of vehicles where the driver of the vehicle fails to pay the proper parking fee in advance. The City relies on the fact that fines or penalties cannot be imposed as a matter of contract law. It contends that the true legal character of Impark’s conduct is an attempt to extract fines or penalties from parking violators and that the 2004 Amending By-Law prohibits such conduct.

[37] I do not accept these submissions. The City did not challenge the application judge’s finding that, properly construed, the 2004 Amending By-Law is “designed to deal with what Toronto views as unscrupulous or overzealous private policing of private property on which vehicles have parked without permission [emphasis added].” In my view, this is the correct interpretation of the 2004 Amending By-Law.

[38] Read literally, s. 545-269J of the 2004 Amending By-Law contains what appears to be a blanket prohibition on commercial parking lot owners issuing any “document, tag, ticket or notice, or request or demand for payment in relation to vehicles parked on the licensed premises other than a parking infraction notice under Part II of the Provincial Offences Act, a Toronto Police Services tow card or other document as approved by the Chief of Police” and the prohibition appears unrelated to whether vehicles are parked with the parking lot owner’s consent. However, PINs and tow cards can be issued only where vehicles are parked without the parking lots owner’s consent (see s. 915 of the Toronto Municipal Code). It therefore makes sense that the prohibition in s. 545-269J was only intended to apply in relation to vehicles parked without the parking lot owner’s consent.

[39] The final recital in the preamble of the 2004 Amending By-Law supports this interpretation. It says that the City’s intention in enacting the amendment was “to restrict persons undertaking parking enforcement activities or providing parking enforcement services … to the issuance of parking infraction notices under Part II of the Provincial Offences Act, a Toronto Police Services tow card and other documents, as approved by the Chief of Police”. The definition of Parking Enforcement Services in the 2004 Amending By-Law refers to “any parking enforcement activity … carried on in relation to vehicles parked on private property without the consent of the owner or occupant of such property.”

[40] Accepting that the proper interpretation of s. 545-269J is that it applies only in relation to vehicles parked without the parking lot owner’s consent, the core issue the application judge was required to determine was whether Impark consents to vehicles parking on its unattended parking lots when proper advance payment is not made. Assuming, without deciding, that the City is correct and that the payments Impark seeks to recover in these circumstances would, as a matter of contract law, be construed as penalties, that is not determinative of the issue of whether Impark consents to the parking nor of the issue of whether Impark has entered into a contract with the driver of the vehicle.

[41] On the contrary, in my view, the issue of whether the payments Impark seeks to collect are penalties is a matter that arises only once it has been determined that a contract exists between Impark and a person who parked without making a proper advance payment. At that point, a finding that the payment was a penalty would go only to the enforceability of the contract.

[42] I see no merit in the City’s position that the payments Impark seeks to extract are fines. As a private entity, Impark has no ability to impose fines.

[43] As noted above, in my view, the core issue the application judge was required to determine was whether Impark consents to vehicles parking on its unattended parking lots when proper advance payment is not made. The application judge addressed that issue and found that Impark consents. I will consider, in the next section, the question of whether the application judge made any palpable and overriding error in that determination.

ii) Did the application judge commit a palpable and overriding error in her findings of fact by relying improperly on Impark’s characterization of its activities as being contractual in nature without considering the totality of the evidence concerning what Impark actually does?

[44] The City submits that the application judge committed a palpable and overriding error when she found that Impark consents to parking when proper advance payment is not made by relying improperly on what Impark says it does as opposed to considering the totality of the evidence concerning what Impark actually does. In particular, the City contends that, in the face of the following evidence (much of which the application judge did not refer to in her reasons), the application judge placed undue weight on Impark’s representative’s statement that Impark consents to parking where proper advance payment is not made and on Impark’s position that its signs expressly indicate its consent, and failed to consider the totality of the relevant evidence:

▪ Impark’s signs do not include any express reference to Impark “consenting” to parking in any circumstances;

▪ to the extent that Impark relies on the following sentence in its signs as constituting consent to parking without advance payment, “[i]f you park and do not display a valid ticket or pass the rate is $69.55 per day or portion thereof”, that suggestion is contradicted by the next sentence in the signs, which says: “[i]n addition, your car may be subject to being tagged or towed”;

▪ Impark’s so-called Payment Notices and statements refer to improper parking as well as a “violation”; the claims for payment in the Payment Notices are well in excess of the usual parking rate and escalate over time; and Impark purports to rely on both the law of contract and the law of trespass in both its Payment Notices and Statements; and

▪ in its agreement with the Minister of Transportation, Impark warrants that it will not use vehicle information obtained from the Ministry for any purpose other than “locating the owners of ‘illegally parked’ vehicles.”

[45] I do not accept these submissions. While it may have been preferable had the application judge explained in more detail why she accepted Impark’s position that persons who park on its lots do so with its consent, in my view, the primary evidence to be considered in relation to this issue was the evidence of the contents of Impark’s signs. The application judge set out the terms of the signs in full and made a finding that the signs “state explicitly that Impark consents to the use of its parking spaces without payment in advance.”

[46] While the signs do not contain an express statement to that effect, they do say:

Impark is by this sign offering space for public parking. You accept this offer by parking on this lot. Do not park on this lot if you do not agree to these terms and conditions … If you park and do not display a valid ticket or pass the rate is $69.55 per day or portion thereof. [Emphasis added.]

[47] In my view, the offer of space for public parking together with the statement that the rate for parking is $69.55 per day if the parker fails to display a valid ticket, are crucial provisions demonstrating Impark’s consent to parking even where proper advance payment is not made. Although the signs also say that vehicles that do not display a valid ticket may be tagged, in the context of a business offering public parking, I see no error in the application judge’s conclusion that that term, (along with the inflated parking rate) is merely one of the conditions Impark seeks to impose in exchange for its consent to parking.

[48] I do not accept the City’s submission that the reference in the signs to the possibility of vehicles being “tagged” is a clear reference to a City parking infraction notice. Given the statement that the rate is $69.55 per day when a valid ticket is not displayed, I interpret being “tagged” as meaning leaving a notice charging the applicable fee. However, even if being “tagged” does refer to a City parking infraction notice, at most, I consider reference to the possibility of “being tagged and/or towed” as meaning consent to parking may be withdrawn at some point in the future.

[49] In this regard, to the extent that the application judge concluded tagging, by means of issuing a PIN and towing, to be part of the contractual terms Impark seeks to impose, I disagree. In my view, both concepts are inconsistent with the notion of consensual parking. In accordance with the City’s parking by-law, PINs can only be issued where parking is without consent. Moreover, since towing terminates parking, I fail to see how it can be part of a contract for consensual parking. Properly construed, in my view, Impark’s signs offer consensual parking even where proper advance payment is not made with the possibility that consent will, at some point, be withdrawn.

[50] Further, I consider that it is an open question whether Impark would be entitled to enforce any of the terms it purports to impose by means of its signs in the context of a particular case. Apart from issues concerning whether there is, in fact, a binding contract to pay the posted rate in a given case and, if there is, whether the posted rate constitutes a penalty, there may also be questions concerning when and how Impark would be entitled to withdraw its consent to parking.

[51] Leaving aside situations involving abandonment, I fail to see how Impark could withdraw its consent to parking without providing the vehicle driver with express notice of that fact. Moreover, if and when Impark purported to withdraw its consent, it would be required to comply with the City’s parking by-law and cause a PIN to be issued before having a vehicle towed.

[52] Similarly, there may be an issue concerning whether Impark is properly entitled to vehicle information under its agreement with the Minister of Transportation.

[53] In my opinion, however, none of these potential issues undermine the essential message contained in Impark’s signs posted on its parking lots, namely that it offers public parking and that it consents to such parking even where proper payment is not made in advance. Members of the public are entitled to rely on that message. Moreover, Impark’s consent is a factor that may affect its entitlement to enforce some of the terms it purports to impose. In my view, the fact that Impark uses ambiguous or confusing language in its Payment Notices (e.g. references to a “violation”) and other documentation does not detract from this conclusion.

iii)Did the application judge err by issuing a declaration in circumstances where the determination of rights turns on individual fact situations?

[54] In essence, the City argues that a declaration was not a proper remedy in all of the circumstances of this case for two reasons. First, because the question of whether there is an enforceable contract in any given case is a case-specific, fact-driven issue that cannot be addressed in advance by means of a declaration. Second, because Impark should not be allowed to pick and choose when the By-Law does or does not apply by requesting that PINs be issued and vehicles be towed in some circumstances.

[55] I reject these submissions. As already indicated, in my view, it is an open question whether Impark would be entitled to enforce the terms it seeks to impose by means of its signs in the context of any particular case. However, as I have explained, that does not alter the conclusion that, leaving aside certain specific situations (e.g. parking in fire routes, disabled parking spaces etc.), Impark consents to parking on its lots and does so even where proper payment is not made in advance.

[56] Since the 2004 Amending By-Law applies only where vehicles have parked without the parking lot owner’s consent, in my view, it was entirely appropriate to make an order declaring that the 2004 Amending By-Law does not apply to steps taken by Impark to collect its rates.

[57] To the extent that Impark requests that PINs be issued and that vehicles be towed in some circumstances based either on posted signs indicating certain forms of parking are unauthorized (e.g. parking in fire routes, disabled parking spaces etc.) or on a purported withdrawal of consent to continued parking, in my view, the 2004 Amending By-Law does apply to these circumstances because the particular form of parking is non-consensual. However, in my view, this does not mean that a declaration was an inappropriate remedy; rather, it simply means that the application judge’s reasoning does not apply to these circumstances, nor in turn does her declaration.

[58] Based on the foregoing reasons, I would not give effect to any of the City’s grounds of appeal. If necessary, I would order that the declaration be clarified in accordance with paragraph 57 of these reasons. For the sake of clarity, I would add that these reasons are intended to address the proper interpretation of the 2004 Amending By-Law and should not be read as interpreting the City’s authority under s. 150(2) of the Municipal Act, 2001, to regulate Impark’s business.

2. Fresh Evidence Application

[59] As noted, the City applies to introduce fresh evidence on appeal to demonstrate that, subsequent to the date of the application judge’s decision, Impark applied for a licence to perform parking enforcement services on its commercial parking lots as a PPEA. The City points to the application judge’s conclusion that “the steps being taken by or on behalf of Impark to collect payment of its rates are not ‘Parking Enforcement Services’ as currently defined in [the 2004 Amending By-Law]” and claims that the proposed fresh evidence directly contradicts this finding.

[60] I reject this submission. The material filed by Impark on its application indicated that when a vehicle is improperly parked in a parking stall designated for vehicles displaying a valid disabled placard, Impark does not issue a Payment Notice but rather requests an MLEO to issue a PIN and have the vehicle towed. The proposed fresh evidence does not disclose the reason why Impark applied for a licence to perform parking enforcement services. Given the evidence filed on the application that Impark uses the services of MLEOs in relation to disabled parking spaces, I see no basis for concluding that the proposed fresh evidence would contradict the application judge’s conclusion that Impark does not perform parking enforcement services in collecting payment of its rates.

[61] As I am not persuaded that the proposed fresh evidence could have affected the outcome on the application, I would dismiss the fresh evidence application.

3. Application for Leave to Appeal Costs

[62] The City appears to argue that leave to appeal costs has already been granted by virtue of a consent order dated January 27, 2007 granting it leave to amend its notice of appeal and file a supplementary appeal book and factum addressing costs. I do not interpret the January 27, 2007 order that way.

[63] In relation to costs, the City makes three submissions. First, the City claims that, having rejected Impark’s claims for substantial indemnity costs based on a finding that the City had serious and legitimate concerns about Impark’s business practices, it was not open to the application judge to conclude that such issues “were not of such major public significance that [Impark] should be deprived of recovery of costs”.

[64] Second, the City submits that the application judge erred in failing to recognize that by holding that the City had serious and legitimate concerns about Impark’s business practices, she had implicitly rejected at least some of the alternative grounds relied on by Impark in support of its application and therefore erred in failing to reduce the Impark’s costs recovery accordingly.

[65] Third, the City submits that the quantum of costs awarded does not reflect a fair and reasonable amount having regard to the nature of the case, the success achieved, the conduct of Impark and the reasonable expectations of the City.

[66] In my view, none of these submissions support a finding that the application judge erred in principle in her award of costs. In particular, I see no error in the application judge’s conclusion that, rather than raising novel issues of significant public importance, this case was ultimately decided on “fairly basic principles.” Further, even if the application judge implicitly rejected some aspects of Impark’s alternative grounds in her costs reasons, in my view, she did so to a very limited extent. Moreover, her findings that Impark was successful in a complex matter of obvious great importance to both parties remain intact.

[67] In my view, the application judge’s reasons relating to costs demonstrate that she fairly considered the nature and complexity of the proceedings, the conduct of the parties, the relative success achieved and reasonable expectations of the losing party. Accordingly, I see no basis for interfering with the exercise of her discretion. While I would grant leave to appeal the award of costs, I would dismiss the appeal.

V. Disposition

[68] Based on the foregoing reasons, subject to clarifying the declaration if necessary in accordance with paragraph 57, I would dismiss the appeal with costs to Impark on a partial indemnity scale fixed at $20,000.00 inclusive of disbursements and applicable G.S.T.

RELEASED: September 21, 2007 “KMW”

“Janet Simmons J.A.”

“I agree K.M. Weiler J.A.”

“I agree M. Rosenberg J.A.”

APPENDIX ‘A’

CITY OF TORONTO

BY-LAW No. 725-2004

To amend City of Toronto Municipal Code Chapter 545, Licensing, respecting the requirements for private property enforcement agencies undertaking parking enforcement activities.

WHEREAS Section 150 of the Municipal Act, 2001, grants local municipalities the authority to license, regulate and govern any business wholly or partly carried on within the municipality for purposes of health and safety, consumer protection and nuisance control; and

WHEREAS members of the public have complained to the Toronto Police Service, City staff and City Council concerning the abusive and misleading parking enforcement practices used by private property enforcement agencies and commercial parking lot operators, including the issuance of “look-alike” parking tags and invoices, the imposition of inflated and unjustified administrative fees or “fines” and the sanctioning of abusive collection practices; and

WHEREAS there is no meaningful way in which the public can appeal the validity of these tags, invoices or collection notices, or the amount of the “administrative fees” charged by these companies; and

WHEREAS the Toronto Police Services has expressed its concern that there is an inherent conflict or interest where persons undertaking enforcement activities have a direct financial interest in the amount and collection of invoiced amounts and administrative penalties, and that this leads to abuses which have the effect of eroding and undermining public respect for legitimate law enforcement particularly with respect to the enforcement of City by-laws regulating parking on private and municipal property; and

WHEREAS Council has therefore decided, in the interests of consumer protection, that the only effective remedy for eliminating these abuse practises is to restrict persons undertaking parking enforcement activities or providing parking enforcement services as defined in Chapter 545, Licensing, to the issuance of parking infraction notices under Part II of the Provincial Offences Act, a Toronto Police Service tow card and other documents, as approved by the Chief of Police;

The Council of the City of Toronto HEREBY ENACTS as follows:

1. Chapter 545, Licensing, of the City of Toronto Municipal Code is amended as follows:

A. By deleting all references to “subsection 210(131) of the Municipal Act” where they appear in Article XXXVII and replacing them with references to “the Municipal Act, 2001, or its predecessor”.

B. By deleting the definition of “PARKING ENFORCEMENT SERVICES” from § 545-1 and substituting the following:

PARKING ENFORCEMENT SERVCIES – Any parking enforcement activity, including but not limited to, the monitoring of property, issuance of tags, tickets or payment notices, and authorizing the towing of vehicles, carried on in relation to vehicles parked on private property without the consent of the owner or occupant of such property.

C. By adding the following subsections to § 545-269 as follows:

H. Definitions. As used in this section, the following term shall have the meaning indicated:

ISSUANCE OF A DOCUMENT – Shall included to personally hand a document to the vehicle owner or driver, to leave a document on the vehicle with the intention that the vehicle owner will recover it, to mail it to the vehicle owner, or to cause the document to be delivered to the vehicle owner in any other fashion.

I. No person to whom this section relates shall undertake or cause any parking enforcement activities to be undertaken, unless the person has obtained a private property enforcement agency licence under this chapter or the parking enforcement activities are done on the person’s behalf by a private parking enforcement agency licensed under this chapter.

J. No person to whom this section relates, or any person employed, engaged or otherwise acting under the authority of a person to whom this section relates, shall issue any document, tag, ticket or notice, or request or demand for payment in relation to vehicles parking on the licensed premises, other than a parking infraction notice under Part II of the Provincial Offences Act, as amended, a Toronto Police Service tow card or other document as approved by the Chief of Police and the person to whom this section relates shall ensure compliance with § 545-2691.

D. By adding the following definition to § 545-443 as follows:

ISSURANCE OF A DOCUMENT – Shall include; to personally hand a document to the vehicle owner or driver, to leave a document on the vehicle with the intention that the vehicle owner will recover it, to mail it to the vehicle owner, or to cause the document to be delivered to the vehicle owner in any other fashion.

E. By deleting § 545-444A and substituting the following:

A. Every person applying for, or holding, a licence as an agency shall employ one or more municipal law enforcement officers who have successfully completed the private parking enforcement course, and shall ensure that parking enforcement activities are only undertaken by municipal law enforcement officers.

F. By deleting § 545-445F and substituting the following:

F. Every person designated by an agency in accordance with this section shall have successfully completed the private parking enforcement course.

G. By adding the following subsection to § 545-450:

C. No person employed, engaged or otherwise acting under the authority of an agency shall issue any document, tag, ticket or notice, or request or demand for payment in relation to vehicles parked on private property, other than a parking infraction notice under Part II of the Provincial Offences Act, as amended, a Toronto Police Service tow card or other document as approved by the Chief of Police and the agency shall ensure compliance with the § 545-450C.

[^1]: Section 150 of the Municipal Act, 2001, was subsequently amended by S.O. 2006, C. 32, which came into force on January 1, 2007. [^2]: Section 100 of the Municipal Act, 2001, was subsequently amended by S.O. 2006, C. 32, which came into force on January 1, 2007. [^3]: Commercial parking lot is not a defined term in s. 545-1 of the Toronto Municipal Code. However, there was no issue on this appeal concerning the City’s position that Impark is a commercial parking lot and that it falls within the definition of “Public Garage”, which is a defined term in s. 545-1. Under s. 545-2(31) every person who owns or operates a public garage is required to be licensed. [^4]: The 2004 Amending By-Law is reproduced in full in Appendix ‘A’ to these reasons.