ONTARIO COURT OF JUSTICE

DATE: JULY 18, 2016

BETWEEN:

THE CORPORATION OF THE CITY OF MISSISSAUGA

— AND —

UBER CANADA INC.

Along with the companion application of

THE CORPORATION OF THE CITY OF MISSISSAUGA

Versus

ERSAN ZURIC AND SYED SHARFUDDIN BALKHI et al.

Before: Justice S. Nicklas

Heard on: June 24, 2016

Reasons for Judgment released on: July 18, 2016

COUNSEL

Mr. Minkowski — counsel for the Applicant

Mr. Yasin — counsel for the Defendant Uber Canada Inc.

Mr. DiCarlo — counsel for the Defendant Ersan Zuric and Syed Sharfuddin Balkhi et al.

Nicklas J.:

[1] Application for Judicial Assignment

[1] This is an Application made on consent by all parties to have the above noted matters tried by a Judge of the Ontario Court of Justice in Brampton as opposed to being heard by a Justice of the Peace, which would be the ordinary course. In doing so, reference is made to s. 15(4) of the Justices of the Peace Act, which reads: "In the case of a trial that would otherwise be held before a justice of the peace, any party may submit a request to the regional senior judge of the Ontario Court of Justice for the region to have the trial held before a judge, and the regional senior judge shall determine whether the matter shall be heard by a judge".

[2] At this point, judicial pre-trials have been held and further judicial pre-trials are scheduled to continue on July 19, 2016. Two dates have been set aside for pre-trial motions for both written and oral arguments: October 13 and 14, 2016. December 1, 2016 has been set aside for the assigned jurist to give their decision.

[3] The parties now suggest in oral submissions on this application that 3 days will be required for pre-trial motions.

Background

[4] The Defendant "Uber Canada Inc." is charged with "acting as a broker without being licensed" contrary to s. 2(3) of the City of Mississauga Public Vehicle Licensing By-law 420-04, as amended. At present, they face 30 charges, which stem from allegations from September 4, 2014 to November 17, 2014.

[5] The Defendants who are named are individual drivers who are charged with "licensed taxicab driver operate taxicab in affiliation with an unlicensed broker" contrary to Schedule 8, s. 46(4) of the City of Mississauga Public Vehicle Licensing By-law 420-04, as amended or "own a taxicab without a license" contrary to s. 2(7). Some charges are laid under Part 1 of the Provincial Offences Act while others are under Part 3. In total, according to the materials filed, 52 individuals face one or more counts. There are 75 charges in total. According to the docket provided, the allegations stem from October 8, 2014 to November 11, 2015. Apparently more charges have been recently laid.

Issues

[6] The parties are of a view that a Judge should be assigned to try these matters for the following reasons:

1. Charter Challenges

The Defendants indicate that they intend to file several applications alleging their rights under the Charter of Rights and Freedoms have been violated, specifically s. 2(d), s. 8, s. 9, and also potentially s. 11b. Thus, it is submitted that the complexity requires a more senior jurist.

2. By-law Validity Challenges

The Defendants have submitted that they will be attacking the validity of the by-laws involved. Specifically, there will be a challenge based on whether Uber Canada Inc. is a "broker" under the By-law, while the other Defendants will challenge the definition of "affiliated" and "taxicab". Again, it is argued this requires a more seasoned jurist as it is anticipated that "legislative fact evidence" will be put before the Court, which will further complicate the proceedings.

3. Precedential Value and Public Interest

There is significant precedential value, engaging the broader public interest. It was raised that the Superior Court in Toronto dealt with a request for an injunction to enforce a similar by-law and that decision is 31 pages in length. It is submitted that there is a similar level of sophistication to these matters and a need for clarity on this topic in Mississauga. It was stated that other municipalities are watching as it can impact on their regulatory regime.

The Law

[7] The parties submit that their request does not give rise to the inference that a difference of competence arises between the Judges and Justices of the Peace. Rather, they submit that their request is consistent with the case law.

[8] In 1996, it was stated by Finlayson, J.A. of the Ontario Court of Appeal in Eton Construction Co. v. Ontario, 28 O.R. (3d) 321 at paragraph 12 that "it seems to me that the fact of a co-ordinate jurisdiction does not give rise to the inference that there is a difference in the competence of the two levels of judicial office. Rather, it is a recognition that the range of charges triable under the Provincial offences Act is so vast that administratively there must be some mechanism for the orderly distribution of the workload. Obviously, in allocating cases between the two levels of judicial office, It also makes sense to have the more complex cases heard by the justices more senior in the hierarchy, namely the provincial court judges…, and in assessing complexity, an obvious factor being the significance of the legal component of the issues being determined." As noted, this statement is from twenty years ago, at a time where the Ontario Court of Justice criminal courts were not as involved in serious criminal trial work, and when the justice of the peace did not have the level of training that they do today. While an orderly distribution of the workload is still the goal, the reality of current times is that the justice of the peace hear almost all of the trial work in the Provincial Offences Court, including fatalities, which was not the case in 1996.

[9] Another case provided by the Crown in support of this application is R. v. Hamilton (City), [2006] O.J. No. 3796 (Ont. S.C.). Therein, Justice Glithero dealt with the narrow issue of whether the Crown has the right to require a retrial of charges under the Ontario Water Resources Act be presided over by an Ontario Court judge versus a justice of the peace. At paragraph 18, Justice Glithero refers to Eton Construction Co. v. R. and states "the provincial offences court is free to manage their own workload, absent legislative direction, and that it is sensible that certain cases be held before a judge, and others before a justice, depending on availability of judicial personnel, and having regard to the complexity of the cases." Reference was made to the fact that four days were spent on Charter motions at the first trial and that it may make sense that a judge hear the retrial, rather than a justice, on this type of practical analysis. However, I note that this was also 10 years ago, and that it is not outside of the current experience of a justice of the peace to be dealing with several days of Charter applications. Further, it is important to note the reference to the consideration of "availability of judicial personnel".

[10] Just weeks before Justice Glithero's decision, Regional Senior Justice Culver considered an application for a matter to be heard by a judge rather than a justice of the peace in Ontario (Minister of Finance) v. Computer Store – St. Catharines Inc. [2006] O.J. No. 5805. One of the principle reasons for the application was that there was a shortage of justices of the peace as well as a shortage of trial time in the locale where four days of trial time was sought. They would have been scheduling one day a month based on the justice of the peace schedule, whereas a judge could have heard the trial on a largely continuous basis in approximately 8 months time. RSJ Culver noted that this delay in having the trial heard by a judge was dangerously close to the trial delay limits in R. v. Askov, [1990] 2 S.C.R. 1199 and stated that there was "a very real issue as to whether or not a flood of cases into the judge's court in the Ontario Court of Justice, on account of a shortage of justices of the peace, would cause serious criminal matters to be put in danger of being stayed under the Charter, by the Court, on account of delay". His Honour then went on to state, in the passage quoted in oral submissions, at paragraph 7, "that it is only appropriate to assign a matter to a judge when there are issues of significant precedent value, where a constitutional challenge regarding the validity of legislation is being put forward, or where a broader public interest is engaged". However, in my view, it is important to note that this again was 10 years ago, and that this was a broad policy statement for that time, and where there was no analysis based on the fact that the request was being made for a different purpose, such that the application was dismissed.

[11] The Crown also provided R v. Smith, [2012] O.J. No. 2395 authored by Justice Finnestad (now ACJ Finnestad). At paragraph 14, Her Honour noted that "it is a long and established practice in this province generally, and in this Region specifically, that trials of provincial offences are assigned to justices of the peace in the ordinary course. Some exceptions can be found... In all other cases, an application can be made by any party before the regional senior justices under s. 15(4) of the Justices of the Peace Act."

[12] The Crown provided a relatively recent decision by Regional Senior Justice Fuerth in R. v. Corbiere, [2015] O.J. No. 644 where it was decided that the matter should be heard by a Judge based on the broader public interest and precedential value. The defendants in that case were charged with engaging in a prohibited activity on premises contrary to the Trespass to Property Act, based on allegations of a protest on the front steps of the courthouse. The defendants had served a Notice of Constitutional Issue and sought Charter relief. At paragraph 23 of the decision, the Court summarized the case law as follows: "a matter is appropriate to be assigned to a judge where there are issues of significant precedent value, where a constitutional challenge regarding the validity of the legislation is being put forward, where a broader public interest is engaged, or where there are complex legal arguments to be litigated."

[13] The court noted at paragraph 25 that "the mere fact that a Charter infringement was raised on application does not give rise to the exercise of discretion in favour of the applicant. Charter applications are frequently brought in provincial offences matters, and justices of the peace have the education, training, and the ability to make decisions with regard to allegation of infringement of rights under the Charter".

[14] At paragraph 26, the court stated that the sole basis for granting the application rested with the consideration of the broader public interest in the matter, and the precedent that will be set in its determination. In reviewing the factors considered, the Court referenced that "a decision of a justice of the peace on the Charter application will not have precedent authority and will only bind the parties to the decision, and that any decision of the trial court will be appealed having regard to the broad impact of the decision and the Charter rights involved". He also found that "the current trial schedule of judges will permit a timely trial of the matter". In the end, he found that it was an "extremely unusual circumstance when in balancing the nature of the case and the best use of judicial resources of the Court, it was appropriate to have the matter heard by a Judge".

Analysis

[15] First, do these matters involve such complex legal arguments that they should be heard by a Judge? As indicated by Regional Senior Justice Fuerth, Charter applications are frequently heard by justices of the peace in Provincial Offences Court. Although the challenge to the by-law may not be an every day occurrence in those courts, it is also within the ordinary realm of decisions made by justices of the peace. Their education and training now is such that it cannot be stated that the issues presented here are too complex and should be handed over to a Judge. With regard to factual complexity, just because there are a considerable number of counts, it does not make these cases factually complex.

[16] With respect to precedent value in the case at bar as it relates to important public policy, I pointed out to counsel that an appeal of a Part 1 matter heard by a Judge would be to a colleague of the Ontario Court of Justice. Thus it could be inferred that it was not contemplated by the legislators that a Part 1 matter would be heard by a Judge, resulting in an appeal being heard by a colleague of the same court.

[17] Also, if a Judge tries a Part 3 matter, the result is not binding on Justices of the Peace hearing similar matters across the Province, although there may be some persuasive authority. An appeal of a decision by a Judge would be to the Superior Court though. While there may be persuasive authority then if the matter is tried by a Judge, in my view, this is not such a pressing societal issue that warrants potentially bumping matters in the criminal court of a more serious nature. The case law as reviewed above reveals that an important consideration is which court can permit "a timely trial of the matter", and the "availability of judicial personnel", as well as the impact of moving cases that are ordinarily heard in Provincial Offences Court to the Criminal Courts in relation to concerns about delaying the more serious cases.

[18] It was intriguing to note that neither the Crown nor Counsel for the Defendants had explored the pressures within the Ontario Court of Justice criminal trial schedule to determine how that may factor into their application. As I am involved in the oversight of scheduling of matters there, I am acutely familiar with the pressures that exist on that system in Brampton to ensure that criminal trials or preliminary hearings are dealt with in a timely manner in arguably the busiest courthouse in Canada. As it stands now, and as mentioned to counsel during their submissions, for a case estimated of more than 3 days, which this would be inclusive of the time to render a decision, the current delay is one of 12 months. In adding this case to the mix, it would be competing with many serious criminal matters for this scarce court time.

[19] Because Counsel for the Defendants who attended this application were only there to consent to the application brought by the Crown, and could not comment on trial time estimates or 11b considerations, time was provided for them to receive instructions as to the impact of the delay in the criminal courts on their position in relation to their clients' s. 11b rights. They have now provided their position in writing and will not be waiving their s.11b rights, although they are consenting to this application, and now know that the time to trial before a Judge of the Ontario Court of Justice is significant.

[20] In conclusion, on the application to have the matters heard by a Judge, it is my view that there is not such legal complexity or broader public interest in these matters that warrants scheduling them into the criminal court in Brampton before a Judge. The Justices of the Peace in this Province deal with complicated and important legal issues on a regular basis. There is no basis to find that the anticipated arguments cannot be properly litigated before these very capable jurists. I would, therefore, dismiss this application.

Case Management

[21] I find it important to address some of the case management issues raised in the oral argument on this application, which are "bogging down" the litigation according to the Crown. The issue is apparently one of capacity where it is difficult to set aside time to manage the processes for a matter with so many defendants. It was suggested that they would benefit from having more dedicated time within the judicial pre-trial process to determine the direction of the cases, define the evidence that will be called and the arguments that will be made, and to set time lines for written materials. Based on their oral submissions, it was suggested that there is no clear plan, and only a proposal that one test case on each charge may be proceeded with. There is no decision as to whether to go under Part 1 or Part 3. Although there is apparently no factual dispute, it seems that there is no decision yet to go on an Agreed Statement of Fact and argue the Charter and by-law interpretations.

[22] In criminal court, where there are multiple defendants and charges, a case management judge is assigned. The same can occur if required in Provincial Offences Court, with a justice of the peace assigned. The justice of the peace bench is also well versed in these areas, and additional time will be dedicated to explore these issues.

[23] Fortunately, we have very recent guidance from the Supreme Court of Canada in the case of R. v. Jordan, 2016 SCC 27 as to the expectations that we should meet in dealing with cases in the pre-trial phase to avoid unreasonable delay. There are several important comments on the role of each party in order to change the "culture of complacency" within the system.

Role Expected of All Participants

The majority who wrote the SCC decision at paragraph 5 speak about their new framework as one that encourages "all participants in the criminal justice system to cooperate in achieving reasonably prompt justice". "All participants in the justice system must work in concert to achieve speedier trials" as there are finite resources. "By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices." (paragraph 116)

Role Expected of the Crown

• Paragraph 70: "Prompt resort to case management processes to seek the assistance of the court", "seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications"

• Paragraph 75: "within reason… should be capable of prioritizing cases that have faltered due to unforeseen events".

• Paragraph 79: "having initiated what could reasonably be expected to be a complex prosecution, [is expected to have] developed and followed a concrete plan to minimize the delay occasioned by such complexity"… "In a similar vein… the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding".

• Paragraph 90: "genuinely responding to defence efforts (to ensure the matter proceeds expeditiously, including) seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses".

• Paragraph 138: "making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of the police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases".

Role Expected of the Defence

• Paragraph 82: Take "meaningful steps that demonstrate a sustained effort to expedite the proceedings"

• Paragraph 86: "… a level of cooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing - rather than diminishing - timely justice."

• Paragraph 113: "to be part of the solution".

• Paragraph 138: "actively advancing their clients' right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently."

Role Expected of Both Sides

• Paragraph 73: Make a "good faith effort to establish realistic time estimates"

• Paragraph 112: "enhance accountability by fostering proactive, preventative problem solving"

• Paragraph 138: "Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance".

Role Expected of the Court

• Paragraph 75: "within reason.. should be capable of prioritizing cases that have faltered due to unforeseen events".

• Paragraph 114: "courts are important players in changing courtroom culture. Many courts have developed robust case management and trial scheduling processes, focussing attention on possible sources of delay and thereby seeking to avoid or minimize unnecessary delay".

• Paragraph 139: "implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices by courts below".

[24] With that in mind, in anticipation of the Judicial Pre-Trial which is scheduled for July 19, 2016, I trust that the parties will attend prepared to discuss these issues.

Released: July 18th, 2016

Signed: "Justice S. Nicklas"