Judgment on Appeal
Ontario Court of Justice
Date: 2018-06-25
Between:
The Corporation of the City of Oshawa
— and —
Emile Greaves
Prosecutor: R. VanderLinde
Counsel for the Appellant: G. Chan and C. Di Carlo
Judge: Felix J.
Table of Contents
I. Introduction II. Jurisdiction III. Appeal Ground: "Conveyance" IV. Appeal Ground: Common law concepts of "for hire" and "private hire" V. Disposition
I. Introduction
[1] On February 10, 2017 the appellant was charged with operating a taxicab without a valid licence contrary to 5.1.1 of the City of Oshawa Taxicab Licensing By-law 50-2003. On July 20, 2017 the appellant elected to represent himself at trial and was convicted.
[2] The factual underpinnings are not complicated. On the date of the offence a municipal by-law officer was working on a special project relating to unlicenced taxicabs in the City of Oshawa. The officer used the Uber App on his smartphone to order a ride from a local bar to Durham College in Oshawa. The officer received a confirmation that Uber driver "Emile" would pick him up at the requested location. At the appointed time, the appellant arrived and confirmed he was the requested Uber driver. He was detained by other municipal officers and charged with the by-law infraction. The appellant did not hold the required licence to operate a taxicab in Oshawa.
[3] At trial the appellant argued that as no "customer" actually entered his vehicle and no trip actually commenced, no completed trip occurred. He argued that the prosecution had not proven the "operation" of an illegal taxi cab as required by the offence. During cross-examination he acknowledged that he used the Uber app to accept the requested trip. He further explained that the trip was cancelled so no customer had been charged for the trip.
[4] The learned Justice of the Peace made the following findings based on the record before her:
a. The fact that there was a cancellation fee paid was evidence of a contractual agreement between the appellant and his customer;
b. The appellant accepted the Uber ride request and arrived at the pick-up location; and,
c. That the appellant accepted the Uber ride request and arrived at the appointed pick up spot was evidence that the appellant was hiring himself out for the conveyance of persons from place to place.
Arguments on Appeal
[5] Counsel for the appellant made the following argument on appeal:
a. The By-law defined a "taxicab" to be a motor vehicle used for hire in the conveyance of persons from place to place within the city to any point inside or outside that area;
b. There was no conveyance because the ride did not actually commence nor did it complete -- no person was actually conveyed;
c. The learned trial justice erred by interpreting the by-law as creating an inchoate offence;
d. The trial Justice erred in concluding that the appellant's vehicle was used "for hire" because the trial justice erroneously defined "for hire" as meaning nothing more than the offering of services;
e. The trial justice erred in ignoring the common law interpretation of the phrase "for hire" that connotes the offering of services to the general public; and,
f. The appellant did not offer his vehicle "for hire" to the public at large – just a single ride to a single individual. This type of arrangement is termed a "private hire" that is not caught within the definition of "taxicab" in the by-law.
II. Jurisdiction
[6] This is an appeal pursuant to s. 135 of the Provincial Offences Act (Ontario) and the court may "affirm, reverse, or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial". The question of law – the proper interpretation of a by-law is reviewable on a standard of correctness.
[7] I agree with the appellant's characterization of this Court's jurisdiction. As explained by the Ontario Court of Appeal in R. v. Michaud, 2015 ONCA 585, at para. 48 endorsing the approach of Duncan J. on this issue:
As explained by Duncan J. in R. v. Gill (2003), 46 M.V.R. (4th) 230, [2003] O.J. No. 4761 (C.J.), at para. 11, the legislature clearly intended Part I appeals to be conducted as robust reviews, so that deference to the trial justice is limited to credibility findings:
I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable.
III. Appeal Ground: "Conveyance"
[8] As submitted by the appellant the proper approach to statutory interpretation requires an interpretation in its "grammatical and ordinary sense" harmoniously with the scheme and objective of the legislation and the intent of the legislator: R. Sullivan, Sullivan on the Construction of Statutes, (6th ed. 2014), at § 2.6. This approach supports consideration of additional sections of the by-law not specifically cited by the parties in this appeal.
[9] The plain objective of the by-law is to regulate the taxi-cab industry in light of the express aims set out in Schedule 4 of the by-law. The rationale for licensing includes health and safety, consumer protection, and nuisance control. In addition, the aim includes: "fair dealing amongst participants in the industry. . . [and] to limit conditions which might reasonable disturb or cause interference to the participants in the industry, the Passengers and the general public."
[10] Relevant definitions in the by-law include:
"Driver" means any person who drives or operates a Taxicab
"Fare" means the amount charged to a person for a trip
"Motor Vehicle" includes an automobile or any other device for the transportation of Persons or goods
"Taxicab" includes any Motor Vehicle used for hire in the conveyance of Persons from place to place within the City to any point inside or outside that area
"Operate" when used in reference to a Taxicab includes to drive the said Vehicle and to make it available to the public in service as a Taxicab and Operated and Operation have corresponding meanings
"Passenger" means any Person other than the Driver seated in a Taxicab and includes a Person engaging or attempting to engage the services of a Taxicab
[11] The by-law defines "operation" to include driving and the activities associated with making the vehicle available. The by-law defines a "passenger" to include a person engaging or attempting to engage the services of a taxicab. The definition of "fare" simply means the amount charged and does not mandate a consideration of the specific contractual terms between the Uber driver and the Uber customer.
[12] The definition of "taxicab" is connected to the definition of "operate". Contrary to the interpretation urged by the appellant, I find that the words "used for hire" does not mandate a past-tense interpretation when considered harmonious with the definition of "operate". "Operate" includes driving the vehicle. The drafter of the by-law went on to specifically address "operated" [past tense] and "operation" [future tense].
[13] The definition also includes making the vehicle available to the public. The legislative approach was not restricted to past tense. "Making the vehicle available" contemplates a future anticipated use.
[14] The trial justice's use of the cancellation fee evidence is not inconsistent with the definition of "fare" in the by-law which simply "means the amount charged to a person for a trip".
[15] I agree with the appellant's argument that the by-law could be clearer and that the City of Ottawa's by-law (as an example) leaves less room for ambiguity. But this is not the test on appeal.
[16] A plain and harmonious reading of the by-law supports the interpretation relied on by the trial justice. I am not persuaded that the trial justice premised a conviction based on inchoate liability, particularly where the context did not involve penal consequences.
IV. Appeal Ground: Common law concepts of "for hire" and "private hire"
[17] I decline to address this ground of appeal for the following reasons:
a. This argument was not made at trial;
b. The parties did not direct their evidence or submissions to the application of the English common law phrases "for hire" or "private hire" so there is no record to review in this regard;
c. The appellant has not established that the facts necessary for review are in the record at trial;
d. I am not satisfied that declining to address this argument would result in a miscarriage of justice; and
e. Hearing this argument would occasion prejudice to the respondent: (see R. v. Ruthowsky, 2018 ONCA 552, at para. 27 citing R. v. Brown, [1993] 2 S.C.R. 918; and R. v. Reid, 2016 ONCA 524, at para. 42-44.)
V. Disposition
[18] The appeal is dismissed without costs.
Released: June 25, 2018
Signed: Justice M.S. Felix