CITATION: 1998289 Ontario Inc. v. Leamington (Municipality), 2021 ONSC 6510

DIVISIONAL COURT FILE NO.: 517/21

DATE: 20211001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

1998289 Ontario Inc., c.o.b. as “Nader’s Taxi”; “Tamim Taxi”; and “Primo Transportation”

Applicant

– and –

The Corporation of the Municipality of Leamington

Respondent

Anthony G. Debly, for the Applicant

Jameson S. Pritiko, for the Respondent

HEARD: September 14, 2021

REASONS ON STAY

MUNROE J.:

[1] Respondent revoked Applicant’s taxi licences and refused additional licences. Applicant then brought an Application for Judicial Review seeking to overturn these revocations and refusals. Now before me is a motion to stay the revocations and refusals pending the determination of the Application for Judicial Review.

[2] By a Notice of Motion returnable in this court, Applicant seeks the following relief:

An Order staying the Decision of the Licensing Appeal By-Law Committee of the Municipality of Leamington, dated June 7, 2021, revoking the licences, and surrendering the licence plates of, 1998289 Ontario Inc., operating as Nader’s Taxi, and Tamim Taxi, and refusing to issue a licence to 1998289 Ontario Inc., operating as Primo Transportation, pending the determination of the Judicial Review application.

Background and Procedural History

The Parties

[3] Applicant, 1998289 Ontario Inc. (“Applicant”), owned/operated two taxicab businesses and one transportation business in the Municipality of Leamington. These businesses are known as “Nader’s Taxi”, “Tamim Taxi”, and “Primo Transportation”, respectively. Prior to their revocation, Nader’s Taxi and Tamim Taxi held Leamington taxi licences authorizing those businesses to operate taxicabs in the municipality. Also, Tamim Taxi applied for a licence for an added taxicab. Primo Transportation applied for a business licence to operate a transportation company.

[4] Nader’s Taxi and Tamim Taxi are relatively new businesses having started on or about November 1, 2018. Primo Transportation had not yet commenced its transportation business.

[5] Respondent, The Corporation of the Municipality of Leamington (“Respondent” or “Leamington”), has the authority to issue, refuse to issue, suspend, and revoke taxi licenses and business licenses permitting the operation of such businesses within the municipality.

The Citations

[6] In February 2021, Applicant was issued the following citations by Austin Aldridge, Municipal Law Enforcement Officer of Leamington (“Officer Aldridge”):[^1]

07 Feb 21 at 8:25 a.m. permitting operation of taxicab without license s. 15 of Taxi By-law

07 Feb 21 at 2:00 p.m. failure to comply with continued s. 7.02 order s. 5.10(1), Reopening Ontario (A Flexible Response to COVID-19) Act

11 Feb 21 at 10:23 a.m. failure to comply with continued s. 7.02 order s. 5.10(1), Reopening Ontario (A Flexible Response to COVID-19) Act

11 Feb 21 at 12:00 noon failure to produce records for inspection s. 30(v) of Taxi By-law

12 Feb 21 at 12:00 noon failure to produce records for inspection s. 30(v) of Taxi By-law

[7] None of these citations have been resolved.

Revocations/Refusals

[8] On or about April 19, 2021, Leamington issued and served written Notices of Revocation of the Taxi Licences regarding Applicant’s taxicabs operating under Nadir’s Taxi and Tamim Taxi. The stated grounds were “reasonable grounds to believe that the Licensee will not comply with any federal or provincial statute or [the taxicab] by-law.” The identified grounds were the five citations noted above plus a sixth ground:

The Issuer of Licences is in receipt of evidence suggesting that the Licensee has been unlawfully engaged in the brokering of taxicabs.

[9] The notices included the date and time of the scheduled hearing before the Appeal Committee: May 10, 2021 at 5:00 p.m.

[10] At the same time, Applicant also was served with Notices of Refusal to issue an additional taxicab licence and to issue a Transportation Company Business Licence, both for the same reason on the same grounds. Applicant timely requested a hearing on these refusals. Said hearing was scheduled at the same time: May 10, 2021 at 5:00 p.m. before the Appeal Committee.

Hearings Before Appeal Committee

[11] Mr. Qaid Saleh, an officer and director of Applicant, attended the hearing on May 10, 2021, with counsel, Mr. Ahmad Ammar. The hearing commenced. After receipt of some evidence, the hearing was adjourned to permit Applicant to submit documentary evidence and to obtain an interpreter to assist Mr. Saleh.[^2] No hearing continuation date was set at this time.

[12] The hearing continuation date subsequently was scheduled for June 3, 2021. Mr. Saleh appeared without counsel. Mr. Saleh retained an interpreter. The interpreter was present at the second hearing. The Appeal Committee received evidence from Applicant before the second hearing.[^3]

[13] The reason for the absence of counsel for Applicant at the second hearing is conflicted. According to Mr. Saleh, he was uncomfortable representing himself but did not hear from his counsel after attempts to contact him.[^4] According to Leamington, counsel for Leamington, Mr. Jameson Pritiko, sent multiple emails to Mr. Ammar advising him of the new hearing date.[^5] In addition, on May 27, 2021, Applicant (Nader’s Taxi) sent an email[^6] to Leamington (Angela Toole, Licensing Assistant) advising Leamington of dropped-off hearing documents and advising Leamington “from this point forward please don’t contact or email our lawyer.”[^7] According to Mr. Ammar, he did not attend the hearing because he did not know about it; the emails from Mr. Pritiko were sent to his “junk mail” and thus never reached him personally.[^8] At no point during the hearing did Mr. Saleh indicate he was uncomfortable appearing without counsel, nor did he request time to have a lawyer present.[^9]

[14] The conduct of the hearing before the Appeal Committee on June 3, 2021, is conflicted. According to Leamington, “Applicant was provided with an opportunity to present evidence and provide submissions.”[^10]According to Applicant, Mr. Saleh “was not allowed to fully present a defence as the Committee did not allow [him] to complete [his] submissions, nor answer any questions posed to it.”[^11] No tape or transcript of the hearing was provided.[^12]

Decisions of Appeal Committee

[15] In four, one-page, undated[^13] Notices of Decision, the Appeal Committee supported each of the four decisions of the Issuer of Licences.[^14] The initial wording of each, as to the decision portion, is identical:

That the Appeal Committee, based upon the evidence presented and submissions made at the hearing, has made the following decision:

That the Appeal Committee support the Issuer of Licences decision

• to revoke taxicab owner licence to 1998289 Ontario Inc. (o/a Nader’s Taxi).

• to revoke taxicab owner licence to 1998289 Ontario Inc. (o/a Tamim Taxi).

• to deny the application to add a Taxicab Vehicle to Tamim Taxicab Owner’s licence.

• to refuse issuance of a transportation licence to 1998289 Ontario Inc. (o/a Primo Transportation).

[16] The Reasons section of each consists of three paragraphs. The first paragraph recounts the status of that case, whether an existing licence or a licence application. The second paragraph identifies the notice given. The third paragraph states the following:

Hearings of the Appeal Committee were held on May 10, 2021 and June 3, 2021. The committee determined that sufficient proof was provided at the Hearings, through evidence, to establish that the conduct of the Licensee, or of any partner, in the case of any Licensee which is a partnership, or any director, officer or shareholder of the corporation, if the Licensee is a corporation, will not comply with any federal or provincial statute or regulation or By-law 63-16.

Application for Judicial Review

[17] On June 30, 2021, Applicant brought an Application for Judicial Review to quash the decisions of Leamington’s Appeal Committee and for an order prohibiting any further regulatory action pending resolution of Applicant’s allegations of bias or improper procedure.

[18] Applicant’s grounds for Judicial Review are set out in paragraphs 2(a) through (f) of the Notice of Application:

(a) Lack of procedural fairness to Applicant who had to argue the case without counsel;

(b) Abuse of, or “over-extension” of, the licensing committee’s power to refuse to issue or renew a licence based on reasonable grounds to believe Applicant will not comply with the law;

(c) Inadequate reasons;

(d) Abuse of, or “over-extension” of, the licensing committee’s power to refuse to issue or renew a licence based on unproven allegations for an Applicant with no history of non-compliance with any rules;

(e) Abuse of, or “over-extension” of, the licensing committee’s power to refuse to issue or renew a licence based on unproven allegations and no convictions; and

(f) Negligent or intentional refusal to respond to Applicant’s complaints about “scab” or “ghost” cabs operating in the municipality.

[19] An Application Record has not been filed.

Motion to Stay

[20] Applicant filed its Notice of Motion, Motion Record, and Factum on or about August 6, 2021. Applicant filed its Amended Affidavit of Qaid Saleh[^15] on or about September 3, 2021. Respondent filed its Motion Record and Factum on or about September 3, 2021.

[21] On September 14, 2021, a hearing was held before me, via Zoom technology, on the motion. My decision was reserved.

Prior Suspension[^16]

[22] In early 2019, Nader’s Taxi was issued a Notice of Revocation of Taxicab Owner Licence for multiple violations of the taxi by-law. A hearing was held before the Appeal Committee on February 1, 2019. The Appeal Committee did not revoke Nader’s Taxi’s licence but did suspend it briefly.[^17] In its reasons,[^18] the Appeal Committee stated:

Sufficient proof was provided at the Hearing through evidence to establish that the Licensee failed to comply with the condition of the Licence …

The Licensee failed to provide sufficient evidence to refute the evidence submitted by the Municipality of Leamington.

Reports of Continuing Taxicab Operation After Revocation

[23] By affidavit evidence, including witness statement transcripts and photographs, Leamington, through Officer Aldridge, is investigating Nader’s Taxi’s continued operation of a taxicab business after its license revocation.[^19]

[24] Leamington resident, Ms. Claudette Meloche, provided a recorded statement to Officer Aldridge on August 4, 2021.[^20] She reported that on two Fridays in July she called Nader’s Taxi at 519-322-2262[^21] for taxi service for her grocery shopping.[^22] On both occasions an unmarked van arrived and provided that service. On one of the trips, the driver said he was from Nader’s Taxi.[^23]

[25] Mr. Zachery Martin, a security guard at Erie Shores Healthcare (“Leamington hospital”), provided a recorded statement to Officer Aldridge on August 10, 2021.[^24] Mr. Martin reported helping a patient secure taxi service on August 6, 2021, including by calling 519-322-2262.[^25]

[26] Another Leamington hospital security guard, Mr. Daniel Chevalier, reported to Officer Aldridge that he witnessed an unmarked taxi pickup at the hospital on August 12, 2021.[^26] Mr. Chevalier took a photograph of the rear of this vehicle, including its licence plate, and provided the photograph to Officer Aldridge.[^27] The next day, August 13, 2021, Officer Aldridge saw and photographed the same vehicle in the parking lot of Nader’s Taxi.[^28]

[27] Leamington’s counsel, Mr. Pritiko, sent two emails to Applicant’s counsel, Mr. Debly, the first dated July 23, 2021 and the second dated August 13, 2021, demanding the cessation of the taxicab business.[^29]

[28] Mr. Saleh responded in his amended affidavit, sworn September 3, 2021, at paras. 16-17:

I understand that there were complaints about my business sending out unlicenced vehicles after the complainants call my business number. The complaints seem to have occurred during the week of August 2 to August 9, 2021. I can state that I was in Niagara Falls, Ontario with family for a vacation at that time. My office was still staffed by some employees as I did not wish to leave the business and building unattended during my absence. I will now conduct an investigation to see which persons were there and why taxicab vehicles were dispatched without my knowledge, and for any other dates where taxi vehicles were dispatched. ….

I can, without doubt, attest to the fact that I did not dispatch any unlicenced taxicab vehicles after June 21, 2021. I was completely shocked when I heard that Leamington had received complaints from people that had called my business number and that a taxicab with no taxi plate was dispatched to them.

Legal Principles

Municipal By-laws

[29] Leamington’s by-law regulating taxicabs is By-law 63-16 (“taxi by-law”) and provides, in pertinent part, as follows:

By-law to provide licensing, regulating and governing of taxicab owners and taxicab drivers in the Municipality of Leamington

WHEREAS the Corporation of The Municipality of Leamington is empowered under section 150(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended (the “Act”), to provide for a system of licences with respect to a business;

AND WHEREAS section 156(1) of the Act provides for the licencing, regulating and governing of owners and drivers of taxi cabs;

AND WHEREAS Council has determined that it is appropriate and desirable to license taxicab drivers and taxicab owners for the purposes of ensuring the health and safety of passengers and drivers alike, to ensure consumer protection, and to ensure that an efficient taxicab service is available to all persons within the regulated area of the Municipality of Leamington;

THEREFORE the Council of The Corporation of the Municipality of Leamington hereby enacts as follows:

DEFINITIONS

1. For the purposes of this by-law …:

“Appeal Committee” means the committee established by Council to hear appeals from decisions of administrative officials made pursuant to a designated power or duty;

“Issuer of Licences” shall mean the Director of Legal and Legislative Services, or his or her designee;

GENERAL PROVISIONS

15. No Person shall permit the operation of a Taxicab by a person without a Taxicab Driver’s Licence.

DUTIES OF A TAXICAB OWNER

30. Every Taxicab owner shall:

(v) upon request of an Officer … produce any and all records that are relevant for the purposes of the administration and/or the enforcement of this by-law, including but not limited to, Licences, Orders, Trip Records, Inspection Checklists, maintenance records, insurance certificates, and books of account.

GROUNDS FOR REFUSAL TO ISSUE OR RENEW A LICENSE

45. The Issuer of Licences may refuse to issue or renew a Licence to an Applicant if:

(c) The past or present conduct of the Applicant, … or any director, officer or shareholder of the corporation, if the Applicant is a corporation, provides the Issuer of Licences reasonable grounds to believe that the Applicant will not comply with any federal or provincial statute or regulation or this by-law.

APPEAL OF DECISION NOT TO ISSUE OR RENEW A LICENCE

46. Where the Issuer of Licences refuses to issue or renew a Licence, … an Applicant may appeal the decision of the Issuer of Licences to the Appeal Committee.

GROUNDS FOR … REVOKING A LICENCE

48. [T]he Issuer of Licences may … revoke a Licence where:

(b) The conduct of any Licensee, … or any director, officer or shareholder of the cocporation, if the Licensee is a corporation, provides the Issuer of Licenses reasonable grounds to believe that the Licensee will not comply with any federal or provincial statute or regulation or this by-law.

49. Where the Issuer of Licences believes that grounds exist to … revoke a Licence, the Issuer of Licences shall provide notice, in writing, to the Licensee that a hearing of the matter will be held before the Appeal Committee. The notice shall:

(b) in the case of a revocation of a Licence:

(i) set out the grounds for revoking the Licence;

(ii) set out the process that the Licensee must follow in order to be heard as a party before the Appeal Committee as set out in the Rules of Procedure of the Appeal Committee; and

(iii) provide the date, the time and the place of the hearing.

ENFORCEMENT PROVISIONS

68. Every person who contravenes any section of the by-law is guilty of an offence and, upon conviction, is liable to a fine as provided for by the Provincial Offences Act, R.S.O. 1990, c.P. 33.

69. Notwithstanding section 68 of this by-law, every Person who contravenes any provision of this by-law and every director or officer of a corporation who concurs in such contravention by the corporation is guilty of an offence and on conviction is liable to a fine not exceeding $25,000.00.

70. Notwithstanding section 68 of this by-law, a corporation that contravenes any provision of this by-law is guilty of an offence and, upon conviction, is liable for a fine not exceeding $50,000.00.

[30] Leamington By-law 05-19, enacted on January 22, 2019, provides for the licencing and regulation of businesses in the municipality. The encompassed businesses include those operating a “transportation vehicle”, which is defined as “a Vehicle that transports individuals for compensation or reward and is not licenced as a taxicab…” Section 32(c) of By-law 05-19 provides for the refusal to issue or renew said licences:

The past or present conduct of the Applicant, … or any director, officer or shareholder of the corporation where the Applicant is a corporation, or any person who the Issuer of Licences reasonably believes exercises control over the Applicant or the Business Premises is such that the Issuer of Licences reasonably believes that the issuance or renewal of a Business Licence would be adverse to the public interest.

[31] An appeal may be taken to the Appeal Committee, per s. 34 of this by-law, if the Issuer of Licences refuses to issue or renew the Business Licence.

[32] Pursuant to By-law 64-16, enacted on October 3, 2016, Leamington established an Appeal Committee to hear appeals from the acts of administrative officials.

Provincial COVID Law

[33] The Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, provides, in pertinent part, as follows:

10 (1) Every person who fails to comply … with a continued section 7.0.2 order or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by such an order is guilty of an offence and is liable on conviction,

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

(2) A person is guilty of a separate offence on each day that an offence under subsection (1) occurs or continues.

Test for Stay

[34] The recognized test for the issuance of a stay is articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald”). It is a three-part test. The applicant must establish 1) a serious issue to be tried; 2) irreparable harm will be suffered if the injunction is not granted; and 3) the balance of convenience favours the injunction. The three factors are interrelated and should not be viewed as watertight compartments; the overarching question is whether the moving party has shown that a stay is in the interests of justice: Belton v. Spencer, 2020 ONCA 623, at para. 21 (D.A. Brown J.A., In Chambers).

[35] Each will be discussed more fully.

1. Serious issue to be tried

[36] The threshold here is a low one. As stated in RJR-MacDonald, at pp. 337-338:

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

[37] The review of the merits of the case should be “extremely limited” and based on common sense: RJR-MacDonald, at p. 348.

2. Irreparable harm

[38] The applicant must establish that it will suffer irreparable harm if the stay is not granted. “Irreparable” refers to the nature of the harm, not its magnitude. It is harm that cannot be quantified nor cured monetarily: RJR-MacDonald, at p. 341. As stated by the Divisional Court in Les équipements de ferme Curran Ltée/Curran Farm Equipment Ltd. v. John Deere Limited., 2011 ONSC 3791, at para. 16:

Irreparable harm must be clear and not speculative. It is harm which either cannot be quantified in monetary terms or which cannot be cured. If the nature of the damages can be calculated in money, then no matter how difficult it may be to quantify the damages, the court should decline to grant an injunction.

[39] Like any other element to be proved, conclusory assertions of irreparable harm alone are insufficient: see Trailmobile Canada Ltd. v. Merrill, [1983] O.J. No. 1123, at para. 15 (Ont. H.C.).

3. Balance of convenience

[40] At this stage, the court must balance the respective harm from the granting or refusal of the requested stay. Which of the two parties will suffer greater harm from the granting or refusal of a stay?: RJR-MacDonald, at p. 342.

[41] The Supreme Court acknowledged public harm in RJR-MacDonald, at p. 346:

In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

[42] In a number of cases, the Divisional Court has held that the public interest in highway safety outweighs any pecuniary harm: Hartstein Swine Co. Ltd. v. Ontario (Registrar of Motor Vehicles), 2018 ONSC 6655 (“Hartstein Swine”), at paras. 30-37; GFL Environmental Inc. v. Registrar of Motor Vehicles, 2014 ONSC 2728, at paras. 46-47; 1445913 Ontario Inc. v. Ontario (Deputy Registrar of Motor Vehicles), [2008] O.J. No. 6041, at para. 31.

Principles Applied

Test for Stay

1. Serious issue to be tried

[43] This is a low threshold. Am I satisfied that the application is neither vexatious nor frivolous?

[44] On this motion, the overarching problem in the assessment of this factor is the absence of a record of the two hearings before the Appeal Committee. Applicant’s counsel, during submissions, acknowledged awareness that these hearings were audio-taped. Yet, it appears, no effort was made to provide this court with either a transcript or tape-recording of the hearings. Applicant bears the onus on this motion and thus must shoulder any significance over the absence of a complete record.

[45] Applicant raises six separate grounds in its application to quash the revocations and refusals. They are set forth above in paragraph 18.

[46] With regard to three grounds, grounds 2(b), (c) and (e) of the Notice of Application, although, in my opinion, they are weak, I cannot find that they are vexatious or frivolous. This is especially true given the absence of a hearing record, an absence that should be remedied.

[47] On the other hand, on the record evidence before me, I find three of the grounds to be frivolous: grounds 2(a), (d), and (f) of the Notice of Application. Each will be reviewed very briefly.

(a) Lack of procedural fairness to Applicant who had to argue the case without counsel

[48] The absence of Mr. Ammar at the second hearing was the fault of Mr. Ammar and Mr. Saleh. Leamington’s lawyer did all he could to notify Mr. Ammar of the second date. Moreover, and quite shockingly given this allegation, Applicant specifically told Leamington not to contact Mr. Ammar. Finally, the averments that Mr. Saleh did not indicate any discomfort over proceeding without counsel, and did not request time to secure counsel, remain uncontradicted. In this context, the position that Leamington forced Mr. Saleh to argue the case without counsel is frivolous.

(d) Abuse of, or “over-extension” of, the licensing committee’s power to refuse of issue or renew a license based on unproven allegations for an Applicant with no history of non-compliance with any rules

[49] The unchallenged affidavit evidence submitted by Leamington shows prior non-compliance by Applicant.[^30] In early 2019, Nader’s Taxi was issued a Notice of Revocation of Taxicab Owner Licence for multiple violations of the taxi by-law, By-law 63-16. After a hearing before the Appeal Committee, Nader’s Taxi’s licence was suspended for a brief period.[^31]

[50] With this evidence of prior non-compliance, this advanced ground is patently frivolous.

(e) Negligent or intentional refusal to respond to Applicant’s complaints about “scab” or “ghost” cabs operating in the municipality

[51] Applicant’s claim of Leamington’s unsatisfactory response to its complaints about the conduct of others unlawfully operating taxi cabs in the municipality has nothing to do with the revocations or refusals. During submissions, counsel for Applicant suggested its complaints about “scab” or “ghost” cabs was the improper impetus for the revocations/refusals. But the record evidence does provide such a link. Without such an evidentiary link, this ground is frivolous.

[52] Given my above conclusion on three of the advanced grounds, I hold that this part of the test has been met.

2. Irreparable harm

[53] The irreparable harm alleged in the motion is “the termination of a successful business.”[^32] The documentary evidence relied upon is the affidavit of Qaid Saleh.[^33] (Mr. Ammar’s affidavit does not address harm.)

[54] Mr. Saleh’s affidavit identifies the harm:

7. I have operated my business since 2018 …. This has put me out of business as I had to surrender my municipal licences, along with the taxi vehicle licence plates.

8. I am requesting an expedited hearing so that I can resume my business. ….

9. The delay already has cost me present and future business. The majority of my business is by monthly contracts to transport people from their homes to their work and back again, such as for migrant farm workers. Now that these contracts have been lost, it is going to be harder to get them back again, if ever. My regular non-contract customers will be hard to bring back if I am allowed to operate again. The longer I am out of business, the harder it will be to get the contracts back again.

10. I still have ongoing expenses such as rent payments on the business office, insurance for some taxicab vehicles, phone lines, internet services, and other expenses that continue whether I am making money or not. This is my sole source of income for my family as my wife does not work. It is also a means of income for the drivers and their families that I had hired to work for me who are for the most part now without a job.

11. … The effect of these letters [sent by Leamington to many of my business clients] was to effectively shut down my business and have my contracted clients use my competitors’ services. Attached … are true copies of [two] of the said correspondence.[^34]

[55] Respondent vigorously argues Applicant has failed to establish irreparable harm. According to Leamington, there is no showing that Applicant cannot operate in a neighbouring community, nor is there satisfactory proof of loss of contracts or customers. Moreover, argues Leamington, the loss of contracts and customers is quantifiable and therefore does not qualify as irreparable harm.

[56] Leamington has a regulatory scheme with regard to the taxi business. Only those licenced by Leamington may operate a taxi business. Thus, by revoking its taxi licences, Leamington has ended Applicant’s ability to operate its taxi business in Leamington so long as the revocations remain in place. Applicant seeks to overturn the revocations in court. In the meantime, they are out of the taxi business in Leamington. Now, Applicant is before me seeking a stay of the revocations until its court case can be heard saying this shutdown is causing irreparable harm.

[57] Although I accept the obvious that the revocations closed Applicant’s young taxi business in the municipality of Leamington at least temporarily. But the issue before me is not whether the revocations closed Applicant’s taxi business in Leamington. They did. The issue is whether Applicant will suffer irreparable harm if it cannot reopen the taxi business in Leamington immediately, if the requested stay is not granted. On that issue, Mr. Saleh avers broadly that Applicant has lost contracts to competitors for the transportation of workers, that Applicant’s regular customers will be hard to bring back, that Applicant’s drivers have lost income and many are now without a job, that Applicant continues to pay the expenses of the taxi business, and that the taxi business provides the sole source of income for Mr. Saleh and his family. Even ignoring the perhaps fatal lack of particularity of the averments,[^35] once Applicant’s claims are sorted and examined, it is clear that the harm alleged can be quantified and cured monetarily.

[58] In conclusion, I find Applicant has not shown irreparable harm.

3. Balance of convenience

[59] Which of the two parties will suffer the greater harm from the granting or refusal of the stay pending disposition of the judicial review?

[60] Applicant’s factum argument on this point is less than strong and advances, without affidavit evidence,[^36] that “the public interest is served by having multiple taxi cab businesses operate in a free market economy to allow competition which can only benefit the general public…”[^37]

[61] Leamington argues that this case involves public safety thus framing the balance between public safety interests and the financial interests of Applicant.[^38]

[62] This is a case involving public authority, public interest. Leamington enacted a taxicab regulatory scheme for the stated purposes of

ensuring the health and safety of passengers and drivers alike, to ensure consumer protection, and to ensure that an efficient taxicab service is available to all persons within the regulated area of the Municipality of Leamington.

[63] In enforcing this regulatory scheme, Leamington revoked taxi licences and refused to issue licences. Included in the grounds for these actions, Leamington alleged and proved violations of the taxi by-law as well as the COVID-19 laws. Thus, in my view, the public interest in a safe taxi regulatory scheme outweighs any pecuniary interest of Applicant.

[64] The evidence of new violations after the revocations is relevant on this prong of the test and reinforces the conclusion of the Appeal Committee that Applicant will not comply with the taxi by-law: Hartstein Swine, at paras. 32 and 37.

[65] In conclusion, I find Applicant has not shown it will suffer greater harm from the refusal of a stay.

Conclusion

[66] I find the test for the issuance of a stay has not been met. As reviewed above, Applicant has not satisfied its burden. Reviewing all collectively, Applicant has not shown that a stay is in the interests of justice.

[67] Accordingly, Applicant’s motion for a stay is denied.

Costs

[68] If the parties are unable to resolve the issue of costs, Respondent shall provide me with its bill of costs and outline of costs (not exceeding three pages) within 20 days of the date of the release of these reasons. Applicant shall respond in 20 days of service of the costs submissions with the same page limit.

Original Signed by “Justice K.W. Munroe”

Kirk W. Munroe

Justice

Date: October 1, 2021

[^1]: Paras. 1 and 18 and Exhibit I, Affidavit of Austin Aldridge. [^2]: Para. 5, Amended Affidavit of Qaid Saleh. [^3]: Para. 43, Affidavit of Austin Aldridge. [^4]: Para. 6, Amended Affidavit of Qaid Saleh. [^5]: Paras. 38 and 40, Exhibits M and O, Affidavit of Austin Aldridge. [^6]: The sending email address, naderstaxi@gmail.com, is identical to the sending email address for Mr. Saleh’s complaint about “scab” or “ghost” cabs to Leamington attached to his amended affidavit as Exhibit 1. [^7]: Para. 42 and Exhibit Q, Affidavit of Austin Aldridge. [^8]: Paras. 6-13, Affidavit of Ahmad Ammar. [^9]: Paras. 48-49, Affidavit of Austin Aldridge. [^10]: Para. 47, Affidavit of Austin Aldridge. [^11]: Para. 11, Amended Affidavit of Qaid Saleh. [^12]: During submissions, counsel for Leamington confirmed the hearing was audio taped. Counsel for Applicant knew of the audio recording. [^13]: In its factum, at para. 7, Applicant states it was noticed of the decision on June 7, 2021: Factum of Moving Party. [^14]: Para. 51 and Exhibit S, Affidavit of Austin Aldridge. [^15]: Counsel for Leamington objected to the amended affidavit as being filed late. After hearing submissions and considering same, I accept and consider the amended affidavit in the interests of justice. [^16]: Mr. Saleh averred at para. 7 of his amended affidavit, “I have operated my business since 2018 without any issues by the Municipality other than these recent allegations.” The evidence is contrary. [^17]: Notice of Decision Appeal Committee, Exhibit J, Affidavit of Austin Aldridge. [^18]: Notice of Decision Appeal Committee, Exhibit J, Affidavit of Austin Aldridge. [^19]: Paras. 56-57, Affidavit of Austin Aldridge. [^20]: Paras. 59-60 and Exhibit V, Affidavit of Austin Aldridge. [^21]: This is a telephone number of Nader’s Taxi: Exhibits Q and Y, Affidavit of Austin Aldridge. [^22]: Exhibit W at pp. 85-86, Affidavit of Austin Aldridge. [^23]: Exhibit U and Exhibit V at p. 84, Affidavit of Austin Aldridge. [^24]: Paras. 62-62 and Exhibit X, Affidavit of Austin Aldridge. [^25]: Exhibit X, Affidavit of Austin Aldridge. [^26]: Para. 65, Affidavit of Austin Aldridge. [^27]: Para. 65 and Exhibit Z, Affidavit of Austin Aldridge. [^28]: Para. 66 and Exhibit AA, Affidavit of Austin Aldridge. [^29]: Exhibits W and CC, Affidavit of Austin Aldridge. [^30]: Para. 21 and Exhibit J, Affidavit of Austin Aldridge. [^31]: Notice of Decision Appeal Committee, Exhibit J, Affidavit of Austin Aldridge. [^32]: Page 6, para. (d), Notice of Motion. [^33]: Page 7, paras. (a) and (b), Notice of Motion. [^34]: The first letter is from Leamington dated April 22, 2021 to Cristofari Farms, Inc. with regard to a contract with Primo Transportation for the transportation of Cristofari workers. Leamington advised, accurately, that Primo Transportation did not have a Transportation Licence. The second letter is from Leamington dated June 10, 2021 to Abdul Al Mansury advising him that a taxicab driver must be employed by a taxicab owner that has a taxicab owner licence and further advising him that Nader’s Taxi and Tamim Taxi, effective June 21, 2021, will no longer be licensed taxicab companies. [^35]: No contract was identified or provided. No financial information was provided. No taxi driver was identified or provided affidavit evidence. [^36]: In addition to no evidence from an economist, there is no evidence of the number of taxi cab businesses operating in Leamington or the estimated number of people who use taxi cabs in that community. [^37]: Para. 18, Factum of the Moving Party. [^38]: Para. 58, Factum of the Responding Party.