CITATION: Thibault v. Attorney General of Ontario, 2024 ONSC 3168
DIVISIONAL COURT FILE NO.: DC-24-2844
DATE: 2024/06/03
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: André Thibault, Applicant
AND:
Attorney General of Ontario, Respondent
BEFORE: Justice K.A. Jensen
COUNSEL: Dahlia Shuhaibar and Gib van Ert, for the Applicant
Waleed Malik and Maia Stevenson, for the Respondent
HEARD: March 7, 2024
ENDORSEMENT
Introduction
[1] This is a decision on a motion, brought by the Applicant, André Thibault (Mr. Thibault or the Applicant), for an interlocutory injunction prohibiting the enforcement of ss. 2 and 3 of the Towing and Storage Safety and Enforcement Act, 2021,[^1] (the TSSEA) as against Mr. Thibault.
[2] In 2021, the Province of Ontario adopted a new regulatory regime for tow truck drivers through the TSSEA and Ontario Regulation 167/23 (the Regulation). The TSSEA and the Regulation include a certification regime to regulate, inter alia, the towing industry.
[3] Sections 2 and 3 of TSSEA stipulate that no one can provide towing services or work as a tow truck driver without a tow certificate or a tow driving certificate, respectively. The Regulation requires that the Director of Towing and Vehicle Storage Standards (the Director) refuse to issue or renew a tow operator or tow driver certificate in prescribed circumstances. One such circumstance is where an applicant has a "disqualifying record of convictions or charges".[^2] This includes being subject to a court order… prohibiting him or her from possessing a weapon".[^3]
[4] Mr. Thibault is subject to a mandatory lifetime weapons prohibition pursuant to section 109(1)(c) of the Criminal Code stemming from a conviction in 2001 under ss. 5(2) and 8(1) of the Controlled Drugs and Substances Act,[^4] (CDSA).
[5] Pursuant to the Regulation, the Applicant was denied a tow certificate and a tow driver certificate (the Certificates) on November 3, 2023.
[6] On January 4, 2024, Mr. Thibault brought an application for judicial review of and a constitutional challenge to s. 2(d), paragraph 3 of s. 8, paragraph 1 of s. 9(1), paragraph 4 of s. 15, and paragraph 1 of s. 16(1) of the Regulation (the Challenged Provisions).
[7] On January 4, 2023, I granted an interim injunction on consent enjoining anyone involved in the enforcement of the TSSEA from enforcing the requirement to have a tow certificate or a tow driver’s certificate against Mr. Thibault and his employer, Auto Auction, pending a determination of the present motion.
[8] For the reasons that follow, I deny the Applicant’s motion for an interlocutory injunction pending the determination of the Application.
Background Information
Mr. Thibault
[9] Mr. Thibault has been a tow truck driver since 1999. He works for a towing company in Ottawa that goes by the name of Auto Auction. He owns his tow truck.
[10] Mr. Thibault is 56 years old. He nearly obtained his high school diploma but was missing one credit. He is the main provider for his mother, aged 87, and son, aged 32, who live with him.
[11] In 2001, Mr. Thibault pleaded guilty to offences under ss. 5(2) and 8(1) of the CDSA He was sentenced to 16 months' imprisonment and 18 months' probation. Mr. Thibault's offences did not involve a firearm, and he has never owned or used one. However, a conviction under ss. 5(2) and 8(1) of the CDSA carries with it a mandatory lifetime prohibition order due to s. 109(1)(c) of the Criminal Code. Mr. Thibault's sentence therefore included a s. 109 weapons prohibition order.
[12] A s. 109 order has two parts: (1) an order prohibiting an individual from any weapon for 10 years following their release from prison, and (2) a lifetime prohibition on owning a "prohibited" weapon.
[13] The first part of the s. 109 order no longer applies, but Mr. Thibault will be subject to the second part for life.
[14] Mr. Thibault believes that there is no way for him to remove the s. 109 order from his criminal record. He says he could apply to "lift" the order under s. 113 of the Criminal Code, but an order under that section would only allow him to apply for a weapon for reasons of sustenance or employment; it would not remove the s. 109 order from his criminal record.
[15] Mr. Thibault states that even if he obtained a record suspension under the Criminal Records Act,[^5] that would not remove the s. 109 order from his criminal record.
[16] Mr. Thibault believes that although he could in theory apply for a pardon under the Royal Prerogative of Mercy, the Ministerial Guidelines stipulate that such pardons will not be granted "where the difficulties experienced by the applicant result from the normal consequences of the application of the law”. Mr. Thibault thinks this would include the application of ss. 2 and 3 of the TSSEA.
[17] Mr. Thibault states that he has not been charged with or convicted of an offence since 2001. He has never been told of any complaints made by customers or his employer about his work.
[18] Mr. Thibault has been working as a tow truck driver his whole adult life.
[19] Mr. Thibault had no statutory right to be heard before the Director refused to issue the Certificates.[^6] Under ss. 9(9) and 16(9) of the Regulation, there is no right of appeal in respect of a refusal to issue a certificate.
The TSSEA
[20] The TSSEA's enactment was preceded by a decade of reports and submissions to government identifying serious problems in the towing industry and calling for a legislative response.
[21] Among the problems identified in the various reports were the following:
Violence and organized crime: There were reports of escalating violence and extortion within the towing industry. This issue was highlighted in particular in a report from the Ontario Provincial Police and the Ministry of the Solicitor General about the towing industry which identified: (i) an increase in violence between 2015 and 2020, in part, due to significant infiltration of organized crime in the industry; (ii) significant criminal events in the sector between January 2018 and June 2020 including arson, assault, use of firearms, and multiple homicides; and (iii) public and officer safety was being impacted by the violent, uncontrolled environment stemming from a "fight for profits" in the industry. The violence and crime created unsafe environments for those working in or interacting with the towing sector (customers, enforcement officials and other tow operators), leading legitimate towing businesses to intentionally avoid collision tows.
Fraud and corruption: There were reports about widespread auto insurance fraud by organized crime rings and individual operators. The Anti-Fraud Task Force reported that “tow truck operators can serve as a critical 'first-link' in a chain of fraudulent activity." In a decision arising out of an investigation into the infiltration of organized crime in the towing industry in the GTA, the Ontario Court of Justice highlighted the depths of "corruption in the towing industry" and urged the Ontario Legislature to quickly address the "unregulated nature of car towing".[^7]
Consumer Exploitation: The reports noted that customers receiving towing services are in vulnerable positions and being exploited. The Towing Advisory Group reported that drivers involved in traffic collisions are often found in vulnerable states and left susceptible to opportunistic business practices and fraud.
Viability of the industry: Many stakeholders were concerned that these problems threatened the sustainability of the towing industry and law-abiding operators.
[22] In June 2020, the Ontario provincial government established the Towing Taskforce to improve provincial oversight of the towing industry and in response to concerns raised about incidents of criminal activity and violence in the towing industry. The Towing Task Force released its final report on March 2, 2021.
[23] The Towing Task Force recommended that the Province of Ontario legislate a requirement for a license or endorsement that tow truck operators would need to obtain before they operate a tow truck for commercial purposes to help professionalize the sector and deter criminal activity.
[24] The Legislature subsequently enacted the TSSEA by passing Bill 282, Moving Ontarians More Safely Act, 2021. After the TSSEA's enactment, the Lieutenant Governor in Council enacted the Regulation that, among other things, sets out the specific requirements and process for obtaining certificates.
[25] The TSSEA received Royal Assent on June 3, 2021, but sections 2 and 3 did not come into force until July 1, 2023. On July 18, 2023, the Ministry of Transportation advised members of the tow truck industry, including Mr. Thibault, that it would not enforce the requirement to have a tow operator certificate until January 1, 2024, or to have a tow driver certificate until July 1, 2024.
The Issue
[26] The issue in this case is whether the court should grant an interlocutory injunction enjoining the Respondent from enforcing the requirement to have a tow certificate or a tow driver’s certificate against Mr. Thibault and his employer, Auto Auction, pending a determination of the application for judicial review.
Analysis
1. The Court’s Jurisdiction
[27] Section 101 of the Courts of Justice Act[^8] provides the court with the jurisdiction to grant interlocutory injunctions. Section 101 states:
Injunctions and receivers
101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory Order may be granted or a receiver or receiver and manager may be appointed by an interlocutory Order, where it appears to a judge of the court to be just or convenient to do so.
Terms
(2) An Order under subsection (1) may include such terms as are considered just.
[28] In addition, section 4 of the Judicial Review Procedure Act[^9] provides the court with the authority to make such interim order as it considers proper pending the final determination of the application.
[29] The Respondent argues that an interlocutory injunction is not available for Mr. Thibault’s administrative law or Human Rights Code claims[^10]. The Respondent states that while the court may issue an injunction for a Charter claim, it should decline to do so in the present case.
[30] The Respondent argues that Ontario courts have held that, subject to narrow exceptions, interlocutory injunctions cannot be granted against the Crown.[^11] Courts have occasionally stayed enforcement of a regulation whose vires are challenged.[^12] However, the Applicant cannot enjoin enforcement of a statute whose vires is not in issue.[^13]
[31] In the present case, Mr. Thibault will be arguing on judicial review that paragraph 2(d)(i) of the Regulation is ultra vires because it strays beyond the purposes of the TSSEA by excluding people from the industry for reasons entirely unrelated to their ability to do their job, regardless of their individual circumstances, and without any opportunity to be heard or to appeal the decision.
[32] Mr. Thibault will also argue that the Lieutenant Governor in Council's decision to promulgate the Regulation was unreasonable because it failed to strike a proportionate balance between the TSSEA's statutory objectives and the values underlying ss. 1, 7, 11, 12, and 15 of the Charter of Rights and Freedoms (the Charter). He will further argue that the Regulation violates those provisions of the Charter.
[33] Given that Mr. Thibault has brought a Charter challenge and is contesting the vires of the decision to promulgate the Regulation, I find that I have the jurisdiction to consider whether an injunction against the Crown should issue in the present case.
2. There is a Serious Issue to be Tried
[34] The well-known test for an interlocutory injunction was provided by Justices Sopinka and Cory in RJR-MacDonald Inc. v. Canada (Attorney General).[^14] It is as follows:
A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.
It must be determined whether the applicant would suffer irreparable harm if the application were refused.
An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[35] The first step of the test requires the court to satisfy itself, based on common sense and “an extremely limited review of the case on the merits,” that the claim is not frivolous or vexatious.^15
[36] As this court stated in Lee v. 964988 Ontario Inc.[^16], this factor sets a low threshold, and in most cases, there is no need for an intensive review of the merits at the preliminary phase of the proceedings. However, if the court’s consideration of the other elements of the test is inconclusive, the court may revisit the question of the strength or merits of the plaintiff's case as an aspect of the balance of convenience factor.
[37] The Respondent argues that Mr. Thibault has not raised any serious issues to be tried in the present Application.
[38] Mr. Thibault counters that there is a serious issue as to whether the Challenged Provisions are ultra vires the TSSEA and/or unreasonable. He states that the parts of the Regulation which exclude people who have provided safe towing services for years based on a weapons prohibition are extraneous to or completely unrelated to the purpose of the TSSEA, which is to protect consumers and ensure public safety.
[39] Mr. Thibault also argues that the application raises serious issues with respect to whether the Challenged Provisions violate ss. 7, 11, 12, and/or 15 of the Charter. He argues that even if the Regulation does not violate those provisions of the Charter, it is an open question as to whether the Charter values underlying those provisions might apply to the regulation-making function. Mr. Thibault cites the recent Supreme Court of Canada decision in Commission scolaire francophone des Territoires du Nord-Ouest[^17] for the proposition that administrative decision-makers have an obligation to consider Charter values relevant to the exercise of their discretion, in addition to respecting Charter rights, whether or not a right has been infringed.
[40] The Applicant has identified the Charter values that are engaged in the present case as being:
(i) Substantive equality (s. 15 of the Charter) – Individuals with criminal histories, who are people that have experienced historical disadvantage in society, have a right to be dealt with on the basis of relevant factors, not irrelevant considerations like their criminal record.
(ii) Protection against the overbreadth and gross disproportionality of public safety legislation (ss. 1 and 7 of the Charter) – People have a right not to be deprived of their occupations except in accordance with the principles of fundamental justice.
(iii) The right not to be punished for an offence again once punishment has been served. (s. 11(g), (h), and (i)) of the Charter) - People should be able to determine the consequences of their offences at the time they commit them, and punishments should generally not be retroactively increased.
(iv) Freedom from cruel and unusual punishment (s. 12 of the Charter) – Once a person has served their sentence and reintegrated into society, they should not be prevented from engaging in their chosen employment simply as a result of lingering, but irrelevant consequences of their sentence.
[41] The Respondent argues that the case law clearly establishes that neither the Charter rights nor the Charter values enumerated above are engaged in the present case. The Respondent states that even if the framework in Commission scolaire francophone applies, the Applicant must show that the Challenged Provisions limit the Charter protections he relies on. The case law clearly establishes that this cannot be so.
[42] For example, the Respondent argues that “criminal history,” which is how Mr. Thibault characterizes the weapons prohibition, has been rejected by the courts as an analogous ground of discrimination under s. 15(1).[^18] Furthermore, “criminal history” does not meet the strict requirements set out by the Supreme Court to be recognized as an analogous ground.[^19] “Criminal history” is not an immutable characteristic. Rather, it relates to a person’s behaviour and interaction with the justice system. It relates to what people do, rather than what they are.
[43] Mr. Thibault’s response to the argument above is that a court may find that a condition on one’s record, such as a weapons prohibition, which cannot be lifted or changed in any way rises to the level of an immutable characteristic. The fact that Mr. Thibault has not been able to point to any decisions finding that criminal history or similar status is an analogous ground does not disqualify that argument at the “serious issue” stage of the test, according to Mr. Thibault.
[44] Another example of the Respondent’s arguments regarding the alleged frivolous nature of Mr. Thibault’s application relates to s. 7 of the Charter. Section 7 guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Respondent points to the Court of Appeal’s decisions in Mussani[^20] and Tanase[^21] in which the Court held that s. 7 of the Charter was not engaged by the revocation of a license to practice one’s profession regardless of the stress, anxiety and stigma that this might entail.
[45] Mr. Thibault argues that as limited as the judicial application of s. 7 may be to economic rights such as employment, the courts have left open the possibility that s. 7 may, in the appropriate circumstances, protect economic rights fundamental to human survival. He relies on the following words of the Alberta Court of Appeal in AC and JF v Alberta[^22]:
The foundational principles of s. 7 hint at the possibility that the provision may, in certain circumstances, protect positive substantive rights and “economic rights fundamental to human … survival”: see, e.g. Irwin Toy v Quebec (AG), 1989 87 (SCC), [1989] 1 SCR 927 at 1003-1004; New Brunswick (Minister of Health and Community Services v G(J), 1999 653 (SCC), [1999] 3 SCR 46 at para 107.
The Supreme Court has indicated that the parameters of rights under s. 7 can properly be revisited where the legal conception of s. 7 rights and the principles of fundamental justice, or the factual matrix, or both, have changed since their consideration in earlier decisions: see Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford] and Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter]. As the chambers judge noted, the claimants in Bedford and Carter were told their claims were hopeless (indeed the same claims had previously failed to succeed in the courts), yet they prevailed given the evolution in the legal and factual landscape. In Bedford, the Supreme Court recognized that the principles of fundamental justice are an attempt to capture our basic values, including that laws not be arbitrary, overbroad, or grossly disproportional: Bedford, at para 96.
[46] Mr. Thibault argues that there is a serious issue to be tried as to whether the Government is permitted to deprive him of his security of the person interest by automatically disqualifying him from the employment he has held since 1999, preventing him from earning a living and depriving him of his personal and professional identity. He relies upon the statements of the Supreme Court of Canada about the fundamental importance of work to a person’s identity. For example, in Wallace v. United Grain Growers Ltd.,[^23] Justice Iacobucci, for the Court, stated that the loss of one’s job is “always a traumatic event”. In Lavoie v. Canada,[^24] Justice Bastarache stated: “… work is a fundamental aspect of a person’s life, implicating his livelihood, self-worth and human dignity”. For the majority, Bastarache J. added that employment is an interest that “enjoys constitutional protection”.^25 Finally, in Reference re Public Service Employee Relations Act (Alberta)[^26], then Chief Justice Dickson commented on the importance of work to a person’s self-identity in the following terms:
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
[47] Thus, Mr. Thibault states that it is not frivolous to argue that the loss of one’s job as a result of factors beyond one’s control, such as a lifetime weapons prohibition, goes to the core of human identity and thereby violates s. 7 of the Charter.
[48] While I find that the Applicant is certainly up against a stiff challenge in establishing the alleged violations of the Charter and the administrative law claims, I am not prepared to find that the application is frivolous or vexatious at this stage. Mr. Thibault has cleared the low hurdle of establishing that there are serious issues to be tried.
Mr. Thibault will Suffer Irreparable Harm
[49] At the second stage of the RJR-MacDonald test, the question is whether a refusal to grant relief could so adversely affect Mr. Thibault's own interests that the harm could not be remedied if he is ultimately successful on his Application. The term "irreparable" refers to the nature of the harm rather than its magnitude. It is a harm that either "cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other."^27
[50] In RJR-MacDonald, the Supreme Court stated that damages are not normally compensable in Charter cases because of the uncertain state of the law in this area. Therefore, the Court stated, until the law in this area has developed further, it is appropriate to assume that the financial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutes irreparable harm.
[51] The law on Charter damages has been slowly evolving. In Vancouver (City) v. Ward,[^28] the Supreme Court of Canada held that damages for breach of a claimant’s Charter rights may be appropriate, in certain cases. However, the Court stated that granting damages under the Charter is still a new endeavour. The Court held that the approach to when damages are appropriate and just should develop incrementally. However, the Supreme Court approved the lower court’s award of $5,000 in damages for a strip search that violated the Mr. Ward’s s. 8 rights.
[52] In Ward, the Supreme Court stated that even if the claimant establishes that damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. Two considerations were highlighted by the Court: the existence of alternative remedies and concerns for good governance.[^29]
[53] With respect to good governance considerations, the Supreme Court stated that courts must consider “the Mackin principle.” That principle recognizes that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-making functions are one such area of state activity. Thus, it may be that if the Mackin principle is invoked in the present case, Mr. Thibault will be unable to obtain damages.
[54] Mr. Thibault attested in his affidavit that if the injunction is not granted, he will be unable to continue working as a tow truck driver while he awaits a decision on the merits. He stated that he would not be able to find employment other than a minimum wage job.
[55] Mr. Thibault is the main provider for himself, his 87-year-old mother and 32-year-old son. He has a mortgage that is up for renewal this summer and will likely face higher interest rates. He attested that he has some savings, but they would not last him long. He would face difficulty in paying his legal fees to challenge the very legislation that is preventing him from working.
[56] The Respondent states that Mr. Thibault has not met the burden of providing clear, non-speculative evidence that he will suffer irreparable harm without the injunction. He speculates that he will be fired by his current employer if an injunction is not granted. However, his employer may have other work for him that does not require a certificate. If he does lose his position as a tow truck driver, he may be able to find another well-paying job such as driving a large vehicle.
[57] A party seeking to prove irreparable harm must provide clear, not speculative, evidence (including financial evidence) that it will suffer irreparable harm without the injunction. Irreparable harm cannot be founded on mere speculation. Absent clear evidence of irreparable harm, the court will not issue an injunction.[^30]
[58] Counsel for Mr. Thibault stated that Mr. Thibault’s evidence is not speculative; it is uncontradicted and must be accepted as fact. Counsel stated that the Respondent had every opportunity to cross-examine Mr. Thibault on his evidence to establish that it was speculative. Since the Respondent did not do so, Mr. Thibault’s evidence must be accepted.
[59] It is true that Mr. Thibault has not provided evidence of his attempts to get another job or his banking statements demonstrating that his cash reserves are low. However, I find it more probable than not that Mr. Thibault will experience some harm if he is denied an injunction. He does not have a high school diploma; he is 56 years of age and has worked as a tow truck driver all his adult life. If he is to avoid a minimum wage job, he will have to incur some expense to retrain as a long-haul truck driver, for example. He will not be able to assume that role immediately and will therefore, have to rely on his savings, which he states are not ample. In addition, he is supporting his elderly mother and son. I find therefore, that Mr. Thibault will experience financial hardship. In addition, the loss of his ability to earn a living at his chosen occupation will likely be “traumatic,” as stated by the Supreme Court of Canada in Wallace. This will most probably result in significant emotional hardship.
[60] Given the above-noted legal uncertainty as to whether Mr. Thibault will be able to claim any compensation for these losses and hardship, I find that he has established that he will suffer irreparable harm.
The Balance of Convenience Favours Dismissing the Motion
[61] Most motions for injunctions are decided upon the basis of the third criterion in the RJR-MacDonald test – the balance of convenience. This case is no exception.
[62] The moving party bears a heavy burden. They must demonstrate the public interest benefits that will flow from granting an injunction.[^31] If they cannot demonstrate that the greater public interest will be served by granting an injunction, the motion must fail.
[63] When a public authority is prevented from exercising its statutory powers, it can be said that the public interest, of which that authority is the guardian, suffers irreparable harm.[^32]
[64] Courts will rarely order that laws that Parliament or the Legislature have duly enacted for the public good will not operate or be enforceable in advance of a full constitutional review.[^33] Only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality or a violation of the Charter will succeed.[^34]
[65] This is not one of those clear cases where the public interest favours an injunction. Mr. Thibault’s arguments with respect to the public interest in granting the injunction are not persuasive. He first argues that the public has an interest in seeing that laws which violate the Charter are not applied to anyone. That argument is insufficient for the reasons set out above: until such time as the Charter violations have been proved, it is assumed that the legislation is Charter compliant.
[66] Mr. Thibault also argues that the public interest in the rehabilitation of every offender would be undermined by applying the impugned provisions to him and others in his circumstances while he awaits a decision on the application. That too is not a persuasive argument. It relies on the unproven assumption that the Challenged Provisions interfere with offenders’ rehabilitation. It is not permissible at this stage to rely on such assumptions. Mr. Thibault did not provide any evidence to support this assertion.
[67] Finally, Mr. Thibault argues that the relief claimed amounts to an exemption from the Challenged Provisions rather than a “suspension” of their application. The injunction would merely temporarily exempt one person – himself - from the application of the provisions. Therefore, relying on the Supreme Court’s statements in Metropolitan Stores, the Applicant argues that the public interest in the enforcement of ss. 2 and 3 of the TSSEA against Mr. Thibault weighs less heavily here.[^35]
[68] In Metropolitan Stores, the Supreme Court held that the public interest is less likely to be detrimentally affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.
[69] Nevertheless, the Supreme Court stated in Metropolitan Stores that the public interest must not be discounted in exemption cases; it continues to be a pressing concern, especially in cases involving wide application of the impugned legislation. The reason for this is that granting an exemption to one applicant in the form of an injunction makes it difficult to refuse the same remedy to others who find themselves in essentially the same situation, with the result that the injunction essentially amounts to a suspension of the application of the law.[^36]
[70] In the present case, the Respondent argues that the risk of opening the floodgates is present here. Evidence of the most recent figures available indicate that there are approximately 1,600 tow truck companies and 3,000 tow truck drivers in Ontario. The Respondent states that if this motion is granted, it will be a precedent for anyone else denied a certificate under the TSSEA to challenge the law and obtain the same stay.
[71] Mr. Thibault objects to this argument stating that the Respondent has failed to produce evidence of the number of people who have been denied certificates and who might challenge the law. Mr. Thibault argues that the Respondent cannot rely on conjecture to invoke the “floodgates” argument. He states that the Court must simply look at whether granting him an exemption from the application of the TSSEA will undermine the public safety goals of the TSSEA.
[72] Mr. Thibault argued that the delayed enforcement of the legislation supports his assertion that there would be no immediate irreparable harm to the public interest in granting the injunction. I disagree. This court has held that a government delaying enforcement of health bylaws did not undermine the public interest favouring their enforcement but rather showed due concern for competing interests.[^37]
[73] In the present case, the evidence from Jim Kirchner, Program Standards Manager in the Towing, Vehicles and Storage Oversight Office of the Ministry of Transportation, supports the assertion that a similar approach was adopted with respect to the TSSEA. The Government of Ontario adopted a phased approach to the TSSEA to give the towing industry time to adjust to the significant new oversight model. This approach, which balances the interests of the various stakeholders, does not detract from the clear public interest served by the TSSEA.
[74] Furthermore, the question at this stage of the test is not whether the public interest in enforcing the TSSEA against everyone would be undermined by the granting of an injunction to Mr. Thibault but rather, whether the public interest in granting the injunction outweighs the public interest in maintaining the application of the law to everyone.
[75] I find that the public interest in enforcing the Challenged Provisions outweighs the public interest in exempting Mr. Thibault from their application. The Challenged Provisions are presumed to be constitutionally valid unless proven otherwise. They are an integral part of a regulatory regime designed to protect public safety. The evidence establishes that there has been an increase in criminal activity in the towing industry and that violence and crime have created unsafe environments for those working in or interacting with the towing sector. Stakeholders recommended that criminal record checks be part of a comprehensive scheme to regulate this increasingly dangerous sector.
[76] An exemption from legislation that has such significant public safety functions sends the wrong message. It minimizes the importance of the public safety goals of the legislation. Exemptions from such legislation should not be granted unless there are compelling circumstances. Those circumstances do not exist here.
[77] Mr. Thibault asserts that it is not in the public interest for him to suffer irreparable harm from the application of a law he thinks is unfair. However, Mr. Thibault’s view of the fairness of the Challenged Provisions may not translate into a legal victory in this case. In the meantime, there is a strong public interest in ensuring that the legislation applies to everyone, given its important public safety function.
[78] I find therefore, that the public interest in enforcing the Challenged Provisions outweighs the public interest in granting an exemption to Mr. Thibault in the form of an interlocutory injunction.
Conclusion
[79] For the reasons set out above, the motion is dismissed.
[80] The Respondent has indicated that they are not seeking costs. Therefore, no order will issue with respect to costs.
Justice K.A. Jensen
Date: June 3, 2024
CITATION: Thibault v. Attorney General of Ontario, 2024 ONSC 3168
DIVISIONAL COURT FILE NO.: DC-24-2844
DATE: 2024/06/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: André Thibault, Applicant
AND:
Attorney General of Ontario, Respondent
BEFORE: Justice K.A. Jensen
COUNSEL: Dahlia Shuhaibar and Gib van Ert, for the Applicant
Waleed Malik and Maia Stevenson, for the Respondent
ENDORSEMENT
Justice K.A. Jensen
Released: June 3, 2024
[^1]: S.O. 2021, Chapter 26
[^2]: The Regulation, ss. 9(1), para 1 and 16(1), para 1
[^3]: The Regulation, s. 2(d)(i)
[^4]: S.C. 1996, c. 19
[^5]: RSC 1985, c. C-47
[^6]: Sections 9(4) and 16(4) of the Regulation.
[^7]: R v Kasotty, 2021 ONCJ 238 at paras 26-28
[^8]: R.S.O. 1990, c. 43.
[^9]: RSO 1990, c.J. 1, s. 4
[^10]: Mr. Thibault withdrew his request for an injunction on the basis of alleged violations of the Ontario Human Rights Code at the hearing of this motion and therefore, it will not be considered in these reasons.
[^11]: Aroland First Nation y Ontario, 1996 7961 (ON SC), [1996] OJ No 557 (ON SC) at paras 27-28. This flows from the Crown's immunity from injunctions at common law, which is now reflected the Crown Liability and Proceedings Act, 2019 SO 2019, c 7, Sch 17, s. 22(1).
[^12]: Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993, at para 17.
[^13]: Grain Farmers of Ontario v Ontario Ministry of the Environment and Climate Change, 2015 ONSC 6581, at para 15.
[^14]: 1994 117 (SCC), [1994] 1 SCR 311 (RJR-MacDonald)
[^16]: 2022 ONSC 3687
[^17]: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at para 64,
[^18]: See for example, Association des policiers provinciaux du Québec c. Sûreté du Québec, 2007 QCCA 1087at para 35.
[^19]: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 SCR 203, at para 13
[^20]: Mussani v College of Physicians and Surgeons of Ontario, 2004 48653 (ON CA) at paras 39-60. (Mussani)
[^21]: Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 at paras 58 (Tanase)
[^22]: AC and JF v Alberta, 2021 ABCA 24 at paras 48 and 50
[^23]: Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 SCR 701, at para 95
[^24]: Lavoie v. Canada, 2002 SCC 23, at page 807.
[^26]: Reference re Public Service Employee Relations Act (Alberta), 1987 88 (SCC), [1987] 1 S.C.R. 313, at p. 368
[^28]: Vancouver (City) v. Ward, 2010 SCC 27 (Ward).
[^29]: Ward, at para 33.
[^30]: Morgan Canada Corporation v MacDonald, 2023 ONSC 5217 at para 93; Dilico Anishinabek Family Care v Her Majesty the Queen (Ontario), 2020 ONSC 547 at para 8.
[^31]: RJR-MacDonald at pp 348-49; North of Smokey Fishermen's Assn y Canada (Attorney General), 2003 FCT 33 at para 24 (North of Smokey); Barbra Schlifer Commemorative Clinic v Canada, 2012 ONSC 5271 at para 161.
[^32]: North of Smokey, at para 25
[^33]: Manitoba Federation of Labour et al. v. The Government of Manitoba, 2018 MBQB 125, at para 146
[^34]: Harper v. Canada (Attorney General), 2000 SCC 57, at para 9
[^35]: Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] | SCR 110 at 134-135 (Metropolitan Stores)
[^36]: Metropolitan Stores, at page 146.
[^37]: Mahmoud and Lebanese Palace Inc and Itaif v City of Ottawa, 2017 ONSC 5138 at paras 24-26