ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-11-424659
Date: 20120703
BETWEEN:
Toronto Towing and Storage owned and operated by 660134 Canada Ltd. and Parking Control Services owned and operated by Lucro Technologies Inc. Plaintiffs – and – City of Toronto, Metropolitan Toronto Police and Ricardo Fidel Yowfoo Defendants
Counsel:
Darren Fox, for the Plaintiffs
Rosanne Giulietti, for the Defendants
Heard: June 5, 2012
B. P. O’marra J.
Reasons for Decision
[1] This is a motion by the Defendants under Rule 21.01 for an order striking out the Fresh as Amended Statement of Claim and dismissing the action.
The Claim
[2] The Toronto Towing and Storage (“TTS”) provides towing services to private property owners based on contract law where parking is consensual. Further, Parking Control Services assists property owners in efforts to control the parking of illegally parked vehicles on private property by issuing parking infraction notices.
[3] In 2006, TTS started towing unauthorized vehicles on behalf of owners of private property such as shopping malls, plazas, apartment buildings, retail entities and paid parking lots.
[4] On March 13, 2007 TTS removed two vehicles for parking on private property without paying the parking fee.
[5] TTS provided a tow card and invoice for each of the two vehicles and faxed the tow cards to the parking enforcement unit to have them entered on CPIC. The purpose of faxing the tow card was to provide notice to the vehicle owners (via the police) that their vehicle was towed and not stolen. CPIC is a data base that stores information pertaining to licence plates.
[6] The Plaintiff claims that the tow cards for these vehicles were purposely not entered onto CPIC and as a result the Plaintiff was charged with theft by Toronto Police Services.
[7] The Plaintiff further claims he was forced to return the vehicles to the owners without them having to pay the towing and storage fees.
[8] The Plaintiff further claims they were told to discontinue towing vehicles or they will continue to be charged.
[9] On August 25, 2006 the Plaintiff’s licence to issue Parking Infraction Notices was suspended by the Toronto Police Service.
[10] The claim is for damages based on two components:
Damages for unlawful interference with the Plaintiff’s business for interfering with parking enforcement by way of towing cars. He claims the Toronto Police intentionally do not enter the tow card information on CPIC so that vehicles are reported stolen and theft charges follow.
Reinstatement of TTS’s enforcement licence as he has lost revenue by being forced out of the business.
Rule 21.01 Motion
[11] A party may move before a Judge to strike a pleading on the ground it discloses no reasonable cause of action and the Judge may make an order or grant judgment accordingly. No evidence is admissible on such a motion.
Rules of Civil Procedure, Rule 21.01(1)(b) and 2(b).
[12] In response to this motion the Plaintiff submits that he does not contest the validity of the relevant bylaw. Rather, he says it should not be applied to his business which is based in contract. He claims damages that arise from the application of the bylaw and loss of business. Further he claims he is being deliberately targeted for unfair treatment by the Defendants and that the Defendants are not abiding by the Court of Appeal ruling in Imperial Parking Canada Corporation v. City of Toronto, 2007 ONCA 649.
[13] The Imperial Parking decision upheld a declaration that a licensing bylaw by the City of Toronto that prohibited commercial parking lots from issuing private parking tickets to vehicles parked without the parking lot owner’s consent did not apply to Imperial Parking in operating various commercial lots. In particular, the Court stated that signs posted on the lots expressly state that Impark consented to the parking of vehicles without payment in advance and held that the fees collected are sums owing in contract rather than damages for trepass.
[14] The Plaintiff relies on that decision to claim that his parking enforcement business is based in contract and should not be subject to the municipal bylaw. However, that decision did not deal in any way with the towing of vehicles and the attendant cost consequences.
[15] The Plaintiff does not challenge the validity of the bylaw but claims damages arising from enforcement.
[16] A municipality may not be held civilly liable for the exercise of its regulatory power if it acts in good faith, unless its exercise can be characterized as irrational. A municipality has a margin of legitimate error. In public law it is protected by what may be called relative immunity.
Entrerpises Sibecca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304 at para. 23.
[17] The Plaintiff claims he was targeted for unfair treatment by the Toronto Police Service and the individual Defendant. In effect he alleges malice apparently based on the disregard of the decision in Imperial Parking that caused him damage. Malice must be pleaded with particulars and I do not find any aspect of the claim that approaches the full particulars required.
Rules of Civil Procedure, Rule 25.06(8)
Wilson v. Toronto Police Service et al., 2002 4770 (O.C.A.) at para. 2.
[18] The second component of the claim is to challenge the 2006 decision to suspend the Plaintiff’s licence to issue Parking Infraction Notices. That decision was the exercise of statutory power of decision as defined in the Judicial Review Procedure Act. An application for judicial review is properly brought before the Divisional Court by way of application and not by action in the Superior Court of Justice. This second portion of the claim is in the wrong forum.
Judicial Review Procedure Act, R.S.O. 1990 J.1, s. 1, 6.
City of Bramption v. Brar, 2011 ONSC 7156.
Conclusion
[19] The application is granted and the Fresh as Amended Statement of Claim is struck.
[20] I will consider brief written cost submissions (no more than three pages) to be received at Judicial Administration within 14 days of the release of this ruling.
B. P. O’Marra J.
Released: July 3, 2012
COURT FILE NO.: CV-11-424659
DATE: 20120703
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Toronto Towing and Storage owned and operated by 660134 Canada Ltd. and Parking Control Services owned and operated by Lucro Technologies Inc. Plaintiffs – and – City of Toronto, Metropolitan Toronto Police and Ricardo Fidel Yowfoo Defendants
REASONS FOR DECISION
B. P. O’Marra J.
Released: July 3, 2012