SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-432885
DATE: 20130607

RE: Desmond McLennon, Plaintiff

– AND –

George Berger, Pete Vrantsis, and the City of Toronto, Defendants

BEFORE: E.M. Morgan J.

COUNSEL:
Desmond McLennon, in person

David A. Gourlay, for the Defendants, The City of Toronto and Pete Vrantsis

George Berger, in person

HEARD: April 12, 2013

ENDORSEMENT

I. The action and the motion

[1] The Plaintiff brings two sets of claims which for convenience can be considered under separate headings.

[2] The first set relates to an incident that occurred on October 13, 2009, when the Defendant, George Berger (“Berger”), allegedly shouted a racial slur at the Plaintiff, who was driving his taxicab at the time. Berger is alleged to have then followed up this confrontation by conspiring with the Defendant, Pete Vrantsis (“Vrantsis”), a by-law enforcement officer with the City of Toronto, to file a false complaint of by-law infraction against the Plaintiff. That complaint under the Municipal Code was ultimately dismissed by a justice of the peace.

[3] The second set of claims relates to the fact that sometime prior to 1999 the Plaintiff applied to the City to renew his taxicab license, but his application was delayed due to an injury he had suffered at the time. By the time his application was processed, the City had changed its licensing program and was only issuing so-called Ambassador licenses rather than regular licenses. The Plaintiff claims that Ambassador licenses are not transferrable or delegable and therefore are not as valuable as regular licenses, and claims damages for the economic losses he alleges he suffered on the issuance of the Ambassador license.

[4] The City of Toronto and Vrantsis move under Rules 21 and 25 for an order dismissing the action or striking out the Statement of Claim as against the two of them. Berger appeared in person at the hearing, but takes no position on this motion.

II. The ‘incivility’ complaint

[5] The first claim pleaded by the Plaintiff is in respect of a by-law charge brought by Vrantsis and the City, at the complaint of Berger, against the Plaintiff for “Fail to be civil and well behave” [sic].

[6] The Statement of Claim is drafted by the Plaintiff representing himself. It is therefore not done in the wording or methodology of a lawyer. That said, I am of the view that it should be given a generous reading. The courts have an overall mandate to encourage access to justice. As Professor Michael Trebilcock put it in the Report of the Legal Aid Review 2008, at s. IV(a), “ the state has an obligation in various circumstances to facilitate access to law.”

[7] Facilitating self-drafted claims by not insisting on the formal niceties of pleadings is one way of advancing that mandate. Just as the courts have embraced “[a] broad and purposive approach to the interpretation of municipal legislation”, United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, [2004] 1 SCR 485, at para 8, so should they embrace a broad and purposive reading of pleadings issued by individuals who feel aggrieved by municipal acts.

[8] Accordingly, I am prepared to read the Statement of Claim with an understanding that it incorporates by reference many of the findings of the justice of the peace in the by-law decision. The pleading specifically references that decision and quotes from a crucial passage of it in which Berger was found not to be credible. The Court of Appeal has endorsed this approach in Web Offset Publications Ltd. v Vickery (1999), 1999 4462 (ON CA), 43 OR (3d) 802, at para 2:

[A]lthough no evidence is admissible on a motion under rule 21.01(1)(b) without leave of the court or on consent (neither was obtained here), we think that the motions judge was entitled to consider the documents specifically referred to and relied on in the amended statement of claim. These documents are not "evidence" precluded by rule 21.01(1)(b) but are, in effect, incorporated into the pleading.

[9] There are a number of findings of the court in the by-law enforcement proceedings, in which the City of Toronto and Vrantsis both played a role and in which Berger was a witness, that are by inference included in the Statement of Claim. These help flesh out what would otherwise be a very skeletal pleading.

[10] Berger is not a City of Toronto employee and the City is not responsible for his acts. Any claims by the Plaintiff against Berger himself are not challenged in this motion and will remain alive in the action. On the other hand, any claims by the Plaintiff against the City of Toronto based on Berger’s acts alone must be dismissed. Thus, for example, the defamation claim against Berger remains intact; any defamation claim against the City of Toronto or Vrantsis based on Berger’s words is dismissed.

[11] Vrantsis is a City of Toronto employee, and the City is potentially liable on account of his acts. This includes any acts that Vrantsis did in furtherance of an alleged conspiracy with Berger. The justice of the peace made it clear that Vrantsis pursued the by-law complaint put forward by Berger in a way that strikes one as unusual at best.

[12] Vrantsis greatly facilitated the incivility complaint. Indeed, the incivility complaint indicates that Vrantsis was so helpful to Berger that that he went to Berger’s home to complete the infraction report – a level of personalized service from city hall that is certainly above and beyond the norm. Vrantsis endorsed Berger’s complaint even though it lacked credibility, according to the justice of the peace. The pleading herein clearly alleges that this was prompted by their shared racism.

[13] I find that there are sufficient details in the relationship between Vrantsis and Berger to support the claim of conspiracy. The pleading contains a number of indicia of malice and conspiracy to injure. The claim also contains sufficient detail to support the claim of racial discrimination on the City’s and Vrantsis’ part, both as a tort and as a claim for damages under the Charter, as well as the claims for abuse of public power, malicious prosecution, misfeasance in public office, and negligence against Vrantsis and, by extension, the City of Toronto. These are all premised on the recitation of facts surrounding Vrantsis’ alleged collaboration in bringing a racially motivated, false charge against the Plaintiff.

[14] Finally, there is a claim brought by the Plaintiff against Berger, Vrantsis, and the City for invasion of privacy. This claim is based on the fact that Vrantsis, in discussing the charge of breach of the by-law with Berger in his home, apparently disclosed to Berger the Plaintiff’s social insurance number. Vrantsis and the City contend that this disclosure was inadvertent and de minimis, while the Plaintiff claims it was either intentional or negligent and has caused substantial injury.

[15] It is for a trial judge to determine whether this was a tortious or an innocent disclosure. It is equally for a trial judge to assess whether any damage caused by this disclosure was substantial or minimal. There are enough facts pleaded to support the claim of invasion of privacy for now. The argument that the City and Vrantsis put forward at this point is based on their assumption that it will be difficult to prove this claim and/or to establish real loss. Those are not arguments that can succeed on a Rule 21 motion.

III. The taxi licensing claim

[16] As indicated above, the part of the Statement of Claim that is based on the denial of a regular taxicab license and the issuance of an Ambassador license pre-dates the 1999 change in City of Toronto licensing policy. Any such claim is either limitation barred or is in the nature of judicial review and ought not to have been brought in this court.

[17] To the extent that the claim is a tort claim based on the application of or the enactment of the 1999 City by-law amendment authorizing the issuance of taxi licenses, it is out of time. Under the then existing version of the Limitation Act, a tort claim would have had to have been brought within six years of the injury alleged to have been suffered. More than twelve years have now passed, and at least 10 years passed before the Statement of Claim was issued.

[18] To the extent that the challenge to the 1999 licensing by-law is a direct challenge to the enactment of the by-law itself, it is in the nature of judicial review and would have to be brought in Divisional Court. That court would then have to decide whether the defense of laches applies due to the long passage of time since the by-law’s enactment.

[19] The Plaintiff also brings a number of Charter challenges to the exercise of City power. The most serious of these, which is fleshed out more in the Plaintiff’s factum than in the Statement of Claim, is that the new Ambassador licensing scheme implemented in 1999 violated the rights of the Plaintiff as a person with suffering a disability. The Plaintiff contends that the Ambassador license, in prohibiting a licensee from delegating the driving tasks to another person, discriminates against a licensee with a disability where that disability prevents the licensee from doing the driving himself.

[20] In my view, such a challenge based on a violation of equality rights under section 15(1) of the Charter of Rights and Freedoms cannot succeed. While the Supreme Court of Canada has held that the denial of equality rights on the grounds of disability can be a denial in either the purpose or the effect of a legislative policy or administrative act, Eldridge v British Columbia, 1997 327 (SCC), [1997] 3 SCR 624, not every governmental act that fails to take into account all possible disabilities violates the Charter. As the court made clear in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 SCR 650, at para 121, “[t]he discriminatory barrier must be removed unless there is a bona fide justification for its retention…”

[21] As indicated, the Plaintiff’s complaint about the Ambassador license is that he is unable to hire another driver to drive the taxicab under this license, and since he is (or was at some time in the past) unable to drive it himself, he has suffered an infringement of his rights. In my view, this argument is out of the bounds that the courts have placed on claims of inequality on the grounds of disability. Here, there is a bona fide justification for the limitation that the City has apparently implemented in its Ambassador taxi drivers’ licensing scheme: in order to qualify for a taxi license, a person must be able to actually drive a taxi.

[22] To be clear, the Plaintiff does not claim that the licensing policy was discriminatory on the grounds that it required a skill that was not genuinely necessary for driving a taxicab. That would be the case if, for example, the taxi licensing requirements included passing a math test or reaching a certain level of endurance running on a treadmill. Rather, the Plaintiff’s claim is that the licensing policy required the licensee to be able to drive, and then required that the qualified licensee to actually be the driver of the taxicab.

[23] At the core of the public safety and other concerns that underpin all licensing schemes is the goal of ensuring that the licensee has the skill – the physical and mental ability – to perform the licensed task. This will, in the nature of things, exclude those without those requisite abilities, whether by reason of a disability or otherwise.

[24] The very goal of licensing is to limit the licensees to those with the ability to perform the licensed task. Implementing this goal is not itself a violation of equality. The ability to fly an airplane, practice law, perform surgery, etc. may exclude certain people who are unable to perform those tasks; but the otherwise neutral administration of those licensing policies is not unconstitutional or discriminatory in a legally cognizable way. As the Supreme Court stated in Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 SCR 143, at para 13 (per McIntyre J., dissenting):

[i]t is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may — and to govern effectively — must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures.

[25] In challenging the Ambassador licensing system and that system’s prohibition on anyone but the licensee from operating an Ambassador taxicab, the Statement of Claim does not support a claim of invidious discrimination by the City. Rather, the facts as pleaded add up to little more than the City implementing a bona fide public policy. A claim that the City thereby violated section 15(1) of the Charter cannot succeed on this pleading.

[26] The other Charter claim pleaded is that the issuance of an Ambassador license rather than a regular license amounts to a denial of life, liberty and security of the person under section 7. This is pleaded without much particularity, but appears to be based on the loss of livelihood suffered by the Plaintiff as a result of the licensing policy which prevents him from hiring other drivers to use his Ambassador license.

[27] The section 7 claim, if I understand it correctly in its very sparse drafting, asserts a right to economic sustenance. However, the Supreme Court has made it clear that no right to either social assistance or to a livelihood per se exists under section 7 of the Charter. Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429. As it was put in Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6, at para 46, “[t]he ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7 of the Charter.”

[28] The Charter claims contained in the portion of the Statement of Claim that pertains to the issuance of the Ambassador taxi license cannot succeed. Those claims are dismissed.

IV. Disposition

[29] The claims against Berger remain alive in the action, as do the following causes of action against Vrantsis and the City of Toronto in reference to the 2009 enforcement of the incivility by-law: conspiracy, racial discrimination, abuse of public power, malicious prosecution, misfeasance in public office, negligence, and invasion of privacy.

[30] All other claims and causes of action contained in the Statement of Claim against the City of Toronto and Vrantsis are dismissed.

[31] Given the mixed results of this motion, there will be no costs of this motion for or against any party.

Morgan J.

Date: June 6, 2013