Court File and Parties

CITATION: Toronto Taxi Alliance Inc. v. Toronto (City), 2015 ONSC 2432

COURT FILE NO.: CV-14-502614

DATE: 20150415

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: TORONTO TAXI ALLIANCE INC., Applicant

AND: CITY OF TORONTO and TAXIWORKERS ASSOCIATION OF ONTARIO, Respondents

BEFORE: Stinson J.

COUNSEL: Michael I. Binetti and Fiona Campbell, for the Applicant Ansuya Pachai, for the Respondent, City of Toronto Peter Rosenthal and Renatta Austin, for the Respondent, Taxiworkers Association of Ontario

HEARD at Toronto: by written submissions

COSTS ENDORSEMENT

[1] In my Reasons for Judgment released January 30, 2015, I granted some of the relief requested in this application, by quashing the by-law amendment providing for a 2024 deadline for the conversion of all STLs to TTLs. I refused the remainder of the relief sought.

[2] I was subsequently informed by counsel that neither the City nor TTA seeks an award of costs. iTaxiworkers, however, has made a written submission seeking costs against TTA, to which TTA has responded. This ruling addresses that costs request.

[3] As initiated by TTA, this application named only the City as a respondent. When it became aware of the proceedings and TTA’s motion for an interlocutory injunction, iTaxiworkers sought to intervene. Counsel for TTA requested iTaxiworkers’ motion materials in support of its request for intervenor status. Following review of those materials, TTA did not oppose the request. iTaxiworkers was granted full party status at the time TTA’s injunction motion was argued.

[4] iTaxiworkers thereafter participated as a full party. It was involved at the hearing of the interlocutory injunction motion. In the application, it served an affidavit, participated in cross-examinations, filed a factum and presented argument at the hearing.

[5] In light of the outcome (in which much of the impugned by-law was upheld) iTaxiworkers seeks a total of $7,500 in costs from TTA. This is comprised of $3,500 for the injunction and intervention motions, and $4,000 for the main application.

[6] In part, iTaxiworkers bases its requests for costs on the terms of an agreement as to costs made by all parties while the decision on the application was under reserve. That agreement, however, was premised on complete success in favour of one side or the other. In view of the divided outcome of the application, that agreement is not operative. I therefore conclude that I should not take it into account in this ruling.

[7] Additionally, in the written costs submissions of the parties, reference was made to various settlement discussions. As best I can determine, none of the settlement proposals mirrored the outcome at which I arrived in my decision. I therefore conclude I should have no regard to those exchanges.

[8] A preliminary question to address is whether any costs should be awarded to iTaxiworkers, in light of the fact that it involved itself in this litigation at its own instance. iTaxiworkers argues that it should have been named as a respondent in the first instance, and should not have been put to the expense and trouble of moving to be added on a motion for intervention. It points to the decision of Ground J. in Toronto Taxicab Owners and Operators Assn. v. Toronto (City), [2001] O.J. No. 5217 (Div. Ct.). In that case, a predecessor of TTA moved for injunctive relief to prevent the City from issuing Ambassador licences under an earlier taxi licensing reform regime enacted by the City. The interlocutory injunction was granted in the first instance. Unfortunately, a large number of specific individuals who had completed the required course for obtaining an Ambassador licence were not included as parties or served with notice of the motion for the injunction by which the City was enjoined from issuing them the licences for which they had qualified. Ground J. held that those individuals should have been notified, and when he set aside the injunction he awarded them costs.

[9] I do not consider that case to be analogous to the present matter, because there the affected individuals were personally ascertainable: they were the successful applicants for Ambassador licences who were awaiting their issuance. Those individuals were thus directly affected by the relief sought, to the knowledge of the moving party. As such, they were necessary parties who should have been joined as respondents in the first place: see rule 5.03(1).

[10] Here, iTaxiworkers has no official status. While it is an industry group to which some taxi drivers belong, iTaxiworkers cannot bind those persons; at best, it can (and did) articulate the perspective of some drivers who supported the 2014 reforms. As such, unlike the matter before Ground J., iTaxiworkers was not a necessary party and I do not fault TTA for not joining it as a named respondent in the first instance. Once iTaxiworkers provided evidence to explain its involvement, TTA did not oppose the request for joinder.

[11] The intervention motion was thus not contested. At the time, iTaxiworkers reserved its right to seek costs. It also reserved its right to seek costs of the injunction motion.

[12] I conclude that there should be no award of costs in relation to the intervention motion. I reach that conclusion because: (a) iTaxiworkers was not a necessary party; (b) it sought to participate of its own initiative, despite the fact that the City was already opposing the injunction motion and the main application; and (c) TTA did not oppose the intervention motion once it was properly brought.

[13] I also conclude that no costs should be awarded in relation to the injunction motion. I reach that conclusion because: (a) iTaxiworkers was not a necessary party; (b) it participated of its own initiative, despite the fact that the City was already opposing the motion; and (c) the motion was resolved on consent, a compromise that in part benefitted those who supported iTaxiworkers’ position.

[14] In relation to the main application, iTaxiworkers supported the City’s position. Importantly, it also presented some critical evidence in relation to the issue of the knowledge and expectations of industry participants in relation to the by-law enactment process over the relevant period. I accepted and relied upon the evidence proffered by iTaxiworkers, an important factor in my determination of the notice issue: see paragraphs 65 to 71 of my Reasons for Judgment.

[15] As I have acknowledged, success on the application was divided. In many cases, such a result would dictate an order that no costs be paid by either side. In this circumstance, however, on the principal issue addressed by it – namely the factual dispute regarding notice – iTaxiworkers prevailed. In my view, that result supports the conclusion that some award of costs be made in its favor.

[16] Taking into account the foregoing factors, as well as the importance of the issues, the time spent, the degree of success achieved and the complexity of the matter, I would award iTaxiworkers costs fixed at the sum of $2,500 inclusive of disbursements and applicable taxes. I order TTA to pay that sum to iTaxiworkers within 15 days of the release of this decision.

Stinson J.

Date: April 15, 2015