ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: CV-13-115006
DATE: 20150721

BETWEEN:

407 ETR Concession Company Limited
Plaintiff

– and –

Ira J. Day
Respondent

J. Thomas Curry, Rebecca Jones, Emily Graham, for the Plaintiff

Ronald D. Manes, Joshua Ginsberg, for the Defendant

HEARD: August 6, 2014

supplementary REASONS FOR Decision

EDWARDS J.:

Overview

[1] In reasons released November 4, 2014 that addressed the timing of the commencement of the limitation period for unpaid 407 invoices, I stated at paragraph 58:

In coming to the ultimate conclusion that the appropriate limitation period is one that commences two years from the date when a consumer of the 407 is placed into licence plate denial, I have also considered that to conclude otherwise would potentially result in a number of limitation periods that would apply depending upon who the user of the 407 was… [My emphasis, not contained in my in my original reasons]

[2] Since the release of my reasons, the parties were unable to agree on the form of the order to be issued by the court. The parties have filed supplemental written submissions and reply submissions.

Position of the 407

[3] Counsel for the 407 frames the issues between the parties as to whether the court held that the two year limitation period began to run: (a) on December 31, 2011, being the date on which Mr. Day failed to renew his vehicle permit after having been placed into licence plate denial (as argued by the 407) or, (b) on May 26, 2011, being “the date on which the Highway 407 Act, S.O. 1998, c.28, enabled 407 ETR to place Mr. Day into “licence plate denial” pursuant to section 22 thereof, as argued by Mr. Day.

[4] Counsel for the 407 argues that my reasons establish that the licence plate denial regime is triggered on the date of which the vehicle permit of a customer who is in licence plate denial expires without payment being made. Simply put it is suggested that this occurs when the 407 discovers its claim, which in the case of Mr. Day was December 31, 2011.

[5] Factually, Mr. Day paid his last invoice which was owed to the 407 on December 21, 2010. His next invoice was issued by the 407 on January 21, 2011, and the 407 was notified by the Registrar of his failure to pay this invoice on August 10, 2011.

[6] Fundamentally, counsel for the 407 argues that my reasons, particularly those set forth in paragraphs 52 through 60, illustrate that it was my intention that the limitation period would commence to run from the date Mr. Day allowed his vehicle permit to expire while it was in the licence plate denial process.

[7] It is further argued that if the position of Mr. Day was accepted no limitation period would have expired, and that his proposed interpretation undermines my reasons and would require the 407 to commence litigation in circumstances where this court already found it would be contrary to the public interest in an efficient civil justice system.

[8] Factually it is argued on behalf of the 407, that the 407 only learned that the licence plate denial process did not result in payment by Mr. Day when his vehicle permit actually expired after having been placed into licence plate denial. The 407 did not, and could not have made this discovery at the outset of the licence plate denial process.

[9] The essence of the argument put forth by the 407 is that the vehicle permit expiry date, which results from the operation of the licence plate denial process, provides a plain and objective discovery date which is consistent with my original reasons.

Position of the Defendant Ira Day

[10] Counsel for Mr. Day notes that during the course of argument when this matter originally came before me there were four arguable options for when the limitation date commenced, those

being:

(a) the date of the invoice;

(b) the date of the notice of the failure to pay;

(c) the date the customer was placed into licence plate denial; and

(d) the date that the vehicle permit expired.

By reference to the aforementioned options, counsel for Mr. Day argues that this court chose the date that the customer was “placed into licence plate denial” as set forth in paragraph 58, reproduced above.

[11] It is argued on behalf of Mr. Day that the position now taken by the 407 essentially seeks to have this court revisit the most fundamental issue in this case, and would change this court’s decision from a commencement of the limitation date at the time that Mr. Day was “placed into licence plate denial” to “the date upon which Mr. Day’s vehicle permit expired.

[12] The argument put forth by counsel for Mr. Day seeks only to modify the language of my reasons regarding licence plate denial as the commencement date of the limitation period, to read the appropriate limitation period begins “when 407 ETR was able to place Day into licence plate denial”.

[13] It is argued on behalf of Mr. Day, that the suggested change to my reasons will prevent a fundamental inconsistency with my finding that the two year limitation period under the new Limitations Act applies to the 407. It is argued that there is no requirement under the governing statute for the 407 to use the plate denial remedy at any particular time. As such, it is argued that if the limitation period is allowed to run from when the 407 choses to place a customer into licence plate denial, no limitation period would apply since it can chose to do so at any time or not at all.

[14] It is also argued that the position now taken by Mr. Day will provide uniformity to everyone who uses the 407, such that the limitation period starts to run 125 days after default on a debt according to the statutory schedule, that is 35 days after the invoice is rendered plus 90 days after the notice of failure to pay could be sent.

[15] The essence of the position argued on behalf of Mr. Day amounts to an argument that if the position of the 407 is accepted, there would be no effective limitation period since the 407 can unilaterally determine when the limitations clock begins to run.

[16] Counsel for Mr. Day accepts in his supplementary submissions that the limitation period begins to run at the end and not at the beginning of the licence plate denial process, as that process is set out in the Highway 407 Act. It is acknowledged that placing a debtor into licence plate denial is the last step in the statutory scheme. The interpretation placed on paragraph 58 of my reasons, where I stated that the appropriate limitation period is one that commences two years from the date when a consumer of the 407 is placed into licence plate denial, is that the limitation period begins to run on the date that the 407 becomes able to place a debtor into licence plate denial.

Analysis

[17] I agree with counsel for Mr. Day that it would be contrary to my fundamental determination that the 407 should be allowed to place itself into a position where it can determine when the limitation period begins to run. On the other hand what lies at the root of my decision, as well as the earlier decision of the Divisional Court in 407 ETR Concession Company Limited v. Registrar of Motor Vehicles, 2005 49963 (ON SCDC), 2005 82 O.R. (3d) 703, is the purpose of the Act was to not only privatize the operation of Highway 407 but take into account the open access character of the highway to provide the owner “an effective method of toll collection”. As I have already determined in my original reasons, an effective method of toll collection is one that has implicit in it a common sense approach to a reasonable limitation period that recognizes that the interests of both the 407 and the consumer need to be protected. As I further noted in paragraph 53 of my reasons, the most realistic and most common sense approach must start with the recognition that the 407 Act provides for a method of collection that ultimately concludes with the Registrar placing a non-paying customer like Mr. Day’s licence plate into licence plate denial. At that point in time, as I indicated in my reasons, only then would the 407 have discovered that unpaid invoices were not going to be paid.

[18] Consistent with my reasons then, I am satisfied that the limitation period in this case commences from that point in time when the Registrar placed Mr. Day’s licence into licence plate denial. That date, as I understand it, was May 26, 2011.

[19] It may very well be, that as a matter of convenience, it might be considered by the 407 to be an easier task to determine that a paying customer was not going to pay as of the end of the calendar year. The fact remains, however, that as of the date when the paying customer has been placed into licence plate denial, the 407 cannot say that it would be in any way prejudiced with the knowledge that the customer being in licence plate denial has two years from that date within which to commence proceedings. The draft order appended as schedule A to the submissions of the defendant Ira Day shall be issued by this court.

Justice M.L. Edwards

Released: July 21, 2015