Court File and Parties

COURT FILE NO.: DC-15-128JR DATE: 2016 06 02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Guelph Taxi Inc., Applicant AND: Guelph Police Service and Guelph Police Services Board, Respondents

BEFORE: Trimble J.

COUNSEL: Muhammad Zafar, Counsel for the Applicant Judith Sidlofsky Stoffman, Counsel for the Respondents

HEARD: May 27, 2016

Endorsement

[1] This motion is brought by Guelph Taxi for an injunction requiring the Respondents to restore to Guelph Taxi its licence to operate an accessible taxi cab service in the City of Guelph.

[2] For reasons that follow, the motion is dismissed.

Background

[3] Guelph Taxi operated an accessible taxi service in Guelph. In a letter dated September 22, 2015, the Guelph Chief of Police advised Guelph Taxi that the Chief had revoked its taxi licence effective immediately and gave his reasons for the revocation. Guelph Taxi appealed to the Guelph Police Services Board. The Board upheld the Chief’s decision. There was no hearing before the Chief of Police’s decision was made, but was a hearing before the Board at which Guelph Taxi was represented.

[4] Guelph Taxi has an Application for Judicial Review pending, returnable October 17, 2016.

[5] In this motion, it seeks an injunction mandating return of its taxi licence pending return of its Application for Judicial Review.

[6] The Police Chief said in his decision that his power to revoke taxi licences is found in s. 12(b) of Taxi By-Law No. 145 (2011), which provides that the Police Chief may suspend a licence. A licencee may appeal to the Police Services Board. The Board may continue the suspension, reinstate or revoke the licence.

[7] I do not have the Application Record before me. From the Applicant’s motion materials, it appears that the Applicant seeks judicial review of the Chief’s and the Board’s decisions on the following grounds:

A) The police Chief exceeded his jurisdiction as s. 12(b) does not give him jurisdiction to revoke a licence, only to suspend; B) The Board upheld the Chief’s improper decision and did not exercise its own discretion under 12(b) to revoke; C) The Police Chief acted in collusion with the Applicant’s competitors to end the Applicant’s business; D) The Police Chief was openly biased; E) The Police Chief acted on “false and fabricated grounds”; F) The Police Chief’s actions to revoke the Applicant’s licence is in retribution for Guelph Taxi’s September 17, 2015 complaint letter about the Chief of Police to the Guelph Police Service Board; G) The Police Services Board also is not independent, and is biased; H) The Chief violated Guelph Taxi’s Charter equality rights.

The Test

[8] The Parties agree that the test for obtaining an interlocutory injunction is that set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada, [1994] 1 SCR 311. That test has 3 parts. In addition, Rule 40.03 requires the party seeking the injunction to give an undertaking as to damages unless the Court rules otherwise.

[9] The Parties agree that the Applicant meets the first of the three part test in RJR Macdonald in that there is a serious case to be tried in the main Application.

[10] The motion is dismissed for the following reasons:

1. The Applicant did not give the undertaking as to damages as required by Rule 40.03;
2. The Applicant has not established any irreparable harm that cannot be quantified or compensated for by damages.
3. The balance of the convenience favours not granting the injunction.

[11] I will deal with each of these three failures below, any one of which is sufficient to deny the Applicant’s Motion.

1) The Undertaking

[12] The moving party is required to give the undertaking as to damages or to seek an order dispensing with the undertaking (R 40.03). Guelph Taxi did not ask that I relieve it of its obligation. It did not provide by way of Affidavit any such undertaking. Rather, counsel advised, orally, that the company was giving the undertaking, indicating that his client’s representative, Mr. Khan, who was present, had instructed him to give it. It appears that the idea of giving the undertaking had not occurred to Mr. Khan or his lawyer until it was raised as a defence to the motion in the Respondent’s factum, and then only responded to on the day of the motion.

[13] I do not accept the oral undertaking as given orally. The undertaking is necessary. It is no mere trifle (see Aeroport Limo v. GTAA, 2005 ONSC 29654, para. 156) and should not be waived except in exceptional circumstances.

[14] In this case, it appears the necessity of undertaking was an after-thought to Guelph Taxi. It did not seek to be relieved of the necessity of giving the undertaking nor did it attempt to establish that the case was one of exceptional circumstances.

[15] The party giving the undertaking is obliged to disclose whether it or its principals have sufficient assets to recover any reasonable award of damages (see 642947 Ont. Ltd. v. Fleisher (2001), 56 OR (3d) 417 (C.A.) at para 63). Guelph Taxi disclosed no such evidence.

[16] The undertaking as to damages is an essential condition to or prerequisite for an injunction, without which an injunction cannot (see Marko v. Ottawa, 2007 ONSC 23354, para. 38).

[17] In my view, the importance of the undertaking is such that it should be made in an affidavit, by a person with clear authority to bind the corporation giving it. It should not be made orally, through a lawyer, as an afterthought. Undertakings given in the manner as in this case reflect how serious the party considers the injunction to be.

[18] Finally, I am not satisfied that Mr. Khan has the authority to give the undertaking. He says in his Affidavit that he is a director of the Applicant Corporation. He provides no evidence that as a director he has authority to give the undertaking. He does not give evidence that he is an officer of the Corporation with power to give the undertaking on behalf of the Corporation. The Applicant’s lawyer could not point to any provision in the Articles of Incorporation showing that giving such an undertaking is in the normal powers of the Corporation, or that the Corporation had passed a special resolution to allow the undertaking to be given.

2) Irreparable Harm

[19] RJR Macdonald, at page 21 of 1994 117 (SCC), says that the irreparable harm is harm that it is not quantifiable or which cannot be compensated for by an award of damages. If the Applicant will be put out of business then this is irreparable harm. The onus is on the Applicant to establish this.

[20] Mr. Khan, in his Affidavit does not say that Guelph Taxi will be put out of business. He says that it is losing business because of the Police Chief’s actions. All of Guelph Taxi’s loss of business are quantifiable, albeit with an experts’ help. All of the alleged harm is compensable in damages.

[21] If there is harm of that might be unquantifiable, I do not think that it is irreparable. Delay is a relevant consideration. In Dale v. Nabisco, 2000 FC 15986, the court held that a 10 week delay weighed against the Applicant. It is not clear from the decision whether the Court considered delay a factor to be considered in the nature of the harm under RJR or the balance of convenience. In my view it is relevant to both. (See Poco Cabaret Ltd. v. Port Coquitlam, 1998 BCSC 5904 which treats the Applicant’s delay and delay arising from other charges not the subject of the application as a question affecting irreparable harm).

[22] Guelph Taxi delayed 6 months between the Board’s decision on October 15, 2015 and bringing this motion. How can the Applicant argue that the decision of the Board caused irreparable harm when a motion, brought on proper evidence, supporting unquantifiable damage, and with a proper undertaking as to damages, brought in a timely manner, may have resulted in the injunction Guelph Taxi seeks? Guelph Taxi’s own delay, certainly, has caused Guelph some, if not all of its alleged damage.

3) Balance of Convenience

[23] Would Guelph Taxi suffer greater harm if the injunction were not granted than the City of Guelph if the injunction were granted?

[24] The balance of convenience favours not issuing the injunction. I say this for the following reasons:

a) Evidence shows that Guelph Taxi was a struggling and declining company in the two years before revocation. It had gone from 10 drivers and one dispatcher to 4 drivers and no dispatcher. It requested 5 vehicle decals but returned 3 decals. It had only two vehicles on the road at the time of revocation. b) Evidence shows that Guelph Taxi was the subject of 5 different by-law infractions, all of which would result, if a conviction was entered, in the loss of its license. Further, the circumstances underlying each of those claims could be used by the Police Chief to revoke Guelph Taxi’s license.

[25] The prejudice to the City in granting the injunction is greater. Uppal v. Toronto [1998] O.J. No. 2406 is on all fours with this case. The City is concerned with public welfare and safety. It does this by regulating the taxi industry to ensure that the taxis are safe, drivers cars licensed and inspected, fares are fair, metres run properly, and there is proper disclosure to the public including prominent display of rate cards. The City also sets fares. In this case, there is uncontradicted evidence that the Applicant was repeatedly violating the taxi regulation. When I say this, I am mindful that there have been no trials and convictions in the 5 charges. I am also mindful that the Applicant has successfully adjourned each hearing, the effect of which is to avoid having any final determination of the charges before this motion was heard.

[26] Irrespective of the charges, as indicated above, the Applicant’s delay in bringing his motion for this injunction tips the balance of convenience against Guelph Taxi. If there is prejudice to date in not having an injunction, that prejudice arises from Guelph Taxi’s delay in bringing this motion.

Costs

[27] The Respondent’s, having succeeded on this motion are entitled to their costs, presumptively.

[28] The parties may provide written submissions as to costs, not to exceed 3 double spaced pages (excluding appendices and cases). The City of Guelph shall serve and file its costs submissions by 4 p.m., June 23, 2016, and Guelph Taxy by 4 p.m. on June 30.

Trimble J. Date: June 2, 2016