COURT FILE NO.: CV-21-00657169
DATE: 20210914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andy Reti aka Andrew Reti
Applicant
– and –
Associated Toronto Taxi-Cab Co-operative Limited
Respondent
Jonathan Rosenstein, for the Applicant
Michael Hackl for the Respondent
HEARD: JULY 15, 2021
VELLA J.
REASONS FOR DECISION
[1] This application was brought by Andy Reti (“Reti”) as a member of the Associated Toronto Taxi-Cab Co-operative Limited (“Taxi Co-op”), arising from Reti’s request to be provided with a membership list (the “members’ list”) in aid of his bid for election to the Board of Directors (the “Board”) of that co-operative corporation.
[2] Eventually, Taxi Co-op disclosed the list after this application was commenced and after Reti submitted an affidavit in accordance with s. 120(1) of the Co-operative Corporations Act, R.S.O. 1990, c. C.35 (the “Act”) seeking disclosure of this members’ list.
[3] Accordingly, the relief sought in the Notice of Application was moot as of the date of this hearing, and much of the argument focused on costs thrown away by Reti.
[4] However, in his factum and at the hearing, Reti also asked this court to exercise its inherent jurisdiction to compel Taxi Co-op to disclose the email addresses and telephone numbers of its members. Taxi Co-op has this information, but says it is not obliged to disclose under the Act and is under an obligation to protect the privacy of its members’ personal information
[5] Reti also requests that Taxi Co-op be compelled to send a notice to the members asking if they would like to receive material from candidates by email.
[6] In support of his claim for the additional relief, Reti submits that it would be just and equitable for this court to make the requested orders, because the incumbent members of the board who are running for re-election have access to this information, which they can then use in the course of their campaign. This gives the incumbents an unfair advantage over those challenging them for a position on the Board.
Background
[7] Section 114 of the Act requires a co-operative corporation to maintain certain basic records at its office. Section 119 of the Act requires the co-operative to make most of those records available to members during regular business hours.
[8] Section 120 of the Act is critical to the analysis. It requires a co-operative corporation to disclose the members’ list with the names and addresses of the members upon receipt of an affidavit from the requesting member. Section 120 states:
(1) any member or creditor, upon filing with the co-operative or its agents the affidavit referred to in subsection (2) may,
(a) make or cause to be made; or
(b) require a co-operative or its transfer agent to make, upon payment of a reasonable charge therefor,
a list setting out the names alphabetically arranged of all or any members or security holders or both of the co-operative and the addresses of each such person as shown on the records of the co-operative made up to a date not more than ten days before the date of filing the affidavit.
(2) The affidavit referred to in subsection (1) shall be in a form approved by the Minister.
(3) Where the applicant is a corporation, the affidavit shall be made by the president or other officer authorized by resolution of the board of directors of the corporation.
(4) No person shall use a list of all or any of the members of a co-operative obtained under this section,
(a) for the purpose of delivering or sending to all or any of the members advertising or other printed matter relating to securities other than the securities of the co-operative; or
(b) for any purpose not connected with the co-operative.
(5) Every co-operative or transfer agent shall furnish a list in accordance with subsection (1) when so required.
(6) Purposes connected with the co-operative include any effort to influence the voting of members or security holders at a meeting thereof.
[9] In 2015, Reti also ran for election to the Board. When he asked Taxi Co-op to disclose the members’ list, the office manager gave him a list, which included the names, addresses, and phone numbers of each member. Reti was only required to make an informal request. He was not required to pay an administrative fee or swear an affidavit in compliance with s. 120 of the Act.
[10] After failing in his first bid for election, Reti decided to run again in 2020. Reti again asked for a copy of the members’ list but this time was refused.
[11] Reti did not receive any reasons for why the Board had declined his request. Reti says that this prevented him from “effectively running” for a Board position in 2020.
[12] Reti decided to seek election to the Board in 2021. After his request for the members’ list was again denied, he retained a lawyer who made a further request. When Reti’s lawyer did not receive a satisfactory response, this application was commenced.
Analysis
[13] Through the course of this litigation, it became clear to Reti that the Taxi Co-op was relying on s. 120 of the Act and its requirement that a request for the members’ list be accompanied by an affidavit and the administrative fee. This requirement was only made explicit by Taxi Co-op after the commencement of this application. The statutory requirements were not raised with Reti in his prior requests for the members’ list, including in 2015.
[14] In any event, in March 2021, Reti complied with the statutory and administrative fee requirement to Taxi Co-op’s satisfaction, and he was provided with the list on or about March 31, 2021.
[15] Taxi Co-op submits that it has now complied with the statutory requirements of the Act and provided Reti with the member information he is entitled to, i.e., the names and addresses of the members.
[16] Taxi Co-op further submits that it was entitled to withhold the members’ statutory list until such time as Reti provided the requisite affidavit. Additionally, it submits that Reti, being well versed in the Act as evidenced by his prior involvement in elections and the affairs of the Taxi Co-op as a former director and executive member, knew that he had to submit the affidavit. In short, it was not Taxi-Co-op’s responsibility to tell Reti why it was declining his request and it could not release the list until such time as he submitted the affidavit (and administrative fee). As soon as Reti was compliant, Taxi Co-op disclosed the list.
[17] Taxi Co-op added that the requisite affidavit has to contain a clause by the deponent member confirming that he will only use the members’ list for purposes connected with the business of Taxi Co-op. This was important because it had reason to believe that Reti was going to use the information for unrelated/improper purposes based on Reti’s alleged misuse of the members’ list in 2015 to solicit funds for an “industry organization” that Reti was involved in.
[18] Taxi Co-op also submits that Reti should not be entitled to the costs of this application or, at most, he should only receive costs up to the time that Taxi Co-op disclosed the members’ list in March of 2021.
[19] Finally, Taxi Co-op submits that the court should decline to exercise its inherent jurisdiction to order it to provide more information about the members to Reti than is required under the Act or compel it to send a notice to its members, which is tantamount to a mandatory order, since neither of which forms of relief were requested in Reti’s Notice of Application.
Are costs thrown away warranted?
[20] What Reti is really seeking are his costs thrown away in relation to his Application up to the date that Taxi Co-op disclosed a copy of the members’ list.
[21] Costs thrown away are intended to indemnify the aggrieved party for “steps reasonably necessary to proceed with the action, but which have been rendered useless by the conduct of the other party.” The court must decide what steps, if any, were “a complete waste” of time: Legacy Leather International Inc. v. Ward, 2007 2357 (Ont. S.C.) at para. 9. They are most commonly awarded when a party seeks an adjournment of a fixed trial date on the eve of trial but can also be awarded in the context of a motion.
[22] Reti requests his costs thrown away on a substantial indemnity basis.
[23] The court has discretion to award and fix costs, including the scale of costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[24] In my view, this is not one of those rare and exceptional cases in which substantial indemnity costs are warranted. While Taxi Co-op’s conduct subsequent to the commencement of this application rendered the need for the original relief sought moot, it did not unnecessarily cause Reti to commence the application. Rather, Taxi Co-op waited until Reti complied with s. 120(1) of the Act before it disclosed the members’ list, as it was statutorily required to do. Furthermore, the conduct of Taxi Co-op during the course of this proceeding does not reach the high bar of reprehensible conduct required for such an award, nor does its pre-litigation conduct justify such an award. The Board was not acting in a fiduciary capacity in relation to Reti, and it did not act in a way that attracts substantial indemnity costs. Furthermore, there were no rule 49 offers to settle exchanged between the parties.
[25] That said, Taxi Co-op did not act in a transparent way with Reti, as a member. Based on the evidentiary record, it is apparent that the Board at best periodically enforced the affidavit and administrative fee requirement in relation to member requests for a members’ list. Taxi Co-op produced an excerpt from minutes of a board meeting in 1969 to show that it has, in the past, required a supporting affidavit. Furthermore, the $100 administrative fee for production of the members’ list was imposed by way of a board resolution in 1989. However, again, the Board does not appear to have consistently required an affidavit or payment of this fee as demonstrated by Reti’s 2015 request. Had Taxi Co-op been forthright with Reti at the outset of his request by telling him that he was required to provide an affidavit and the administrative fee of $100 pursuant to s. 120 of the Act, then this application would not have been commenced. It is clear on the record that once Reti figured out the deficiencies with his request, he complied, and he received the members’ list promptly thereafter.
[26] Accordingly, in these circumstances, Reti is entitled to his costs of this application on a partial indemnity basis until at least the date upon which the members’ list was disclosed to him.
Does the court have inherent jurisdiction to compel Taxi Co-op to disclose the telephone numbers and/or email addresses of its members to Reti and/or to send a notice to its members?
[27] In support of his submission that this court should order Taxi Co-op to provide the email addresses and telephone numbers of its members, Reti relied on the Divisional Court decision of Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc. (2005), 2005 7664 (ON SCDC), 251 DLR (4th) 368 (Ont. Div. Ct.) for the proposition that the Superior Court has the inherent jurisdiction to make such order as would be just and equitable to level the playing field between the incumbent directors and Reti over the course of the election.
[28] In Unity Insurance, however, the Divisional Court, at para. 32, affirms that this court’s inherent jurisdiction is not unlimited and “it cannot be exercised in contravention of any statutory provision” (citing Glover v. Glover et al (1981), 1980 63 (ON CA), 29 O.R. (2d) 392 (C.A.)). To this I would add the caveat, provided the statutory provision is constitutional.
[29] I decline to order Taxi Co-op to provide email addresses and phone numbers of the members to Reti for two basic reasons. First, the statute does not require that information to be disclosed: s. 120(1) of the Act. The statute only requires that the names and addresses be produced. Second, I do not see this situation as falling into the limited exception of filling in a gap or vacuum in the legislation: Unity Insurance, at paras. 37 – 40. The legislature has clearly turned its mind to the proper scope of disclosure of co-operative corporations’ members’ private information that must be shared with other members, and under what circumstances. An order requiring Taxi Co-op to disclose this additional information would be tantamount to overriding the legislation, particularly when seen in light of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), which requires that entities such as Taxi Co-op protect the personal information of its members “except as required by law.”
[30] I agree with Taxi Co-op that s. 120(1) of the Act reflects a balancing of the privacy rights of its individual members with the rights of those same individual members to access certain of the members’ private information for purposes consistent with those of the Act. It is within the prerogative of the legislature to amend the Act, if it deems warranted, to expand the intrusion into the members’ privacy rights by adding email addresses and/or telephone numbers to the disclosure requirement provided under s. 120(1) of the Act. It is not for this court to interfere with the legislative prerogative in the circumstances of this case.
[31] I am not persuaded that this court should issue a mandatory order against Taxi Co-op compelling it to send the requested notice to the members. Reti failed to adduce evidence to meet the test for issuing a mandatory order, nor did he submit any jurisprudence in support of his request.
[32] Furthermore, and in any event, Reti did not request this additional contact information, nor did he seek a mandatory order compelling Taxi Co-op to send the requested notice to its members as part of his relief in the Notice of Application.
[33] Accordingly, I am dismissing Reti’s request that the court order Taxi Co-op to either disclose the telephone numbers and/or email addresses of its members to him, or to send a notice to the members asking them if they would like to receive election campaign materials by email.
Ruling and costs
[34] The application is dismissed on the grounds that it is moot.
[35] Reti is entitled to his costs of the application on a partial indemnity basis to the day that Taxi Co-op made the members’ list available to him.
[36] In addition, I am prepared to seal the unredacted members’ lists produced at Tabs 1 and 2 of the “Day of Compendium” filed by Reti (and uploaded on CaseLines), on consent, as these documents contain private information relating to the individual members of Taxi Co-op.
[37] I invite written submissions from the parties on costs with respect to two broad issues.
[38] First, while I have the respective cost outlines from the parties, I do not have a breakdown of the time periods. Accordingly, the written submissions from Reti and Taxi Co-op should address the partial indemnity costs requested up to and including the day the members’ list was made available by Taxi Co-op to Reti.
[39] Second, I invite written submissions from the parties as to the disposition of the costs of the balance of the application.
[40] The written submissions should not exceed 3 pages double spaced and should be provided to me, by Reti, within 10 business days from the release of this ruling, and by Taxi Co-op, within 10 business days thereafter. The written submissions should be delivered to my judicial assistant by email.
Justice Vella
Released: September 14, 2021
COURT FILE NO.: CV-21-00657169
DATE: 20210914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andy Reti aka Andrew Reti
Applicant
– and –
Associated Toronto Taxi-Cab Co-operative Limited
Respondent
REASONS FOR JUDGMENT
Vella J.
Released: September 14, 2021