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26 Nov 09

Municipal Parking Corporation v. Toronto (City), 2009 CanLII 65385 (ON S.C.)

the City was justified in trying to regulate the practice of PPEAs in the fashion that it chose with the Amending By-Law rather than merely regulating the form and content of violation notices or prescribing maximum penalties.

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Law municipal By-law Parking

it has been conclusively established that the by-law’s purpose is consumer
protection.
Municipal by-laws are not
subject to review for “unreasonableness” that falls short of bad faith.
Municipal councils are elected representatives of their community, accountable
to their constituents.
4 more annotations...
- [24] The standard to be met in
  establishing bad faith is high and necessitates evidence to demonstrate the City
  acted other than in the public interest. Bad faith by a municipality
  connotes a lack of candor, frankness and impartiality. It includes
  arbitrary or unfair conduct and the exercise of power to serve private purposes
  at the expense of the public interest.
- There is, however, no requirement that Council have evidence of anything before
  enacting a by-law. In particular, there is no requirement that Council have
  evidence of potential harm. Council can enact laws within its authority on
  whatever information it chooses, be that information placed before it by
  evidence or representation or even information within councillors’ own knowledge
- A dispute resolution system controlled or conducted by the same business that
  acts as judge and jury cannot provide any assurance of fairness necessary for
  consumer protection as that interest has already been recognized in this case by
  the Court of Appeal
- I find that the goal being achieved by a measure which limits applicant’s
  freedom of expression outweighs the deleterious effect of such limitation, and
  there is proportionality between the effects and the objectives of the Amending
  By-Law

10 Nov 09

Chicago Begins 24 Hour A Day Booting - Parking Ticket Geek

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Law Parking Denver-boot

28 Jul 08

Arenson v. Toronto (City), 2008 CanLII 36762 (ON S.C.)

This may be a subtle point, but Dr. Arenson’s complaint is about having to defend the parking tickets in the first place and not about whether she might have the various defences that the City says were available to her. Her real complaint is that she was put to a defence of parking tickets when the City allegedly knew that parking receipts would not be dispensed by the parking machine.

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Law Municipal Parking POA

I do not agree with many of
the submissions made by the City, but for different reasons I grant its motion
and I strike out Dr. Arenson’s statement of claim. However, I grant her leave to
deliver a fresh as amended statement of claim.
approaching Dr. Arenson’s statement of claim in accordance with the various
causes asserted within it, it seems to me that she pleads legal conclusions
without supporting facts, and it is doubtful that she has pleaded viable claims
for trespass, negligence, breach of the Charter, unjust enrichment, or
misfeasance of public office. It appears to me that to varying degrees, she has
not pleaded in whole or in part the constituent elements of these various causes
of action or the material facts that would support all the constituent element
6 more annotations...
- The City, however, did not challenge the statement of claim based on its
  possible pleading frailties, and it is not for me to do so. The City’s challenge
  to Dr. Arenson’s statement of claim focused on her allegations with respect to
  the issuance of parking tags that were enforced pursuant to the Provincial
  Offences Act, and it is with respect to the arguments actually made by the
  City on this motion that I will rule
- no authority was provided to me that would authorize this court: (a) to require
  the City to remove, replace, repair, or refurbish its parking machines so they
  would not freeze-up; (b) to require the City to instruct the police not to issue
  parking tags, (c) to require the City to cancel parking tags; (d) to set aside
  the conviction of any class member for a parking tag issued when a parking
  machine is defective; or (e) to direct the Registrar of Motor Vehicles -who is
  not even a party to this action - to reverse any administration order or penalty
  imposed as a result of a conviction for a parking tag issued when a machine is
  defective.
- no authority for a court making the very intrusive mandatory orders being
  sought. For instance, no case authorities or statutory provisions were offered
  to explain how a court in a civil proceeding would have jurisdiction to set
  aside the conviction of any class member
- there are several fatal flaws in the City’s argument that the Provincial
  Offences Act provides the comprehensive and exclusive resource for Dr.
  Arenson’s complaints in this action.
- while Dr. Arenson’s action is predominately motivated by her grievance about
  having her vehicle ticketed, she also has complaints sounding in contract and in
  unjust enrichment about the non-delivery of a parking receipt. Put somewhat
  differently, if Dr. Arenson’s vehicle had never been ticketed and had she
  confined her action to a claim for rescission of an alleged contract for a
  parking space and to a claim for the recovery of the money she paid under that
  failed or frustrated contract, then the Provincial Offences Act would be
  no answer to those claims.
- This may be a subtle point, but Dr. Arenson’s complaint is about having to
  defend the parking tickets in the first place and not about whether she might
  have the various defences that the City says were available to her. Her real
  complaint is that she was put to a defence of parking tickets when the City
  allegedly knew that parking receipts would not be dispensed by the parking
  machine.

04 Jul 08

R. v. Sholtens, 2008 ONCJ 282 (CanLII)

s. 27 of the H.T.A. applies to the improper use of disabled parking spaces on private property. the prosecutor is not obliged to prove the municipal by-law designating the space in question “disabled”. It is sufficient that there be evidence of signage designating the space in question “disabled”

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Law HTA Parking Disabled Stare Decisis

[7]
The
case authorities are clear that a shopping plaza parking lot is not a highway
within the meaning of “highway” under the H.T.A.:
As well, since no licence is required to drive on private property, an
individual cannot be found guilty of driving while disqualified on a private
parking lot, that is by definition not a highway:
12 more annotations...
- a driver who failed to obey a signal to stop by police on private property
  cannot be found guilty of an offence under s. 216 (1) of the H.T.A. because the
  offence must occur on a highway as contemplated by the H.T.A
- it would be wrong to assume that the H.T.A. can never regulate private land use,
  particularly when what is controlled is not a moving violation under the H.T.A.
  but land use in conjunction with a municipal by-law to control parking on
  private property (to which the public has access by invitation) pursuant to s.
  102 of the Municipal Act
- section 27 of the H.T.A., provides for the regulation of the use of disabled
  parking permits wherever municipal by-laws apply, rather than the regulation
  of vehicles on private property. It is only incidental to the purposes of
  this section that, at times, it may seem to regulate the use of private
  property; it is the improper use of the disabled permit that is penalized – the
  municipality determines the private or public location of the disabled parking
  spaces. Indeed, it would constitute a considerable hardship to the disabled if
  there was not province-wide uniformity in the prosecution of the unauthorized
  use of disabled parking spaces.
- [9]
  
  Accordingly, in my view, the learned Justice erred in law in
  concluding s. 27 of the H.T.A. can have no application to the improper use of
  disabled parking spaces on private property. Nor was he correct in concluding
  the prosecutor was obliged to prove the municipal by-law designating the space
  in question “disabled”. It is sufficient that there be evidence of signage
  designating the space in question “disabled
- A Justice of the Peace exercising the jurisdiction of a Provincial Offences
  Court is bound, through the application of the doctrine of stare decisis, by a
  decision of a Judge of the Ontario Court of Justice sitting as an appeal court
  under s. 116 of the Act
- The Provincial Offences Act court is a statutory court and all powers of a
  Justice of the Peace are entirely circumscribed by the P.O.A. Section 36 (1) and
  (2) provide a Justice with the authority to quash an information when it
  contains “a defect apparent on its face” and only in exceptional circumstances
  where an amendment would fail to satisfy the ends of justice. In other words, an
  information may only be quashed where it is a nullity. Indeed, according to the
  Courts of Justice Act, Rules and Regulations (O. Reg 200, Rule 16 of the Rules
  in Provincial Offences Proceedings) “A justice shall not quash a proceeding…in
  respect of a defendant who is appearing before a justice for the purpose of
  section 7 of the Act” (a plea of guilty with submissions as to penalty).
- Even if the facts read in by the prosecutor upon the plea of guilty indicated
  that the defendant had a defence to the section 27 charge, the only course of
  action open to the Justice in the face of enactments prohibiting the quashing of
  a proceeding, was to strike out the guilty plea, enter a plea of not guilty and
  proceed with the trial
- Although a Justice can, on a rare occasion, on his or her own motion, interfere
  in the course of a proceeding, this interference can only happen, if by not
  doing so, an injustice will occur.
- The Justice erred when he proceeded on his own motion to quash the offence
  without proper notice to the prosecutor, or in a timely way calling upon the
  prosecutor for submissions (in this case, submissions were called for after the
  judgment had effectively been rendered):
- [13] When a justice on his own
  motion adjourns a sentence hearing to another date for the purposes of providing
  reasons as to why he cannot accept the plea of guilty and gives reasons for
  judgment on the subsequent date without ever giving the prosecutor or
  unrepresented defendant a real opportunity to make submissions, the proceeding
  takes on the appearance of a public lecture rather than an adversarial process
  before an impartial decision-maker
- The trial Justice's remarks in his dialogue with the prosecutors and in his
  reasons for judgment, were such that a reasonable person, reasonably informed,
  would conclude that a decision had been arrived at before all the evidence and
  submissions had been heard
- It is important therefore, to acknowledge that while Justice Ross may have erred
  in his approaches to the above issues, he did so for the highest of motives — to
  assist an unrepresented person to receive what he believed to be a just result