February 2019

Judge schedules October certification hearing for ATOOL class action suit

by Mike Beggs

Still seeking certification of their $1.7-billion class action suit against the City, Toronto taxi plate owners will, in all likelihood, have to wait another nine months to find out the status of their application.

At an Ontario Superior Court case management hearing on January 28, the Judge scheduled their Certification Hearing for October 15 to 17 (although that could be moved up if there’s an agreement between the two parties).

According to one of the plaintiffs, Lucky 7 Taxi owner Lawrence Eisenberg, the half-hour meeting was held strictly to set dates.

And although the wait for the Certification Hearing seems about standard (given Ontario’s jammed-up courts), this further delay comes with owner/operators barely hanging on in the fight against Uber and other Private Transportation Companies (PTC’s).

“The Class Action was started on July 15, 2018. But you’re dealing with the courts. They say they have no time,” says Eisenberg, a leader of the group All Toronto Owners and Operators Ltd. (ATOOL), which is behind the class action.

“(But) will we still be in business (by mid-October)? They’re not interested, and the City will keep putting it off as long as it can.”

Fellow plaintiff, driver Behrouz Khamseh suggests there’s still an outside hope that the City will consent to certification, and the process will be sped up. And, he notes ATOOL’s lawyer Michael Binetti, of Affleck Greene McMurtry LLP, still needs time to put their case together.

“Six months (after we launched the class action), nothing’s really happening,” he says.

“Are we going to be able to survive (until October)?”

The Judge assigned the following court dates for the class action:

Plaintiff Motion by February 28

Defendant Motion by April 26

Filing and Delivery of Reply, if any, by May 3

Cross Examination of Affidavits to be completed – June 14

Referral Motion – August 8

Defendant Factum- due Sept. 20

Reply if any - Sep 30

Certification Hearing – October 15 to 17.

Binetti previously represented the Toronto Taxi Alliance in a 2014 case against the City, where he was successful in partially quashing provisions of Toronto’s new taxi bylaw, which had mandated that all Toronto cabs would have to be wheelchair accessible by 2024.

Five days before seeing the Judge, ATOOL leaders met with Binetti to discuss their case.

“It went very well. I think that he has a lot of knowledge about the City, and of the Ottawa (class action). And he is well-versed on the City bylaw,” says fellow plaintiff, and veteran Ambassador Sukhvir Thethi.

“We’re suing for the two years when the City didn’t do anything to stop Uber -- no damage control. That was the main reason for the taxi’s downfall,” he explains.

ATOOL is still hard at work trying to drum up financial support for the class action – which Thethi says represents only 3 or 4 plates out of every 10.

“A lot of people are saying, once the law suit is certified then they will jump on board and pay the money,” he relates. “We’re asking $500 per plate. Even if 1,000 people give us $500, it becomes $500,000, which is good enough.”

He notes industry leaders have little faith in the forthcoming contents of the City’s chronically delayed one-year Review of the Vehicle-For-Hire Bylaw, and maintains, “there’s only one way to challenge the City, and that’s the legal (route).”

Eisenberg was slightly encouraged to hear the Judge say he would be keeping this case for himself, and not reassigning it to his peers.

“We have a strong case,” he asserts. “Our biggest complaint is the taxi industry is so complacent. They don’t understand, everything will go away (if we don’t fight for financial compensation in the courts).”

He reminds those industry members waiting on certification, at some point the lawyer will want to be paid, and, “what if there’s no support and no money coming in?”

As a barometer of the bad times, he notes one owner recently received an offer of just $18,000 for his plate – a huge fall from when plates were worth $380,000, at their high point. Like many owners, he has put two of his three plates on the shelf.

“Nobody wants to lease the plates anymore,” he reports. “I just paid the renewal of $985 a plate, and I’m getting nothing from them. The City just raised it by $20.”

“It gets worse every single day. The business is pretty well shot,” he adds. “It’s all money for the City and that’s all they’re interested in. They put the (public) at risk, and put the taxi industry under the table.”

Independent Toronto Taxi Inc. president Mike Tranquada observes, “It’s not a business where you can pay for a house and stuff like that anymore, because there’s just too many people in it.”

“The only way you can make it in this industry right now is to buy a plate and drive 12 hours a day, six days a week,” he says. “They’ve killed the whole idea of the shift. You can’t do a regular shift and make a living. A shift won’t cut it.”

Long-time owner/operator Gerry Manley suggests the wait for the October certification hearing is about standard. He believes the plate owners have a “good case”, and reiterates his belief that they could use it, “as leverage to get what they want politically, and bureaucratically from the City.”

“There are so many solid points in there. The City has got to be found accountable,” he suggests.

“My feeling is, if they approved Ottawa it should be a slam dunk to get this approved. My concern comes after, will the industry financially support this case?”

“It will be tough to get the money to go to court. It’s not easy for these guys to come up with $500 or $1,000. It’s a huge chunk today, when you’re trying to pay your bills. Business keeps getting crappier, and there are more and more plates going on the shelf.”


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