May 2019

TLT pulls plug on two prehearing resolutions due to MLS staff ‘inexperience’

by John Q. Duffy

In two very rare moves, City staff withdrew signed acceptances of Proposed Resolutions in two licensing disciplinary hearing cases, leading to the Toronto Licensing Tribunal ordering new pre-hearing conferences.

Mohamed Awad Ali, applying for renewal of a Vehicle-For-Hire Driver’s License saw the Tribunal adjourn his matter to a date to be determined.

Pending the next full hearing date, Ali’s Vehicle-For-Hire Driver’s License is “deemed to continue in the interim until and unless the Tribunal orders otherwise.”

The decision by the panel of Moira Calderwood (chair) Daphne Simon and Anu Bakshi at the April 4, 2109 hearing where the matter arose, requires that “In accordance with rule 15(1) of the Toronto Licensing Tribunal Rules of Procedure, the Tribunal on its own initiative directs that a pre-hearing conference be held in this proceeding and the parties participate in this conference.”

The panel said, “The purpose of the pre-hearing will include a mediation of any or all outstanding issues in dispute.”

An Arabic interpreter will be made available to the licensee at the pre-hearing, “given the circumstances that have arisen in this case.”

A previous pre-hearing conference was held without an interpreter or Ali having legal counsel, yet an agreement was reached.

Subsequently, senior MLS staff decided the agreement arrived at with an inexperienced staff member representing City interests, was unsatisfactory in the circumstances and withdrew its consent to the signed Proposed Resolution.

The name of the City’s representative was not disclosed at this hearing.

Both pre-hearing meetings took place on the same day.

City attorney Graham Thompson cited a Supreme Court of Canada decision that permitted this admittedly rare action as it is in the bounds of “prosecutorial discretion” acting for the public interest. (The case is Regina v Nixon.)

The City wanted to make clear this withdrawal of the agreement was not an “abuse of process” nor did it want to “undermine the integrity of the tribunal process.”

Thompson said the City was asking for a full hearing to take place at a later date, where the license, the City and the tribunal “would be in the same place as they might have been prior to the (previous) pre-hearing conference.”

He argued then there would be “no prejudice” to either party.

The proper remedy, should the licensee deem it necessary, would be to have the matter reviewed by Divisional Court in a Judicial Review, Thompson said.

After a number of questions were asked and answered the panel decided it was within its authority to order a new pre-hearing conference be held, with Ali at least assisted by an interpreter.

The dates of the pre-hearing conference and this matter returning to the TLT for a hearing, were both left to City and tribunal staff and the licensee, to determine.

Another case involving a TLT- ordered Prehearing involved Chaudhry Ali Ijaz Cheema, holder of a Vehicle-For-Hire Driver’s License.

The Tribunal adjourned this matter to a date to be determined, with the license deemed to continue until the TLT makes a decision.

Again, under Tribunal Rules of Procedure, the Tribunal “on its own initiative” ordered a pre-hearing conference be held.

The tribunal order states, “The purpose of the pre-hearing will include a mediation of any or all outstanding issues in dispute.”

A Hindi interpreter will be “made available to the licensee at the pre-hearing, given the circumstances that have arisen in this case.”

Again, the City was unsatisfied with the Proposed Resolution agreed to, citing the inexperience of the City’s representative in the case.

The City put forward essentially the same arguments as in the Ali case.

However, Cheema was not as accepting of a potential new hearing as Ali appeared to be.

He noted the staff member he dealt with was “new to the position” and wondered why he was there if he was “not competent to make the decision. If he was new and he was not competent to make the decision why did he come that day?”

Cheema said there was a proper agreement in place.

He said, “The power is in your hands to accept it (the agreement) or reject it.”

After a little more discussion, the tribunal ordered the new pre-hearing, while expressing regret at the inconvenience the prolonged process poses for the licensee.

In another matter, Sugantharajan Srikrishnarajah applying to renew a Vehicle-For-Hire Driver’s License got his renewal after acceptance of a Proposed Resolution by the TLT.

But the license was immediately suspended for two days and will be on probation for two years. The other usual conditions about having fees and paperwork completed and the possibility of this report and any new concerns that arise during the probationary period being brought back to the tribunal for a new hearing also apply.

Srikrishnarajah has been driving cab since October 2015. In 2017 he was convicted of stunt driving for doing 112 kph in a 60 kph zone, and for disobeying a legal sign. His Provincial Drivers License was suspended for seven days.

In the same incident the vehicle license was inspected and was found not to be authorized for that vehicle, but after investigation it was determined that he was merely the driver of the car, a limousine, and responsibility for the infraction lay elsewhere.

In 2016 he was charged with making an illegal U turn and he admitted it was a misunderstanding on his part.

Most recently he was charged with driving without a validation sticker on his car license, but this has not yet made is way through the courts.

Thompson said a two-day suspension and the two-year probation is “sufficient to ensure compliance and public safety.”

After acceptance of a Proposed Resolution, Aqeel Ahmed had his renewal of a Vehicle-For-Hire Driver’s License approved on conditions. The license will be on probation for two years. On each of the next two renewals he must supply MLS with updated copies of his criminal, driving and municipal bylaw offense records, and if anything in these reports causes MLS concern the new records and the existing file may be brought back to the TLT for a full hearing.

In addition the usual conditions apply, including that all fees, documents and other requirements must be up to date within 30 days or the license will be cancelled.

City lawyer Thompson told the tribunal Ahmed had 18 convictions under the Highway Traffic Act. But 14 of these were from 2016 and prior. He has three convictions from 2017 and only one in 2018, with nothing on this record since.

One of the convictions related to a road rage incident while he was not on duty and he had no passengers in his cab. He said another driver cut him off and he threw a water bottle at the other driver. He did enter a road rage program.

He is working on paying off several outstanding fines.

A fail to produce his drivers’ license charge was dropped and a charge of speeding 120 kph in a 100 kph zone was reduced to going 115 in a 100 kph zone.

In addition he was charged in 2015 under the Criminal Code for an assault with a weapon that was settled with a Peace Bond agreement.

Ahmed, Thompson said, is 27 years old, married and has two young children. He works six days a week to support his family.

Thompson said the probation and other conditions on the license are sufficient to satisfy any public safety concerns.

A Proposed Resolution was approved in the case of Ali B. Aboelied Remshani, holder of a Vehicle-For-Hire Driver’s License.

The Vehicle-For-Hire Driver’s License will be renewed, but it will be on probation for two years, subject to the usual conditions about fees and documents being up to date, and MLS doing the usual follow-up checks on his driving, criminal, and bylaw charges and convictions. If City staff has concerns he may be brought back for a full hearing.

Records show he has past experience driving both tow trucks and taxis in the City.

The panel heard Remshani has a careless driving conviction on his record from a March 9, 2018 incident where he struck a cyclist while making a left turn at the intersection of Bloor and Sherbourne streets. Remshani was not present at the trial, but on appeal this charge was withdrawn. Apparently, in fact, it was the cyclist who hit Remshani’s taxi.

Nonetheless MLS staff felt it important to send a message that taxi drivers must be very careful while driving, and the penalty agreed upon satisfies public safety concerns.

Also resulting from a Proposed Resolution, Sureshwaran Muthathamby, applying for a Vehicle-For-Hire Driver’s License got the permit on three years probation.

The other usual conditions (fees and documents up to date and back if there are further concerns) apply.

Furthermore, for each of the next three renewals, he must provide to MLS, at his own expense, an original up-to-date abstract of his criminal record and judicial matters check.

Muthathamby has a 2017 conviction for Careless Driving on his record, arising from a January 20, 2016 incident where he sideswiped another car while dealing with his telephone.

The investigating officer suspected he had been drinking, and tests showed he had a blood alcohol content of 108-114 mg alcohol in 100 ml of blood.

He admitted to having been to a party earlier in the day.

He was subsequently convicted of careless driving and was fined $1,125 and was placed on probation, with his provincial drivers’ license suspended for three months.

This is his only driving conviction on record. He said he has, since this event, “changed his behavior.”

Thompson said the term of probation satisfies public safety concerns.


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