Lawyer
Taxilogoweb2014

September 2018

Why should I pay for a City of Toronto VFH Drivers licence?

by Gerald H. Manley

Province of Ontario and City of Toronto Governments

During the first forty-three years after I became a taxicab owner in the City of Toronto (“City”) in 1973, neither I nor any other taxicab owner was required to obtain an additional driver’s licence to drive his or her own taxicab, as their taxicab owner’s licence included their permission to drive, but that all changed on July 15, 2016.

On that date, the Toronto Municipal Code, Chapter 546, Licensing, Vehicles-for-Hire came into effect and the City’s Municipal Licensing and Standards (“ML&S”) arbitrarily decided that taxicab owners required a Vehicles-for-Hire (“VFH”) driver’s licence in addition to their VFH owner’s licence to be able to drive their own taxicab, but that decision was not supported by the wording contained in the new by-law.

Immediately, this created a conflict within the by-law. Regardless if a taxicab owner wants to drive or not, by virtue of his or her taxicab owner’s licence and the definition of to operate as stated in Chapter 546-1 Definitions, he or she has permission already to not only operate, but to drive their own taxicab if they so desire, making the requirement for them to have a VFH driver’s licence unnecessary.

Toronto Municipal Code, Chapter 546, Licensing, Vehicles-for-Hire By-law.

Licence No. V02-0036034 is a Toronto Taxicab Owner’s Licence issued to Manley, Gerald Herbert, which categorizes me as a taxicab owner, not a taxicab driver and the licence clearly states, “LICENCE - “To Operate” - As - TAXICAB OWNER”

Article 1 - General Provisions, 546-1 - Definitions

“To Operate Includes:

When used in reference to a “taxicab,” limousine or PTC vehicle, “includes driving a vehicle” and making it available to the public for transportation service.” Nowhere in this by-law will you find any mandate for a taxicab owner to require a second licence to drive.

My claim is further supported by the following:

“Article 6 – 546-62 – Taxicab Operators – “Owner” who manages deemed to be a taxicab operator.

A. A taxicab owner “who manages his or her own vehicle” shall be deemed to be a taxicab operator for that vehicle and shall obey the provisions of this Chapter related to taxicab operators.

B. A taxicab owner “who manages his or her own vehicle,” is “exempt” from the requirement to obtain a taxicab operator’s licence and is exempt from the requirement to have a place of business under s/s 546-68A.”

“Taxicab Operator – Any person, “other than a vehicle-for-hire driver” operating a taxicab, who manages, rents out, controls or otherwise has custody, whether partially or completley, of a taxicab licensed by the City of Toronto on behalf of its owner” and who is required to be licensed under this chapter.”

You will notice, that the definition of a Taxicab Operator is meant to regulate people who operate a taxicab for someone else, which is completely different from a person who manages his or her own vehicle.

Note: The definition states “other than a vehicle-for-hire driver,” but does not state “other than a vehicle-for-hire owner.” It makes complete sense that to operate someone else’s taxicab, you would need some sort of VFH licence and the VFH driver’s licence does fit this requirement, but obviously a VFH taxicab owner’s licence does not.

If the ML&S want a taxicab owner who drives his or her own vehicle to require a VFH driver’s licence, then the requirement to obtain a taxicab owner’s licence would have to be abolished as requiring two separate City business licences for a taxicab owner to drive his or her own taxicab is totally unnecessary.

Chapter 546, Article 6, 546-62 would have to be removed from the by-law in its entirety and the definition of a Taxicab Operator would have to be amended to include after “other than a vehicle-for-hire driver” words to the effect, “and, other than a vehicle-for-hire owner.”

The requirement for a VFH taxicab owner to obtain a VFH driver’s licence achieved two separate things. The ML&S stated they wanted to split taxi owners into two categories, one being the taxicab owner who drives his or her own vehicle and the second was the taxicab owner who does not drive his or her own vehicle so as to save them licensing costs.

In reality, the second category did not save any licensing costs as the annual renewal fee remained the same and as we now know, a taxicab owner has the right to drive his or her own taxicab if he or she so desires, without the requirement of a VFH driver’s licence. What it really achieved was to punish the taxicab owner who wants to drive his or her own taxicab by adding an additional licence and licensing fee, which is in conflict with the wording as contained in the by-law.

Secondly, by adding the additional licence and fee, it helped make up for licensing revenue shortfalls that the ML&S incurred by not licensing everyone equally, not only in the VFH driver’s category, but numerous other categories as well.

“546-43 Owners and vehicles to be licensed

C. No owner shall permit any taxicab which he or she does not own, to be driven under the authority of his or her owner’s licence.” This clearly supports that a taxicab owner’s licence is an authority to drive.

Note: Nowhere in 546-43 – Owners and vehicles to be licensed, does it state that an owner of a taxicab requires a VFH driver’s licence to operate or drive his or her own taxicab.

I believe by the ML&S arbitrarily deciding that certain entities within and outside of the by-law do not require a VFH driver’s licence while others who do exactly the same job do, is an abuse of authority under the City of Toronto Act, 2006 (COTA), Part II, General Powers, Powers, Broad Authority, City By-laws, 8. (2), 11. Business Licensing, 2006, c.11, Sched. A, s. 8 (2); 2006, c.32, Sched. B., s. 3 (1,2), 2, 2017, c. 10, Sched. 2, s.1.

“Excise Tax Act – Interpretation – Definitions – 123 (1)” – Effective July 1, 2017

The definition of a taxi business was changed to include, “if the transportation is arranged or coordinated through an electronic platform.”

Private Transportation Companies (PTC’s) such as Uber and Lyft operate their taxi business from an electronic platform. This shows by federal definition that they are operating a taxi business, so their drivers must comply with Chapter 546, which regulates a taxi business in the City of Toronto and obtain a VFH driver’s licence, which presently they do not have and shows the by-law is not being fairly enforced for all categories named within or outside of the by-law who carry on a VFH taxi business.

In fact, the PTC drivers do not have any municipal licence whatsoever. The by-law states they are required to have a PTC driver’s licence, but since the licence is issued by the PTC not the City and the cost is only $15 not the VFH driver’s licence fee of $130, in reality it is only a registration fee, not a municipal taxi business licence at all.

This makes the Toronto Municipal Code, Chapter 546, Licensing, Vehicles-for-Hire in conflict with and in violation of the Excise Tax Act, as neither PTC’s nor their drivers are being licensed or regulated as operating a taxi business as defined in the Act, in the City of Toronto.

The wording in this federal Act would supersede the wording in Chapter 546, a municipal by-law mandating Toronto to pass and enforce the rules and regulations for PTC’s and their drivers, in the same manner as they do for their established taxi industry.

Therefore, since the necessity under Chapter 546 of requiring a VFH driver’s licence is not being enforced on a PTC driver, who drives in a taxi business as I do, my obligation for this licence becomes unnecessary as well and absolves me under these circumstances from requiring a VFH driver’s licence as each entity named in or out of the by-law that drives a VFH in a taxi business is not being licensed in the same manner.

Private Companies Carrying on a VFH Wheel Chair Accessible Van Business Without Any Requirement to Obtain a Municipal Business Licence.

In the City of Toronto, there are several private companies such as Wheelchair Accessible Transit, Celebrity Wheelchair Accessible Transit, AVS Taxi and part of Checker Taxi who operate wheelchair accessible vans for hire in the City of Toronto without any City taxi business licence, which I have brought to the attention of the City on numerous occasions.

Although, the Executive Director of the ML&S Ms. Tracey Cook states the structure or wording is not presently contained in the by-law to license these companies and their drivers, that is not the case. They are operating a Vehicle-for-Hire business and the structure for licensing of these companies is in place under Chapter 546 as it is defined as Licensing, Vehicles-for-Hire and within the by-law, Article 5, Taxicab Owners has numerous sections that deal with accessible transportation therefore, the wording is there as well.

The licensing fee structure is also there under the Toronto Municipal Code Chapter 441, Fees and Charges, Appendix C, Schedule 12, reference numbers for a VFH taxicab broker’s licence application and renewal fees being reference numbers 160 and 161 and for a VFH driver’s application and renewal fees being reference numbers 443 and 444.

I am sure these companies will argue that since they have an exemption in the “Public Vehicles Act (PVA), R.S.O. 1990, c. P.54 Definitions, Operating licence required, Exception, (3) Subsection(1) does not apply to a person transporting only passengers with mobility disabilities in a public vehicle that is specifically equipped with a lift or ramp mechanism for the boarding of passengers with mobility disabilities, 2016, c. 5, Sched. 25, s. 2.,” they are exempted from requiring a municipal taxi business licence.”

But according to the Ontario Highway Transport Board (OHTB), who regulates and enforces the PVA, just because the Province does not require any special business licence to exclusively operate a wheelchair accessible vehicle, it does not preclude any municipality from requiring one. Once again. If their drivers are not required to have a VFH driver’s licence, then why am I or any other taxicab owner or driver required to have one?

Considering one of the main objectives of the City’s municipal taxicab business licence requirement is to protect the consumer, the City by not licensing these private companies is also in violation of “COTA Part II, General Powers, Powers, Broad Authority, City By-laws, 8(2) 6. Health, safety and well-being of persons 8. Protection of persons and property, “including consumer protection” by not requiring or enforcing taxi business licensing requirements for these private wheelchair accessible companies and their drivers.

This now raises the following question, if PTC’s and their drivers do not require a VFH broker’s licence and their drivers do not require a VFH driver’s licence while operating within a taxi business in the City of Toronto, then why does any member of the established City taxi industry require these licences? Also consider, that the City presently has approximately 550 licensed Toronto Taxi Licences (TTL’S) who are all wheelchair accessible vans that require a VFH driver’s licence to drive in the City.

Conclusions:

What the ML&S is refusing to accept here is there are two separate licences as described in the by-law involved in this case, one being a VFH owner’s licence and one being a VFH driver’s licence, which have the same rights as far as the driving of a vehicle is concerned with only one being required.

In addition, no longer can the ML&S try and hide the fact that companies like Uber and Lyft are operating a taxi business by categorizing them differently than the City’s established taxi business under the guise of being a PTC or their drivers as being PTC drivers.

On July 1, 2017, the federal Excise Tax Act changed the definition of a taxi business to include companies like Uber and Lyft by making the definition include, “if the transportation is arranged or coordinated through an electronic platform,” which aptly describes these companies’ method of operation.

With a federal statute defining what a taxi business is, Toronto’s and any other municipality’s governing by-law for this industry must follow suit as the federal Act’s definition supersedes any municipal by-law’s definition. Since the City is not categorizing all of the entities operating a taxi business as described in and out of the by-law in an equal manner, it raises the question, why should I or any other member of the Toronto taxi industry require a VFH driver’s licence or any other applicable business licence if parity is not being applied in their licensing schemes?

By Toronto not applying equal taxicab business licensing requirements or applicable fees,

Proves beyond any reasonable doubt that the City of Toronto is violating the Charter of Rights and Freedoms, Equality Rights, 15.1, which in part states, “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination.”

Although the ML&S has a legal authority to make administrative changes in Chapter 546, it does not come with permission for those changes to be in conflict with the present wording and mandates as contained in the by-law or be in conflict with or in violation of senior statutes, which this issue is guilty of on both counts. It could be argued that the actions by the ML&S on this and other by-law issues, makes Chapter 546 ultra vires, redundant, a moot point and therefore completley without effect.

I remain,
Gerald H. Manley

 

 

 

 

© 2018 Taxi News

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