Law Times

Page 6 JULY 13, 2015 • LAW TIMES www.lawtimesnews.com COMMENT Publish all social security decisions hen the federal government created the Social Security Tribunal in 2013, it forgot to ensure one crucial aspect: the publication of its decisions. As a recent letter signed by 58 lawyers, academics, legal organizations, and others to tribunal chairwoman Murielle Brazeau pointed out, the federal body has so far made public only 148 of the 10,000 decisions it has rendered until now. The tribunal makes important rulings on the fate of those appeal- ing decisions related to employment insurance, old-age security, and the Canada Pension Plan. As such, it deals with important issues that can have a significant impact on people's financial situations. And as the let- ter sent by University of Windsor Faculty of Law Prof. Laverne Jacobs and Osgoode Hall Law School dean Lorne Sossin pointed out, the non- publication of decisions doesn't affect everyone. The government agen- cies and departments whose decisions are subject to the tribunal pro- ceedings do receive a copy of all decisions. Producing them for the pub- lic, then, can't be that hard. And there's an important issue of fairness, of course, as the government bodies have access to the case law that affects future decisions while those applying for benefits don't. The tribunal's actions, then, are inconsistent with the open-court principle. As concerns about the issue have mounted, the tribunal has vowed to address it. It has noted it will publish all of the decisions from the Province watches as taxi drama unfolds t's summer and the Pan Am Games are front and centre with more than a few governing Liberals hoping traffic hostilities dissipate as the spectacle of sport takes centre stage. They've already dodged one major bul- let as Toronto taxi drivers have agreed to Mayor John Tory's pleas for peace with a promise of a new bylaw to "create a level playing field" in the face of ride-sharing service Uber's disruption. That new bylaw became a priority af- ter Ontario Superior Court Justice Sean Dunphy dismissed an application for an injunction to shut Uber down. He found there was no evidence the company was operating as a taxi brokerage and, as a re- sult, fell outside of the regulations. The issue, he said, is political and not le- gal, at least at this stage. The province isn't saying much and for good reason. The city regulates taxis under the City of Toronto Act. Among other things, it bestows the power to make bylaws to gov- ern a variety of areas: the economic, so- cial, and environmental well-being of the city; health and safety; and the protection of people and property, including in con- sumer matters. The act singles out taxis in terms of setting a standard fare and limit- ing the number of licensed vehicles. It's unclear how successful any new bylaw may be. The province may yet have to step in because the issue is arising across Ontario. Last week, Ottawa city council directed the police to enforce a section of the High- way Traffic Act. It's a more interesting approach since s. 39 of the act, which deals with picking up passengers for com- pensation without a licence, stipulates: "A driver of a motor vehicle other than a bus shall not pick up a passenger for the purpose of transporting him or her for compensation where a licence, permit or authorization is required to do so by, (a) the Public Vehicles Act; (b) a mu- nicipal bylaw passed under Part IV of the Municipal Act, 2001; (c) a regulation made under the Department of Transport Act (Canada); or (d) an airport or airport au- thority, except under the authority of such licence, permit or authorization." Fines range from $300 to $20,000. The question then becomes how much public resources must go into gathering evidence and prosecution before we get a resolution? Besides, the real fight isn't over Uber. It's over what was $10 billion in cab li- cences before Uber's arrival a couple of years ago and is now $3.4 billion and dropping. There are 4,849 taxicab li- censes in Toronto of which 3,451 are the so-called sta ndard licenses people can buy and sell at market prices. The remain- ing 1,313 licences are ambas- sador plates owned by the city and licensed by drivers who must drive the vehicles themselves for a maximum of 12 hours a day. Under the rules, they can't share a plate with another driver. That's not the case for stan- dard plates. Families, inves- tors, and corporations have consistently acquired and held plates as assets. For the most part, they don't drive and many have no connection to the in- dustry other than investing in plates. No matter what, they get their money. The result is desperate drivers working long hours to pay for a plate lease that can run up to $1,900 a month. Two years ago, the resale value of a plate hit a high of $360,000. Today, plates are for sale for as little as $100,000 and some observers feel those prices will continue to drop after Dunphy's court ruling. Further, agents who manage half of the standard plates take another cut from drivers. Despite the city's regulation of the rates, Toronto cabs are more expensive than in most similar cities. There's the $4.25 fee just to get in and then 25 cents for every .143 kilometre travelled and the same amount for every 29 seconds of waiting time. With their interest in getting a return exceeding what they'd get from the stock market, plate owners, who have the real power in the industry, have had no incen- tive to compete and thus are woefully be- hind when it comes to technology. Finding a driver equipped to accept credit cards is a lottery. There's no direct hailing by a smartphone application for all of the brokerages as with Uber, nor is it possible to see where the nearest taxi is and simply touch the screen to call it over. What the industry has is a text-based service that costs up to $2.50 and adds in- sult to the $4.25 injury caused by the initial fee to get in. That's $6.75 just to find and get in a cab. It's no surprise, then, that Uber has shaken things up. Politically, the province and the munic- ipalities need to find an innovative solu- tion without the heavy hand of regulative protection further coddling a sector that's now facing the reality of disruption. LT Ian Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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That could possibly take a bit of time, but given that the departments are already receiving the decisions, it should be fairly easy to publish all of them. The issue is another blight on a tribunal that has struggled with concerns about the backlog of cases for some time. Now is the time for it to show it's living up to at least some expectations by moving quickly to publish all of its decisions. — Glenn Kauth I Queen's Park Ian Harvey W

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