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  • Edmonton (City) V Uber Canada Inc 2015

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    Emily Mertz
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    The Court of Queen's Bench decision on the City's request for an injunction against Uber operating in Edmonton.

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    Edmonton (City) v Uber Canada Inc 2015

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    The Court of Queen's Bench decision on the City's request for an injunction against Uber operating in Edmonton.

    Copyright:

    © All Rights Reserved
    Als PDF herunterladen oder online auf Scribd lesen
    Markieren Sie unangemessene Inhalte
    6K Ansichten11 Seiten

    Edmonton (City) V Uber Canada Inc 2015

    Hochgeladen von

    Emily Mertz
    The Court of Queen's Bench decision on the City's request for an injunction against Uber operating in Edmonton.

    Copyright:

    © All Rights Reserved
    Als PDF herunterladen oder online auf Scribd lesen
    Markieren Sie unangemessene Inhalte
    von 11
    Court of Queen's Bench of Alberta Edmonton (City) y Uber Canada Inc, 2015 ABQD 214 Date: Docket: 1503 01411 Registry: Edmonton Rerween City of Edmonton Applicant Respondent ‘Memorandum of Decision of the Honourable Madam Justice M.G. Crighton 1. Introduction [1] This isthe City’s application for a statutory interlocutory injunction enjoining Uber ‘Canad Ine (“Uber Canada”) from conducting business in the City of Edmonton without a valid business licerce or Taxi Broker Licence under the Vehicle for Hire Bylaw 14700 and Business Livence Bylaw 13138. During argument, counsel for the City also asked this Cour to direct Uber ‘Canada to deactivate all Edmontan-area driver accounts registered with the UTer group of ‘companies on the basis that Uber Canada has the ability to deactivate driver accounts. TL Background [2] Uber Carada is incorporated under the laws of Canada, It provides support to its corporate affiliates, including Uber B.V. and Rasier Operations B.V. (“Rasier B.V."]. The later {to corporations are incorporated in the Netherlands. Uber Canada controls neither of them. There is no evidence before the Court regarding the extent to which the Netherlands corprations control Uber Canada, if tal [B]__ Christopher Schafer, the Uber Canada manager of public policy, described the operations of Uber Canada and its affiliated corporations in an affidavit that Uber Canada filed in| ‘opposition tothe City’s application. It is apparent from that affidavit that the Uber group of companies operate a software application or “App” based business. One App, the “Rider App", provides a digital platform that enables the rider to request rides, track their rides using a map on theie smartphones, pay for their rides automatically by electronic means, and to rate the driver at the conclusion ofthe trip. A second App, the “Driver App’, is used by Uber drivers to match ‘themselves with her rides, [4] Uber Canaéa frst met with City officials in August 2014 to discuss the Apps and services. Those discussions continued between August and October, 2014 [5] According to Mr. Dziwenka, the City’s Director of Licensing, he advised Mr. Schafer in ‘November 2014 that the City 1. considered Uber tobe a taxi broker which would req 2. that Uber’s model for arranging rides would violate City bylaws. [6] Mr. Dziwenka states in his affidavit that following the November meeting, Uber Canada held several driver sign up meetings at various hotels between November and December, 2014. ‘These were advertised through an electronic invitation on Uber Canada's web page. (7) The Apps were first introduced in Edmonton in December 2014 when Uber offered one equest option fo Edmontonians using the Apps. That request option is refered to as uberX ‘which allows riers to request rides from “peer to peer” drivers who offer ridesharing services; that simply means the driver uses his or her personal vehicle. [8] To date, the City has not charged Uber Canada or other Uber group companies with any violation ofits bylaws, and it has issued sx tickets in total to thre drivers it identified and ticketed after using the rider App to determine where drivers would be located, [9] According to Mr. Schafer, the Apps operat, in basi terms, as follows: Uber BLV. grants riers in Edmonton a limited use license to use the Rider App. Riders must meet certain qualifications and agree to certain user terms imposed by Uber BV, b. Rasier B.V. grants a limited licence to access and use the Driver App to a driver who ‘meetsall ofthe requirements imposed by Rasier B.V. including entering ito a Transportation Provider Agreement with Rasier. ‘©. Uber Canada is not a party o the licensing agreements entered into between the riders ‘or drivers by either Uber B.V. or Rasier B.V. jeense, and m. 110) Page: 3 4. Once licensed :0 use the Rider App, arider may send a request on his or her ‘smartphone to data servers located in California, That request is automatically, electronically ent from the servers tothe driver who is geographically nearest the pickup locaton. That driver has 1 seconds to accep the request by tapping anywhere fn the Driver App screen. Once accepted, the rider receives electronically some information about the driver including license plate number, make and model ofthe vehicle, anda photograph ofthe driver. ©. Once the river arrives at the pickup location, the driver's smartphone sends an rival notification tothe California server that in turn notifies the rider thatthe driver has arived, £ The tip begins when the rider enters the vehicle and the driver presses the “begin trip” button onthe Driver App. When the driver arrives atthe desired locaton, the driver presses another bution on the App to signal the trp has concluded, ‘8 Payment is then made electronically by a third party payment company that stores the rider's creditcard information. An electronic payment is also automatically made to the driver and to Rasier B.V. who receives a fee forthe use of the App. hh. None of the Uter companies owns any vehicles used for transportation services in ‘Edmonton. The Uber companies do not employ drivers who provide those services in Edmonton i, Allrequests for rides are done via smartphone between riders and drivers withthe assistance of electronic servers. Statutory Provisions and Bylaws ‘Municipal Government Act, RSA 2000, ¢ M-26, $7 "(MGA"] gives the City authority to ass bylaws for municipal purposes respecting a number of matters including: the safety, health ‘and welfare of people, andthe protection of people and property; transport and transportation ‘services; business, business activities and persons engaged in business; services provided by or ‘on behalf ofthe municipality, and the enforcement of bylaws made under this or any ather| ‘enactment, on The City enacted Bylaws 13813 and 14700 pursuant to MGA, s 7. The relevant pats of those bylaws areas follows: Bylaw 13813 2 Inthis bylaw: (@) “Business” means: (acommercial, merchandising or industil activity or undertaking, Gia profession, trade, occupation, calling or employment, or Gi)an activity providing goods or services, as described in ‘Schedule “A”, and whether or not for profit and however ‘organized or formed, including a co-operative or association of| Persons; Page: 4 4 No Person shell engage in or operate a Business in the City unless the Person holds a Licence authorizing the Person to engage in or operate that Business Bylaw 14700 2 Inthie bylaw, unless the context atherwise requires: (bb) “Taxi” means a motor vehicle displaying a valid Taxi Vehicle Licence; (ih) “Vehicle for Hire” means a motor vehicle with a driver used or offered for the transportation ofa least one passenger in return {ora fee from any place within the City toa destination either within or outside ofthe City; 4(1) A person shall not operate, cause or permit the operation of a Vehicle for ire unless itis a Taxi, Limited Taxi, Accessible Taxi, Limousine or Shuttle (2) This section doesnot apply to: (@)a motor vehicle used as part of transit system operated by a ‘municipality; (b)a motor vehicle licenced and used as part ofan inter Bylaw ‘municipal or inte-provincial bus service; or (©) ambulance. 67 A person shall not provide dispatch services to any Taxi, Lit ‘Accessible Taxi unless they are Taxi Broker. ited Taxi, or (68(1) A Taxi Broker shall provide dispatch services (only to Taxis, Limited Taxis, and Accessible Taxi with colours and markings permited to be used by that Taxi Broker as prescribed by the City Manager; and (b) on continuous basis, 24 hours per day every day ofthe year. @) A Taxi Broker stall provide service to the public on a continuous basis, 24 hhours per day every day ofthe yea. @) A Taxi Broker providing dispatch services o an Accessible Taxi must censure that at ll imes a minimum of one (1) Accessible Taxi is available to be dispatched for trips Page: § [12] MGA, s 554 allows the City to enforce its bylaws by seeking a statutory injunction. The section reads a8 follows Injunction 554(1) When (2) a structure is being constructed in contravention of an enactment that a ‘municipality is authorized to enforce ora bylaw, (©) a contravention ofthis Act, another enactment that a municipality is authorized to enforce or a bylaw is ofa continuing nature, or (6) any person is carrying on business or is doing any act, matir or thing without having paid money required tobe paid by a bylaw, {in adition to any other remedy and penalty imposed by this or any other enactment ora bylaw, the municipality may apply tothe Court of Queen's Hench for an injunction or other order. (2) The Court may grant or refuse the injunetion or other order oF may make any other order that in its opinion the justice of the case requires, IV. The Test for a Statutory Injunction [13] The parties agree thatthe appropriate testis that set out by the Alberta Court of Appeal in Alberta (Attorney General)» Plantation Indoor Plants Led (1982), 34 AR 348 at para 12, 133, DLR (3d) 741, reversed on other grounds [1985] | SCR 366, 18 DLR (4th) 319. Accordingly, the City concedes that ithas the onus to prove tht the history ofthe matter clearly demonstrates clear and continuous disregard of an imperative public statute and its usual sanctions which is unlikely to be thwarted without the intervention of the court. V. The Parties’ Positions AL TheCity [14] The City claims hat corporations can only do business in Canada if they are registered in Canada to do so and Uber Canada is so registered, It follows, says the City, that notwithstanding that Uber B.V. and Rasier B.V. are incorporated inthe Netherlands and have rot been named, they are doing business in Edmonton through their afliate, Uber Canada. Accordingly, itis adequate to name only the Canadian entity even ifthe relief the City seeks will impact parties not named in their application. [15] The City argues that Uber Canada is doing business either generally or because it causes or permits the operation of vehicles for hie. The City argues that in either scenario, Uber Canada. requires a license. The City further argues that Uber Canada is acting as a dispatching taxi service and accordingly, itis conducting a taxi brokerage that requires @ license [16] The City submits that because Uber Canada controls the App, it has the ability wo

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