407 ETR Appeals Justice Edwards Decision


February 29th, 2016 407 ETR was back in court on an appeal the company filed against Ira Day. You’ll recall that on November 4th, 2014, Justice Edwards ruled that 407 ETR is not exempt from the Limitations Act and went on to say “There is nothing from my review of the Limitations Act nor the Highway 407 Act which would explicitly exempt the 407 ETR from Ontario’s limitation regime, nor is there anything that prescribes a separate limitation period for the toll debt. Presumptively the toll debt owed to the 407 ETR is, in my view, subject to sections 4 and 15 of the Limitations Act…In my view it would take explicit language in the 407 Act, and or an exception provided for in the Limitations Act, to give to the 407 ETR an ability to make a claim free of any limitations defense. No such language can be found in the 407 Act, nor is there any exception in the Limitations Act.” Neither Ira Day’s lawyers nor 407 ETR’s lawyers were satisfied with this decision.

407 ETR appealed the decision because they believe a consumer should be able to contract out of the limitations period by signing an ambiguous transponder contract that says you agree that the company can chase you for payment for up to 15 years on a delinquent account. If the Appellate Judges were to agree with the company’s thinking, it still wouldn’t cover non transponder accounts. 407 ETR would argue that by driving on their highway, you enter into whatever ambiguous contract they say, regardless of whether or not you signed an agreement; I don’t think that is the spirit of the law.

Also, when you consider the fact that there is no other way to obtain a transponder unless you opt out of your rights, I would say there is an argument to be made for racketeering.

Racketeering is the act of offering a dishonest service (a “racket”) to solve a problem that wouldn’t otherwise exist without the enterprise offering the service. You are damned if you do and damned if you don’t. The company lures people to sign a contract by saying; you won’t have to pay for the photograph our equipment takes of your vehicle every time you enter our highway. In a way, they are offering your pocket book protection. By getting a transponder, you avoid the $4.00 fee their equipment causes every time you enter the highway. What a racket! The company is essentially trying to say if you want to save money, then you have no other choice but to sign a contract that takes away your rights.

This company’s behavior is not shocking. There has been so much controversy over the company’s practice of “lying in wait” for many years before taking action on a delinquent account. The controversy has to do with the fact that the company heaps thousands of dollars in interest charges and fees on an account it sat on for years.

It’s unclear at this time how the Appellate Court will rule in this case. It is hoped that the Justices will hold 407 ETR accountable and clarify when the 2 year limitations period is to start. Although the 407 Act prescribes a time period the company “may” act within, the company has viewed this as a suggestion and not that they “have” to send notices of default at those times.

For example, section 16 of the 407 Act says, “If a toll charged for operating a vehicle on Highway 407 or any administrative fee is not paid within 35 days after the day it is payable under subsection 15 (1), the owner “may” send the person responsible for the payment of the toll a notice of failure to pay the toll.

Also in section 22 of the 407 Act it says, “If a toll, and the related fees and interest, are not paid within 90 days of the day a person receives a notice of failure to pay under section 16, the owner may notify the Registrar of Motor Vehicles of the failure to pay.”

According to the 407 Act, 407 ETR is eligible to send someone into Plate Denial 125 days after nonpayment of toll charges. The problem has always been the amount of time it takes 407 ETR to send out a section 16 and 22, notifying a consumer of a delinquent account. The company is known for sitting on a delinquent account for years before it takes any action whatsoever. This has led to the company feeling it has the right to then collect a usury amount of interest and fees.

It is hoped that the judges rule that the limitations period of 2 years start at discovery of the default of payment. According the 407 Act, the company discovers the default 35 days, after the day charges are payable. Section 15 of the 407 Act says, “…a toll or fee is payable on the day an invoice for it is mailed, delivered by hand or sent by any other prescribed method to that person…”

It really should be that simple. But it benefits 407 ETR to keep the issues muddied. This behavior of the company is only the tip of the ice berg. 407 ETR has long held that it didn’t matter if they mailed the invoice to the correct address or to the correct person, but that as long as they mailed an invoice, a consumer would be responsible for all interest and fees the company charges. How many times have you heard of unsuspecting consumers receiving a whopper of a bill? Unfortunately, we have heard these stories too many times.

It seems to me 407 ETR wants everything to favor them and their bottom line. The problem of trumped up fees and interest wouldn’t exist if the company did their due diligence and made sure that they were billing their customers correctly. Also, the problem of usury interest and fees wouldn’t exist if the company acted within the prescribed time they were eligible to act within. At the very least, if what the company is doing doesn’t fit racketeering, the company should be held responsible for their negligence. We are hopeful that the Appellate Court assists in reining the company in by discouraging the behavior that has led to much unnecessary stress to unsuspecting consumers.

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One Response to “407 ETR Appeals Justice Edwards Decision”

  1. R says:

    So cool. I have a contract that automatically applies to anyone that mails me a bill. It provides me with a right to claim title on the reply address property.

    This is fun when the 407 can just make shit up.

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