407 ETR Not Exempt From Limitations Act


We have a Superior Court ruling that may signal relief, at some point, for driver’s that have been stung by 407 ETR’s questionable business practices.  Justice Edwards ruled, November 4th, 2014 that 407 ETR is not exempt from the Limitations Act. Justice Edwards points out what many have been saying for years, “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 defence. No such language can be found in the 407 Act, nor is there any exception in the Limitations Act.”

 

In addition to Justice Edwards’ comments I would like to add, nor does that language exist in any other consumer protection law the company has been ignoring since it started to operate their business in 1999. It begs the question, why does the Province continue to turn a blind eye to this company’s flagrant and blatant ignorance of consumer protection laws?

 

So far, it’s been a cat-and-mouse game whereby there appears to have been a pursuit of justice by the Province, but they gave up forcing the public to take over the pursuit. We have near captures in that we get rulings that would appear to help make the answer clearer, but then the company escapes any accountability on technicalities.

 

The judge touches on this in his ruling by referring to the Divisional Court’s decision in 2005 that mandates the Ministry of Transportation to apply the Plate Denial process when the company says a consumer owes 407 ETR money.  Essentially the Ministry of Transportation says that ruling ties their hands and there is nothing they can do. If the company says you owe them money they have to honor the request for Plate Denial.

 

What has been pointed out, for many years, to the Ministry of Transportation and the Ministry of Consumer Services is the problem with 407 ETR abusing this ruling and submitting questionable amounts, amounts that may not be lawful. Currently, there are no tools at the Ministry of Transportation’s disposal that would allow them to question the legality of a claim by the company. All the company has to do is give the Ministry a piece of paper swearing that this licensed driver owes x amount of money and the Ministry has to except that whether or not the claim is lawful.

 

The crux of the problem is that when the company puts a Consumer in Plate Denial, it’s not just for tolls.  It’s for what ever amount of interest and fees the company feels they can impose upon Consumers. Consumers have been accusing the company of usury since they started operating in 1999. Not only that, often times when a Consumer pays the amount owing on a plate to renew their plate at the Ministry of Transportation’s office, the Consumer still gets a bill from the company without ever driving on the highway because the company continues to claim interest and fees on interest and fees. So the amount that is claimed to the Ministry of Transportation is not the full amount of money the company tries to collect from the Consumer.

 

The Ministry of Transportation blindly honors whatever claims 407 ETR makes without any burden of proof because in that 2005 ruling, consumers have to prove the claim is wrong. Talk about your backwards dealings. I always thought you were presumed innocent until proven guilty, not guilty until you can prove you are innocent.

 

This has become very problematic because many times the company  doesn’t provide consumers with details  on what the claim against them is for. Even when a consumer has been able to pry details out of the company, there has been no recourse to dispute the charges fairly because, by that time, the consumer was pushed through the company’s bias, internal dispute process and was told that they weren’t eligible to go through the LGIC appointed, independent dispute arbitrators. More plays in the cat-and-mouse game.

 

So now the ball is back in the court of the Ministry of Transportation and the Ministry of Consumer Services.  What are they going to do to make sure consumers are protected from this company’s predatory practices?

 

Justice Edwards makes a distinction between a consumer and a business and says “The 407 ETR must have therefore known of the distinction between a consumer applying for a transponder in his personal capacity versus someone acting in his business capacity. Mr. Day, when he leased the transponder, did so as a consumer as defined by the Consumer Protection Act. As such, the 407 ETR cannot rely upon the 15 year limitation period set forth in the Transponder Lease Agreement, as the 407 ETR does not fall within the exception set forth in section 22(5)(1) of the Limitations Act given that it only applies in respect of business agreements. The Transponder Lease Agreement as signed by Mr. Day was not a business agreement.”

 

Why then, did the Ministry of Consumer Services pass the buck back to the Ministry of Transportation when they were approached to deal with this issue on behalf of consumers? We have no satisfying answers. Just bureaucratic posturing over jurisdiction. Another dimension to the cat-and-mouse game.

 

Justice Edwards points out the reason for the 407 Act. He says it’s not just to privatize the highway, but to provide the 407 ETR an effective method of toll collection and says  “An effective method of toll collection, in my view, has implicit in it a common sense approach to a reasonable limitation period, recognizing that the interests of both the 407 ETR and the consumer need to be protected. ”

 

That is a balanced, fair, reasonable view. Up to this point, the scales of justice has been tipped in favor of 407 ETR.  How much longer will we be spinning our wheels with the Ministry of Transportation and the Ministry of Consumer Services?  Will they ever do anything to protect consumers?

 

While the ruling is encouraging, there is nothing stopping the company from sitting on invoices for many years before they put a Consumer in plate denial for non payment. Although the 407 Act has time provisions in sections 16 and 22, the sections that deal with Plate Denial, the company looks at those provisions as suggestions and not a limit on when they have to apply the Plate Denial process. Are consumers going to have to wait until this case reaches the Supreme Court of Canada sometime in 2017 before they will see relief? We can only hope that the Province will balance out those scales of justice and finally act in the interest of Consumers. Let’s stop playing the cat-and-mouse game.

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28 Responses to “407 ETR Not Exempt From Limitations Act”

  1. D Murphy says:

    Well it is about time The Statute of Limitations Act was recognized as a factual Law In Canada and Ontario.
    Thank Goodness for Justice Edwards upholding the Laws
    and for the lawyers that made this happen!
    Now everyone has a leg to srand on so to speak.
    For those of us in Plate denial, Lets get back to legally driving within the laws with a proper plate sticker on our vehicles.
    this is Good News

    • Tammy Flores says:

      The lawyers that are bravely taking on 407 ETR are rock stars to me. I am very grateful that there are still professionals out there with high ethical standards. Indeed, rock stars in my books!

  2. D Murphy says:

    It would be nice if some of our Politicians would get some back bone and ethical standards to speak up about the unlawful business practices of a Private Company here in Ontario? But one can only dream LOL
    Have a Great Day Tammy, The Victory is Ours for today!

  3. TJ says:

    Sadly this ruling is very limited in its success to be called a victory. It really is one small step.
    The end result is it only benefits those who are in plate denial like myself for the last 7 years.
    It benefits those who have been in denial 2 or more years because now the 407 can not rely on the courts to award judgments on these old files.
    However that is where the victory end.
    The courts did nothing to quash these plate denials and it is still available as a tool to extort thousands of dollars from consumers for debts that they are not required to prove.

    The court said they need a special method to collect on these debts.
    They have had this special method since the hwy opened…..plate denial.

    Let us not forget the 407 is the only creditor in North America with these special powers, the banks do not, Visa does not.

    In my humble opinion the court has fallen well short of a fair and just decision.

    The 2 year statute should have been run from 30 days from when the invoice is not paid, and they still have the power of plate denial.

    In the ruling 407 indicated they have no way to know the customer is not paying until they are notified by the registrar. That is completely false as it is them the 407 who notifies them to have the plates denied.

    What needs to be addressed is the practice of plate denial without any proof of the debt.

    At the end of the day I guess it is safe to say….legally I do not owe them money but can look forward to at least another 7 years of no plates.

    Victory….I think not.

    • Tammy Flores says:

      TJ I have been fighting Goliath officially for 4 years now. To see the pendulum swing even an inch in our direction is a victory because prior to this we were invisible. Although this decision is not perfect, we are further than we have ever been before and for that I am truly grateful.

      I agree with you. We aren’t done yet. I am not giving up and I hope you don’t as well. I need people that want change on board. Don’t give up on me.

    • HH says:

      TJ, I have been fighting with a plate denial for 5.5 years now. I have tried to get them to set a court date, but they won’t

      To confirm – this ruling means that my “debt” to the ETR is cancelled, but another 9 years before I can get a plate renewal?

      hh

    • DBF says:

      Can you tell me how it benefits those who have been in plate denial for seven years? My understanding is that the limitation period applies so that they cannot sue you for the money, but that plate denials remain in place.

      To my mind, the provision in the Limitations Act that stipulates that no action can be taken to recover a debt after the limitation period has expired should apply to plate denial because it is, in effect, a legal means through which they are trying to compel payment.
      I am expecting yet another call from one of the 407’s law firms tomorrow…I normally ignore them but now have this decision to fall back on when I tell them to take a hike.

      But beyond that, was there a part of the ruling that stated plate denials end after seven years or something? I have been in plate denial for several years now, but cannot remember if it has been seven years yet so would be interested to know if there is, indeed, a light at the end of the plate denial tunnel.

      Even if there isn’t, it is good to know that the limitation period applies to any debt they allege I owe so that I can tell their lawyers where to go.

  4. TJ says:

    I have an interview with the Sun this coming week.

  5. TJ says:

    The judges ruling is wrong.

    The Statute clearly says discovery is 2 years from when one knows or should have known.
    He took 407 submission of not knowing until they are notified by the registrar as gospel and it is a complete fabrication since no plate denial is issued until the ministry is notified by 407 that they have not been paid.

    You know 30 days after invoice is not paid that you have a cause of action. I would agree they really would not want to run off to court for a 20.00 invoice but after 2 years with their fees and interest then go to court before the 2years runs out. Also you have the extra tool plate denial.

    • Tammy Flores says:

      Yes TJ I agree. Some legal begals I know feel 407 ETR will appeal this case. We will have to make sure this is addressed and cleared up at that time.

    • Lorraine says:

      Way to go for the fight you have taken on TJ. I too have been a victim of the 407s predatory style of collection known as plate denial. I had to sign over my car to my 20 year old daughter 3 years ago so that I could drive with a valid sticker. That came at the expense of $400/month insurance! I am now trying to buy a new car and am again trying to get my name out of plate denial. I thought the Ira Day case was my saving grace, however, I am being told that plate denial remains even after the two year statute of limitations is over. I am further bring told that my $18,000 debt is not extinguishable was the two years is up. They just can’t take legal action. I am now looking at bankruptcy because of this. Is there any updates since the Ira day case that I should know of before I take this drastic measure? I just want to own a car again 🙁

  6. TJ says:

    This morning I have contacted all the major news outlets and informed them of the case….they all indicated they were unaware, and will now look into it and report on it.

    Hopefully the more people that are aware will result in something positive.

    • Tammy Flores says:

      Thanks TJ I gave up on mainstream media because Kevin Sack,407 ETR’s VP of Communications/Government Relations has a lot of friends. He used to work down at City Hall, Toronto.

      They play too nice when they talk to him and they refuse to ask the tough questions and just let him spew out his company’s party line. Everytime I hear him say, “We aren’t in the business of collecting interest and fees, but tolls”… I want to puke.

      I want to see a reporter with backbone. Someone that will ask Kevin Sack, when he’s trying to spin the problem like there is no problem and that this is a rare occurrence… OR how he likes to act like the company didn’t know what they were doing and pleads the case that they can’t vet someone’s credit…

      I want a reporter to ask, “Why don’t you offer an option for people to purchase their transponder and prepay tolls?” Prepaid options are something cell phone companies realized they had to offer, there’s no difference with tolls.

      In the States you can go to a vending machine, purchase a transponder for $30 and preload it with money.

      Our media are wimps.

  7. TJ says:

    Why are so many posts missing?

    • Tammy Flores says:

      I’m not sure. I just had some technical issues with the database. When I log in all the comments are approved, however, for some reason they aren’t there. Hopefully it’ll correct soon.

  8. TJ says:

    Wonder if we will hear if Ira Day is appealing?

  9. M Oliver says:

    Forgive me if this is dumb question but I’m a bit confused as to how this helps those of us who have had our plates denial for several years.
    My story is this;
    I NEVER had a transponder in my car and NEVER personally drove on the 407 yet I received a bill back in 1999 for approx $100.
    It has been a nightmare ever since. My bill is now over 5k and I had my plate denied over 5 years ago.
    Is there now a way to get my plate reinstated?

  10. Mel says:

    my post from last month is also missing. but that’s fine I already e-mailed the story. looking forward to hear Supreme Court ruling next week.
    Tammy, I found your blog by chance, had no idea such business practice has been going on for a long time. thank you for years of dedication on this matter ! I really hope the ruling will be fair and just for everyone

    • Tammy Flores says:

      If the latest ruling in the lower court is of any significance, I think we can be confidant that the courts will be fair. Company’s need to be able to get paid for their services, but they don’t have the right to do what 407 ETR has been doing to people. I hope the company will start to fly straight soon.

  11. Bonnie says:

    IT’S ABOUT TIME!!!!

  12. Dave Edwards says:

    I have never had a transponder and have been denied my plate renewal. Is there any word yet on how long they can keep denying my plate since the Statute Of Limitations has run out for them to collect and I no longer owe them money. At last account, with the interest and fees is approx. $30,000.00 that their lawyers keep calling me about. Each time they say they are not taking me to court (wonder why)at this time.

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