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It’s “not plausible” that Ottawa would create massive enforcement by-laws it never intended to use: Barqawi

Abdalla Barqawi of Conway Litigation Photo: Conway

Plaintiff’s counsel Abdalla Barqawi struck an ironic and humourous note in his November 28th presentation when he scrolled through some of the many thousands of words in Ottawa’s Taxi by-law enforcement regulations.

“It’s not plausible,” Barqawi argued, “that Ottawa would have developed all of these enforcement measures without intending to use them.” Watching the copious amounts of text roll past, it was hard for viewers to disagree, despite the fact that Ottawa enforced none of its own enforcement provisions on Uber when it arrived in the city in 2014.

Barqawi followed Tom Conway and Marion Sandilands of Conway Litigation with his presentation, which closed arguments for the plaintiffs at the afternoon break around 3:30pm. Counsel for the City of Ottawa began presenting after the break, and will continue presenting at 10am November 29th. This is the last scheduled day of proceedings in this trial. Time as been allotted at the end of today so that counsel for the plaintiffs may ask questions of Ottawa arising from its presentation.

After Uber’s arrival in Ottawa, its Taxi industry launched this $215 million class-action lawsuit in 2016, alleging the city did not protect drivers and the industry when ride-sharing services hit city streets. The suit also claims the city discriminated against minority taxi plate holders by failing to enforce its own bylaw and changing the bylaw to allow private transportation companies.

Marion Sandilands focused largely on Section 15 of Canada’s Charter of Rights and Freedoms, which states that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Ottawa’s evident failure to consider Section 15 in revising by-laws in an industry comprised of about 90 per cent immigrants was an enormous oversight, Sandilands reminded Justice Marc Smith. During testimony in January and February 2023, Ottawa City staff declared its “Diversity and Equity Handbook” was “not germaine” to the development of the City’s new Taxi by-laws.

Conway Litigation principal Tom Conway describes Ottawa’s reaction to Uber’s arrival as “chaotic and unplanned.” He opened the November 28th proceedings by reiterating his position that the City of Ottawa, in developing and maintaining a complex and precise system of supply management for the Taxi industry, then has a duty of care to the industry.

At its core, he says, “supply management system is one that protects industries through regulation and proper enforcement of those regulations. This is precisely what the City set to do when it created the taxi industry on the basis of a supply management model,” Conway maintains.

“The City created this system to attract individuals to buy into it and invest in it to ensure that transportation services to the public are safe and of sufficient quality. People bought into the system because it was a supply management system buttressed by the City’s enforcement arsenal, which it deployed for years to protect the industry from unlawful intruders.”

Counsel for the City, which began presenting after the 3:30 break, continues to maintain that the City owes no protection to individuals who invested in the Taxi industry assuming Ottawa would retain the system of supply management it developed and maintained over 50 years.