Surrey mayor accused of 'illegitimate posturing' as Uber takes city to B.C. Supreme Court
VANCOUVER -- Lawyers for a ride-hailing giant are before a B.C. Supreme Court judge seeking an injunction to stop the City of Surrey from issuing what Uber calls "illegal" tickets against its drivers as the city’s lawyer tried to minimize statements by the mayor.
Bylaw officers started handing out dozens of $500 fines after some warnings within days of ride-hailing being approved by the Passenger Transportation Board last month.
Uber lawyer Michael Feder told the judge Surrey bylaw officers have even gone to his office to drop off more tickets for drivers operating in the city.
Uber is arguing the city does not have the authority to prevent ride-hailing companies from operating now that it has provincial approval and last week the provincial transportation minister said provincial laws don't allow for municipalities to block services.
Feder asked the judge for an injunction against fining, ticketing or otherwise sanctioning the company's drivers for working in Surrey. He argued that the city is demanding they have a business licence but has no mechanism to provide one, effectively prohibiting them from operating.
"There's absolutely no difference between banning and not allowing, they are synonymous, and the legislature has made clear neither is allowed," said Feder.
He went on to cite "illegitimate posturing" by Mayor Doug McCallum when he addressed a group of taxi drivers in September, promising he would never allow ride-hailing in his city, using municipal authority to withhold business licences.
Feder pointed out the mayor was using the "level playing field" language used by the taxi industry to demand parity on the number of vehicles and other factors taxi companies say put ride-hailing companies at a competitive advantage.
"The concerns channelled by the mayor were extensively addressed," said Feder, referring to the decision by the Passenger Transportation Board. Feder also read the court an email from the City of Surrey's general manager, Rob Costanzo, notifying Uber that it could take months before council decides how to handle ride-hailing companies, despite years worth of discussion and promises from provincial governments that they intended to approve the services.
He called the efforts of TransLink’s Mayors' Council "laudable" as it works on an inter-municipal business licence, but he said it’s unreasonable for Surrey to keep the company from operating in the meantime.
He quoted what he called an "extraordinary statement" from premier John Horgan, who said, "Mayor MCCallum can't stop legal ride-hailing companies from operating in surrey...These companies will be able to operate in the Lower Mainland."
He told the judge: “What is happening in Surrey is embarrassing, my lady. It is embarrassing, if not shameful, to have the mayor called out by the premier and the transportation minister.”
The City of Surrey’s position
Surrey’s lawyer, James Yardley, said Uber is encouraging drivers to break the law.
"Uber has not met any test for an injunction," he said, urging the judge to dismiss the application.
The judge asked him about an internal email cited by Uber wherein city officials said they wouldn’t issue a business licence. Yardley said it had to be taken in context, written the day after the PTB gave approval as the officials were still “digesting” the approval.
Yardley seemed to try to distance the city from McCallum’s comments.
“The mayor is one member of council,” he said, going on to suggest Uber didn’t have a legal basis for its “cause of action.”
In a remarkable exchange, the city’s lawyer was questioned by Justice Veronica Jackson on the mayor’s role.
“The mayor is stating his opinions and his views,” said Yardley.
“Isn’t that on official Surrey letterhead?” asked the judge.
“No one member of council binds a city in any municipality,” he said.
“He speaks for the city,” said the judge.
Yardley cited the "weak mayor model" where the mayor acts as a referee in council proceedings and as a figurehead, which the judge accepted.
"The mayor, on his own, does not decide whether business licences are issued," said Yardley, insisting it's city staff tasked with doing so.
"Does he know that?" asked the judge
"Frankly it doesn’t matter if he knows that," said Yardley in response.
Yardley had earlier said with city council meeting on the matter of a business licence Monday, "this matter may become moot."
He claimed Uber hasn’t and doesn’t intend to apply for a business licence.
"There’s certainly no provision in any of this legislation which removes the ability of the city to require licences," said Yardley.
"I don’t think this court ever relies on the comments of others," he went on to say in reference to the premier’s comments on the matter. "They are simply irrelevant."
Yardley noted that Lyft isn't operating in Surrey and that the PTB itself said upon its approval, it was up to the ride-hailing companies to acquire business licences in order to operate. The City of Vancouver, which had already passed a bylaw requiring companies to have a Vancouver-issued business licence to operate within its civic boundaries, awarded them to Uber and Lyft within hours of the PTB’s approval.
The arguments were made before Madame Justice Veronica Jackson, the same judge hearing a bid by the Vancouver Taxi Association to block Uber and Lyft apps in the region while they pursue a judicial review. She's expected to deliver her decision on Friday morning.