Missisauga (City) v. Uber Canada Inc., 2016 ONCJ 746

CITATION: Missisauga (City) v. Uber Canada Inc. , 2016 ONCJ 746 DATE: 2016-12-01 IN THE MATTER OF City of Mississauga Public Vehicle Licensing By-law 420-04, and an application for a stay of proceedings under s. 24(1) for an infringement of s. 11(

b) of the Charter Between The Corporation of the City of Mississauga Prosecutor (respondent) and Uber Canada Inc. and Ersan Zukic Defendants (applicants) Ontario Court of Justice Mississauga, Ontario Quon J. P.

Reasons for ruling on application Application argued: October 13, 2016 Ruling rendered: December 1, 2016 Charges: UBER Canada Inc. has been charged with "acting as a broker" without a licence, contrary to subsection 2(3) of the City of Mississauga Public Vehicle Licensing Bylaw 420-04 and thereby committing an offence under s. 32(2) of Mississauga Bylaw 420-04 (2 separate charges were laid on separate informations).

Ersan Zukic has been charged with “operating a licensed taxicab in affiliation with an unlicensed taxi broker”, contrary to Sched. 8, s. 46(4) of Mississauga Bylaw 420-04 and thereby committing an offence under s. 32(1) of Mississauga Bylaw 420-04 (1 count).

Counsel: S. Dunford, prosecutor for the City of Mississauga. J. Rosenthal and R. Cookson (Goodmans LLP), counsel for UBER Canada Inc. G. Chan and S. Aylward (Stockwoods LLP), counsel for Ersan Zukic. Cases Considered or Referred To: Allen v. The Queen (1997), (SCC), 119 C.C.C. (3d) 1 (S.C.C.) affirming, (1997), (ON CA), 110C.C.C. (3d) 331 (O.C.A.), per Doherty, Weiler, and Moldaver JJ.A. City of Toronto v. Uber Canada Inc. et aI., [2015] O.J. No. 3540, 2015 ONSC 3572 (S.C.J.O.), per Dunphy J. Mississauga (City) v. Uber Canada Inc., 2016 ONCJ 461 (O.C.J.), per Nicklas J.

Oshawa (City) v. 536813 Ontario Limited, 2016 ONCJ 287 (O.C.J.), per Coopersmith J.P. Pelfrey v. The Queen (1995), (SCC), 99 C.C.C. (3d) 385 (S.C.C.). Toronto (City) v. Andrade, 2011 ONCJ 470 (O.C.J.), per Libman J. R. v. Accurate Industrial Waste Ltd., [2001] O.J. No. 3421 (O.C.J.), per Quon J.P. R. v. Askov (1990), (SCC), 59 C.C.C. (3d) 449 (S.C.C.). R. v. Bennett (1991) (ON CA), 64 C.C.C. (3d) 449 (O.C.A.), per Dubin C.J.O., Arbour and Osborne JJ.A. R. v. Brassard (1993), (SCC), 85 C.C.C. (3d) 287 (S.C.C.). R. v. Campbell, (SCC), [1999] 1 SCR 565 (S.C.C.). R. v. CIP Inc., (SCC), [1992] S.C.J. No. 3 (S.C.C.).

R. v. Clothier, 2011 ONCA 27 (O.C.A.), per O'Connor A.C.J.O., Laskin, and Gillese JJ.A. R. v. Conway, (SCC), [1989] 1 S.C.R. 1659 (S.C.C.).

R. v. Coulter, 2016 ONCA 704 (O.C.A.), per Strathy C.J.O., Gillese and Pardu JJ.A. R. v. Curry, 2016 BCSC 1435 (B.C.S.C.). R. v. Dass, 2016 BCSC 1701 (B.C.S.C.). R. v. Dehaney, 2005 ONCJ 468 (O.C.J.), per Weiss J. R. v. Edan, [2016] O.J. No. 4279 (O.C.J.), per Botham J. R. v. Gandhi, 2016 ONSC 5612 (S.C.J.O.), per Code J. R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 (S.C.C.). R. v. Hafee 2015 ONSC 7118 (S.C.J.O.), per Nordheimer J. R. v. Jordan, 2016 SCC 27 (S.C.C.). R. v. Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 (O.C.A.), per Weiler, Rosenberg JJ.A., and Pardu J. (ad hoc). R. v.

Korzh, 2016 ONSC 4745 (S.C.J.O.), per Miller J. R. v. Lam, 2016 ABQB 489 (A.Q.B.). R. v. MacDougall (1998), (SCC), 128 C.C.C. (3d) 483 (S.C.C.). R. v. Manasseri, 2016 ONCA 703 (O.C.A.), per Watt, Lauwers, and Huscroft JJ.A. R. v. Mastronardi, 2016 BCSC 1289 (B.C.S.C.). R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.O.), per Hill J., at para. 32, affirmed, (ON CA), [2004] O.J. No. 3812(O.C.A.), per McMurtry C.J.O., Doherty, and Lang JJ.A. R. v. Morin, (SCC), [1992] S.C.J. No. 25 (S.C.C.). R. v. Nuosci, (SCC), [1993] 4 S.C.R. 283 (S.C.C.). R. v. Omarzadah, [2003] O.J. No. 5712; R. v. Omarzadah, [2004] O.J.

No. 2212 (QL) (O.C.A.), per Doherty J.A.

R. v. 1762432 Ontario Inc. (c.o.b. The Painted Lady), [2012] O.J. No. 746 (O.C.J.), per Ross Hendriks J.P. R. v. Pusic, (ON SC), [1996] O.J. No. 3329 (Ont. Ct. (Gen. Div.)), per Hill J. R. v. Qureshi, (ON CA), [2004] O.J. No. 4711 (O.C.A.), per Laskin, Rosenberg JJ.A., and Aitken J. (ad hoc) R. v. Rahey, (SCC), [1987] 1 SCR 588 (S.C.C.). R. v. Rice, 2016 QCCS 4659 (Q.S.C.). R. v. R. M., (ON CA), [2003] O.J. No. 4240 (O.C.A.), per Doherty, Feldman, and MacPherson JJ.A. R. v. Sharma (1992), (SCC), 71 C.C.C. (3d) 184 (S.C.C.). R. v. Singh, 2016 BCCA 427 (B.C.C.A.). R. v.

Slaney (1993), (SCC), 80 C.C.C. (3d) 383 (S.C.C.). R. v. Smith (1989), (SCC), 52 C.C.C. (3d) 97 (S.C.C.) R. v. Sran, 2012 ONCJ 19 (O.C.J.), per Dechert J.P. R. v. Tran, 2012 ONCA 18; R. v. Tran, [2012] O.J. No. 83 (QL) (O.C.A.), per MacPherson, Simmons and Blair JJ.A. R. v. Tran, 2016 ONCJ 528 (O.C.J.), per Band J. R. v. Vassell, 2016 SCC 26 (S.C.C.). R. v. Williamson, 2016 SCC 28 (S.C.C.). R. v. Zammit, 2016 ONSC 5098 (S.C.J.O.), per Wright J. Statutes, Regulations, Bylaws and Rules Cited: Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 11(b), 24(1). City of Mississauga Public Vehicle Licensing By-law 420-04, ss. 2(3), 32(1), 32(2) and Sched. 8, s. 46(4).

Justices of the Peace Act , R.S.O. 1990, c. J.4, s. 15(4). Provincial Offences Act , R.S.O. 1995, c. P.33. 1. INTRODUCTION [ 1 ] When the moon is in the seventh month and Moldaver is aligned with Brown, then there will be a new 11(

b) framework for the trial courts and complacency will no longer guide the bar. This is now the Age of Jordan upon us. And, it will be the Jordan analytical framework that will be used to decide these unreasonable delay applications for stays of proceedings brought by the defendants, UBER Canada Inc. and Ersan Zukic, for their respective bylaw charges. [ 2 ] In respect to the defendants’ 11(

b) applications, two Mississauga bylaw charges had been laid against UBER Canada Inc. (“UBER Canada”) and one bylaw charge had been laid against Ersan Zukic (the “alleged UBER driver”). However, these three charges are being prosecuted as “test cases” and were part of a group of charges that had been laid by City of Mississauga bylaw officers between September 1, 2014 and November 30, 2014, against UBER Canada Inc. and against alleged UBER drivers.

The two UBER Canada test cases were part of a set of 30 bylaw charges laid against UBER Canada during that period; while for the test case involving Ersan Zukic’s charge, Zukic had been one of the 13 alleged UBER drivers that had been charged with Mississauga bylaw offences during that same period. All of these bylaw charges were laid under the City of Mississauga Public Vehicle Licensing Bylaw 420-04 that governs and regulates the taxi industry in Mississauga.

It was also decided by the prosecution that the remaining 28 bylaw charges against UBER Canada and the bylaw charges against the other 12 alleged UBER drivers would also follow along with the present three test cases. [ 3 ] For the two charges laid against UBER Canada, City of Mississauga bylaw officers had charged the corporate defendant on two separate

Part III informations dated September 4, 2014 and November 17, 2014, with "acting as a broker without a licence”, contrary to s. 2(3) of the City of Mississauga Public Vehicle Licensing Bylaw 420-04. In its 11(

b) application under the new Jordan analytical framework , UBER Canada submits that the presumptive ceilings for unreasonable delay established under the new Jordan framework applies equally to corporate defendants as it does to human defendants, even though there is no mention of corporations being covered by the presumptive ceilings set out in R. v. Jordan , 2016 SCC 27 (S.C.C.) . In addition, because the two charges laid against UBER Canada had been commenced under a

Part III information pursuant to the Provincial Offences Act , R.S.O. 1995, c. P.33, the total delay for the Jordan analysis is calculated from the date the information is sworn to the date of the actual or anticipated end of trial, which in this case is December 2, 2016. Ergo, the total delay would be 26 months and 21 days for the September 4th charge (from the date the information was sworn on September 11, 2014) and 24 months and 12 days for the November 17th charge (from the date the information was sworn on November 20, 2014). [ 4 ] As for the defendant, Ersan Zukic, a City of Mississauga bylaw officer had charged Zukic, a licensed taxicab driver, under a

Part III information, with contravening s. 46(4) of

Schedule 8 of the Mississauga Public Vehicle Licensing By-Law 420-04 for “operating a licensed taxicab in affiliation with an unlicensed taxi broker”. This offence allegedly occurred on November 6, 2014, but the information containing the charge was not sworn until November 25, 2014.

Therefore, the total delay from the date the information had been sworn to the date of the anticipated completion of the trial of December 2, 2016, for the charge laid against the alleged UBER driver, Ersan Zukic, would be 24 months and 4 days . [ 5 ] Moreover, in their contention that their respective right to a speedy trial had been infringed, both UBER Canada and the alleged UBER driver, Ersan Zukic, submit that none of the total delay in their respective cases should be attributed to either of them, since neither UBER Canada nor Zukic had implicitly or explicitly waived any period of the total delay, nor had they solely been the cause of any of the total delay.

But more important, both defendants submit that their respective consents or agreements to adjournment requests made by the prosecution for disclosure purposes and to wait for the decision from the Toronto Injunction case (see City of Toronto v. UBER Canada Inc. et al , 2015 ONSC 3572 (S.C.J.O.) ) should not be construed or treated as implied waiver by them of any of the delay.

In addition, the prosecution is not contending that any of the delay at issue had been solely caused by the defendants, although the prosecution does contend that both defendants had by their conduct and agreement implicitly waived the delay associated with the consent adjournments in their respective cases.

[6] Furthermore, both defendants submit that they had not brought any frivolous applications or motions, nor did they deliberately orby calculation delay their respective proceedings. On the other hand, both defendants contend that the delay in these proceedings hadbeen caused by the prosecution’s laissez-faire attitude in the handling of the defendants’ cases, especially in not addressing thedefendants’ requests for additional disclosure promptly and in taking nearly six months just to respond to UBER Canada’s writtenrequests for additional disclosure of particular items.

And to date they still had not provided particular disclosure that they had statedthey would provide.

Moreover, it is contended that the prosecution had precipitated the delay in these proceedings, since they had beenthe one who had requested adjournments in order to fulfill their disclosure obligations, as well as requesting adjournments to wait for adecision in the Toronto Injunction case. [7] Ergo, both defendants submit that the remaining delay for their respective charges as a result of deducting any defence delay(which they both contend there is none) from the total delay of roughly 24 to 26 months for their respective charges would exceed thepresumptive ceiling of 18 months for unreasonable delay in provincial courts.

Accordingly, the defendants submit that because theremaining delay for their respective cases has exceeded the ceiling of 18 months, then a stay of proceedings must issue unless theprosecution is able to establish the existence of “exceptional circumstances” on a balance of probabilities to rebut the presumption ofunreasonable delay for their respective cases; or unless the prosecution is able to satisfy the court that the parties had reasonably reliedon the pre-existing law to justify the time it has taken, such that the “transitional exceptional circumstance” would apply to the presentcases. [8] Furthermore, both defendants contend that the prosecution has failed to justify the inordinate delay or to rebut the presumptionthat the delay had been unreasonable in completing the trials of their three respective charges by proving that the delay had been causedby or had been due to “exceptional circumstances”.

In particular, that the prosecution has not established that the prosecution of thesespecific charges required an inordinate amount of trial or preparation time due to their complex nature so as to make the delayreasonable, or that there had been a discreet event or events which had been the cause of any of the delay in completing the trials thatwould bring the delay below the 18 month ceiling.

In addition, since these three test cases were already in the system before the Jordanframework was established on July 8, 2016, both defendants further submit that the prosecution has not established that the “transitionalexceptional circumstance” should apply to any of the three charges, as the prosecution has failed to establish that the parties hadreasonably relied on the pre-existing law established under R. v. Morin, (SCC), [1992] S.C.J.

No. 25 (S.C.C.), to justifythe inordinate time it will take to complete the trial of these three charges. [9] But most importantly, both defendants contend that even if the prosecution had indeed been able to show that the parties hadreasonably relied on the Morin framework in how they had handled, dealt with, or advanced their respective cases (which they argue theparties had not), then the delay determined under the Morin 11(

b) calculus would still have been unreasonable and would have in anyevent greatly exceeded the guideline of 8 to 10 months for having a trial within a reasonable time in a provincial court. [10] Accordingly, both defendants submit that they have established on a balance of probabilities that their respective right to a trialwithin a reasonable time under s. 11(

b) has been infringed and that the remedy of a judicial stay be granted for their charges under s.24(1) of the Charter. [11] On the other hand, in response to both of the defendants’ unreasonable delay applications under the Jordan framework, theprosecution submits that they have rebutted the presumptive unreasonableness of the delay based on the existence of “exceptionalcircumstances” that have caused the delay, since it is contended that the defendants’ matters were sufficiently complex due to thevolume of disclosure requested by the defendants, the novelty of the circumstances and the legal issues arising in respect to UBERCanada’s operation, and due to the number of charges laid against UBER Canada and the number of alleged UBER drivers charged thathad been joined and proceeding together with the UBER Canada charges. [12] Furthermore, the prosecution argues that in the event that the “exceptional circumstances” under the new Jordan 11(b)framework does not rebut the presumption of unreasonable delay for both defendants’ respective cases, then they submit that the“transitional exceptional circumstance” should apply to justify the time that it would take or had taken to complete both defendants’trials, as the charges were already in the system prior to the application of the new 11(

b) framework that had commenced on July 8,2016, and had only been in effect for just a little over three months prior to the hearing of this application, and since the parties hadreasonably relied on the pre-existing law where the Morin framework had guided the parties in the proceedings involving bothdefendants for all but five months of the total delay of just over 26 months and 24 months, respectively, for the three charges in thisapplication. [13] Moreover, in analyzing the defendants’ cases under the Morin framework, to establish context for the application of the“transitional exceptional circumstance” to justify the inordinate delay in completing the trial, the prosecution submits that a transcript-by-transcript examination of the defendants’ proceedings shows that a significant amount of the delay in their respective proceedings, isin fact, "neutral time" in the form of mutual adjournments, judicial pre-trial hearings, and other forms of case management.

Consequently, the prosecution contends that for the defendants’ respective proceedings, after deducting periods of delay from the totaldelay for intake or inherent delay for providing disclosure as well as the neutral delay that had resulted from the consent adjournments,

they contend that the remaining delay due to institutional delay or Crown-caused delay is approximately 13 months and 11 days, which they acknowledge is above the Morin guideline of 8 to 10 months of reasonable delay, but nevertheless they contend the delay is not unreasonable because UBER Canada and the alleged UBER driver, Ersan Zukic, had not demonstrated or proven that there had been any prejudice to their respective and applicable security, liberty, or fair trial interests from the delay under the Morin framework. [ 14 ] However, the defendants contend that the prosecution has misinterpreted the test for deciding if the “transitional exceptional circumstance” should apply to justify the inordinate delay to complete their respective trials, as the prosecution is not entitled to have two kicks at the can or two chances to win in justifying the inordinate delay, by relying first on the Jordan framework, and if that does not succeed, then to embark on a full Morin analysis to show there had been no unreasonable delay.

The defendants argue that the prosecution did not appreciate the shift in respect to analyzing 11(

b) applications and that the Morin framework no longer governs. But most importantly, the defendants submit that the test for determining whether the inordinate delay is justified under the “transitional exceptional circumstance” established under the Jordan framework requires a two-stage test, which requires first that the prosecution establish that the parties had relied on the pre-existing law and then secondly, that this reliance had been reasonable to justify the time it had taken, but which does not include relitigating under the old framework if the prosecution does not defeat the defendants’ 11(

b) application under the new Jordan framework. [ 15 ] In other words, the defendants submit that the Jordan majority, in establishing the new 11(

b) framework, did not intend that the Crown or prosecution could justify the inordinate delay under the transitional exceptional circumstance by embarking on a full Morin analysis, since the R. v. Jordan case had been the first transitional case under the new 11(

b) framework and the Jordan majority themselves did not embark on full Morin analysis to determine if the parties had reasonably relied on the pre-existing law that would justify the inordinate delay in completing the trial. [ 16 ] After the 11(

b) application had been argued by both defendants on October 13, 2016, ruling on both applications had been reserved and adjourned until December 1, 2016, for the ruling to be rendered. Therefore, these are the written reasons for ruling on both defendants’ s. 11(

b) applications, in which both defendants have met their burden in proving on a balance of probabilities that their respective 11(

b) right to a trial within a reasonable time had been infringed, and as such, their respective charges are stayed as a remedy under s. 24(1) of the Charter . 2. BACKGROUND [ 17 ] The idea behind the UBER phenomenon that has swept the planet had been born in 2008. In respect to the UBER Canada’s operation in Ontario, UBER Canada Inc. was incorporated in Ontario on February 8, 2012, and has the Ontario corporation number of 3068686.

Its registered head office address is located at 100 King Street West, Suite 6100, Toronto, Ontario. [ 18 ] In comparison, the City of Mississauga Public Vehicle Licensing By-Law 420-04 governing the licensing and regulation of the taxi industry in Mississauga for the purposes of health and safety, consumer protection, and public nuisance had been enacted and passed on October 13, 2004 , by the Council of the Corporation of the City of Mississauga. [ 19 ] For the two bylaw charges in this proceeding laid against UBER Canada, the City of Mississauga has charged the defendant corporation for operating as a taxi broker in Mississauga without having a taxi broker’s license on separate dates of September 4th and November 17 th of 2014.

However, in the period from September 1, 2014 to November 30, 2014, the municipality had also charged UBER Canada with committing 30 offences of operating as a taxi broker in Mississauga without having a taxi broker’s license. Of those 30 charges laid against UBER Canada, it had been decided by the City of Mississauga prosecutors that the two charges in this application would be proceed as “test” cases. [ 20 ] The actual wording of those two charges laid against UBER Canada contained in the

Part III informations sworn respectively on September 11, 2014 (004157) and November 20, 2014 (004665), are the following: Information # 004157:

UBER CANADA INC., 100 King Street West, Suite 6100, Toronto, ON M5X 1B8 on or about the 4 th day of September, 2014, at 6750 Mississauga Road, Mississauga, ON did commit the offence of Acting as a Broker without being licensed, contrary to Section 2(3) of the City of Mississauga By-Law 420-04, as amended, and thereby did commit an offence under Section 32(2) of City of Mississauga By-Law 420-04, as amended.

Information # 004665: UBER CANADA INC., 100 King Street West, Suite 6100, Toronto, ON M5X 1B8 on or about the 17 th day of November, 2014, at 3 Robert Speck Parkway - Mississauga, ON did commit the offence of Acting as a Broker without being licensed, contrary to Section 2(3) of the City of Mississauga By-Law 420-04, as amended, and thereby did commit an offence under Section 32(2) of City of Mississauga By-Law 420-04, as amended. [ 21 ] Similarly, for the alleged UBER driver, Ersan Zukic, the City of Mississauga prosecutors had also decided to go ahead with the Zukic matter as a “test” case.

Zukic had also been one of approximately 13 alleged UBER drivers charged with bylaw offences in respect to their association with UBER Canada during the period from September 1, 2014 to November 30, 2014. Zukic had been charged with committing the bylaw offence on November 6, 2014. These 13 drivers had also been represented by the same legal counsel on all of their court appearances. [ 22 ] The actual wording of the charge laid against the alleged UBER driver, Ersan Zukic, contained in the

Part III information sworn on November 25, 2014 (004727), is the following: Information # 004727: Ersan ZUKIC [address removed for privacy], Mississauga, ON [postal code removed for privacy] on or about the 6 th day of November, 2014, at 309 Rathburn Road West, Mississauga, ON did commit the offence of Being a Licensed Taxicab Driver and operating Mississauga Taxicab # 230, bearing provincial plate FASTTED in affiliation with a Taxicab Broker who is not licensed, contrary to

Schedule 8, Section 46(4) of City of Mississauga By-Law 420-04, as amended and thereby did commit an offence under Section 32(1) of City of Mississauga By-Law 420-04, as amended. [ 23 ] Furthermore, in respect to the two charges for UBER Canada at bar, there had been 8 separate court appearances respectively for both the September 4, 2014 charge and for the November 17, 2014 charge, which had been addressed in this application, and to which transcripts of those scheduled court appearances had been obtained and provided in its unreasonable delay application, although legal counsel for UBER Canada or their agent did not personally appear on all of the scheduled court appearances, and the prosecution had spoken to several adjournments on behalf of counsel for UBER Canada. [ 24 ] As for the proceedings involving the alleged UBER driver, Ersan Zukic, there had also been 8 separate court appearances for his charge, which had been also addressed in this application and to which transcripts of those court appearances had also been obtained and provided in his unreasonable delay application. [ 25 ] Moreover, part of the total delay that is in common with both of the defendants’ proceedings at bar had been attributable to the prosecution and both defendants agreeing to adjourn several court appearances in 2015 for the purpose of waiting for the outcome of a legal proceeding in what the parties have referred to as the “Toronto Injunction case”.

This injunction application had been brought by the City of Toronto in respect to UBER Canada’s operation in the City of Toronto and in respect to the City of Toronto Bylaw governing the taxi industry in Toronto, which had been heard and argued on June 1 and 2, 2015. The decision on that application was subsequently released on July 3, 2015. See City of Toronto v. UBER Canada Inc. et al , 2015 ONSC 3572 (S.C.J.O.) , per Dunphy J. The injunction sought against UBER Canada had not been granted.

[ 26 ] Also, on the January 28, 2016, court appearance, the prosecutors for the City of Mississauga had requested a judicial pre-trial conference to be scheduled because they were having difficulty in moving the UBER cases forward. Counsel for both defendants were opposed to scheduling or setting a date for the judicial pre-trial conference until they had received all the items they had requested in their disclosure requests.

Counsel for UBER Canada had submitted a list of 10 to 17 items in a request for additional disclosure on May 20 of 2015, for each charge that UBER Canada was facing while counsel for the alleged UBER drivers made a request for additional disclosure with a similar list of items for each of the drivers. The prosecution had informed only UBER Canada that most of the items requested were not relevant, but that a few of the items would be forthcoming.

However, the court did not grant the defendants’ request for a further adjournment, but had scheduled a judicial pre-trial conference to be held on April 19, 2016, sufficiently far enough away so that the prosecution could complete their obligation in providing full disclosure and having further resolution discussions.

The court had offered an earlier judicial pre-trial date in March of 2016, but counsel for UBER Canada was not available until the April date. [ 27 ] At the judicial pre-trial conference held on April 19, 2016, which involved counsel for UBER Canada and counsel for the alleged UBER drivers, it was agreed by all that two days for Charter arguments be set aside and scheduled for October 13 and 14 of 2016. It was also agreed to

schedule December 1, 2016, as the date before trial that the prosecution would argue the applicability of the City of Mississauga bylaw in respect to UBER Canada’s operation. However, no date for trial had been set at that time. There had also been a discussion at the judicial pre-trial conference about the prosecution applying to have all the UBER matters heard by a judge of the Ontario Court of Justice instead of a justice of the peace.

A confirmation date was also set for July 19, 2016. [ 28 ] On July 4, 2016, counsel for the alleged UBER drivers emailed the prosecutors for the City of Mississauga to inform them that his clients did not waive their rights to be tried within a reasonable time under s. 11(

b) or that their position on the City of Mississauga’s application to have the UBER matters heard by a judge of the Ontario Court of Justice, instead by a justice of the peace, to be construed as waiver. [ 29 ] However, before the parties appeared in court for the confirmation date scheduled for July 19, 2016, the prosecutors for the City of Mississauga decided to bring an application before the regional senior judge under s. 15(4) of the Justices of the Peace Act , R.S.O. 1990, c.

J.4, s. 15(4) , to have all the charges laid against UBER Canada and the alleged UBER drivers heard by a judge of the Ontario Court of Justice, instead of a justice of the peace. Counsel for all the defendants did not oppose the application that had been brought by the prosecutors for the City of Mississauga. This application had been heard and argued before Regional Senior Justice Nicklas on June 24, 2016.

On July 18, 2016, Regional Senior Justice Nicklas released her ruling and denied the City of Mississauga’s application to have the UBER cases heard by a judge of the Ontario Court of Justice. [ 30 ] However, before Regional Senior Justice Nicklas’ ruling was released on July 18, 2016, the Supreme Court of Canada had released its judgment in R. v. Jordan , 2016 SCC 27 , on July 8, 2016, that changed the analytical framework to be used for s. 11(

b) applications. [ 31 ] After the prosecution’s application to have the UBER cases heard by a judge had been denied, a further judicial pre-trial conference was then conducted on July 19, 2016 (the scheduled confirmation date), where it was confirmed by counsel for the defendants that a s. 11(

b) application would be brought and the dates of October 13 and 14, 2016, were to be used for the hearing of the unreasonable delay applications brought by both defendants, and that trial dates of December 1 and 2 of 2016 were selected for the three charges as “test cases”. [ 32 ] Furthermore, initial disclosure consisting of 9 items had been provided by the prosecution to counsel for the alleged UBER driver, Ersan Zukic, on January 22, 2015, while 7 items and 8 items of initial disclosure had been provided to counsel for UBER Canada on April 20, 2015, for the September 4, 2014 charge and the November 17, 2014 charge, respectively.

However, counsel for UBER Canada and counsel for the alleged UBER drivers submitted written requests for additional disclosure in May of 2015 and in July of 2015, respectively. The requests by both counsel for additional disclosure comprised of a list of approximately 10 to 17 items for each alleged UBER driver and for each charge that UBER Canada had been charged with. The prosecution did not respond to the request for additional items to be disclosed to the defence until December 1, 2015 (and only responded to UBER Canada).

In their response, the prosecution indicated that many of the 10 to 17 items were irrelevant and would not be disclosed, but that some of the requested items would be disclosed to UBER Canada. However, those particular items that the prosecution stated that they would disclose had not yet been disclosed to counsel for UBER Canada, as of the date the unreasonable delay applications had been argued on October 13, 2016. (

A) CHRONOLOGY OF UBER CANADA’S AND ERSAN ZUKIC’S COURT APPEARANCES AND REASONS FOR ADJOURNMENTS AND OTHER SIGNIFICANT DATES [ 33 ] The following is a chronological

summary of both UBER Canada’s and Ersan Zukic’s court appearances and reasons for

adjournments, which also includes other significant dates in respect to their respective bylaw charges:

(1) Court Appearance on October 30, 2014 (in respect to only UBER Canada’s September 4, 2014 charge): [ 34 ] Defence Counsel N. Staubitz for UBER Canada appears on October 30, 2014, Disclosure was not available on the first appearance date for the September 4, 2014 charge. Both the prosecution and counsel for UBER Canada agree to adjourn the matter until February 19, 2015, in order for the prosecution to provide disclosure.

(2) December 17, 2015 [ 35 ] Counsel for the alleged UBER driver, Ersan Zukic, faxes a disclosure request on December 17, 2014, to the prosecution, which contained a list of 15 items.

(3) Court Appearance on December 18, 2014 (in respect to only UBER Canada’s November 17, 2014 charge and also in respect to Ersan Zukic’s charge): [ 36 ] Defence Counsel Staubitz appears for UBER Canada on December 18, 2014, in respect to the November 17, 2014 charge. A request is made by counsel for UBER Canada, and agreed to by the prosecution, for this new charge to be joined with other UBER Canada charges that were returning on February 19, 2015. Disclosure had not been available on the first appearance date for UBER Canada’s November 17, 2014 charge.

The Court then asked defence counsel for UBER Canada if a formal application for disclosure had been made yet. Defence Counsel Staubitz stated that no application for disclosure had yet been made. [ 37 ] In addition, Ms. McKinnon, an agent for the defence counsel representing the alleged UBER driver, Ersan Zukic, and 10 other alleged UBER drivers that had also been charged, also appears on December 18, 2014.

She informs the court that counsel had already begun to make disclosure requests by fax, but also had copies of those requests and that they would also be dropped off at the prosecution office. [ 38 ] Prosecutor Dunlop then states to the court that it was going to take some time to provide disclosure, and that they needed more time to do so, and that when she had been reviewing the files as they came in, she said she had not been completely satisfied with some stuff and needed to speak with the officers involved.

It was also stated by the prosecutor that it had been decided to keep all UBER- related matters together. Agent for the counsel representing the alleged UBER drivers also agreed to the adjournment date of March 5, 2015, that had been suggested by the prosecution for the purposes of preparing and providing disclosure. The prosecutor also states that disclosure is anticipated to be provided before the next court appearance date of March 5, 2015, and would forward it to counsel if were available earlier.

(4) January 22, 2015 [ 39 ] The prosecution provides initial disclosure of 9 items to counsel for the alleged UBER driver, Ersan Zukic, on January 22, 2015. In total, 25 pages of disclosure were provided by the prosecution.

(5) February 12, 2015 [ 40 ] On February 12, 2015, Defence Counsel Staubitz, who is representing UBER Canada, formally requests disclosure in writing in respect to the 31 charges laid against UBER Canada, including the September 4, 2014 charge and the November 17, 2014 charge.

(6) Court Appearance on February 19, 2015 (in respect to both of UBER Canada’s charges):

[ 41 ] On the February 19, 2015, court appearance, Prosecutor Commisso withdraws two charges against UBER Canada (on lines 33 and 60 of the docket) because they had been duplicate charges. After a short discussion, both the prosecutor and Defence Counsel Topolski, who is counsel for UBER Canada, agree to put all of UBER Canada’s matters over until May 21, 2015, for the purpose of holding discussions to see if UBER Canada’s matters are going to proceed to trial or not.

(7) Court Appearance on March 5, 2015 (for only Ersan Zukic’s charge): [ 42 ] Ms. McKinnon, agent for counsel representing Ersan Zukic and 10 other alleged UBER drivers, appears on March 5, 2016. Prosecutor Dunlop states to the court that there were related matters that had been up on February 19, 2015, and that those matters had been adjourned to May 21, 2015, but she also believes that it had been the wish of both the prosecution and counsel for all the alleged UBER drivers to marry these charges back up with the other UBER matters that are up on May 21.

In addition, Prosecutor Dunlop states that there is an injunction matter that is being heard in May, in which the prosecution and the defence both jointly agree to wait for the results, so that they both jointly ask to have these matters put over to be spoken to on that day. Ms. McKinnon, agent for counsel for Ersan Zukic and the other alleged UBER drivers states that she agrees with the prosecutor’s remarks: MS. DUNLOP: These are matters that also have some related matters up on February 19th and those matters were adjourned to May 21st and I believe they wish to marry them back up to May 21st at 3:00 p.m.

Also there is an injunction matter that's being heard in May that we're waiting to find the results of that basically, so we're asking just to be put over to be spoken to on that day, Your Worship. MS. MCKINNON: I'm agreeing with my friend's remarks. And just for the purpose of the record I can advise also I did receive some additional disclosure today from my friend.

(8) April 20, 2015: [ 43 ] The prosecution informs counsel for UBER Canada that initial disclosure of 7 items and 8 items respectively for each charge (approximately 30 pages for each charge) is available to be picked up in respect to the September 4, 2014 charge and the November 17, 2014 charge.

(9) May 20, 2015: [ 44 ] Counsel for UBER Canada sends a request for additional disclosure by fax and courier to the Manager of Prosecutions in regards to the 30 charges that UBER Canada is facing. But specifically, for the September 4, 2014 charge and the November 17, 2014 charge, 16 items and 10 items respectively of additional disclosure had been requested by counsel for UBER Canada.

(10) Court Appearance on May 21, 2015 (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 45 ] No one for the defence counsel representing UBER Canada attends on May 21, 2015. However, Ms. Perrotta, the Manager of Prosecutions for the City of Mississauga, provides a letter to the court from counsel for UBER Canada.

The Manager of Prosecutions then informs the court, that after having a discussion with Defence Counsel Topolski, who is representing UBER Canada, that the Toronto Superior Court of Justice court proceeding (the Toronto Injunction case) had been adjourned to June 1st and that it would likely be prudent to have the decision on that application released before moving forward. She also stated that she believed that they had agreed to put over all the UBER matters until July 30, 2015, to be spoken to: MS. PERROTTA: And I will put a letter before the court, Your Worship.

I've had some conversation with Jaron (ph) Topolski, who is counsel of record for UBER Canada and there was a gentleman here earlier speaking to related matters under the driver umbrella .... THE COURT: Okay. MS. PERROTTA: … and there is a court proceeding that was adjourned to June the 1st, I believe, in the City of Toronto and it would

likely be prudent to have the decision on that application released before moving forward. THE COURT: Okay. MS. PERROTTA: And I believe that we've agreed, per the letter that Mr. Topolski sent me, that we will adjourn all of the matters to the 30th day of July .... THE COURT: Okay. MS.

PERROTTA: ... at 3:00 p.m. to be spoken to. [ 46 ] In addition, Defence Counsel Gerald Chan appears on May 21, 2015, for the alleged UBER driver, Ersan Zukic, and for 10 other alleged UBER drivers, and explains to the court that the matters for the alleged UBER drivers had been put over previously to today’s date, to await an outcome in a parallel proceeding going on in the City of Toronto, and that the Toronto Injunction application had been adjourned to June of 2015. Ms.

Perrotta, the Manager of Prosecutions for the City of Mississauga then informs the court that they will be seeking to have the matters for the alleged UBER drivers put over to be spoken to, to the same date of July 30 th , that the UBER Canada matters had gone to, and that it just makes sense to do so.

Defence Counsel Chan then said the statement made by the Manager of Prosecutions had been correct, but wanted to clarify that since the other related UBER matters were being put over until July 30, 2015, to await the outcome of the Toronto proceeding, and given that the understanding was that the decision in the Toronto Injunction Case would inform the prosecution's position for the present cases, Defence Counsel Chan also thinks it would make sense to do the same in the cases of these 11 individuals.

The court then adjourns the cases of Ersan Zukic and the other 10 alleged UBER drivers to July 30, 2015 to be spoken to: MS. PERROTTA: Your Worship, collectively I believe that these matters will be -- we'll be seeking to have the matters put over to be spoken to, to the same date and that would be July the 30th at 3:00 p.m. to be spoken to. There are related matters on this docket that will be put over as well .... THE COURT: Okay. MS. PERROTTA: ... and this just makes an abund(sic) of sense. MR. CHAN: That's correct.

And just to further clarify, these matters have been put over previously to this date to await an outcome in a parallel proceeding going on in the City of Toronto. THE COURT: Okay. MR. CHAN: That proceeding has been adjourned. It was supposed to be heard in May, it's now going to be heard in June and so given that the related matter has been put over to July 30th to await that outcome I think it makes sense to do the same in the cases of these 11 individuals.

(11) Decision in Toronto Injunction case released on July 3, 2015: [ 47 ] Dunphy J. releases the decision in City of Toronto v. UBER Canada Inc. et al , 2015 ONSC 3572 (S.C.J.O.) , on July 3, 2016. The injunction sought by the City of Toronto against UBER Canada is not granted. Dunphy J. also finds that UBER Canada’s operation is not a taxi broker for the purposes of the Toronto Bylaw.

(12) July 28, 2015: [ 48 ] Defence Counsel Chan, representing the alleged UBER driver, Ersan Zukic, and the other alleged UBER drivers, sends an email to the prosecution requesting additional disclosure for Zukic and for the other 12 alleged UBER drivers he is representing, which comprises a request for (1) any and all communications between any taxicab or taxicab driver associations and the City of Mississauga and (2) all of the disclosure that had been requested and set out in the letter dated May 20 [2015] from Jerry Topolski (Goodmans LLP), counsel for UBER Canada, to the Manager of Prosecutions.

(13) Court Appearance on July 30, 2015 (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 49 ] No one for UBER Canada attends on July 30, 2015. Prosecutor Dunford states to the court that he had spoken yesterday to Defence Counsel Topolski, who is representing UBER Canada, and that in his conversation with him they had both agreed to put the matters for UBER Canada over until October 29, 2015 to be spoken to.

Prosecutor Dunford also stated that Defence Counsel Topolski had sent a letter one month ago (counsel for UBER Canada actually sent the request on May 20, 2015) asking for extensive (additional) disclosure comprising of a list of 16 items for each one of the 30 charges that UBER Canada was facing. In addition, Prosecutor Dunford also stated that a review of the Toronto Injunction decision (which had been released on July 3, 2016) also needed to be done to determine how it would impact the Mississauga UBER charges, and that they were also trying to resolve the charges in the meantime.

Furthermore, he also stated that the UBER Canada matters that were being put over would also allow the prosecution to fulfill those disclosure requests and come up with a better position for going forward as well: MR. DUNFORD: The remaining matters, number 67 through 96 are for UBER Canada Inc. Your Worship, as late as yesterday I spoke to a representative from UBER Canada Inc., a Mr. Jerry Topolski, and Mr. Topolski has spoken to a number of matters in the past .... … MR. DUNFORD: Okay.

And he's counsel, and he, by way of conversation with me, agreed that we should adjourn this matter to October 29th, 2015 at 3:00 p.m. in M3 to be spoken to. He sent in recently, like less than a month ago, a very comprehensive request for disclosure. There are 16 lines on the request for each one of these charges. It's quite extensive what he's requesting in the disclosure. So we're reviewing that. We're also reviewing the decision out of the court in Toronto and how it impacts these charges and we're trying to resolve it in the meantime.

So if we put it over to October 29th it will allow us to try to fulfill our obligation for disclosure and come up with a better position for going forward as well. [ 50 ] In addition, Defence Counsel Chan appeared on July 30, 2015, for Ersan Zukic and the other alleged UBER drivers, and stated that his clients are “somewhat anxious to move this along” and that they had been waiting for the judgment from the Toronto Injunction proceeding, which is why it had also been adjourned previously.

He also stated to the court that they had been waiting for more disclosure to be forthcoming from his latest request for additional disclosure (sent on July 28, 2015). Counsel Chan also states that they are agreeing to the three-month adjournment to October 29, 2015, for further disclosure and for the prosecution’s review of the Toronto Injunction decision and their position on how it would impact on his clients’ charges, even though the adjournment date is a fair ways away.

And, in considering that he does not think that they can move forward meaningfully without separating it off from the charges against UBER Canada Inc., Defence Counsel Chan states that he believes that his clients’ matters ought to be kept together: MR. CHAN: And then just with respect to the other individuals I just want to put some comments on the record because October 29th is a fair ways away. My clients are somewhat anxious to move this along. We had been waiting for the Judgment from the City of Toronto which is why it had been adjourned previously.

I appreciate that more disclosure is forthcoming, given my latest request and that the prosecution is in the process of reviewing the City of Toronto judgment.

I simply wish to say that the reason, from my client's perspective, that we are agreeing to the October 29th date even though it's three months away is because I don't think we can meaningfully move this forward without -- be separating it off from the charges against UBER, the company, which I understand have all -- counsel for UBER and my friend have -- they've already agreed to the October 29th date, and given that I think, by necessity, we ought to keep these matters together.

But to the extent that my friend is able to advise us of the city's position in light of the City of Toronto decision or provide further disclosure well in advance of the October 29th date that would be great. MR. DUNFORD: I'll attempt to.

(14) August 31, 2015

[ 51 ] Defence Counsel Chan, who is representing the alleged UBER driver, Ersan Zukic, and the other alleged UBER drivers had written to the prosecutor on August 31, 2015, requesting that the charges be withdrawn in light of the Toronto Injunction decision.

(15) Court Appearance on October 29, 2015 (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 52 ] No one for UBER Canada attends on October 29, 2015. Prosecutor Dunford informs the court that he had spoken to Defence Counsel Topolski for UBER Canada yesterday and that they had agreed to put the matters over until January 28, 2016, to be spoken to. Prosecutor Dunford states that counsel for UBER Canada had made a 19 page request for additional disclosure for UBER Canada’s 31 charges and then states that at this time he has an undertaking to complete that or give a response.

He then asks the court to have all the UBER matters return on January 28th, 2016: MR. DUNFORD: Their counsel, Jerry Topolski and myself, had conversation last week trying to resolve the matter .... … MR. DUNFORD: And we've agreed that he's requested disclosure. He has a 19 page request for disclosure for all of those matters, I think it's 31 matters, and it's at this time I have an undertaking to complete that or give a response.

We ask that all the UBER matters, UBER Canada Inc., return on January 28th, 2016 .... [ 53 ] In addition, Benjamin Kates, an agent for Defence Counsel Chan, who represents Ersan Zukic and 23 other related defendants, also appears on October 29, 2015. Prosecutor Dunford then requests that all matters for the UBER defendants be adjourned to be spoken to on January 28, 2016.

Benjamin Kates then states that they agree to the prosecution’s request to put the matters over, but that there remains some significant outstanding disclosure in respect to all the cases in regards to a disclosure request that went out by email on July 28, 2015, and that they were still waiting for a response to their disclosure request.

Prosecutor Dunford states to the court that some of the items on that disclosure request were being disputed, since some of the items are not in the possession of the prosecution and the prosecution is not able to produce them, and that they are dealing with them and any motions that fall from that. [ 54 ] Benjamin Kates then states that they would appreciate it if the prosecution could put their reasons in writing for the disputed disclosure items. Prosecutor Dunford then agreed to put their reasons in writing.

In addition, the agent for Defence Counsel Chan also states that they are certainly prepared to accommodate the prosecution’s request and put these matters over, but they would like the prosecution’s position on disclosure and whatever disclosure is available as soon as possible. [ 55 ] Furthermore, because Defence Counsel Chan had written to the prosecutor on August 31, 2015, requesting that the charges be withdrawn in light of the Toronto Injunction decision, Benjamin Kates then states that it is his understanding that Prosecutor Dunford had been still reviewing the Toronto Injunction decision and evaluating that request and waiting for instructions.

In which, Prosecutor Dunford agreed and added that he was in consultation with the City’s counsel and with his manager. Benjamin Kates then states that they are still waiting for the prosecution’s response to Defence Counsel Chan’s letter of August 31, 2015. [ 56 ] Prosecutor Dunford also gave an undertaking to provide all disclosure by December 4, 2015, to both UBER Canada and to the alleged UBER drivers, as well as the prosecution’s position on any disputed disclosure: MR. DUNFORD: Your Worship, January 28th, 2016 .... … THE COURT: So January the 28th, 2016, M3, 1:30.

That's-take-that makes an awful lot of sense and close that tier at this stage. MR. KATES: So we are prepared to agree to the crown's request to put these matters over, but there still remains some significant outstanding disclosure in respect of all of these cases and with the court's indulgence I'd like to speak to those briefly if I could. …

MR. KATES: That sailed by us any hopes of getting out of here quickly. So in respect of 11 defendants, this is their fifth appearance and would it assist the court for me to list the line numbers? … CLERK OF THE COURT: What about Michael Hijjar, 37 to 38? MR. KATES: He is in a different category. So in respect of those 13, this is their fifth appearance. My colleague, Mr. Chan, has written to the crown to request that those charges be withdrawn in respect of -- in light of, rather, some developments coming out of the superior court in Toronto.

I understand that my friend is still evaluating that request and waiting for instructions. … MR. DUNFORD: In relation to consultation with city counsel -- counsel for the city and my immediate manager, so .... THE COURT: Well, I would think this is a little more complicated than the norm. MR. DUNFORD: It is. THE COURT: I dealt with the airport ones so I can appreciate that. MR. KATES: In any event, we continue to await a response to -- that request which was made by letter dated August 31, 2015. THE COURT: And when was first appearance for these people? MR. KATES: I believe it was December 2014.

I don't have that information in front of me. THE COURT: It's been in the system a while. MR. KATES: And in addition, there was a disclosure request that went out by e-mail on July 28th, 2015. MR. KATES: In any event, to the extent that it is disputed we would appreciate that the position be put in writing. MR. DUNFORD: For sure. I'll reply .... THE COURT: Mr. Dunford, are you the crown that has carriage of these? MR. DUNFORD: That's correct, Your Worship. …

MR. KATES: So we are certainly prepared to accommodate the crown's request and put these matters over, but we would like both the crown's position on disclosure and whatever disclosure is available as soon as possible. THE COURT: Now, do you wish to make any submissions at this stage, Mr. Dunford? MR. DUNFORD: No, Your Worship, just that all the other UBER matters are going over and I've .... THE COURT: Now, is there counsel on the UBER matters? MR. DUNFORD: Yes, and I have an undertaking to have all disclosure .... THE COURT: From counsel for UBER .... MR.

DUNFORD: Right -- by December the 4th and I will say the same for December the 4th. … MR. KATES: And I'm sorry, could I just clarify, was that all disclosure by December 4th as well as your position on any disputed disclosure? MR. DUNFORD: That's right. For sure.

(16) December 1, 2015 [ 57 ] Steven Dunford, prosecutor for the City of Mississauga informs counsel for UBER Canada by letter confirming the request for further disclosure dated May 20, 2015, but that after “review of the files and investigating officers the documents which were previously disclosed are the only items which are in the Prosecution’s possession” and “are expected to be relied upon at trial and now comprise full and complete disclosure”. [ 58 ] For the September 4, 2014 charge laid against UBER Canada, Prosecutor Dunford informs counsel for UBER Canada that of the 16 items requested on May 20, 2015, only 3 of those items would be provided, namely the “Will says of all officers involved”, “Confirmation of the author of the second set of notes”, and the “Notes of an officer named Jay Warburton”.

For two of the 16 items requested, Prosecutor Dunford indicated that the first item was in the original disclosure provided and the second item had been provided to the defendant upon service. For 10 of the items requested, Prosecutor Dunford indicated that they had “No relevance while for the last item requested, Dunford indicated that it had “No relevance Business Record provided”. [ 59 ] And, for the November 17, 2014 charge laid against UBER Canada, Prosecutor Dunford informs counsel for UBER Canada that of the 10 items requested on May 20, 2015, none of them would be provided.

For the first item requested, Prosecutor Dunford indicated that it had been provided to the defendant upon service. For 8 of the items requested, Prosecutor Dunford indicated that they had “No relevance while for the last item requested, Dunford indicated that it had “No relevance Business Record provided”.

(17) December 8, 2015 [ 60 ] On December 8, 2015, Defence Counsel Chan emails the prosecution to reiterate his request for the prosecution’s position on the cases against the alleged UBER driver, Ersan Zukic, and the other the alleged UBER drivers, in respect to Toronto Injunction decision. The prosecution did not respond to the request.

(18) Court Appearance on January 28, 2016 (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 61 ] Defence Counsel Topolski appears for UBER Canada while Defence Counsel Chan appears for Ersan Zukic and for the 10 other alleged UBER drivers. It was stated by Prosecutor Dunford to the court that Ersan Zukic and the other alleged UBER drivers are now joined with the UBER Canada proceedings moving forward.

Prosecutor Dunford then requests a judicial pre-trial conference be scheduled for all UBER matters, since there are issues that the parties cannot agree on and need the direction of the court. [ 62 ] Defence Counsel Chan, representing Ersan Zukic and the other alleged UBER drivers, states that he had not yet received a response to his disclosure request that was submitted on July 28 of 2015, and that he had written a letter setting out his position of what ought to happen with the charges against the drivers in light of the Toronto Injunction decision, but that the prosecution had not yet responded to that letter.

In addition, Counsel for UBER Canada states that an extensive disclosure request had been made in May of 2015 and that they had only received a partial response to that disclosure request.

Prosecutor Dunford states that a response to the disclosure request had been given for some of the items of disclosure requested and that there were still some minor things outstanding, but does not think that all of the matters should be held up just for those small minor issues. [ 63 ] However, Counsel for UBER Canada states that they have made an extensive request to the prosecution for additional disclosure in May of 2015 and that they had only received a partial response from the prosecution in December of 2015, in which the prosecution had informed counsel for UBER Canada that disclosure was still forthcoming for some of the items on that list of items requested.

As such, Counsel for UBER Canada states that he did not wish to set a date for a judicial pre-trial conference and wants to postpone setting the judicial pre-trial conference until the next return date to continue discussions with the prosecution in regards to issues in respect to the charges and that he also wants the prosecution’s position before conducting the judicial pre-trial conference. [ 64 ] In response, Prosecutor Dunford states that the disclosure issues can be argued in a judicial pre-trial conference and that the minor issues that are still outstanding should not hold up the judicial pre-trial conference.

Prosecutor Dunford also states that some of the matters are going back to last year, so that they are now a year old. [ 65 ] Counsel Chan for the alleged UBER drivers then states that he has not yet received disclosure in respect to his additional disclosure request submitted in July of 2015. Chan also said he is reluctant to set the judicial pre-trial conference now, but does want to move the matter forward.

Chan also says they have not yet had meaningful discussions and has not received the disclosure that he had requested. [ 66 ] After considering the concerns raised by the parties, the Court informs the parties that a judicial pre-trial conference date could be set far enough away so that all the parties can have discussions in the interim and to also accommodate the defendants’ concerns about outstanding disclosure items or responses to their disclosure requests so that disclosure could be provided. A judicial pre-trial conference date was then offered by the Court to be held in March of 2016.

However, counsel for UBER Canada suggested April 19, 2016, as a date he would be available to conduct a judicial pre-trial conference. It was also agreed that the alleged UBER drivers would also be part of the same judicial pre-trial conference being held with UBER Canada. The parties then agreed to April 19, 2016, for the judicial pre-trial conference: MR. DUNFORD: Your Worship, there's a number of matters and the dates that the original information's were laid. They going back into, I believe, last year? THE COURT: First one I see here, number 39, is September of 2014. MR.

DUNFORD: Twenty-fourteen, so they're over a year old. THE COURT: Well over, yeah. MR. DUNFORD: Well over a year old. My friend, Mr. Topolski, and I have had some discussion, but at this time I'd be asking that all the matters be put over for a pre-trial. There's some issues that we may agree upon and there are others that we will not agree upon and with the direction of the court, I believe it would be in the best interest and use of the court's time.

THE COURT: So let me just see if I got this straight. I understand given the number of the charges, and they're all inter-related, I mean it's all the same issue, correct? MR. TOPOLSKI: They are. THE COURT: Okay. MR. TOPOLSKI: There are dissimilar issues between the individual charges, that being said, there are common issues that coincide to each other, yes. … THE COURT: There's individual's involved, I understand that. All right, well that's fine. I've got no problem with that, putting it to a pre- trial to see if we can narrow some of the issues and hopefully come to a consensus.

So I'm the guy that does the pre-trials .... MR. TOPOLSKI: Your Worship, if I could for the record, before you make that decision, I would say we made an extensive disclosure request to my friend last May. In December I received a partial response to that disclosure request and, my friend I don't say that with any animus, the disclosure request was large and my friend has indicated to me that there is still some material that will be forthcoming.

The larger issue, I would suggest, before we set a JPT is that as Your Worship is aware there is now a growing body of jurisprudence on the operations of UBER and companies like it. I've invited my friend and his team to consider the jurisprudence prior to setting a JPT as I'm afraid that we are going to get to a JPT and to some extent spin the court's wheels as we debate some of the more esoteric aspects of the law as it's evolving.

My suggestion to my friend was that we wait one more opportunity to set that JPT, have my friend provide me with disclosure, but more importantly, have my friend provide me with the City's position in advance of a JPT which we have asked for. I've participated in a few JPT’s with other municipalities now and they certainly go more smoothly when the parties have freely exchanged their legal views before a JPT judge gets it. So, that's my view. I understand that view may have been espoused to you this morning in another forum as well, but I wanted to put that on the record. MR.

DUNFORD: Your Worship, I would agree to a certain extent in that these matters, as you indicated, have-are well over a year old. We've had discussions; there has been communication back and forth. The issue with disclosure is something that can be discussed or argued during a JPT. THE COURT: Okay. MR. DUNFORD: The City has a position with regard to some of the information that's been requested and I've provided my response. There are maybe some very minor things outstanding, but I don't think that all these matter should be held up just for those small, some minor issues. Without getting into specifics. … MR.

CHAN: ... I don't mean to speak out of turn and I don't want to interrupt my friend. My matters haven't been called yet, Your Worship. I rise only because I expect them to be called next and they're related to the UBER Canada matters. I am on for a number of individuals. For the record it's Chan, C-H-A-N, initial G. So I just wanted to put the UBER Canada matters are set down for a JPT then my matters will follow the same court given the overlap. I echo much of what my colleague Mr. Topolski has said.

My-the specific concerns on my end are I have not yet received a response to the disclosure request that was submitted in July from my clients. I also did write my friend a fairly detailed correspondence setting out our position as to what ought to occur with these charges in August.

I'm waiting to hear back on those and so my reluctance to set a JPT at this stage, while we certainly want to move this forward, is that I don't think we've had meaningful discussions as between the parties as to what ought to happen with these cases as well as disclosure and I think it would be more productive and fruitful to have those discussions in advance of scheduling JPT. So those are my comments on behalf of the individuals that I represent. THE COURT: Okay, that's fine.

And in reply to both of you gentlemen I'll say this, I can set the judicial pre-trial far enough down the road that whatever items you are seeking should be. If there's third party disclosure well that may not happen if the municipality is not in control of it. So I'm prepared to set it far enough down the road that you'll have enough time to pursue whatever you're pursuing,

and I'm looking at some time in March. MR. TOPOLSKI: Thank you, Your Worship. THE COURT: This being the end of January, so that's -- and certainly it's a defence request here so whatever. So I'm prepared to do that and set everybody's on the one date and we'll spend the whole day spinning our wheels, so to speak. MR. TOPOLSKI: So to speak, especially in the case of the UBER operations, yes. Your Worship, my friend and I -- my friends and I anticipated that you might decide in that fashion. We had tentatively thought to ourselves that a date of April 19th works for everybody's schedule.

If that date is convenient to the court we would appreciate keeping that date. THE COURT: That's fine. … MR. DUNFORD: April the 19th in the afternoon at 1:30. MR. TOPOLSKI: And those are for the UBER Canada matters? MR. DUNFORD: For the UBER Canada matters. THE COURT: Okay. MR. DUNFORD: All the matters with Mr. Chan I'd like to deal with them in the morning, tie them to the ones that were dealt with this morning. MR. CHAN: Sorry, perhaps I could just have a moment to speak to my friend about that, Your Worship. THE COURT: All right, counsel, here's what we'll do.

For your matter, numbers 39 to 68 I believe, yeah, 39 to 68, April the 19th at 1:30 .... … THE COURT: And that's for judicial pre-trial. In the interim whatever you can, you can do and if there's issues at the judicial pre- trial hopefully we'll be able to sort them out then. We, whoever it happens to be. … MR. CHAN: So-again, for the record, it's Chan, initial G. I'm counsel to each of these 13 individuals. I won't echo my comments from earlier. They were meant to apply to this group. They're related to the charges that UBER Canada is facing.

I take the same position and anticipate the same JPT being set for the morning of April 19th it sounds like-or the afternoon of April .... MR. DUNFORD: Afternoon. THE COURT: We're doing it -- it doesn't matter, a judicial pre-trial so it shouldn't take that long. So 1:30? It's

MR. CHAN: I think it actually makes sense to do them .... THE COURT: Do them both together. MR. CHAN: To do them-because there are -- again, there are individualized issues but there are common issues as well. THE COURT: That's what I suspect. All right, the 19th of April at 1:30 then .

(19) Court Appearance on April 19, 2016 for a judicial pre-trial conference (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 67 ] Defence Counsel Topolski appears for UBER Canada while Defence Counsel Chan appears for Ersan Zukic and for the other alleged UBER drivers for the judicial pre-trial conference.

After the judicial pre-trial conference was held, it was agreed by the prosecution and by counsel for all the defendants that two days had been set for October 13 and 14, 2016, for UBER Canada and the alleged UBER drivers’ Charter motions, with the understanding that materials comprising arguments, affidavits, and transcripts from both the prosecution and the defence would be provided and filed with the court by September 15, 2016.

In addition, December 1, 2016, had been set aside for the prosecution to prove the applicability of the by-law in regards to the charges laid against UBER Canada and the alleged UBER drivers prior to proceeding with any of the trials, in which additional court time will have to be scheduled. In addition, the court set a confirmation date for July 19, 2016. THE COURT: We're on the record. Okay, I'm addressing for the record, and I do apologize, I'm not going to put every name on the record.

We have one to 57 on our list, including a number of individual's that are named, as well as UBER Canada Inc., a number of charges as against that corporation before me. We've had some extensive conversations with counsel for both UBER Canada Inc. and counsel for the driver's individually charged, Mr. Topolski and Mr. Chan and Mr. Dunford, of course, was here on behalf of the prosecutor's office.

What we have agreed to is this, there will be two days set aside to start with to argue certain Charter motions that UBER Canada Inc. wishes to pursue first and that will take place I understand, in agreement, on the 13th and 14th of October. Both of those dates have been set aside. The court starts at nine o'clock in the morning on those dates, and the courtroom madam clerk is? … THE COURT: The courtroom is M2. And that is set for the full day each of those days.

I understand there will be materials provided and filed with the court by the 15th of September, 2016 and those materials, from both crown and defence, will be complete in terms of their arguments with affidavits and transcripts, if need be. Those will be distributed to the justice who will be addressing the trials well in advance so that justice can review them. NOW before that date there will be a confirmation date that the matter is progressing as planned, and that will be the 19th of July of 2016, courtroom M2 at 11 o'clock.

That is noted as a confirmation date to confirm that the matters are moving ahead or where we are. We will hold the 13th and 14th of October. I should note we've also held the first of December and that will be a date that will be used only if UBER Canada Inc. wishes to make a legal argument in terms of the by- law and where the word broker is used, how that is associated with UBER Canada Inc. Is that a fair

summary? MR. CHAN: It is. Just to clarify for the record on behalf of the named individual's .... … MR. CHAN: ... they will also be participating in the Charter application..... … MR. CHAN: ... to be brought on October 13th and 14th. THE COURT: Thank you very much. That's noted for the record. And all matters will be adjourned from this afternoon to the dates that I've indicated, starting with July 19th first and thereafter the 13th, 14th of October and thereafter the 1 st of December.

… MR. TOPOLSKI: ... you had indicated for the December 1st date that it be held for any argument that UBER Canada wished to make in respect of its operations as a broker within the by-laws. If I may suggest a characterization of that that is slightly different, it would be .... … MR. TOPOLSKI: ... that date will be set aside for the parties to present argument on the applicability of the by-law and in particular the charges to which UBER has been charged under the by-laws in an attempt to determine an issue prior to a subsequent trial as to the applicability of the by-law to UBER.

And I say that in a somewhat different way just ensure that there is no characterization of the burden on that argument because I believe that would be a burden that would be borne by the prosecution. THE COURT: That's a fair

summary. MR. TOPOLSKI: Thank you. MR. CHAN: And I'll adopt the same characterization on behalf of the named individual's. THE COURT: Yes, thank you for that clarification. And I note that there would be more evidence called at a later date should the matter progress through all of these stages; that that December 1st date is for that argument only and thereafter depending on how the court finds there could be additional trial time with respect to other issues that are required for the prosecution and ....

(20) April 19, 2016 [ 68 ] Defence Counsel Chan, who is representing Ersan Zukic and the other alleged UBER drivers, writes to the prosecution and narrows his request for additional disclosure to two specific items in an attempt to resolve the disclosure dispute. Those two items are: (1) any and all policies, memos, directives, or other documentation within the possession or control of the City of Mississauga concerning the authority of enforcement officers to detain individuals, and (2) any and all information within the possession or control of the City of Mississauga concerning the enforcement operations launched against UBER Canada and its drivers.

(21) April 21, 2016 [ 69 ] Prosecutor Dunford replies by email on April 21, 2016, to counsel for the alleged UBER driver, Ersan Zukic, that he has forwarded the request for only two items from that list of items of additional disclosure previously requested on July 28, 2015, to the enforcement manager, and will inform counsel when there is a response.

(22) June 3, 2016 [ 70 ] Prosecutor Dunford informs counsel for UBER Canada and counsel for the alleged UBER drivers by a letter dated June 3, 2016, confirming a discussion at the April 19, 2016, judicial pre-trial conference, that in light of the nature and complexity of the legal arguments to be made, it would be appropriate for the proceedings to be heard by a judge of the Ontario Court of Justice, instead of a justice of the peace, pursuant to s. 15(4) of the Justices of the Peace Act , R.S.O. 1990, c.

J.4, and that the application would be made to the Regional Senior Justice for the Central West Region on June 24, 2016. Prosecutor Dunford was also seeking the consent of counsel for UBER Canada and the consent of counsel for the alleged UBER drivers for the application. Both Counsel for UBER Canada and Counsel for the alleged UBER drivers inform the Manager of Prosecutions for the City of Mississauga by a letter dated June 17, 2016, and June 9, 2016, respectively, that they are consenting to the relief sought by the prosecution.

(23) June 24, 2016: [ 71 ] The application by the prosecution and consented to by counsel for both defendants to have a judge of the Ontario Court of Justice hear all the UBER matters is argued before Regional Senior Justice Nicklas on June 24, 2016. The issue of 11(

b) is raised by Regional Senior Justice Nicklas.

(24) July 4, 2016 [ 72 ] Defence Counsel Chan, who is representing the alleged UBER driver, Ersan Zukic, and the other alleged UBER drivers emails the POA court clerk and “cc’s” counsel for the City of Mississauga, clearly stating that his clients do not waive their right to be tried within a reasonable time under s. 11(

b) or that their position on the City of Mississauga’s application to have the matter heard by a judge, instead of a justice of the peace, to be construed as waiver.

(25) July 8, 2016 [ 73 ] The Supreme Court of Canada releases its decision in R. v. Jordan , 2016 SCC 27 , on July 8, 2016, and establishes a new 11(

b) analytical framework that applies retroactively to all cases in the system.

(26) July 18, 2016 [ 74 ] Regional Senior Justice Nicklas releases her ruling on July 18, 2016, on the prosecution’s application to have a judge of the Ontario Court of Justice hear the UBER matters and decides not to grant the prosecution’s application. In her decision, Justice Nicklas also noted that while both counsel for both UBER Canada and for the alleged UBER drivers had consented to the motion, they had not waived the defendants’ s. 11(

b) rights.

(27) Court Appearance on July 19, 2016, for a second judicial pre-trial conference (in respect to both of UBER Canada’s charges and also for Ersan Zukic’s charge): [ 75 ] Defence Counsel Topolski appears for UBER Canada, while Defence Counsel Chan appears for Ersan Zukic and for the other alleged UBER drivers for the second judicial pre-trial conference. In summarizing the discussions held in the second judicial pre-trial conference, the court confirms that the prosecution would be proceeding with two test cases for UBER Canada and one test case for the alleged UBER drivers.

For UBER Canada, the prosecution would proceed with information # 4665 with an offence date of November 17, 2014 and with information # 4157 with an offence date of September 4, 2014. And for the alleged UBER drivers, the prosecution would proceed with the charge against Ersan Zukic in information # 4727. It was also confirmed by counsel for both the defendants that a s. 11(

b) application would be brought by the defendants and to be argued on October 13 and 14 and that other motions and arguments are to be argued on December 1 and 2, 2016, and with documents to be filed with the court by the second event pre-trial which had been set for September 8th, 2016. In addition, it was agreed that all the other UBER-related cases would be also adjourned to October 13, 2016 and thereafter to be spoken to, only until the Crown has decided how the matters would be addressed. Moreover, Defence Counsel Chan representing the alleged UBER drivers stated that he does have continuing s. 11(

b) concerns for all the individuals charged as UBER drivers. The Court: … All right, just in

summary before we go off record. I understand that we did select three dates, October 13th and 14th, nine o'clock, M2 for Charter arguments to be made and December 1st, all day was set aside for the applicability of the by-law argument, and I understand all written materials, it was agreed, that September 16th would be filed with the court and distributed to the parties in terms of written materials. … The Court: This is my understanding of what's going to occur. The Crown is proceeding on test cases for UBER Canada and the UBER taxi drivers, if I could use that

summary. For UBER Canada the information that the crown is proceeding with, are two, information 4665, date of offence of November 17th, 2014 and information 4157, which is an information dated the 4th of September,

2014. For the UBER taxi driver, in particular, the test case that the crown is proceeding with is information 4727 which is Ersan Zukic. The rest of the cases involving UBER Canada and the individual taxi drivers by name will be adjourned to October 13th and thereafter whenever the other cases are adjourned to, to be spoken to only until the crown has decided how the matters will be addressed. … MR. CHAN: ... a comment for the record after Your Worship .... … MR. CHAN: ... was done recapping that. Just to note for the record because I represent so many different individuals, I appreciate my friend has exercised his discretion to go with one case as the test case, but I do have continuing 11(

b) concerns for all of the individuals who I represent. THE COURT: Thank you. Thank you very much, sir. All right, so formally, the three cases that I've named will be adjourned and the rest to be spoken to, but the three named cases will be adjourned specifically to October 13th, Ml court, nine o'clock for the full day and October 14th, Ml, nine o'clock for the full day. What is expected will be that the UBER taxi driver case, which is the matter of Mr. Zukic, will begin with the II(

b) motion to proceed first and thereafter when the II(

b) motion for that individual is completed then UBER Canada will begin their II(

b) applications for the two cases that the crown has chosen. If the 11(

b) is finished for Mr. Zukic on October 13th in terms of the argument, then I understand counsel for UBER Canada will start entering the 11(

b) motion for their client on the same date. Thereafter, after the motions for the II(

b) for the 13th and 14th of October, the cases will be adjourned to the 1st of December and the 2nd of December, Ml court, nine o'clock for two full days to complete the case. Defence will be deciding whether

section 2(

b) and 2(

d) as well as

section 8 of the Charter of Rights and Freedoms of expression/association by the second event pre-trial. It is agreed that II(

b) materials will be filed by the second event pre-trial which we've agreed is September 8th, 2016, M5, nine o'clock. So what is expected is that the defe

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