An Ontario Superior Court judge has given the green light to a Toronto radiologist to launch a class-action lawsuit against the city, saying it “knew or ought to have known” that some of its parking machines were malfunctioning in inclement weather.
Dr. Anna Marie Arenson, who works at Sunnybrook Health Sciences Centre, says she made several “valiant” attempts during a blizzard last November to feed coins into two different parking machines on Bayview Ave., south of Eglinton Ave. E., before giving up.
“You couldn’t turn anything, you couldn’t put a card in,” she said. “It was pretty obvious that the meters weren’t working.”
Not only didn’t she get a receipt to display in her vehicle but her coins weren’t returned, according to her statement of claim filed in court earlier this year. When Arenson emerged from a restaurant a few hours later, she found a $30 parking tag stuck on her windshield.
“I really thought it was odd that they (parking enforcement officers) were going to be out but it was predictable … that there’d be a whole row of yellow tickets on cars along Bayview,” she said with a heavy sigh yesterday.
After conferring with her ex-husband, lawyer Ken Arenson, she decided to do something she’s never done before: file a lawsuit.
“It’s easy to just give up and pay … rather than if you’re upset enough to do something about it,” she said.
“They have to sell you a good that works, in other words, if you put your money in, then they’ve got to give you a parking (receipt) and if they can’t … they shouldn’t give you a fine.”
During a one-day hearing last week, lawyers for the city asked the court to dismiss the proposed class action and strike down Arenson’s statement of claim “for failure to disclose a reasonable cause of action.”
In his ruling, Justice Paul Perell concluded that while he didn’t agree with “many of the submissions made by the city,” he was striking down Arenson’s statement of claim for different reasons.
However, Perell ruled he would allow the physician to deliver “a fresh statement of claim,” if certain changes were made.
That, says Ken Arenson, amounts to a “road map” for this case to proceed.
“The city tried to close us down and the judge rejected that,” he said. “He’s (the judge) saying you can cast this claim in a certain way. I’m not guaranteeing you that it’s going to win but you can go forward and make your claim, you can have your day in court.”
The original statement claimed a total of $26 million in damages, including special damages of $31.50 – for each parking ticket and transaction fee paid – to an estimated 112,500 people “assuming that the machines did freeze up once or twice per year from 1998 to 2008.” “We’re guessing how many people were affected,” based on the $80 million the city takes in from the pay and park machines, Ken Arenson said.
The city doesn’t deny that this is an endemic problem and has admitted it happens in other cities because of the design, he said.
The judge said only part of the monetary amount originally sought – maybe 10 per cent – should be claimed, said the lawyer.
But this was never about money, he said, adding a class action is the course to take in this case because an individual with a $30 ticket could never afford to challenge the city. “Really, it’s intolerable they think that they can get away with it.”
While the lawsuit is still at an early stage, the next step is to “recast” the claim and ensure it meets the criteria for a class-action lawsuit.
“So the city is going to have another kick at us,” he said. “But if we’re able to get by that then the city has to face the fact that we then will be able to take them to trial and if we’re successful we’ll get $3 times thousands of people … and maybe some other orders that they’ve got to fix the damn machines.”
The $3 represents the amount of money his ex-wife estimates she put in the machines last November.