Update: see previous post – August 21, 2008 Doctor Sues City of Toronto Over $30 Parking Ticket and Broken Street Parking Meter

see source

Doctor Anna Marie Arenson launched a class action suit on behalf of others who found themselves ticketed because of a malfunctioning pay-and-display parking tag machine. The class-action was dismissed last month and a Superior Court Justice, Judge J. Perell ruled on August 1, 2012 that Arenson would have to pay the City of Toronto legal costs of $70,537.79 over a $30 parking ticket . Rene Johnston/Toronto Star

Beginning in or about 1998, the City of Toronto purchased Park and Display parking machines. The machines have mechanical and electronic components including a solar panel, a storage battery, a cell phone for credit card transactions, a coin shute, and a  printer to record and issue payment receipts.

As is well known, in the normal course, a driver in Toronto using on-street parking pays for a parking receipt from a parking machine and places the receipt face-up on the dashboard of his or her parked vehicle. A vehicle parked without an unexpired receipt has committed a parking infraction and is subject to a set fine of $30.00.

The City of Toronto purchased these pay-and-display machines in 1998. The machines have mechanical and electronic components including a solar panel, a storage battery, a cell phone for credit card transactions, coin shute, and a printer to record and issue payment receipts. The parking machines are owned by the Toronto Parking Authority, which is a corporation owned by the City. The Toronto Parking Authority manages the City’s parking services. The parking machines are manufactured by Parkeon S.A.S., a French corporation. Parkeon S.A.S. has an associated corporation in the United States; namely Parkeon Inc. The parking machines are distributed and sold in Ontario by Precise Parklink Inc., an Ontario corporation. Precise Parklink services and maintains the parking machines for the Toronto Transit Authority.

The parking machines are owned by the Toronto Parking Authority, which is a corporation owned by the City. The Toronto Parking Authority manages the City’s parking services.

The parking machines are manufactured by Parkeon S.A.S., a French corporation. Parkeon S.A.S. has an associated corporation in the United States; namely Parkeon Inc.

The parking machines are distributed and sold in Ontario by Precise Parklink Inc., an Ontario corporation. Precise Parklink services and maintains the parking machines for the Toronto Transit Authority.

The authority of the City to regulate and charge for parking is statutory. Pursuant to the City of Toronto Act,and the Municipal Act, the City of Toronto in empowered to pass by-laws to regulate parking. In the case at bar, the relevant by-law is by-law 912-1998, as amended by by-law 126-2000. Sections 1(1)(d), 1(1)e), 3, 4, and 10 of by-law provide as follows:

1.(1)(d) “Parking Machine” means an automatic or other electronic, electromechanical or mechanical device, with the necessary standard for the device, for the purpose of controlling and regulating the parking of any vehicle in a parking space and which, when a coin or credit card has been inserted into the parking machine and the machine activated, issues a receipt indicating the date and time of that activating and the duration of the parking in or on the parking space permitted.

1(1)(e) “Parking Space” means the portion of the surface of the roadway which for parking use is controlled and regulated by a parking machine.

3         The erection, maintenance and operation of parking machines on the highways, at the sides and between the limits set out in Schedule A to this by-law for the purpose of controlling and regulating parking the days and hours set out in Schedule A and the designation of parking spaces in connection with parking machines is authorized.

4(1)     Except where persons or vehicles are exempted by a by-law of the City from compliance with City by-laws respecting the use of parking meters or parking machines, where parking machines have been erected under the authority of section 3 and are in operation with respect to any parking space set out in Schedule A, the duration of the permitted period shall be measured by the parking machine, and no person shall park any vehicle in or on any such parking space where a parking machine is in operation:

(a)        At any time unless the parking machine controlling the parking space is used and a fee deposited in the machine in accordance with the rate set out in Schedule A and the machine is activated; or

(b)        At any time within the permitted period.

(2)        Subsection (1) does not apply to a portion of any parking space where the parking of vehicles on that portion of a roadway is regulated and controlled by parking meters.

(3)        The receipt issued by the parking machine shall be placed inside the windshield of the vehicle while the vehicle is parked in or on the parking space in a position so that the writing and markings on the receipt face outward so as to be easily seen from outside the vehicle.

10(1)   Any person who contravenes any provision of this by-law is guilty of an offence and, under the Provincial Offences Act, on conviction, is liable to a penalty not exceeding five thousand dollars ($5,000) for each offence.

(2)        The owner of a vehicle may be charged with and convicted of a parking offence under this by-law for which the driver of the vehicle is subject to be charged unless, at the time of the offence, the vehicle was in the possession of some person other than the owner without the owner’s express or implied consent proved to the satisfaction of the court, and, on conviction, the owner is liable to the penalty prescribed or provided for the offence.

(3)        Despite any other provision of this by-law, any person may, upon presentation of a parking infraction notice issued by a police office, police cadet, municipal law enforcement officer, parking enforcement officer, constable or an officer appointed for the carrying out of the provisions of the Highway Traffic Act, alleging the commission of an offence under this by-law, pay out of court, within seven (7) days from the date of issuance of the notice, $10.00, and upon receipt of the payment, no further proceedings shall be taken under this by-law in respect of the offence alleged in the parking infraction notice. After seven (7) days and before fifteen (15) days from the date of issuance of that notice, $15.00 may be paid out of court, and upon receipt of the payment, no further proceedings shall be taken under this by-law in respect of the offence alleged in the parking infraction notice.

Motorcycles that parking within 3 metres of a fire hydrant are issued parking tickets with a $100 fine.

The facts of the case:

On November 22, 2007, in the early evening during an ice storm, Dr. Arenson parked her car on Bayview Avenue in Toronto in an on-street parking spot regulated by the defendant, the City of Toronto. She put three dollars in coins into a nearby parking machine. However, the parking machine did not issue a receipt or return her coins because its mechanism had apparently frozen from the cold. Although Dr. Arenson did not have a parking receipt, she did not find a new place to park her vehicle, and she went into a nearby restaurant. When she returned after dining, she found a $30 parking tag on the car. Subsequently, Dr. Arenson paid the fine of $30.00 for “failing to display a parking receipt” on the car’s dashboard.  After speaking to her husband, a lawyer Ken Arenson, she decided to launch a class-action lawsuit against the City of Toronto.

The results of the case:

A Toronto doctor is appealing a $70,537.79 legal bill (the breakdown is $60,487.00 for fees, $7,863.31 for HST, and $2,187.48 for disbursements) from the City of Toronto, after she launched a failed class-action lawsuit over a $30 parking ticket in 2008 and subsequently lost.

The suit, which pointed the finger at the city over malfunctioning pay-and-display machines, was dismissed as being too broad for a class action.

But it highlights a bug in the system that spells hassles for drivers across the city. Should a driver be lucky enough to snag a parking spot, it may be for naught if the meter refuses to dispense a ticket. According to a city bylaw, it’s the driver’s responsibility to find another machine.

Dr. Anna Marie Arenson, a radiologist at Sunnybrook Hospital, launched the suit in 2008 after she encountered a malfunctioning parking machine in the middle of a blizzard in 2007. Frustrated after trying several times to pay, Arenson said she parked her car anyway, went to a restaurant and emerged from it to find a dreaded yellow slip on her windshield. She paid the ticket but launched the suit to make a point.

Parking ticket machines are designed to wirelessly relay a signal back to the Toronto Parking Authority when they break. The authority then shuts the meter down and dispatches a repair crew. Arenson said this didn’t happen in her case.

“It wasn’t just a fluke that the machine (broke) — this is a systemic problem,” said Ken Arenson, her lawyer and ex-husband.

An engineer Arenson enlisted said it’s possible for the notification system to malfunction at the same time as other parts.

According to Gwyn Thomas, president of the TPA, about 30 — or 1 percent — of the agency’s 3,000 machines require servicing each day.

“(Response time) varies, but we try to dispatch men as quickly as we can …Typically we try to have them done well within the day,” Thomas said. “There are a couple of minor issues that they won’t send a signal on, but generally just about every one of them.”

But engineer Robert Sparling analyzed one of the parking meters and determined that condensation could cause the machine and the notification system to fail at the same time, according to court records.

“This whole automation thing is okay when it works, but when it doesn’t work and you have to go ascertain some sort of relief, it’s made difficult. There’s no two ways about it,” said Brian Lawrie, founder and president of Pointts, a company that advises motorists on matters including parking violations.

Lawrie recommends noting the serial number of the machine, traffic conditions and any witnesses, then notifying officials of the broken machine.

In 2007, 794 tickets were cancelled because of malfunctioning meters, according to court documents. More than 600,000 tickets were issued that year.

“If and when the TPA confirms that a machine was not working at the time of the offence, we may cancel the ticket, although this is also dependent on a number of circumstances,” said Christina Barnes, spokeswoman for the City of Toronto. She said certain circumstances — for instance if it was a first offence, or happened in a high-traffic area — would affect the outcome. But bylaws, she said, require customers to find a different machine or spot if one is broken.

The class action — which began four years ago and saw arguments go all the way to the Supreme Court — was dismissed in July mainly because Ontario Superior Court Justice Paul Perell deemed the class too broad — it would include anyone who received a ticket while parked at a malfunctioning machine, when the action focused on situations where the TPA was not notified.

“It looks bad. It has a chilling effect,” said Ken Arenson. “Thirty-one dollars and it turns into a $70,000 cost order? It doesn’t make sense.”

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