Revenge will be ours, maybe

>> Calling all motorists and squeegee kids: a class-action lawsuit will soon challenge all those #%@! tickets

by JOHN EDMONDS

Richard has done time for squeegeeing. He was sent to Bordeaux Prison after he piled up--and then neglected--10 tickets for squeegeeing. The original fines were worth $136 each, but when additional late-payment fines and court costs were added, the total grew to $3,800. Then one day the police stopped him and ran his name through the computer, and it was off to Bordeaux with a 115-day sentence.

 Thanks to overcrowding, Richard only had to serve 22 of those 115 days. Still, he feels the imprisonment was unjust. "I didn't hurt anybody," says Richard, who asked the Mirror not to use his last name. "I needed money and couldn't get a job. I was squeegeeing as the lesser of two evils. It was better than stealing."

 Jewelry designer Paolo Vena also feels poorly served by the municipal authorities. Vena is not fond of the city's Green Onions. "I hate them," he says with a congenial smile.

 He recounts one of many irritating episodes: "I came back to my car just as a Green Onion was ticketing me. I went to put a quarter in the meter, but the guy said 'too late' and stuck me with a $37 fine--$25 plus a $12 fee. Then I paid my ticket a week and a half late, and I got a letter in the mail saying that I had to pay another fee for being late. I ignored that since I had already paid, but tried to call the Municipal Court to straighten things out. I never got through to anybody--once I waited on hold for 17 minutes before I hung up. Then I got another letter saying that I had been judged in default, and that the total fees accumulated on my $25 fine were now $72!"

 Most would feel powerless in such a situation, but Paolo and Richard have a friend. In fact, if you've had your life made miserable by municipal tickets, then you too can have the same friend: Montreal lawyer Charles O'Brien.

 O'Brien, with the help of McGill law student Geeta Narang, will shortly launch a class action lawsuit against the City of Montreal and the Government of Quebec, alleging that they overcharge on municipal tickets. If they win, the city might have to hand some cash back. And in cases like Richard's where time was served, the door would be open to claims for compensation.

 Fee or illegal tax?
 The suit is a niggling but potentially lucrative one. O'Brien is challenging not the basic fines, but the fees: more specifically, he's arguing that the fees are actually illegal taxes. For example, cops can, at their discretion, give a squeegee kid either a $136 fine ($100 plus a $36 fee) or a $37 fine ($25 plus a $12 fee). This same "escalator scale" is found throughout the city's fee structure: the larger the fine, the larger the fee.

 The problem, says O'Brien, is that the Supreme Court of Canada has ruled that "amounts charged as fees must correlate with the actual costs of providing the service." In a 1998 decision, Re: Eurig Estate, the Supreme Court ruled that probate fees (fees charged on an estate at inheritance) were in fact taxes because the larger the estate, the larger the fees charged--even though the costs for processing the estates were always the same no matter how big they were.

 "The fees levied with municipal tickets are comparable to the fees judged to be illegal in Re: Eurig Estate," argues O'Brien. He returns to the example of the different fines for squeegeeing: "What exactly does a police officer have to do differently in the two cases that the city has to charge a higher fee?" In both cases it's the same thing: a police officer, a ticket and a ball point pen.

 Excessive jail terms
 If O'Brien wins, Montreal's fee structure (which is actually determined by Quebec City) would have to change. And anybody who is part of his suit--which potentially includes anyone receiving tickets from the city--might be refunded whatever money was collected from them in fees that wasn't actually used for administrative costs. (In order to qualify for possible repayment, O'Brien warns, you have to write "paid under protest" on your cheque, and keep a copy of it.) For class-action lawsuits such as this one, it's not unusual for the number of defendants to reach into the thousands.

 A successful outcome might also mean that the length of jail sentences handed down for ticket infractions like Richard's would probably be deemed excessive. According to Montreal Municipal Court spokesperson Sandy Hebert, "There is no fixed mathematical relationship between the fine and the sentence. The judge has discretion, but the guideline is one day in prison for every $25."

 In other words, an inflated amount in total fees would result in an inflated number of jail days in the sentence. "It's difficult to get compensation for things like this," O'Brien said. "But when it does happen, compensation usually ranges from about $2,500-$3,000 per unjustified day served."

 No money-back guarantee
 Of course, the outcome of the case is far from certain. In fact, O'Brien has yet to file the suit before the Superior Court of Quebec, which will then determine whether aggrieved ticket payers represent a legally valid class. If accepted, it could take 3-4 years before it's resolved, says law student Geeta Narang.

 "We will probably ask for a 20 per cent contingency [percentage of settlement paid to lawyers] to pay us for all the work," Narang told the Mirror. "Right now we're putting in lots of hours and getting nothing for it. And we'll need to pay for a top accountant to go through the city's books and find out where the fee money went."

 The stakes are high for lawyers who take on class-action suits. If they lose, O'Brien and Narang will walk away empty-handed. Worse still, says Narang, "One scenario is that we'll win the case but the law will simply have to be changed, and no one will get any money out of it. But we're doing it because we believe we're right."

 Many Montrealers will no doubt wish them luck. For even if it's only a small amount of money, or none at all, there would be a psychological thrill to beating City Hall and its ticket-writing minions.

 And as every lawyer knows, revenge is a dish best served in court. :

 For more information on the suit, contact Geeta Narang at 289-8629

 

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