NOTICE OF DECISION of the MISSISSAUGA APPEAL TRIBUNAL established pursuant to section 23.5 of the Municipal Act 2001

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1 NOTICE OF DECISION of the MISSISSAUGA APPEAL TRIBUNAL established pursuant to section 23.5 of the Municipal Act 2001 IN THE MAnER OF a Notice of Appeal dated October 9,2012 to the Mississauga Appeal Tribunal, by Khalid Nasr of 350 Webb Drive, Unit 1202, Mississauga, Ontario, of a Licensing Manager's Decision to refuse renewal of a City of Mississauga tow truck driver's license issued to Khalid Nasr under the City of Mississauga By-law , as amended, the Tow Truck Licensing By-law (the "Appeal"). AND IN THE MAnER of the Hearing of the Appeal by the Mississauga Appeal Tribunal on January 29, 2013 in accordance with the provisions of the City of Mississauga Bylaw , the Tow Truck Licensing By-law, as amended, and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. BE ADVISED THAT it is the decision of the Mississauga Appeal Tribunal to: Grant a Tow Truck Driver's License to the Appellant, subject to a six month suspension commencing on October 4,2012 until April 4, Reasons for Decision: Under By-Law as amended the City of Mississauga has placed emphasis on public health and safety. In carrying out his duty to consider a licence renewal application, the Manager of Mobile Licensing Enforcement determined that the conduct of the Appellant did not comply with section 10 of the By-Law. As a result, the renewal application was denied in a letter to the Appellant dated October 4, Although the letter to the Appellant did not set out the specific subsections of the By-Law, during his oral testimony the Manager of Mobile Licensing Enforcement deposed that the Appellant fell within the exceptions set out in section 10 (3) and (6). During his oral testimony, the Manager Mobile Licensing Enforcement stated that his decision to deny the renewal application was influenced by the attitude of the Appellant that he observed during an interview on October 1, Specifically, the Manager Mobile Licensing Enforcement stated that he recalled that the Appellant stated that his driver's abstract was a result of "the cost of doing business". Julie Lavertu. Mississauga Appeal Tribunal Coordinator The Corporation of the City of Mississauga Civic Centre, Office of the City Clerk, 300 City Centre Drive, 2'" Floor, Mississauga, ON, L5B 3Cl Telephone: , ext. 5471; Fax: ; Address: Julie.Lavertu@mississauga.ca

2 2 NOTICE OF DECISION of the MISSISSAUGA APPEAL TRIBUNAL Appellant: Hearing Date: Khalid Nasr, 350 Webb Drive, Unit 1202, Mississauga, Ontario January 29,2013 The Manager Mobile Licensing Enforcement concluded that the attitude of the Appellant demonstrated that he did not take the offences, including his conviction for careless driving, as being serious. In his testimony the Appellant denied the attitude attributed to him by the Manager Mobile Licensing Enforcement. The Appellant has a conviction for "driving while holding or using a handheld communication device". During his testimony and specifically in response to questions asked by the Tribunal, the Appellant described how tow truck drivers receive dispatch calls and communicate with one another. This device is referred to as a "MIKE" and he likened it to a "walkie-talkie" in that it is a handheld device without a hands-free option. During his testimony the Appellant indicated that if he was granted a tow truck driver's licence he would continue to use the "MIKE" as this is the expectation of the tow truck company for whom he would be driving. When questioned further, the Appellant indicated that he was not aware of any other system that could be used but did say he would look into this. The Tribunal was very concerned to learn that this is the system that is commonly used within the tow industry while driving. To use such a device while driving would appear not to comply with provincial law. The Tribunal found that the decision of the City to deny the renewal application was somewhat excessive in the circumstances. Altematively, the City could have issued a suspension as a caution to the Appellant that his driving record over the short period that he has held a license to drive a tow truck fell below the standard contemplated by the By-Law. The Tribunal considered the Appellant's drivers' abstract and the evidence regarding breach of the applicable municipal By-Law. These documents contained matters that went to the heart of public safety and therefore the surrounding circumstances could not simply be overlooked. Having regard to the evidence, the submissions on behalf of the parties, the loss of the Appellants' livelihood, balanced with the paramount purpose of the By-Law, the Tribunal found that a six month suspension of the Appellant's tow truck driver's licence was warranted.

3 3 NOTICE OF DECISION of the MISSISSAUGA APPEAL TRIBUNAL Appellant: Hearing Date: Khalid Nasr, 350 Webb Drive, Unit 1202, Mississauga, Ontario January 29,2013 The Tribunal heard considerable evidence from the City which revolved around the significance of the Appellant having eight demerit points under the Highway Traffic Act. Although not contained in the By-Law, the Manager testified that there is an internal policy which sets six to eight demerit points as a threshold which would give rise to concern. In the view of the Tribunal, to rely upon any such policy is to fetter the discretion of the Manager Mobile Licensing Enforcement who is required to make determinations in accordance with the criteria set out in the City By-Law. In the present case, the Manager's testimony was that the eight demerit points was only one of several factors that he considered when considering the renewal application of the Appellant. Therefore, the Tribunal rules that the tow truck driver's licence of the Appellant will be suspended for a period of six months, from October 4, 2012 to April 4, Issued by the Mississauga Appeal Tribunal on January 29, Originally executed at the City of Mississauga on January 29,2013 by: Lynda Ross, Chair and Citizen Member Rafiq Rokerya, Vice-Chair and Citizen Member~~~--hLfo-r<~~_-+---J~L-:c. Roderick Chung, Citizen Member Luc Laverriere, Citizen Member Leonard Lyn, Citizen Member Encl.: Record of Proceeding dated January 29,2013

4 RECORD OF PROCEEDING THE CORPORATION OF THE CITY OF MISSISSAUGA MISSISSAUGA APPEAL TRIBUNAL TUESDAY, JANUARY 29, :30 A.M. HEARING ROOM, CIVIC CENTRE 300 CITY CENTRE DRIVE, MISSISSAUGA, ONTARIO, L5B 3C1 MEMBERS PRESENT: APPELLANT: APPELLANT S REPRESENTATIVE: PROSECUTOR: STAFF AND OTHERS: Lynda Ross, Chair and Citizen Member Rafiq Rokerya, Vice-Chair and Citizen Member Roderick Chung, Citizen Member Leonard Lyn, Citizen Member Luc Laverrière, Citizen Member Khalid Nasr Nenus Younan Heather Bourgeois, Prosecution Office Daryl Bell, Manager, Mobile Licensing Enforcement Julie Lavertu, Mississauga Appeal Tribunal Coordinator Marilyn Sparrow, Legal Counsel for the Mississauga Appeal Tribunal CONTACT PERSON: Julie Lavertu, Mississauga Appeal Tribunal Coordinator Office of the City Clerk, Telephone: , ext. 5471; Fax: Julie.Lavertu@mississauga.ca

5 Mississauga Appeal Tribunal January 29, 2013 This is a Record of Proceeding of the Hearing by the Mississauga Appeal Tribunal in the matter of a Notice of Appeal by Khalid Nasr, dated October 9, 2012, of a Licensing Manager s decision to refuse renewal of a City of Mississauga tow truck driver s license issued to Khalid Nasr of 350 Webb Drive, Unit 1202, Mississauga, Ontario, under the City of Mississauga By-Law , as amended, the Tow Truck Licensing By-Law. A Notice of Appeal of a Licensing Manager s decision to refuse renewal of a City of Mississauga tow truck driver s license was submitted by David I. Younan, Barrister & Solicitor, on behalf of Khalid Nasr, being the recipient of the tow truck driver s license. CALL TO ORDER 9:39 a.m. DECLARATIONS OF DIRECT OR INDIRECT PECUNIARY INTEREST Nil INTERLOCUTORY ORDERS OF THE TRIBUNAL Nil WITNESSES Rafiq Rokerya, Vice-Chair and Citizen Member, administered the Oath or Affirmation as the case may be, to the individuals set out below at the time that the individuals were called to give evidence for the respective parties. The following individual testified on behalf of the City of Mississauga s Enforcement Division: 10:02 a.m. Daryl Bell, Manager, Mobile Licensing Enforcement, City of Mississauga The following individual testified on behalf of the Appellant: 11:36 a.m. Khalid Nasr, Appellant EVIDENCE ADMITTED BY THE TRIBUNAL 10:01 a.m. Exhibit 1: Certified copy of The Corporation of the City of Mississauga s Tow Truck Licensing By-Law , as amended. 10:08 a.m. Exhibit 2: Copy of Licence Renewal Application for Khalid Nasr (Tab 4 in the Documents Brief which was prepared by Heather Bourgeois, Prosecutor for the City of Mississauga s Enforcement Division, and submitted to the Tribunal Coordinator on January 15, 2013).

6 Mississauga Appeal Tribunal January 29, :09 a.m. Exhibit 3: Certified copy of Khalid Nasr s driving record dated December 28, 2012 (Tab 6 in the Documents Brief which was prepared by Heather Bourgeois, Prosecutor for the City of Mississauga s Enforcement Division, and submitted to the Tribunal Coordinator on January 15, 2013). 10:12 a.m. Exhibit 4: Copy of decision of Manager, Mobile Licensing Enforcement Daryl Bell dated October 4, 2012 (Tab 2 in the Documents Brief which was prepared by Heather Bourgeois, Prosecutor for the City of Mississauga s Enforcement Division, and submitted to the Tribunal Coordinator on January 15, 2013). EVIDENCE NOT ADMITTED BY THE TRIBUNAL 10:35 a.m. Information and/or documents regarding an additional charge laid on the Appellant by the City of Mississauga on December 15, Prior to deciding not to admit the latter evidence, the Tribunal recessed with their Legal Counsel to discuss the matter and, upon re-entering, the Chair said that any evidence or mention of the additional charge was inadmissible. 1:38 p.m. Mississauga Appeal Tribunal agenda dated May 31, 2011 comprised of the following documents: Licensing Manager s Notice of Decision dated December 23, 2010 to revoke a tow truck driver s license issued to Hanna Narsa, Notice of Appeal dated January 7, 2011 from Hanna Narsa, and Extract of By-Law , the Tow Truck Licensing By-Law, as amended (this document was referenced by the Appellant s Representative during his Closing Statement and distributed to the Tribunal, Prosecutor, staff, and others present as per the latter s request to the Tribunal Coordinator). The Tribunal did not admit the following information in the Documents Brief which was prepared by Heather Bourgeois, Prosecutor for the City of Mississauga s Enforcement Division, and submitted to the Tribunal Coordinator on January 15, 2013: Tab 1: Copy of the Notice of Hearing of the Mississauga Appeal Tribunal by Khalid Nasr. Tab 3: Copy of Notice of Appeal submitted by Counsel, Mr. David I. Younan, on behalf of Khalid Nasr dated October 9, Tab 5: Copy of will say statement and Interview Record of Daryl Bell, City of Mississauga, Manager, Mobile Licensing Enforcement. Tab 7: Copy of three (3) year driving record for Khalid Nasr dated December 20, Tab 8: Notice pursuant to Section 35 of the Evidence Act of Ontario. ADJOURNMENT 2:41 p.m. (R. Rokerya)