300 Dufferin Avenue P.O, Box 5035 London, ON NGA 4L9 IN THE MATTER OF the City of London Business Licensing By-Law L.-131-16, as amended; AND IN THE MATTER OF the City of London’s Hearing’s Officer By-law A.-6653-121, as amended; AND IN THE MATTER OF the Statutory Powers Procedure Act, c. S. 22, as amended. DECISION The Corporation of the City of London’s Hearings Officer, established pursuant to section 23.5 of the Municipal Act, 2001, held a hearing as follows: Appellant: Sheehan Abeysena, RMS Towing File No.: CLK-2022-L01-020 Hearing Date: February 2, 2023, at 1:30 p.m APPEARANCES: Parties Counsel/Agent Sheehan Abeysana, Appellant City of London Stephen Miller PURPOSE OF HEARING The purpose of the hearing was to consider the Appellant’s request for a hearing before the Hearings Officer as it relates to the following The decision of the Licence Manager to revoke the Tow Truck Business Licence # 202100236 and Impound Yard Storage Business Licence # 202100237 issued to 2728405 Ontario Inc., carrying on business as RMS Towing under the authority of the Business Licensing By-law L.-131-16, section 8.3(a), (e), and (f). This hearing was heard in accordance with the provisions of the City of London's Business Licensing By-law L.-136-16, as amended, the City of London's Hearing’s Officer By-law A.-6653-121, as amended, and the Statutory Powers Procedure Act, RS.O. 1990, c. 8.22 DECISION Itis the decision of the Hearings Officer to dismiss the appeal and to uphold the decision of the Licensing Manager to revoke the Tow Truck Business Licence #202100236 and the Impound Yard Storage Business Licence # 202100237 issued to 2728405 Ontario Inc., carrying on business as RMS Towing REASONS The reasons for my decision are as follows: 1 | conducted a hearing on February 2, 2023. 2. __ | have fully considered the evidence provided by the following persons who testified at the hearing Name/Title Party who called Witness Sheehan Abeysena AppellantRMS Towing DECISION CLK-2022-L01-020 Page 2 ‘Stephen Miller, Manager Parking Services and City of London ‘Compliance Nicole Musicco, Coordinator, Licensing City of London Administration & Policy Constable Gregory Pearson, Traffic Management _| City of London Unit London Police Service 3. | have fully considered the documentary evidence filed at the hearing: Exhibit Description Filed By No. 7 Certified copy of City of London Business _| City of London Licensing By-Law L.-131-16, as amended 2 Notice of Hearing, including material City of London provided with the appeal Affidavit of Service City of London’ The decision of Hearings Officer Bryant __| City of London issued August 19, 2022 in the case of the appeal by 2728405 Ontario Inc., carrying on business as RMS Towing of a 90-day suspension of Tow Truck Business Licence #202100236. 4, The hearing was open to the public. 5. __ | have fully considered the submissions of the parties. 6. Ms. Musicco gave thorough background evidence about the amendments in 2021 to the Licencing By-law to regulate and to require licences for towing businesses in the City, including impound yard storage businesses. There was an extensive consultation effort with the industry stakeholders, the London Police Service, as well as fire and EMS first responders. This was all in the context of a history of discreditable, frequently overly aggressive behaviour in the industry including excessive charging, poor customer relations and competitively crowding first responders at accident scenes. It is a pervasive problem in the Province and the Province may enter the regulatory field but has not yet. The City decided to proceed as the situation needed to be addressed in the interest of public health and safety and for consumer protection 7. The City's licence by-law regulatory system focuses on requiring that only those holding licences may conduct a tow truck business or impound storage yard business in the City and requiring licence holders to maintain records necessary to show compliance with the regulations, requiring that when operating the towing business it is only done under the licence holder's name, providing contact information for the public with conspicuous signage at impound storage yards, establishing maximum charges for towing and for storage, establishing a 200-metre stand-off distance from an accident scene and requiring that tow truck operators comply with the direction of police, fire, EMS and any other first responders on the scene of an accident. This is an imperfect synopsis of salient elements of the regulatory scheme. 8. The tow truck licensing regulations also established an administrative monetary penalty system ("AMPS") that is available for enforcing the regulations. 9. With respect to the Licence Manager's authority, section 8.3 of the Licencing By- law provides that the Licence Manager may refuse to issue a license, or may refuse to renew it, or may revoke or suspend a licence, or may impose a term or condition on a licence based on any of a number of enumerated grounds.RMS Towing DECISION CLK-2022-L01-020 Page 3 10. "1 12 13. 14. 15, ‘Amongst the grounds are the following: (a) the conduct of the Applicant or Licensee, or any partner, officer, director, employee or agent of the Applicant or Licensee, affords reasonable cause to believe that the Applicant or Licensee will not carry on or engage in the operation of the business in accordance with the law or with honesty or integrity; (b) an Applicant or Licensee is carrying on activities that are in contravention of this By-law; (e) an Applicant or Licensee does not meet, at any time, one or more of the requirements of this By-law or any conditions imposed on a licence; (f) an Applicant or Licensee is not in compliance with any federal, provincial law or City By-law, including this By-law; or (9) the Applicant or Licensee has been convicted of a criminal offence for which, in the opinion of the Licence Manager, it would not be in the interest of public safety to issue or maintain such a licence Mr. Miller then reviewed the licence history of the appellant. There was, in ‘August 2022, a hearing of an appeal by RMS Towing that was heard by Hearings Officer Bryant. His decision has been marked as Exhibit No.:4. The appellant was then appealing the imposition of a 90-day suspension of the Tow Truck Business Licence #202100236. The Impound Yard Storage Business Licence # 202100237 was not before Mr. Bryant. The notice of the 90-day licence suspension was issued on April 11, 2022 and was based on ten AMPS Penalty Notices which were not appealed; that suspension decision was appealed and it was that appeal which was before Hearings Officer Bryant. Between the April 2022 suspension notice and the August 2022 hearing, there were an additional seven AMPS Penalty Notices issued. Hearings Officer Bryant was satisfied that there were compelling reasons to suspend the licenses but was persuaded to give the appellant the benefit of the doubt and to give an opportunity for the appellant to demonstrate that steps had been taken to ensure future contraventions do not occur. Hearings Officer Bryant decided to reinstate the RMS on the following conditions: (a) In the event that all outstanding monetary penalties are not paid by the appellant within thirty (30) days of receipt of this decision by the appellant, the appellant's Business Licence No. 202100236 will be suspended for a period of ninety (90) days commencing on the thirty-first day following receipt of this decision; or (b) _ Inthe event that the appellant is issued a monetary penalty for a breach of By-law L-131-16 following the date of this decision which is not appealed or if appealed is not cancelled on appeal, the appellant's Business Licence No. 202100236 will be suspended for a period of ninety (90) days commencing on the day following the last day for appeal of that monetary penalty or on the day following decision on the appeal confirming the monetary penalty, as the case may be. There were further AMPS Penalty Notices after August 2022, and the 90-day suspension came into effect. Constable Pearson then reviewed a number of police occurrence reports involving RMS Towing in 2022. Some of the early ones would have been reflected in what Hearings Officer Bryant said: Sergeant Nethersole testified as to a number of complaints against the appellant that have been investigated by the London Police Service including a stunt driving charge. There appeared to be aRMS Towing DECISION CLK-2022-L01-020 Page 4 16. 17, 18. 19, 20. practice of the appellant not being available to be contacted by persons trying to retrieve their vehicles from the appellant. I find that the number of infractions occurring after receipt of the suspension letter together with the complaints identified by Sergeant Nethersole could very well fit under either subsection (a) or subsection (b) [of section 8.3 of the Licence By-law] as a basis for the suspension of the appellant's Business Licence, Constable Pearson also referred to a number of occurrence reports which he was able to identify in the London Police Service records after August 2022. Some of these involved Police intervention to assist a vehicle owner to retrieve their vehicle from the appellant's impound storage yard. This seems to be a recurring theme. The strategy is to keep a vehicle in the impound storage yard as long as possible in order to charge as much as possible for storage. Constable Pearson made note of a particular incident on November 11, 2022 when the operator of an RMS tow truck was, with another RMS employee, involved in a shooting at a competitor's tow truck narrowly missing the occupants of the target vehicle. Criminal charges were laid against the two individuals and are still before the courts. Relying upon the long list of AMPS Penalty Notices and the November 11" shooting incident the Licence manager revoked both Tow Truck Business Licence # 202100236 and Impound Yard Storage Business Licence # 202100237. Itis from that decision that the appellant appeals. Mr. Abeysena gave evidence for the appellant. He spoke at length and was given much latitude in order to say all he wished to say. The hearing, which started at 1:30 p.m, and was scheduled for an hour, ran for at least two hours. His points were, in summary: (a) The criminal charges arising from the November 11" shooting are still before the courts and should not be taken into account until finally disposed of. He gave evidence that both employees involved in the shooting had been terminated forthwith, notwithstanding that the charges were still before the courts. (b) With respect to the numerous AMPS Penalty Notices, he says they were never received. This, too, is a common theme and was used before Hearings Officer Bryant in the August 2022 hearing. All but two of the most recent AMPS Penalty Notices were mailed to the address on the Business Licences. The two exceptions were mailed to the registered or head office address for the licence holder on record with the Province. The appellant says none were received. The City says that it is the appellant's responsibility to pick up and read mail delivered to the address provided to the City for that purpose. (c) The appellant says that he has scaled back his business and will continue the business without any employees. He faults his employees for all the problems and says without them it will be fine. This too was a theme as reflected in Hearing Officer Bryant’s August 202 decision when Mr. Bryant gave the appellant the benefit of the doubt and an opportunity for the appellant to demonstrate that steps had been taken to ensure future contraventions do not occur. The appellant squandered that opportunity In his questioning of Constable Pearson, Mr. Abeysena asked whether in the Constable's opinion the November 11, 2022 shooting incident was in itself sufficient grounds to revoke the two business licences. Constable Pearson's response was that the shooting was a culminating event which taken together as a whole with the history of contraventions and unacceptable behaviour, gave him the view that the licences should be revoked.RMS Towing DECISION CLK-2022-L01-020 Page 5 21. agree. On the basis of the evidence | have heard, the appellant is not carrying on the licenced businesses with honesty or integrity and the appellant has and is very likely to carry on activities in contravention of this By-law. This appellant is a bad actor and should not be licenced to carry on a towing business or an impound yard storage business in the City. 22. _ | therefore dismiss the appeal and uphold the decision of the Licensing Manager to revoke the Tow Truck Business Licence #202100236 and the Impound Yard Storage Business Licence # 202100237 issued to 2728405 Ontario Inc., carrying on business as RMS Towing. Andrew Wright, Hearings Officer ISSUED at London on February 6, 2023 SENT TO the following by Canada Post Registered Mail: TO: 2728405 Ontario Inc., carrying on business as RMS Towing 354 Neptune Crescent, London, Ontario N6M 1A1 TO: Sheehan Abeysena 2728405 Ontario Inc., carrying on business as RMS Towing ondon Ontario AND BY EMAIL TO: Timothy Cosentino Cosentino Legal Services tim@cosentinolegalservices.com Scott Mathers Deputy City Manager, Planning and Economic Development City of London smathers@london.ca Orest Katolyk Director, Municipal Compliance City of London okatolyk@london.ca Catherine DeForest Manager, Client Services City of London cdeforest@london.ca Nicole Musicco Coordinator, Licensing Administration & Policy City of London nmusit london. Stephen Miller Manager, Parking Services and Compliance City of London swmiller@london.caRMS Towing DECISION CLK-2022-L01-020 Page 6 Sean Steenbergen Parking Coordinator City of London ssteenbe@londor a