Traffic races past a 407 ETR offramp sign on the 401 westbound in Mississauga, July 21, 2014.J.P. MOCZULSKI/The Globe and Mail
The company that operates Ontario's Highway 407 is fighting to keep its ability to sue users of the toll road over outstanding fees more than a decade old.
The Ontario Superior Court will decide in August whether the statute of limitations on taking legal action to collect overdue fees is capped at 15 years or two, in a case that pits the 407 ETR Concession Co. Ltd. against a driver who allegedly owes $13,719 in tolls and fees.
Drivers take about 114 million trips on the 407 each year and the company reported more than $800-million in revenues in 2013, used in part to maintain the highway. The road, which opened in 1997, was leased by the province to a private consortium in 1999.
If the ruling goes in 407 ETR's favour, drivers could potentially be racking up thousands of dollars in interest charges over more than a decade before they are served with a lawsuit.
Countering 407 ETR's allegations against him, Ira Day is arguing the statute of limitations has expired for invoices he received more than two years before the company launched the lawsuit on June 14, 2013.
In a statement of claim, 407 ETR says provisions in Ontario's Limitations Act, as well as an agreement between the company and its users, allow it to commence legal action up to 15 years after sending out the invoices.
"I really hope, I would say, that it's not going to be accepted, their [407 ETR's] line of argument, because it does create a lot of uncertainty," said Avner Levin, a law and business professor at Ryerson University. "If the court does accept that, then that could potentially be the same argument that [other] businesses could use."
The claim against Mr. Day alleges vehicles with transponders registered to him regularly travelled on Highway 407, a privately run, electronic tolled highway stretching from Burlington to Pickering, from 2006 until June, 2013, but he stopped making payments in 2011. He continued to receive invoices with an annual compounded interest rate of 26.82 per cent.
The company uses either camera photos of licence plates or electronic transponders to bill drivers using the open-access toll route. The application form for transponders states the limitation period for taking legal action to collect owed charges is 15 years.
Mr. Day's lawyers, Ronald Manes and Josh Ginsberg of Torkin Manes LLP, claim 15 of the invoices that the lawsuit is based on range in dates from March, 2010, to May, 2011, and 407 ETR can't take legal action on those.
While the Limitations Act says legal proceedings can't begin more than two years after a claim is discovered, 407 ETR pointed to a clause that says the discovery of a claim can be defined as the day the plaintiff first decided legal action would be the best solution.
Kevin Sack, a spokesman for 407 ETR, said it's rare for the company to take its customers to court because it has several other options for collecting fees before resorting to legal action, including automated phone calls and collection agencies. Under the Highway 407 Act, 407 ETR can submit drivers' names to the Ontario government, which won't let them renew their vehicle permit until they pay their dues.
"We don't want to sue a customer unless it is absolutely necessary and we have tried other means of collecting," Mr. Sack said. He said it can take up to several years for plate denial to be effective because it depends on when the driver's vehicle permit expires. "It would be premature and inappropriate if 407 ETR were to take the step of starting a lawsuit against a customer before it was obvious that the person was not going to pay."
But Dr. Levin said if 407 ETR decides to go down the plate-denial route instead of taking legal action, it has already used up its legal powers against a user and shouldn't be allowed to go back and try something else.
"I'm not sure that the court will accept that," he said. "The point has always been once you know you have a cause for legal action, you should really act on it within two years. You shouldn't be dragging it out."