Black Top Cabs loses court challenge to charge higher fee on driver of van taxi

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      The B.C. Court of Appeal panel has unanimously dismissed an appeal by Black Top Cabs Ltd. against one of its drivers.

      In a decision released today, Justice Daphne Smith wrote that the "principal issue" was whether the trial judge, Robert Powers, erred in his interpretation of a written lease agreement between Black Top and Ranjit Singh Athwal.

      "The appellants submit that the trial judge went beyond interpreting the express words of the impugned provision and implied a new requirement for equal sharing of the dispatch system fee into the Agreement," Smith wrote. "I am not persuaded that was the case. In my view the trial judge simply defined the term based on a common understanding of the meaning of the term at the time the Agreement was made."

      In September 2010, Powers ruled that BlackTop must pay Athwal $500 per month plus court-ordered interest dating back to February 2009, when the company jacked up its dispatch-system fee.

      Athwal had reached a deal in 2008 with Black Top on operating a van, which was financed by the company. In his decision, Powers noted that van taxis are "less desirable than the sedan taxis" because they are larger, heavier, and more expensive to operate.

      Because of this, Black Top waived its licensing fee for operators of its van-taxi fleet, but they still had to pay a $1,175 monthly dispatch-system fee. That helped cover the cost of the company's operations plus advertising.

      Black Top later charged a $1,000 lease fee and boosted the monthly dispatch-system fee by $500 on Athwal.

      "Black Top was simply trying to avoid its contract with Athwal and charge a licensing fee under the guise of a dispatch system fee," Powers stated in his decision.

      The three-judge B.C. Court of Appeal panel, which included Harvey Groberman and Pamela Kirkpatrick, agreed.

      "It is also commercially unreasonable to expect operators who have made a substantial financial investment in order to acquire and remodel a wheelchair-accessible van-taxi to then, shortly after signing the Agreement, face increased dispatch system fees to cover the additional costs associated with the operation of those vehicles," Smith wrote. "For that initial outlay to be feasible, the lessees must be able to rely on the Agreement they have negotiated that incorporated Black Top’s fee structure through the use of the distinctive terms 'dispatch system fee' and 'licence fee'."