- I live in Toronto, Canada. I use Enterprise CarShare. All dates are in 2021.
My case can be distinguished from Can a rental car company require you to forfeit your right to fight a fine? was asked for Florida. Ontario's laws obviously differ.
Facts of my case
- On May 24, I received an email from CarShare that they were debiting my credit card to pay for an offence against the Highway Traffic Act committed during my rental. The "Date of Deemed Service" was May 3. The details of the offence don't appear relevant, but comment below if you want to know them.
On May 25, CarShare emailed me a scan of the Offense Notice. CarShare, not I, was charged. The Notice contains
Important - If you do not exercise one of the following options within 15 days of receiving this notice, you will be deemed not to wish to dispute the charge and a justice may enter a conviction against you. Upon conviction additional costs will be added to the total payable. If the fine goes into default, an administrative fee will be added and the information may be provided to a consumer reporting agency. Steps will be taken to enforce your defaulted fine, including refusal to issue a validation of your vehicle permit or refusal to issue a vehicle permit until the total payable and all additional costs and fees have been paid.
OPTION 1 — Plea of Guilty — Voluntary Payment of Total Payable: I plead guilty and payment of the total payable is enclosed.
- CarShare chose, and completed the blanks, for Option 1. [I omit irrelevant details.] But the Offense Notice had two more options.
OPTION 2 — Early Resolution — Meet with Prosecutor (by choosing this option you do not forego the right to a trial): [I omit irrelevant details.]
OPTION 3 — Trial Option — DO NOT MAIL — I want to appear before a justice to enter a plea of not guilty and to have a trial. [I omit irrelevant details.]
- On May 26, I asked CarShare's manager for details. The Manager emailed me that Enterprise Holdings, their parent corporation in Scarborough Ontario, received the mailed Offence Notice on May 7. On May 11, an administrator entered this Offence Notice into their computers. Enterprise Holdings emailed the spreadsheet to CarShare on May 22. Then CarShare emailed me on May 24.
Shouldn't Enterprise be liable to pay this fine, not I? I don't feel that I'm liable, because Enterprise automatically plead guilty and Enterprise's actions are unjust. Enterprise Holdings hasn't explained why they took 15 days to inform CarShare or me. They also failed to apprise me within the Offence Notice's timeframe of 15 days; ask how I would like to plead; give me a reasonable timeframe to respond; hear my side of the story, or give me an opportunity to present my case. Obviously CarShare shouldn't decide how to plead for me, because they're debiting me for the Offence.
It's unjust for CarShare just to presume and plead that I'm guilty, because CarShare deprives me of the chance to investigate, and defend against, the Offence. What if I was wrongfully charged?
Furthermore, CarShare's automatic guilty pleas can galvanize and incite enforcement officers to target CarShare rentees for profit. If enforcement officers know that CarShare always automatically pays all offenses, then they will deliberately charge CarShare rentees to improve their success rate and help the government profit from these offenses, rather than individuals who may put up a fight.
Unfair practices prohibited
17 (1) No person shall engage in an unfair practice. 2002, c. 30, Sched. A, s. 17 (1).
One act deemed practice
(2) A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice. 2002, c. 30, Sched. A, s. 17 (2).
I glimpsed John McCamus's The Law of Contracts Third Edition 2020. The leading cases on the doctrine of unconscionable terms are Douez v. Facebook, Inc., 2017 SCC 33 and Uber Technologies Inc v Heller, 2020 SCC 16.
McCamus lists the cases on signed agreements in footnote 163 on p 212. The earliest case on exceptions to the rule that a person is bound by his signature to terms is Tilden Rent-A-Car Company v Clendenning (1978), 83 DLR (3d) 400 (Ont CA).