Executive Summary: Key Legal and Evidentiary Issues

• Two related towing companies sued the Windsor Police Services Board and the City of Windsor after losing a 2020 towing services contract to a competitor, A.M.-P.M. Towing.
   
• Central to the dispute was whether the City of Windsor's Purchasing By-Law 93-2012 required a formal Request for Tender or Request for Proposal process rather than the Informal Quotation method actually used.
   
• Evidentiary conflict arose over whether the by-law's monetary threshold for triggering RFT/RFP procedures turned on the value of the contract to a supplier or on the purchase price payable by the city.
   
• Also at issue was whether the plaintiffs' towing business, based outside Windsor, was nonetheless subject to Windsor's business licensing by-law when operating within city limits.
   
• The plaintiffs alleged three specific incidents in which Windsor police officers directed accident-scene towing to A.M.-P.M. Towing instead of to the plaintiffs, framed as unlawful interference with economic relations.
   
• Both sides brought competing motions for summary judgment, requiring the court to resolve all of the above issues without a trial.

Facts of the case

County Towing Inc. and Coxon's Specialty Services Inc., related Ontario towing companies based in Harrow, Ontario, had provided towing services under a contract originally entered into with the Amherstburg Police Services Board (APSB) on June 23, 2017. That agreement was later assigned to the Windsor Police Services Board (WPSB) when the WPSB assumed policing responsibility for Amherstburg on January 1, 2019, and the contract, after extension, expired on August 1, 2020. According to evidence from the plaintiffs' principal, Derek Didone, County Towing earned approximately $280,000 in revenue over the life of that contract, or roughly $93,000 per year. In 2020, Inspector Jill Lawrence of the Windsor Police Service was tasked with replacing the expiring contract. Although the anticipated expenditure by the WPSB fell well under the $5,000 threshold that would have permitted use of a "Small Purchase Order" under the city's Purchasing By-Law 93-2012, Inspector Lawrence voluntarily chose to follow the more demanding "Informal Quotation" process, soliciting bids from nine towing companies rather than the minimum three. Four companies submitted bids, and A.M.-P.M. Towing's bid of $125.00 for a standard tow was the lowest; County Towing's bid of $200.00 was neither the lowest nor the second lowest. The new contract was awarded to A.M.-P.M. Towing on July 22, 2020 [the source document contains an inconsistency on this date: Inspector Lawrence's affidavit suggests the authorizing board meeting occurred on or about July 24, 2020, while contemporaneous correspondence indicates July 22, 2020, which the court accepted as the accurate date]. County Towing subsequently sought disclosure of competing bid information, which the WPSB initially declined to release citing third-party privacy concerns under the Municipal Freedom of Information and Protection of Privacy Act; that information was later provided during the course of this litigation. The plaintiffs commenced an action alleging breach of the Purchasing By-Law, breach of good-faith obligations in the tendering process, creation of an unlawful monopoly, imposition of an illegal tax through a $50 administration fee, wrongful reliance on Windsor's business licensing by-law, and unlawful interference with the plaintiffs' economic relations arising from three specific towing incidents on July 22, 2020, February 15, 2021 [the source document's summary of Mr. Didone's affidavit evidence refers to this same incident as having taken place on February 15, 2020, though it is dated February 15, 2021 elsewhere in the record, including the statement of claim], and May 12, 2021. By the time the matter was argued, the plaintiffs had abandoned their monopoly, Competition Act, and illegal tax claims.

Policy and legislative provisions at issue

The central legislative instrument was the City of Windsor's Purchasing By-Law 93-2012, which sets out escalating "purchasing methods" tied to the "Purchase Price," defined as "the amount payable by the City for a Deliverable pursuant to a Contract." Purchases up to $5,000 required no formal process ("Small Purchase Order"); purchases between $5,001 and $25,000 required an "Informal Quotation"; purchases between $25,001 and $50,000 required a "Formal Quotation"; and purchases of $50,000 or more required a Request for Tender (RFT) or Request for Proposal (RFP). The plaintiffs argued that the relevant threshold should be assessed from the supplier's perspective, based on the value of the contract to whoever won it, which they claimed exceeded $100,000 annually. The defendants argued, and the court accepted, that the by-law's threshold turns on the price payable by the city or its boards, which in this case was expected to remain under $5,000 annually since vehicle owners, not the WPSB, paid most towing fees directly. The court also considered section 18 of the Municipal Act, 2001, which prohibits a municipality from conferring an exclusive right to carry on a business unless authorized by statute, in connection with the plaintiffs' abandoned monopoly claim. Windsor's Licensing By-Law 15-2018, respecting the licensing of public vehicles, was examined alongside sections 8, 10, 150, 151, and 153 of the Municipal Act, 2001, which define "business" to include activity "wholly or partly carried on within a municipality even if the business is being carried on from a location outside the municipality," and which prohibit municipalities from refusing a licence "by reason only of the location of the business." Finally, the WPSB's towing "Directive," (Directive Number 853-01), governing officers' handling of vehicle towing situations, was reviewed to determine whether officers had departed from its terms in the three incidents relied upon by the plaintiffs.

Reasoning and analysis

The court found that Purchasing By-Law 93-2012 was not breached. Reading the by-law's definitions of "Purchase," "Purchasing," and "Purchase Price" in context, the court concluded that the by-law's threshold calculations were always intended to be measured from the city's perspective as a purchaser incurring cost, not from a supplier's perspective as to the value of doing business with the city. Since the WPSB's own anticipated expenditure for towing services would not have exceeded $5,000 annually, the matter properly fell within the "Small Purchase Order" category requiring no formal process at all; the WPSB's voluntary decision to use the more demanding Informal Quotation method, and to borrow elements of the RFT/RFP procedures for handling supplier questions, exceeded what the by-law required and demonstrated good faith rather than any breach of it. The court further found that even though a preliminary "contract A" arose between the WPSB and the towing companies that submitted quotations, there was no evidence the WPSB departed from the tender's stated terms, treated bidders unequally, or acted for an improper purpose; County Towing lost the contract because its bid was not the lowest, not because of any procedural unfairness. On the licensing issue, the court held that the City of Windsor was entitled to require any business, including one based outside the city, to hold a licence for towing activity carried on even partly within Windsor's boundaries, and that a towing company entering the city to hook up and remove a vehicle was carrying on business within Windsor regardless of its origin or destination. On the tort of unlawful interference with economic relations, the court applied the Supreme Court of Canada's framework in Bram Enterprises Ltd. v. A.I. Enterprises Ltd. and found that the police officers involved in each of the three incidents were exercising legitimate common law and statutory duties, including controlling accident scenes under active investigation, clearing roadway obstructions, and enforcing Windsor's valid business licensing requirement against the plaintiffs, who were not licensed to tow within the city. The court concluded there was no unlawful conduct actionable by the relevant vehicle owners, and separately found no evidence that the WPSB intended to cause the plaintiffs economic harm or that such harm was actually caused.

Ruling and overall outcome

The court dismissed the plaintiffs' motion for summary judgment, including their request for declaratory relief and a directed reference to assess damages under Rule 20.04(3) of the Rules of Civil Procedure, and granted the defendants' cross-motion for summary judgment dismissing the plaintiffs' remaining claims in their entirety, resulting in dismissal of the action. The successful parties were the defendants, the Windsor Police Services Board and the Corporation of the City of Windsor. No damages or other monetary award was granted to either party; the judgment reflects a full dismissal of the plaintiffs' claims rather than a quantified award. On costs, the court's preliminary, non-binding view was that the defendants should be entitled to their costs of the motions and the action, but the amount was not determined in this endorsement — the judge indicated he lacked sufficient information about any settlement offers to express a view on quantification, and set a timetable for written costs submissions if the parties could not reach agreement. The monetary award or costs total is therefore Not Specified in this decision.