News

Transport battle heats up with three lawsuits

BY PAUL HENRY Crime/Court Desk Co-ordinator henryp@jamaicaobserver.com

Monday, May 19, 2014    

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THREE lawsuits were filed in the Supreme Court last week by bus and taxi owners and operators challenging policy decisions which they claim are illegal and are causing them economic hardship.

Two of the suits were filed by the Rural Transit Association Limited. The group is seeking judicial review of the decision to commandeer a section of the Mandela Highway during morning peak hours for the exclusive use of Jamaica Urban Transit Company (JUTC) buses. The group is also challenging the authority of the JUTC to issue public transportation licences and its authority to charge members fees to operate within the Kingston Metropolitan Transport Region (KMTR).

The JUTC, the commissioner of police and the Office of Utilities Regulation (OUR) have been named as respondents in the Mandela Highway suit. The Transport Authority, JUTC and the OUR are respondents in the second suit filed by the group.

The other application for judicial review has been filed by V&B Transport Limited and names the Transport Authority, JUTC and the OUR as respondents. V&B is also challenging the authority of the JUTC on the issues of granting licences and the charging of fees to operate within the KMTR.

The claimants are contending that the actions are unlawful, and said that it is the responsibility of the OUR, not the Transport Authority or any other body, to lawfully regulate the public transport sector islandwide.

In the applications filed by the law firm Hugh Wildman and Company between Monday and Tuesday, the claimants are asking for injunctions preventing the respondents from continuing to enforce the policies. A hearing for the applications for the injunctions and judicial review is to be set.

The claimants are also seeking damages for economic harm that they say resulted from the decisions.

Wildman gave notice last month, during a meeting of bus and taxi owners and operators, that the legal action would have been taken. The following day, JUTC Chairman Collin Campbell responded with a dismissive press release.

In the court documents, the JUTC is described as a private company incorporated with the sole shareholder being the Accountant General of Jamaica.

A number of declarations are being sought in all three matters. The following is an edited version of the declarations sought in relation to the Mandela Highway action:

* that the JUTC is not empowered by law to regulate public passenger transportation in the country;

* that the commissioner of police is not empowered by law to regulate public passenger transportation in the country;

* that the OUR is the only body lawfully empowered to regulate public passenger transportation in the country;

* that the OUR is not empowered by law to delegate its powers to regulate public passenger transportation in the country to any other entity;

* that the failure of the OUR to regulate the provision

of public passenger transportation in the country amounts to a breach of its statutory responsibility;

* that the designation of the movement of traffic along the Mandela Highway amounts to regulation of public passenger transportation by road, which falls under the responsibility of the OUR;

* that the JUTC is not empowered by law to instruct the commissioner to restrict a portion of the right side of the westbound section of the Mandela Highway to allow JUTC buses only travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays and Fridays from 6:00 am to 8:00 am;

* that the police commissioner is not empowered by law to restrict a portion of the right side of the westbound section of the Mandela Highway to allow JUTC buses only, travelling from Spanish Town to Kingston, to have sole occupation of that lane between Mondays and Fridays from 6:00 am to 8:00 am;

* that restricting the westbound section of the Mandela Highway between Kingston and Spanish Town to allow JUTC buses only travelling from Spanish Town to Kingston to have sole occupation of that lane between Mondays and Fridays from 6:00 am to 8:00 am is in breach of Section 13(1) (h) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, rendering it unconstitutional, and is pro tanto void.

Some of the declarations sought in the action filed by the Rural Transit Association Limited are:

* that the failure of the OUR to regulate the provision of public passenger transportation in the country amounts to a breach of its statutory responsibility;

* in the alternative, the failure of the JUTC to renew the one-year licence granted to members of the applicant engaged in the provision of public passenger transportation in the KMTR amounts to regulation of public passenger transportation as defined under the Office of Utilities Regulation Act;

* further, in the alternative, a declaration that the refusal of the JUTC to renew the one-year licences granted to members of the applicant is arbitrary and so unreasonable that no public body, acting lawfully, would have done so;

* that the order amending the four-year licence granted to members of the applicant by the JUTC amounts to regulation of public passenger transportation as defined under the Office of Utilities Regulation Act;

* that the unilateral amendment of the four-year licence granted by the first respondent to members of the applicant is unlawful;

* the purported granting of licences by the JUTC to members of the applicant engaged in the provision of public passenger transportation in Jamaica is illegal, null and void and of no effect;

* the order of the JUTC requiring members of the applicant to pay a licence fee of $806,000 from $280,000 is arbitrary and so unreasonable that no licensing authority, acting lawfully, would have done so;

* the purported order of the JUTC requiring members of the applicant to pay sub-franchise fees as a condition of providing public passenger transportation service within the KMTR is illegal, null and void and of no effect;

* an order of prohibition, prohibiting the Transport Authority from taking any steps to regulate the provision of public passenger transportation in Jamaica; and

* an order of mandamus compelling the OUR to act according to law and regulate the provision of public passenger transportation in the country.

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