Since the Union Pearson Express opened in 2015, Metrolinx hasn’t fined a single customer on the airport rail link for fare evasion.

That’s not because people who take UP Express are extraordinarily law-abiding. In fact, Metrolinx, the provincial transit agency that operates the service, estimates riders who skip out on paying their fare for the airport train cost it about $400,000 annually in lost revenue.

The dearth of tickets is instead a result of a legal loophole Metrolinx has known about for years but has yet to close: the UP Express has never been covered by the agency’s bylaws, which means the organization has no authority to impose rules specific to the service and fine riders who break them.

Metrolinx hasn’t publicized the loophole, but the agency’s lack of bylaw authority over the UP Express was revealed in internal documents the Star obtained through a freedom of information request.

The documents included a summary of a review conducted in April 2018 that flagged multiple challenges to collecting fares on the UP Express, and warned riders were taking advantage of them.

“One customer stated that he did not purchase, nor did he intend to purchase a fare,” the summary said.

The documents show the review recommended the UP Express, which carries about 4.5 million passengers a year, be brought under Metrolinx bylaws in order to improve fare collection.

Yet Metrolinx has allowed the troublesome technicality to persist, even as the organization announced a crackdown on fare evasion on its GO Transit commuter network. Fare evaders on GO are subject to an immediate $100 fine if caught by inspectors.

The TTC, which is a separate agency under the City of Toronto’s control, fines riders who don’t pay up to $425.

Metrolinx spokesperson Anne Marie Aikins said the agency takes a “zero tolerance approach to fare evasion for everyone on our system whether UP Express or GO Transit,” and said the agency has measures in place to enforce payment.

“We expect everyone to pay their fare,” she said.

Ontario NDP transit critic and MPP Jessica Bell said fining fare evaders on the TTC and GO but not on the UP Express, which was designed to cater to business travellers, is a “double standard” for the transit-riding public.

“At the very least Metrolinx should be explaining why they haven’t taken action on this,” said Bell (University-Rosedale).

The MPP, who has also criticized Metrolinx for designing the airport train to cater to business travellers rather than the local communities it runs through, described the fare evasion issue as “the latest error that Metrolinx has made with the Union Pearson Express.”

Aikins explained the loophole is a result of the fact the UP Express started as a public-private partnership with a subsidiary of SNC-Lavalin. Because a private company was initially expected to operate the service, it was left out of the Metrolinx Act, the provincial legislation that allows the public agency to impose bylaws on its transit lines.

When negotiations with SNC-Lavalin failed in 2010, the Ontario Liberal government of the day directed Metrolinx take over the project. But the government didn’t amend the Metrolinx Act. It wasn’t until last year that the new Ontario Progressive Conservative government amended the legislation to officially include the UP Express in Metrolinx’s mandate.

Despite the legislative change, Metrolinx still hasn’t drafted bylaws for the UP Express that would allow it to issue fines for fare dodging and other violations.

Aikins said the agency recognizes the need to bring the UP Express under its bylaws and is working to do so, but it’s a complex legal task that will take time.

“It’s not as simple as it sounds,” she said.

Metrolinx can’t fine you for fare evasion

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Without the ability to issue routine fines, Aikins said Metrolinx has other ways of ensuring UP Express riders pay.

At the Union Station and Pearson International Airport terminal stations, where a majority of customers board, employees are supposed to validate riders’ payment before they get on the train.

Riders boarding at other stops are asked to show they’ve paid after they get on, according to Metrolinx policy. If a rider hasn’t paid, the employee directs them to buy a ticket on board. GO transit riders caught not paying their fare aren’t given that option, Aikins said, but Metrolinx is reviewing the practice to ensure fairness.

If customers refuse, the worker can call in Metrolinx special constables, who have the authority to lay general non-criminal offence charges such as trespassing. That charge comes with a $65 fine, Aikins said.

A UP employee can also call the police, who are able to lay criminal charges. Aikins said that would only be done in “extreme circumstances.”

The documents obtained by the Star include drafts of an internal Metrolinx memo that was presented to senior management in July 2018. The memo made recommendations for increasing revenue from the UP Express, one of which was to tackle fare evasion.

According to the memo, the April 2018 review determined roughly 2 per cent of UP Express customers don’t pay, which translated into about $400,000 a year in lost fare revenue.

Aikins said a 2 per cent evasion rate is in line with industry standards.

In addition to not being able to fine riders, a summary of the review included in the memo said each UP Express employee is tasked with “many train functions,” making it difficult for them to check whether every rider has paid.

Compounding the difficulty is that crowding has increased on the line since Metrolinx slashed fares in 2016, a decision that was made to boost ridership but has also attracted non-airport travellers.

About 25 per cent of UP Express customers are now local commuters, and during rush hour the trains are often over capacity.

When trains are full, “staff may not physically be able to get to the other end of the train” to check everyone’s proof of payment, the review summary noted.

It warned customers have become aware UP workers aren’t able to check everyone’s fares and “are taking advantage of it.”

Asked whether it was irresponsible of Metrolinx not to have a policy in place to allow it to fine riders who don’t pay, a spokesperson for Transportation Minister Caroline Mulroney said the government is “confident that Metrolinx takes fare evasion very seriously and is taking steps to ensure that all customers pay their fares.”

Ben Spurr is a Toronto-based reporter covering transportation. Reach him by email at bspurr@thestar.ca or follow him on Twitter: @BenSpurr

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