The City of Toronto’s effort to shut down all of Uber’s operations received a cool reception Monday as a judge repeatedly questioned whether the city should even be in court asking for help.

“This is easily resolved with a wave of a drafting wand,” Mr. Justice Sean Dunphy of the Ontario Superior Court of Justice said to city lawyer Michele Wright as she wrapped up her submissions on the first day of a three-day hearing. “Why should we be arguing about this if it just takes the will of the politicians?”

The city argues that Uber is operating an illegal taxi and limo brokerage because the California-based company picks its drivers, links them with passengers through a smartphone app, has the power to suspend or dismiss drivers, and even collects the fares.

“If it looks like a duck, quacks like a duck, you should call it a duck,” Wright said.

Wright noted that Uber has many operations – from the taxi service that dispatches municipally licensed drivers in municipally licensed vehicles, to the UberX application which has ordinary people driving their own personal cars to ferry people around, at a much lower fares.

Uber estimates that by year’s end it will have as many as 15,000 people driving for its UberX application in Ontario, with the majority in Toronto.

She tried to shoot down Uber’s argument that it is merely a passive player in the transaction and not a taxi brokerage, only linking drivers and passengers through a smartphone app. Uber, which has operated here since 2012, says it does not directly accept any calls or requests, leaving it up to drivers to decide, what rides to takes.

But Dunphy interrupted Wright several times, each time with the same point.

“The question is not whether you have jurisdiction to regulate,” said Dunphy. “My question is whether you have exercised that jurisdiction. Is it my job to fill in the gaps of the legislation?”

He conceded that regulating the taxi industry is complicated and complex and it is difficult to ensnare the thousands of the illegal drivers – arguing it would be easier to nab “the Godfather.”

Dunphy noted that Mayor John Tory (open John Tory's policard) has indicated that he wants to see Uber regulated, repeating his view that such rules may be better left to elected officials to set. “This (injunction application) doesn’t regulate it, this extinguishes it,” he said.

“If you are successful in your application, the outcome is not to go get a licence,” Dunphy said “They can’t get a licence. It doesn’t fit in your model.”

Wright, pausing slightly, argued that the city believes strongly that there are basic principles to be articulated, including the scope and the ability of the city to regulate this industry.

Dunphy also questioned whether Uber could be considered a taxi brokerage – noting a maitre d’ in a restaurant might find a taxi for a customer, but does that make him a taxi brokerage.

Similarly, he said Bell — the telecom giant — which facilitates the hailing of cabs either by phone or smartphone app, is also linking drivers with passengers, so would it be considered a taxi brokerage, too?

Wright replied that the restaurant staffer is not being paid to hail the cab, unlike Uber, who receives remuneration for its work.

Uber’s lawyer Julie Rosenthal began her arguments late Monday, saying that the city’s regulatory scheme is triggered by accepting calls or requests for rides.

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Because Uber, the company, doesn’t accept calls, it doesn’t trigger the licensing scheme, she said. “The provision of the municipal code has not kept up with new technology,” she said. “It is not for the court to amend the municipal code. It’s for the legislators.”

Uber has consistently argued it is not a taxi company, but rather a technology company and has therefore refused to apply for the brokerage licence.

Only last month, with the court hearing looming and Mayor Tory calling on all parties to find a way to coexist, did Uber file an application, which is still under review, for a brokerage licence.

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