BETWEEN:
and
TORONTO PORT AUTHORITY, CITY CENTRE AVIATION LTD., REGCO HOLDINGS INC., PORTER AIRLINES INC. and ROBERT J. DELUCE
REASONS FOR ORDER
[1] This appeal, brought by the applicant, seeks to set aside the decision of Prothonotary Martha Milcynski dated June 6, 2006 in which she converted their application for judicial review filed with this Court on March 9, 2006 into an action. In the same Order, she also vacated September 5 and 6, 2006, dates she had set aside for the hearing of the application.
[2] In this appeal the relief sought is :
a) setting aside the Order of Prothonotary Milcynski dated June 6, 2006
b) in the alternative, an Order allowing Jazz Air LP to file an Amended Application for Judicial Review non pro tunc; and
c) an Order restoring the September 5 and 6, 2006 dates scheduled for the hearing of Jazz Air LP's judicial review application.
[3] Since the matter of an order allowing Jazz Air LP to file an Amended Application for Judicial Review non pro tunc was not entertained nor decided by the Prothonotary on June 6, 2006, this issue will not be a matter of concern in the present appeal.
[4] Prior to the matter being brought before this court, Jazz Air LP prepared a Statement of Claim dated February 23, 2006 which was filed with the Ontario Court. In a motion brought in the Ontario Court action, on February 24, 2006, Jazz Air LP sought a mandatory injunction against the respondents in which it raised the issue of a lease agreement which they claim existed between them and the respondents for the use of airport facilities at the Toronto Island Airport. The matter was heard and disposed of on February 27, 2006. The motion was dismissed but, in his endorsement, the Ontario Court Justice wrote:
"Based on the terms of the lease and the dealings between the parties, the lease would probably be determined to be a month to month lease that was terminable on a one month's notice which was the notice given."
[5] In the same endorsement, the Ontario Court referred to an allegation of conspiracy directed by the defendants as against the plaintiff specifically dealing with respect to the terms of the plaintiff's occupation of their space at the Toronto Island Airport.
[6] Subsequent to the initiation of proceedings in this Court, the respondents, except for the Toronto Port Authority, brought a motion in the Ontario Superior Court of Justice seeking to transfer the matter to the Commercial List. The application was not opposed by Jazz Air LP. On June 13, 2006, the Court indicated as follows:
"This is a complex commercial dispute and the matter is suitable for the Commercial List."
[7] The application for judicial review which initiated these proceedings was commenced in the Federal Court on March 9, 2006, shortly after the dismissal of an application for injunction in the Ontario Superior Court. In its application for judicial review Jazz Air LP was seeking relief in respect of the following acts and decisions of the Toronto Port Authority which they allege have:
(i) acted in excess of the statutory jurisdiction granted to it pursuant to the Canada Marine Act, and made decisions and acted in a manner that was ultra vires its jurisdiction and acting contrary to law by:
(a) severely restricting and threatening to eliminate the applicant's access to and use of the Toronto City Centre Airport;
(b) discriminatorily denying the applicant any access to space for passenger facilities at the Toronto City Centre Airport;
(c) discouraging or precluding fair, reasonable and competitive access by airline users of the Toronto City Centre Airport; and/or
(d) conducting its affairs in a manner that has precluded accommodation of competing commercial carrier operations at the TorontoCentre Airport on a competitive or viable basis.
(ii) acted in a manner that was and is in restraint of trade and in violation of the Competition Act by entering into agreements with Porter Airline Inc., and its related companies to provide them with a monopoly or dominant position in the commercial scheduled airline business conducted in the Toronto City Centre Airport market; and
(iii) breached its common law and statutory obligations to act fairly, reasonably and in good faith in the exercise of its statutory mandate to manage the Toronto City Centre Airport in the best interests of the public and the community by discriminating against the applicant, by conducting its affairs in a manner that precluded accommodation of competing commercial carriers' operations on a competitive and viable basis, and by pursuing a discriminatory course of action intended to and providing a monopoly or dominant position to Porter Airlines Inc. and its related companies in the Toronto City Centre Airport market.
2. The applicant makes application for:
(i) a declaration that the Toronto Port Authority has acted in a manner, and made decisions in respect of the applicant, that are in excess of its statutory jurisdiction and are ultra vires, in restraint of trade and/or contrary to the Competition Act, and/or has breached its obligations to act fairly, reasonably and in good faith;
(ii) an order setting aside any acts or decisions of the Toronto Port Authority that the Court determines have been made in excess of its jurisdiction and are ultra vires, in restraint of trade or have been made in breach of its obligations to act fairly, reasonably and in good faith;
(iii) an order requiring the Toronto Port Authority to provide adequate alternative space and/or facilities at the Toronto Island Airport to the applicant that can be used for scheduled commercial passenger and aircraft processing and requiring the respondent to provide the applicant with fair, reasonable and equitable use of and access to the Toronto Island Airport;
(iv) such further and other mandatory or injunctive relief as may seem just and necessary to this Honourable Court."
[8] An ex parte application was brought by Jazz Air LP seeking an expedited hearing date. This was ordered May 3, 2006. Subsequently, the respondent Toronto Port Authority brought an application seeking an extension of time for productions as well as a challenge to the application for judicial review; a further motion was brought by City Centre Aviation Ltd., Regco Holdins Inc., Porter Airlines Inc. and Robert J. Deluce seeking the right to intervene in the proceedings. By Order dated June 1st, 2006 these parties were added as respondents to the application and the style of cause was amended accordingly. The parties who sought to join in this litigation and which were added are all somewhat related in business and may sometimes be referred to as the Deluce parties.
[9] The circumstances generally surrounding this dispute arise out of a long-term lease granted some 16 years ago by the Toronto Port Authority to City Centre Aviation Ltd. (CCAL) as well as another tenant, Stol Port Corporation, both of which are fixed operators at the Toronto Island Airport. For approximately 14 years CCAL leased space to Jazz Air LP in one of the two buildings available to provide passenger facilities. It is alleged that Regco Holdings Inc. entered into a long-term agreement; they, in turn, would have granted exclusive authority to Porter Airlines Inc. and allocated most available slots at the Toronto Island Airport to Porter Airlines Inc. Jazz Air LP, on 28 days' notice, was evicted from passenger facilities by CCAL as of February 28, 2006.
[10] A motion brought by the parties for an Order pursuant to section 18.4(1) of the Federal Courts Act sought that the judicial review be treated and proceed as an action. After careful consideration of all submissions as well as lengthy affidavits and numerous documents produced, the Prothonotary determined that the judicial review should be converted into an action and, in the same Order, she vacated the hearing dates of September 5 and 6, 2006.
[11] In summary, the Prothonotary wrote that Jazz Air LP were seeking, by way of a single application for judicial review, to challenge a number of decisions and actions of the Toronto Port Authority regarding its development and operation of the Toronto City Airport on the Island of Toronto. She found that some of these decisions and actions may or may not be related but comprised a "course of conduct" spanned over a number of years and involving some speculations on the applicant's part as to how many of the decisions or actions may be involved in the conduct complained of. She further noted allegations and motivations alleged by Jazz Air LP seemed to indicate bad faith in dealing with the Toronto Port Authority; she appeared to imply that there was an allegation of conspiracy between the Port Authority and the Deluce parties. She concluded that a disposition of the issues raised could not proceed in the summary fashion contemplated; and, further, they did not lend themselves to be severed into separate self-contained allegations even if heard together. She went on to note that in essence this was a complex commercial dispute involving a series of decisions and transactions with serious allegations of conspiracy and that the proper determination of the dispute was better suited for a trial. As indicated previously, it should be noted that a number of the respondent parties moved successfully before the Ontario Superior Court of Justice to have the matter transferred to the Commercial List. This lends weight to the determination of the Prothonotary that this matter was a "complex commercial dispute".
[12] The Prothonotary, dealing with rule 302 of the Federal Courts Rules, where a judicial review application should be limited to a single decision, determined that the conduct and actions being challenged were made at different times and involved different considerations. She also refers to the fact that a number of decisions being challenged were between the applicant and the Toronto Port Authority as well as actions and decisions taken by the Port Authority in dealing with the Deluce parties. She concluded that the decisions were not properly identified, that the number of decisions sought to be reviewed were indeterminate and, as a result, that there was lack of complete and concise description of the grounds for review.
[13] The Prothonotary then went on to consider the conversion of the application into an action and determined that the Court in its discretion, where it deems appropriate, may direct that an application for judicial review be converted into an action. She outlined the factors to be considered:
· Whether the determination of the issues require viva voce evidence
· Whether there is a multiplicity of proceedings that should be managed through the trial process
· Whether the matters in dispute are such that there determination is better suited to the process available in a trial rather than an application
[14] Dealing with the first feature, the Prothonotary was satisfied that there were allegations of conspiracy and bad faith and, in order to properly adjudicate these allegations, she found that the Court should have an opportunity to assess the credibility of witnesses and that viva voce evidence was essential.
[15] Considering the multiplicity of proceedings, she noted that Jazz Air LP was attacking a number of decisions that they alleged were made in bad faith and concluded that these allegations could not be dealt with summarily in a Federal Court application for judicial review.
[16] The Prothonotary considered this dispute to be a complex commercial matter and felt that it involved a long history of relationship between the Toronto Port Authority and Jazz Air LP. She noted that to arrive at a proper determination of these issues and to ensure fairness to the parties an action with full production and discovery was required.
[17] She then went on to comment that the application was unwieldy, complex and without the procedural protection of an action. She was of the view that the issues could not be satisfactorily established or weighed through consideration of affidavit evidence. She was satisfied that there was a need for viva voce evidence to allow the Court full grasp of the evidence and the opportunity to assess the veracity of the allegations that have been made.
[18] The applicant challenges the decision on many grounds. It alleges that the judicial review application relates to a same course of conduct, that all decisions were inter-related and should have been allowed to proceed; that the Prothonotary wrongfully relied almost exclusively in her reasoning that the judicial review application was centered on a conspiracy between the Toronto Port Authority and the respondents.
[19] The applicant goes on to suggest that, having spent 16 years developing a customer base and goodwill at the Toronto Island Airport, they would be seriously harmed; that the Toronto Port Authority seemed to be attempting to facilitate the monopoly or a dominant position for Porter Airlines Inc. which intends to commence service at the Toronto City Airport in September 2006 and, as a result, the Toronto Port Authority appears to have granted Porter Airlines an exclusivity over operations of the Toronto Island Airport.
[20] It suggests that the Prothonotary should not have accepted the affidavit evidence filed in support of the application to convert the matter into an action; that in fact, and to the contrary, this evidence was supportive of the proposition that though there were many and various allegations in the declaration, there was sufficient relationship to proceed; that the multiple decisions could be reviewed in a single application; that she misinterpreted the matter in principle and should not have exercised her discretion; that her reasoning did not meet with the overriding principle that one should only convert in the clearest and exceptional circumstances; and that there was not sufficient evidence to support her determination.
[21] They further submit that the Prothonotary erred in determining that in fact that the matter gave rise to a complex commercial dispute and was clearly wrong in finding that the application was not in compliance with Rule 302 of the Federal Courts Rules.
[22] Before pursuing the matter any further, it should be pointed out that this initial application for judicial review brought by the applicant concerned only the Toronto Port Authority. The other parties were joined later and were not the subject of the remedies being sought by Jazz Air LP nor were there any implication directed to them in the initial declaration. It is worthy of note that Jazz Air LP did not even have a tenant contractual relationship with the Toronto Port Authority; that they became tenants of the respondent CCAL through their own predecessor lessees, Air Ontario, possession of which they took over in 1994. The initial lease under which Jazz Air LP operated expired in November 1999 and CCAL extended their tenancy for a five-year period, to November 2004. They continued to occupy as over holding tenants until given notice to vacate at the end of February 2006. This matter caused Jazz Air LP to institute proceedings in the Ontario Court in which they unsuccessfully challenged the notice to vacate.
[23] There are two underlying principles here that cannot be overcome by the applicant. Rule 302 of the Federal Courts Rules reads as follows:
| 302. Limited to single order - Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. |
302. Limites - Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne peut porter que sur une seule ordonnance pour laquelle une réparation est demandée. |
[24] Further, subsections 18(1) and 18(3) of the Federal Courts Act establish that a single, uniform remedy is entitled to be pursued in an application for judicial review. Power is granted under subsection 18.4(2) allowing the Federal Court to exercise discretion to determine whether the application should be converted as an action.
[25] It should further be noted that the practice of the Federal Court to entertain relief and allow the proceeding to be summarily determined is not customarily afforded unless the proceeding has been commenced within 30 days of the decision or action complained of.
[26] When were the actions or decisions complained of rendered or determined? What gave rise to this dispute that could be considered an administrative decision?
[27] A cursory review of the wording of the application supports without a doubt the determination and the findings made by the Prothonotary.
[28] The applicant alleges no specific decision or conduct that is being challenged. It seeks various terms of relief including a determination that the Toronto Port Authority acted beyond its statutory jurisdiction and that decisions made by them are ultra vires. It goes on to suggest that the Toronto Port Authority was discriminatory in dealing with the applicant; that they threatened to eliminate its access to the Toronto Island Airport; that they failed to accommodate competing airlines in violation of the Competition Act by entering into agreements with Porter Airlines Inc.; that they breached their common law and statutory obligation to act fairly. May the Court point out that there is no legal or contractual relationship in existence between the Toronto Port Authority and Porter airlines Inc.
[29] The applicant then goes on in its declaration seeking a determination by this Court (1) that the Toronto Port Authority acted in excess of its statutory jurisdiction; (2) acted in restraint of trade and in violation to the Competition Act; and (3) breached its obligation to act fairly. In summary, it wants this Court to set aside any actions and decisions of the Toronto Port Authority that were made in excess of its jurisdiction. As pointed out by the respondents, such actions and decisions go back at least 16 years in its dealing with the applicant.
[30] It further suggests that the Court order the Toronto Port Authority to provide adequate alternative space and/or facilities at the Toronto Island Airport in order to allow the applicant to continue to provide aircraft passenger service. What decision, if any, could give rise to such relief wherein the Court could determine that an obligation exists between the parties and order the Toronto Port Authority to provide Jazz Air LP with an opportunity to provide service.
[31] A simple reading of Rule 302 would not permit the Court to proceed with this application as a matter proper for judicial review. There is no single order in respect of which relief is sought.
[32] A motions judge hearing an appeal from a decision rendered by a prothonotary is guided by the principles outlined in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425, that discretionary orders of prothonotaries ought not to be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of the discretion was based upon a wrong principle or misapprehension of the facts, or they raise questions vital to the final issue of the case.
[33] In Drapeau v. Canada(Minister of National Defence)179 N.R. 298, a matter where a trial judge exercised his or her discretion to convert a judicial review application into an action, the Federal Court of appeal wrote
"...dealt with different circumstances and should not be read as limiting a motions judge's discretion in cases where conversion is sought on grounds other than alleged evidentiary requirements. In our view, s. 18.4(2) places no limit on the considerations which may properly be taken into account in deciding whether or not to allow a judicial review application to be converted into an action."
[34] None of the submissions raised by this applicant has convinced me that they have any merit or give rise to any doubt in my mind that the Prothonotary's decision was not only correct in law but that her understanding of the facts are reasonable and supported by the evidence. There is absolutely no issue that is clearly wrong and her exercise of discretion was based on sound principle. As the Prothonotary so ably wrote:
"... the decisions are not properly identified, the number of the decisions sought to be reviewed is indeterminate, and that there is consequently, a lack of a complete and concise description or statement of the grounds for review."
[35] This appeal is dismissed. Costs to the respondents.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-431-06
STYLE OF CAUSE: JAZZ AIR LP v. TORONTO PORT AUTHORITY, CITY CENTRE AVIATION LTD., REGCO HOLDINGS INC., PORTER AIRLINES INC. and ROBERT J. DELUCE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 28, 2006
REASONS FOR ORDER: ROULEAU D.J.
APPEARANCES:
SOLICITORS OF RECORD: