Toronto, Ontario, June 1, 2006
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
JAZZ AIR LP
Applicant
and
CITY CENTRE AVIATION LTD., REGCO HOLDINGS INC.,
PORTER AIRLINES INC. and ROBERT J. DELUCE
Respondents
REASONS FOR ORDER AND ORDER
These reasons follow my order issued orally on May 19, 2006, and are a reconsideration of my order issued orally on April 24, 2006, with written reasons issued on May 2, 2006.
At the hearing of the motion on April 24, 2006, on behalf of City Centre Aviation Ltd., Regco Holdings Inc., Porter Airlines Inc and Robert J. Deluce, (the Deluce Parties) for an Order pursuant to Rule 109 of the Federal Courts Rules granting the Deluce Parties leave to intervene in these proceedings, a question arose as to whether, pursuant to Rule 303 of the Federal Courts Rules, the Toronto Port Authority was properly named as a respondent. The Toronto Port Authority was removed as a respondent. Subsequently, however, and in the context of another proceeding, the following provision came to my attention which I felt necessary to bring to the attention of the parties:
CanadaMarine Act- Subsection 45(2)
A civil, criminal or administrative action or proceeding with respect to any federal real property or federal immovable that a port authority manages, or any property that it holds, or with respect to any act or omission occurring on the property, shall be taken by or against the port authority and not by or against the Crown.
I am grateful for the submissions made on behalf of Jazz, the Toronto Port Authority and the Deluce Parties on whether, in light of the above provision, my earlier ruling on the Toronto Port Authority should be varied. It is clear, having regard to subsection 45(2) of the Canada Marine Act, that on the narrow issue of party status, the Toronto Port Authority is a proper party to this proceeding.
The Toronto Port Authority was established as the successor to the Toronto Harbour Commission by letters patent issued on June 8, 1999 by the Minister of Transport pursuant to section 12 of the Canada Marine Act.
No property within the control of the Toronto Port Authority is federal real property - property is in the name of the Toronto Port Authority and is held by the Toronto Port Authority pursuant to its letters patent. Sections 44 through 48 of the Canada Marine Act deal with property and the responsibilities of a port authority with respect to any property it manages, occupies or holds, whether federal real property or property held in its own name. Port authorities are required to discharge all obligations and liabilities with respect to all such property. They are also required to develop land-use plans, including objectives and policies for the "physical development of the real property".
This application for judicial review identifies and challenges a number of actions and/or decisions made by the Toronto Port Authority that the Applicant Jazz Air LP states comprise a course of conduct. The Toronto Port Authority's actions and/or decisions all relate to the operation of the Toronto City Centre Airport and the Authority's commercial dealings with Jazz Air LP and the Deluce Parties in respect of the airport and its facilities.
With respect to subsection 45(2) of the Canada Marine Act, the City Centre Airport is on land held and managed by the Toronto Port Authority. The refusal to lease and or provide facilities to Jazz for it to operate its passenger airline services on that land clearly falls within subsection 45(2).
The other decisions being challenged, namely:
- the Toronto Port Authority's insistence on a particular form of commercial carrier operating agreement (the "CCOA") for Jazz Air;
- its imposition of an August 31, 2006 deadline for Jazz to accept the proposed CCOA; and
- the decisions and actions taken by the Toronto Port Authority relating to the Deluce Parties in respect of its proposed passenger airline service, are all also in respect of, or relate to the use of land held by the Toronto Port Authority, and the conditions, restrictions or terms for the operation of one or more airlines at the Toronto City Centre Airport.
Accordingly, this application is a proceeding with respect to the property the Toronto Port Authority holds, or with respect to an act or omission occurring on the property held by the Authority, all within the meaning of subsection 45(2) of the Canada Marine Act. The Toronto Port Authority is properly a Respondent to this proceeding.
This reconsideration of the party status of the Toronto Port Authority does not affect the party status of the Deluce Parties who were granted leave to participate as Respondents in light of their being directly affected by some of the relief sought by the Applicant.
ORDER
THIS COURT ORDERS that:
1. Centre Aviation Ltd., REGCO Holdings Inc., Porter Airlines Inc., and Robert J. Deluce are added as Respondents to this Application.
2. The Toronto Port Authority shall remain as a Respondent to this Application as originally named.
3. The style of cause is amended accordingly.
4. Costs of the motion are reserved to be dealt with on a subsequent case management conference.
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-431-06
STYLE OF CAUSE: JAZZ AIR LP v. TORONTO PORT AUTHORITY ET. AL.
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Peter Jervis
Brian Radnoff
Earl Cherniak FOR THE APPLICANT
Colleen Shannon
Nur Muhammed-Ally FOR THE RESPONDENT (TPA)
Robert Armstrong
Randy Sutton FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lerners LLP
Borden, Ladner, Gervais LLP
Toronto, ON FOR THE RESPONDENT (TPA)
Ogilvy Renault LLP
Toronto, ON FOR THE RESPONDENT