PRESENT: Madam Prothonotary Milczynski
BETWEEN:
JAZZ AIR LP
Applicant
and
TORONTOPORT AUTHORITY
Respondent
REASONS FOR ORDER AND ORDER
[1] This motion, dated April 19, 2006, on behalf of City Centre Aviation Ltd., Regco Holdings Inc., Porter Airlines Inc and Robert J. Deluce, (the Deluce Parties) is for an Order pursuant to Rule 109 of the Federal Courts Rules granting the Deluce Parties leave to intervene in these proceedings with rights to:
(a) receive notice and service of all pleadings, proceedings and productions;
(b) introduce evidence and cross-examine;
(c) provide written and oral submissions;
(d) appeal; and
(e) participate in such further or other way as counsel may request and this Honourable Court may allow.
Nature of Proceeding
[2] This proceeding is an application for judicial review commenced by Jazz Air LP (Jazz) on March 9, 2006 regarding a number of decisions and acts of the Toronto Port Authority (TPA). Generally, these decisions and acts that are under review, raise the issue of whether the TPA acted in excess of its statutory jurisdiction under the Canada Marine Act in its dealings with Jazz and in its dealings with a prospective competitor of Jazz, one of the Deluce Parties: Porter Airlines Inc., all in respect of the operation of the Toronto City Centre Airport.
[3] Jazz pleads that the TPA has restricted and threatened to eliminate its access to and use of the Toronto City Centre Airport; discriminatorily denied them any access to space for passenger facilities; discouraged or precluded fair, reasonable and competitive access by airline users and/or conducted its affairs in a manner that has precluded accommodation of competing commercial carrier operations. Jazz further alleges that the decisions and acts of the TPA violate the Competition Act insofar as the TPA entered into agreements with Porter Airlines 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.
[4] With respect to the relief sought by Jazz, aside from declaratory relief, Jazz seeks to set aside any acts or decisions of the TPA that the Court determines have been made in excess of its jurisdiction, in restraint of trade or in breach of its obligations to act fairly, reasonably and in good faith. These acts and decisions, to the extent they are found to be ultra vires or in breach of the Competition Act and are set aside, would necessarily have an impact on the operation of the Toronto City Centre Airport and on the Deluce Parties, and it is on this basis that they seek leave to intervene.
Rule 303
[5] The application for judicial review names only the Toronto Port Authority as a respondent. Rule 303 of the Federal Courts Rules, however, provides that an applicant shall name as a respondent, every person who is directly affected by the order sought in the application, other than the tribunal, board or commission in respect of which the application is brought. In this respect, on the hearing of the motion, I have had the benefit of submissions of Jazz, and the Deluce Parties, and also those of the Attorney General of Canada, and the TPA. There seemed to be a consensus at the end of the day that as the Deluce Parties would be directly affected by at least some part, if not all of the order sought in the application for judicial review, the Deluce Parties ought to be named respondents in the application. With respect to the continued participation of the TPA, the TPA requested, in accordance with Rule 303, that it be removed from the proceeding at this time, and that the style of cause be amended accordingly.
[6] In light of the requirements of Rule 303, and upon considering the submissions of counsel at the hearing, the motion to add the DeLuce Parties as intervenors has been essentially superceded by the effort to ensure the naming of the proper respondents as at the commencement of the proceeding - hence the Order below. It is clear under Rule 303 that the Deluce Parties should be named respondents and that the TPA ought not to have been named. However, it is necessary to make clear that this Order does not preclude any further motions in respect of the form or substance of the notice of application for judicial review, or in respect of any person who might seek to be added as a party or intervenor to this proceeding.
ORDER
THIS COURT ORDERS that
1. The motion of the Centre Aviation Ltd., REGCO Holdings Inc., Porter Airlines Inc., and Robert J. Deluce for leave to intervene is dismissed.
2. Centre Aviation Ltd., REGCO Holdings Inc., Porter Airlines Inc., and Robert J. Deluce are added as Respondents to this Application.
3. The Toronto Port Authority is removed as a Respondent to this Application, and the style of cause amended accordingly.
4. Costs of this motion are reserved to be dealt with on May 2, 2006.
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-431-06
STYLE OF CAUSE: JAZZ AIR LP v. TORONTO PORT AUTHORITY
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: April 24, 2006
APPEARANCES:
Peter Jervis
Brian Radnoff FOR THE APPLICANT
Colleen Shannon
David Scott
Robert Armstrong
Susan Rothfels FOR THE INTERVENER
Karen Lovell FOR THE DEPUTY ATTORNEY
GENERAL
SOLICITORS OF RECORD:
Lerners LLP
Borden, Ladner, Gervais LLP
Toronto, ON FOR THE RESPONDENT
Ogilvy Renault LLP
Toronto, ON FOR THE INTERVENER