Air Canada v. Toronto Port Authority et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Létourneau, Dawson and Stratas, JJ.A.
• Citation: (2011), 426 N.R. 131 (FCA),2011 FCA 347
• Date: 06 June 2011

Air Can. v. Port Authority (2011), 426 N.R. 131 (FCA)

MLB headnote and full text

Temp. Cite: [2012] N.R. TBEd. JA.004

Air Canada (appellant) v. Toronto Port Authority and Porter Airlines Inc. (respondents)

(A-355-10; 2011 FCA 347)

Indexed As: Air Canada v. Toronto Port Authority et al.

Federal Court of Appeal

Létourneau, Dawson and Stratas, JJ.A.

December 12, 2011.

Summary:

Air Canada brought two applications for judicial review in response to two bulletins issued by the Toronto Port Authority (TPA) concerning the Billy Bishop Toronto City Airport (the City Airport). The TPA managed and operated the City Airport.

The Federal Court, in a decision reported at 371 F.T.R. 247, dismissed the applications on a number of grounds. Three of those grounds and rulings on them were as follows: (1) The TPA's bulletins and its conduct described in the bulletins were not susceptible to judicial review. The matters did not trigger rights on the part of Air Canada to bring a judicial review; (2) In issuing the bulletins and in engaging in the conduct described in the bulletins, the TPA was not acting as a "federal board, commission or other tribunal." Accordingly, judicial review was not available under the Federal Courts Act. The TPA's conduct was private in nature, not public; and (3) Air Canada failed to establish that the bulletins and the conduct described in them offended duties of procedural fairness, were unreasonable, or were motivated by an improper purpose. Air Canada appealed.

The Federal Court of Appeal dismissed the appeal. Each of the above three grounds was fatal to the applications for judicial review.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - An applications judge dismissed two applications for judicial review brought by Air Canada in response to two bulletins issued by the Toronto Port Authority (TPA) - The TPA was not acting as a "federal board, commission or other tribunal" when it engaged in the conduct described in the bulletins - Accordingly, judicial review was not available under the Federal Courts Act - The TPA's conduct was private in nature, not public - Air Canada appealed - In determining the public-private issue, the Federal Court of Appeal stated that all of the circumstances had to be weighed - The court set out a number of factors relevant to the determination whether a matter was coloured with a public element, flavour or character sufficient to bring it within the purview of public law - Whether or not any one factor or a combination of particular factors tipped the balance and made a matter "public" depended on the facts of the case and the overall impression registered upon the court - See paragraphs 50 to 60.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - An applications judge dismissed two applications for judicial review brought by Air Canada in response to two bulletins issued by the Toronto Port Authority (TPA) concerning the Billy Bishop Toronto City Airport (the City Airport) - The TPA managed and operated the City Airport - The applications judge ruled that the TPA was not acting as a "federal board, commission or other tribunal" when it engaged in the conduct described in the bulletins - Accordingly, judicial review was not available under the Federal Courts Act - The TPA's conduct was private in nature, not public - Air Canada appealed - The Federal Court of Appeal concluded that the matters set out in the bulletins were private in nature - While no one factor was determinative, there were several factors in this case that supported that conclusion - In engaging in the conduct described in the bulletins, the TPA was not acting in a public capacity, as that was understood in the jurisprudence - Therefore, judicial review did not lie in those circumstances - See paragraphs 61 to 81.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - An applications judge dismissed an application for judicial review brought by Air Canada in response to a bulletin issued by the Toronto Port Authority (TPA) concerning the Billy Bishop Toronto City Airport - The bulletin was entitled "TPA announces capacity assessment results for Billy Bishop Toronto City Airport, begins accepting formal carrier proposals" - The application sought judicial review of the "decision ... of the Toronto Port Authority ... announcing a process ... through which it intends to award slots" at the City Airport - Air Canada's grounds focussed on the TPA's alleged bias in favour of Porter Airlines Inc. - The Federal Court of Appeal held that the bulletin and the matters described in it were not the proper subject of judicial review - If the matters described in the bulletin were set aside, the pre-existing allocation of takeoff and landing slots to Porter (the matter that was the real focus of Air Canada's complaint) would remain - Therefore, the bulletin and the matters described in it did not affect Air Canada's legal rights, impose legal obligations, or cause Air Canada prejudicial effects - See paragraphs 31 to 37.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - An applications judge dismissed an application for judicial review brought by Air Canada in response to a bulletin issued by the Toronto Port Authority (TPA) - The bulletin was entitled "Toronto Port Authority issues formal Request for Proposals for additional carriers at Billy Bishop Toronto City Airport" - The application sought judicial review of the "decision ... of the Toronto Port Authority ... announcing a Request for Proposals process ... to allocate slots and otherwise grant access to commercial carriers seeking access" to the City Airport - Air Canada's grounds focussed on the TPA's alleged bias in favour of Porter Airlines Inc. - The Federal Court of Appeal held that the notice of application did not place before the Federal Court any matter susceptible to review - Air Canada was aware of the allocation of takeoff and landing slots to Porter, set out in Porter's 2010 Commercial Carrier Operating Agreement - The bulletin and the conduct described in it did not mention or allude to that agreement - The notice of application did not seek review of the TPA's decision to enter into that agreement - Therefore, the notice of application did not attack any matter that affected Air Canada's legal rights, impose legal obligations, or cause Air Canada prejudicial effects - See paragraphs 38 to 43.

Administrative Law - Topic 3354

Judicial review - Practice - Application - General - The Federal Court of Appeal stated that it would be incorrect to say that there had to be a "decision" or an "order" before any sort of judicial review could be brought - "Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by 'the matter in respect of which relief is sought.' A 'matter' that can be subject of judicial review includes not only a 'decision or order,' but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act ... Subsection 18.1(3) sheds further light on this, referring to relief for an 'act or thing,' a failure, refusal or delay to do an 'act or thing,' a 'decision,' an 'order' and a 'proceeding.' Finally, the rules that govern applications for judicial review apply to 'applications for judicial review of administrative action,' not just applications for judicial review of 'decisions or orders': Rule 300 of the Federal Courts Rules. As far as 'decision' or 'orders' are concerned, the only requirement is that any application for judicial review of them must be made within 30 days after they were first communicated: subsection 18.1(2) of the Federal Courts Act" - See paragraphs 23 to 25.

Administrative Law - Topic 3354

Judicial review - Practice - Application - General - Air Canada brought two applications for judicial review in response to two bulletins issued by the Toronto Port Authority (TPA) concerning the Billy Bishop Toronto City Airport - The applications judge held, inter alia, that no "decision" or "order" was present before him because the bulletins "do not determine anything" - Air Canada appealed - The Federal Court of Appeal agreed with the application judge's holding - In issuing the bulletins and in engaging in the conduct described in the bulletins, the TPA did nothing to trigger rights on the part of Air Canada to bring a judicial review - The jurisprudence recognized many situations where, by its nature or substance, an administrative body's conduct did not trigger rights to bring a judicial review - One such situation was where the conduct attacked in an application for judicial review failed to affect legal rights, impose legal obligations, or cause prejudicial effects - See paragraphs 27 to 30.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - [See first Administrative Law - Topic 3203 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - [See second Administrative Law - Topic 3354 ].

Cases Noticed:

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 5].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), refd to. [para. 24].

Irving Shipbuilding Inc. et al. v. Canada (Attorney General) et al., [2010] 2 F.C.R. 488; 389 N.R. 72; 2009 FCA 116, refd to. [para. 29].

Democracy Watch v. Conflict of Interest and Ethics Commissioner et al. (2009), 387 N.R. 365; 86 Admin. L.R. (4th) 149; 2009 FCA 15, refd to. [para. 29].

1099065 Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 375 N.R. 368; 2008 FCA 47, refd to. [para. 30].

Philipps v. Librarian and Archivist of Canada, [2007] 4 F.C.R. 11; 303 F.T.R. 84; 2006 FC 1378, refd to. [para. 30].

Rothmans, Benson & Hedges Inc. v. Minister of National Revenue, [1998] 2 C.T.C. 176; 148 F.T.R. 3 (T.D.), refd to. [para. 30].

Anisman v. Canada Border Services Agency et al. (2010), 400 N.R. 137; 2010 FCA 52, refd to. [para. 47].

DRL Vacations Ltd. v. Halifax Port Authority, [2006] 3 F.C.R. 516; 274 F.T.R. 293; 2005 FC 860, refd to. [para. 50].

Halterm Ltd. v. Halifax Port Authority (2000), 184 F.T.R. 16 (T.D.), refd to. [para. 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 53].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 55].

R. v. Criminal Injuries Compensation Board, Ex. p. Lain, [1967] 2 Q.B. 864, refd to. [para. 55].

Cairns et al. v. Farm Credit Corp. et al., [1992] 2 F.C. 115; 49 F.T.R. 308 (T.D.), refd to. [para. 60].

Jackson v. Canada (Attorney General) (1997), 141 F.T.R. 1 (T.D.), refd to. [para. 60].

Peace Hills Trust Co. v. Moccasin et al. (2005), 281 F.T.R. 201; 2005 FC 1364, refd to. [para. 60].

Scheerer v. Waldbillig et al. (2006), 208 O.A.C. 29; 265 D.L.R.(4th) 749 (Div. Ct.), refd to. [para. 60].

Aeric Inc. v. Chairman of the Board of Directors, Canada Post Corp., [1985] 1 F.C. 127; 56 N.R. 289 (F.C.A.), refd to. [para. 60].

Regina (Beer (trading as Hammer Trout Farm)) v. Hampshire Farmer's Markets Ltd., [2004] 1 W.L.R. 233 (Eng. C.A.), refd to. [para. 60].

McDonald v. Anishinabek Police Service et al. (2006), 218 O.A.C. 78; 83 O.R.(3d) 132 (Div. Ct.), refd to. [para. 60].

Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al., [2009] 2 F.C.R. 267; 331 F.T.R. 87; 2008 FC 812, refd to. [para. 60].

Onuschak v. Canadian Society of Immigration Consultants et al. (2009), 357 F.T.R. 22; 2009 F.C. 1135, refd to. [para. 60].

Certified General Accountants' Association of Canada v. Canadian Public Accountability Board (2008), 233 O.A.C. 129 (Div. Ct.), refd to. [para. 60].

R. v. Panel on Take-overs & Mergers; Ex parte Datafin plc, [1987] Q.B. 815 (C.A.), refd to. [para. 60].

Volker Stevin N.W.T. ('92) Ltd. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 97; 22 Admin. L.R.(2d) 251 (N.W.T.C.A.), refd to. [para. 60].

R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan, [1993] 2 All E.R. 853 (C.A.), refd to. [para. 60].

Ripley v. Investment Dealers Association of Canada et al. (1990), 99 N.S.R.(2d) 338; 270 A.P.R. 338 (T.D.), refd to. [para. 60].

Masters v. Ontario (1993), 68 O.A.C. 116; 16 O.R.(3d) 439 (Div. Ct.), refd to. [para. 60].

Canadian Centre for Ethics in Sport et al. v. Russell, [2007] O.T.C. Uned. C16 (S.C.), refd to. [para. 60].

Chyz v. Appraisal Institute of Canada (1984), 36 Sask.R. 266 (Q.B.), refd to. [para. 60].

McGregor v. Canada Employment and Immigration Commission (1989), 98 N.R. 397; 57 D.L.R.(4th) 317 (F.C.A.), refd to. [para. 71].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18(1) [para. 45]; sect. 18.1 [paras. 24, 45].

Authors and Works Noticed:

Craig, Paul, Public Law and Control Over Private Power - see Taggart, Michael.

Taggart, Michael, The Province of Administrative Law (1997), p. 196 [para. 60].

Counsel:

Neil Finkelstein, Sarit E. Batner, Brandon Kain and Byron Shaw, for the appellant;

Peter K. Doody, Colleen M. Shannon and Christaan A. Jordaan, for the respondent, Toronto Port Authority;

Robert L. Armstrong, Orestes Pasparakis, Greg Sheahan and Nicholas Daube, for the respondent, Porter Airlines Inc.

Solicitors of Record:

McCarthy Tétrault LLP, Toronto, Ontario, for the appellant;

Borden Ladner Gervais LLP, Ottawa, Ontario, for the respondent, Toronto Port Authority;

Norton Rose, Toronto, Ontario, for the respondent, Porter Airlines Inc.

This appeal was heard at Toronto, Ontario, on June 6, 2011, before Létourneau, Dawson and Stratas, JJ.A., of the Federal Court of Appeal. In reasons written by Stratas, J.A., the Court of Appeal delivered the following judgment at Ottawa, Ontario, dated December 12, 2011.