•-^ARTMENTOF 

BEFORE THE • I-NSPORWION 

DEPARTMENT OF TRANSPORTATION ^tt OPERAIiONS 

WASHINGTON, D.C. 

m MAR ! I A !!: 2'=i 

Application of 

PORTER AIRLINES INC. 

for an exemption pursuant to 49 U.S.C. § 40109 

and a foreign air carrier permit pursuant to 

49U.S.C. §41301 (Canada-U.S.) 

Docket No. OST-2007-27402 

MOTION FOR ISSUANCE OF A 

FOREIGN AIR CARRIER PERMIT 

Communications with respect to this document should be sent to: 

John E. Gillick 

David M. Endersbee 

Zuckert, Scoutt & Rasenberger, L.L.P. 

888 Seventeenth Street, NW 

Washington, DC 20006 

Tel: (202) 973-7939 

Fax: (202) 342-0683 

Email: iegillick(5),zsrlaw.com 

dmendersbee(@,2srlaw.com 

Counsel for Porter Airlines Inc. 

March 11,2011 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Application of 

PORTER AIRLINES INC. 

for an exemption pursuant to 49 U.S.C. § 40109 

and a foreign air carrier permit pursuant to 

49 U.S.C. § 41301 (Canada - U.S.) 

Docket No. OST-2007-27402 

MOTION FOR ISSUANCE OF A 

FOREIGN AIR CARRIER PERMIT 

Porter Airlines Inc. ("Porter") hereby moves the Department of Transportation 

("Department") to make final the tentative findings and conclusions set forth in its October 13, 

2009, Show Cause Order (Order 2009-10-2) and issue the foreign air carrier permit attached to 

that order authorizing Porter to provide scheduled and charter foreign air transportation of 

persons, property and mail between Canada and the United States. Issuance of Porter's foreign 

air carrier permit is fully consistent with the applicable statute (49 U.S.C. § 41302), the 

Department's regulations and, most importantly, the Open Skies Air Transport Agreement 

between Canada and the United States and this permit should, therefore, be issued as soon as 

possible. In support thereof. Porter shows as follows: 

1. As Porter demonstrated in its Consolidated Answer responding to the matters raised 

by Continental Airlines, Inc. ("Continental") and Community Airport Impact Review 

("Community AIR") in their objections to the show cause order (Porter Consolidated Answer at 

2-3), none of the issues raised by either Continental or Community AIR related in any manner 
whatsoever to the Department's tentative findings and conclusions concerning Porter's fitness or 

compliance with the applicable statutory standards. Instead, Continental and Community AIR 

focused their opposition on alleged access issues at the Billy Bishop Toronto City Airport 

("BBTCA") - issues far exceeding the proper focus of a foreign air carrier permit proceeding in 

which a duly designated foreign air carrier seeks to provide service that is clearly provided for in 

an Open Skies bilateral air transport agreement. 

2. As Porter noted in its Consolidated Answer (at 5-7), the Toronto Port Authority 

("TPA") posted a Bulletin on October 16, 2009, in which the Authority invited carriers to 

express their interest in serving the airport and also indicated that a Noise Exposure Forecast 

Contour Study was underway to evaluate the fixture capacity at BBTCA within the prescribed 

requirements and established limits of the 1993 Tripartite Agreement concerning the airport. 

The study was to be completed in December 2009, at which time the TPA would be in a position 

to establish an appropriate limit on the number of operations at the airport, and, based on the 

results of that study, allocate available capacity to U.S. and other air carriers interested in serving 

the airport. See Consolidated Answer at 5-6. 

3. Consistent with that commitment, the TPA announced in a Bulletin issued in late 

December 2009 that it had received a preliminary executive summary outlining the results of the 

updated noise impact study and capacity assessment for the BBTCA consistent with the level of 

daily commercial flights permitted by the 1983 Tripartite Agreement. On February 8, 2010, the 

TPA duly released the results of this comprehensive noise management study prepared by the 

Jacobs Consultancy Canada, Inc. which determined that the maximum number of slots available 

at BBTCA would be a total of 202 upon completion of the new terminal (Exhibit A). On April 

9, 2010, the TPA announced that it had appointed Airport Coordination Limited, an independent 
consultancy firm specializing in demand and capacity assessment and scheduling process 

management, to manage commercial carrier demand and allocate slots for the BBTCA as well as 

issue a formal Request for Proposals for additional commercial airline carriers at BBTCA. 

Lastly, the TPA announced, on June 23, 2010, that Continental' and Air Canada had submitted 

qualifying responses to the RFP, and that ACC had allocated the 90 available BBTCA slots 

among Continental, Air Canada and Porter, with Continental receiving 16 slots. Air Canada 

receiving 30 slots (for a total of 46 slots for the new entrant, alliance partners) and Porter 

receiving 44 slots, with new service to begin as soon as the new terminal is completed at the end 

of 2010. The TPA also indicated that Continental and Air Canada will be required to enter into a 

commercial carrier operating agreement with TPA before they can secure terminal space from 

City Centre Terminal Corporation, TCA's terminal operator, which has the exclusive right and 

contractual obligation to provide commercial carriers with access to its new facility. 

4. Air Canada challenged the December and April "actions" of the TPA in two 

applications for judicial review filed with the Federal Court of Canada. Air Canada v. Toronto 

Port Authority and Porter Airlines Inc., Dockets T-488-10 and T-692-10. A hearing on these 

applicafions was held July 6-8 , 2010, in Vancouver, B.C., and, on July 21, 2010, Justice Roger 

Hughes issued his Judgment, ordering dismissal of both of Air Canada's applications (Exhibit 

B). In his "Reasons for Judgment and Judgment," Justice Hughes found that "TPA's actions 

were within the acceptable range of reasonable actions" (Decision at 73) and that -

It was not unreasonable for TPA to grandfather Porter's existing slots, nor was it 

unreasonable to interpret a "fair" proportion of allocation of new slots to be onehalf of those slots. There is no evidence before me to suggest that TPA and Porter 

were doing anything more than engaging in normal, reasonable commercial 

activity. As I have found, there is no expectation that Air Canada should have in 

' No other U.S. carrier submitted a response to the RFP issued by the TPA. 
some way been consulted during the process. 

* + * 

It is not for this Court to rewrite or set aside what is in reality a commercial 

contract simply because one of the prospective parties believes it should have 

gotten a better deal. 

Decision at 76. Further, Justice Hughes ordered that Air Canada pay costs in the amount 

of $992,671 to Porter and $899,982 to the TPA. 

5. Following this judgment, discussions amongst the parties commenced and a terminal 

lease and operating agreement has been reached with Air Canada to utilize the new facilities at 

BBTCA. See Exhibit C. With its slot allocation and terminal access settled. Air Canada 

aimounced on March 4 the launch of new services fi-om BBTCA, to be operated by its partner 

Sky Regional as Air Canada Express, beginning May 1. Air Canada will offer up to 15 daily 

non-stop flights to Montreal using Dash 8 Q-400 aircraft and has already begun selling fares for 

these flights on its website. See Exhibit D. 

6. In summary, the Toronto Port Authority has consistently acted in a reasonable manner 

in determining the capacity of the BBTCA and allocating the available capacity among the three 

airlines that have expressed a desire to serve the airport, including, in particular. Continental, 

which has been authorized 16 slots that can be used in conjunction with its alliance partner's 30 

slots for a total of 46 slots. Moreover, Air Canada has actually begun selling its new service to 

Montreal from BBTCA. Under these circumstances, the Department should proceed forthwith to 

issue a foreign air carrier permit to Porter at the conclusion of the presidential review process. 

See Joint Application of United Airlines, Inc. and British Midland Airways Ltd., Order 2000-7-27 

(Jul. 24, 2000); Applications of Scandinavian Airlines System and Lufthansa German Airlines, 

Order 99-2-22 (Feb. 22, 1999); Joint Application of American Airlines, Inc. and Canadian 

Airlines International Ltd et. AL, Order 96-7-21 (Jul. 16, 1996) and Application of Air Canada, 
Order 86-9-49 (Sep. 23, 1986). 

WHEREFORE, for the foregoing reasons. Porter Airlines Inc. respectfiilly requests that 

the Department makes final its tentative decision in this proceeding and issue the foreign air 

carrier permit attached to Order 2009-10-2 authorizing Porter to provide scheduled and charter 

foreign air transportation of persons, property and mail between Canada and the United States 

pursuant to the Canada-U.S. Open Skies Air Transport Agreement. 

Respectfully submitted. 

Johk J E. GilHck 

David M. Endersbee 

Zuckert, Scoutt & Rasenberger, L.L.P. 

888 Seventeenth Street, NW 

Washington, DC 20006 

Tel: (202) 973-7939 

Fax: (202) 342-0683 

Email: iegillick(a),zsrlaw.com 

dmendersbee(g),zsrlaw.com 

Counsel for Porter Airlines Inc. 

March 11, 2011 
CERTIFICATE OF SERVICE 

I hereby certify that on this 11th day of March 2011, a copy of the foregoing Motion for 

Issuance of Foreign Air Carrier Permit was served by email on the parties named below: 

R. Bruce Keiner, Jr. 

Lorraine B. Halloway 

Counsel for Continental Airlines 

Crowell & Moring 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

rbkeiner@cro wel 1 .com 

Lhalloway@crowell.com 

Hershel Kamen 

Vice President—International 

and Regulatory Affairs 

Dan Weiss 

Continental Airlines, Inc. 

Government Affairs—8"' Floor 

1600 Smith Street 

Dept. HQSGV 

Houston, TX 77002 

hkamen@coair.com 

dan.weiss@coair.com 

William Freeman 

Chair 

Community AIR 

P.O. Box 81057 

57B Harbour Square 

Toronto, Ontario, Canada 

M5J 2R0 

billfreeman@rogers.com 

info@communityair.org 

Paul Arvanitidis 

Counsellor (Transportation) 

Canadian Embassy 

501 Pennsylvania Avenue, NW 

Washington, DC 20001 

paul.arvanitidis@intemational.gc.ca 

Krishna "Kris" Urs 

Deputy Assistant Secretary for 

Transportation Affairs 

U.S. Department of State 

2201 C Street, N.W., Room 5830 

Washington, D.C. 20520 

urskr@state.gov 

C -

David M. Endersbee 
Exhibit A 

Jacobs Consultancy - Billy Bishop Toronto City Airport Capacity Report 
JACOBS 

CONSULTANCY 

BILLY BISHOP TORONTO CITY AIRJPORT 

CAPACITY REPORT 

February 2010 
JACOBS 

CONSULTANCY 

TABLE OF CONTENTS 

Page 

INTRODUCTION 1 

Noise Constraints 1 

Other Capacity Constraints 1 

DEMAND FORECASTS 2 

Planning Peak Hour 3 

CAPACITY/DEMAND ASSESSMENT 5 

Capacity Update 5 

NEF Constraints 6 

Taxiway/Apron Demands 6 

Passenger Terminal 8 

Air Terminal Demands 11 

Ferry 13 

Ferry Demands 13 

Passenger Transfer Facilities 17 

Ground Access and Curb 17 

TPA OBJECTIVES 18 

BBTCA RULES FOR CAPACITY & SLOT MANAGEMENT 19 

SLOT COORDINATION 20 

Airport Capacity and Slot Management 

Billy Bisf)op Toronto Centre Airport 
JACOBS 

CONSULTANCY 

INTRODUCTION 

BiUy Bishop Toronto City Airport (BBTCA) currently has one carrier operating scheduled air 

service, Porter Airlines, which has been adding flights and increasing passenger traffic as new 

aircraft are delivered. 

Other carriers have expressed an interest in operating at the Airport as early as April 2010. The 

total requested slots are expected to exceed the availability even in 2010 and the pressure for 

slots will continue to increase over time. 

Noise Constraints 

Helicopters are now required to follow flight paths and this wUI tri^er their iaclusion in the 

NEF calculations under the Tripartite Agreement for 2010, possibly reducing the slots available 

for large turboprops: 

"The actual NE F Contours prepared in accordance with subsection (1) shall include the noise 

attributable to helicopters for any calendar year during which flight paths were required to be followed for 

at least half of that year pursuant to section 35 " 

Tripartite Agreement 

Yet another factor that may reduce the slots available is the flights traffic before 07:00 and after 

22:00. To the extent that there are more of these quiet hour flights than forecast, they 

significantly reduce the available slots. 

Other Capacity Constraints 

The constraints of the Tripartite Agreement are not the only issues in determining the Airport's 

capability to deal with increasing traffic volumes. The site is space constrained and other 

elements of the Airport or Airport access may point to slot Hmits that are different than those 

limited by aircraft noise. 

The Toronto Port Authority has determined that several of the systems wiU be at capacity in the 

near fiature and the Airport will be required to address these capacity constraints as carrier 

operations increase. 

Several changes are already underway to address some of these shortfalls, including the new air 

terminal and new ferry and the proposed pedestrian tunnel. 

In a constrained environment, slots become important to the airlines on a time basis. It is 

insufficient for example to allocate a carrier 10 slots between 13:00 and 14:00, or even to 

allocate a carrier 20 slots a day if the availabihty of facilities means that in reality those slots 

cannot be used at commercially useful times. lATA defines a slot as: 

"The scheduled time of arrival or departure available for allocation by, or as allocated by, a coordinator 

for an aircraft movement on a specific date at a coordinated airport." 

Airport Capacity and Slot Management 

Billy Bishop Toronto Centre Airport 

JTe21000 
JACOBS 

CONSULTANCY 

BBTCA is indeed different from many other airports with slot management. At very large 

airports, slots are usually managed as a result of runway capacity constraints, and so precise 

timing of slots is commercially important to the airlines. For example, the runway capacity for 

departing aircraft may be 25 an hour, yet competing airlines may all want a 07:00 departure. If 

that were not managed, the 25* 07:00 flight would ia fact take off at 08:00. 

At BBTCA, the noise based constraints, as well as other constraints may mean that the 

maximum number of scheduled departures in an hour wiQ be in the range of 7-10, well below 

runway capacity. At this point, it is clear that management of slots and schedules will be part of 

the Airport operation from 2010 onwards and that the approach to capacity and schedule 

management needs to be developed now. 

The objectives of this study are: 

• To review capacity and forecast demand on all major airport elements; 

• To review the impact of the aircraft type mix on capacity and slot use; 

• To develop proposed capacity hmits and related schedule and slot constraints; and 

• To review possible objectives and approaches for slot/schedule management. 

To meet the objectives, the consulting team: 

- Prepared 2010 movement forecasts to reflect the possibility of growth in movements of 

the existing and new carriers serving the Airport; 

• Compared the capacity and demand for various elements of the airport, including the NEF 

constrained capacity; 

• Developed objectives for managing the slots; and 

• Proposed how ongoing slot management can be implemented. 

DEMAND FORECASTS 

Based on a preliminary assessment at the start of the project that NEF limits under existing 

demand patterns would limit slots to approximately 166, a demand model for the use of these 

slots was prepared using existing schedules and commercially viable schedules and destinations 

for slots not currentiy in use. 

Table 1 provides a summary of the destinations served and numbers of flights assumed under 

the 166 slot scenario. 

Airport Capacity and Slot Management 

Billy Bishop Toronto Centre Airport 

JTS21000 
JACOBS 

CONSULTANCY 

Table 1 

Assumptions re Destinations Served and Numbers of Flights Under a 166 Slot Scenario 

Sector 

Domestic 

Transborder 

Total 

Total Slots 

Origin 

YOW 

YQB 

YQT 

YSB 

YUL 

Total Dom. 

BOS 

CLE 

DCA 

EWR 

MDW 

Total TB 

Aircraft 

Departures 

23 

3 

3 

1 

20 

50 

4 

3 

4 

16 

6 

33 

83 

166 

Departing 

Seats 

1,490 

210 

210 

70 

1,280 

3,260 

280 

210 

280 

1,120 

420 

2,310 

5,570 

The minimum number of aircraft gates required by sector assuming a 20 minute buffer time 

between flights is presented in Table 2. A gate chart for the new 10 gate passenger terminal for 

the 166 slot flight schedule is presented in Exhibit 1. Exhibit 2 shows the aircraft gate 

requirements by time of day respectively. 

Planning Peak Hour 

Based on the nominal schedule and assumed load factors, the planning peak hour numbers are: 

Enplaning domestic passengers 288 

Enplaning transborder pas sengers 210 

Enplaning Combined passengers 467 

Deplaning domestic passengers 285 

Deplaning transborder passengers 263 

Deplaning combined passengers 530 

Airport Capacity and Slot Management 

Billy Bishop Toronto Centre Airport 
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CONSULTANCY 

Table 2. 

Minimum Number of Aircraft Gates 

Sector 

All 

Domestic* 

Transborder* 

Swing 

* Excluding swing gate 

Required by Sector (2010) 

Gates 

10 

5 

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1 

Exhibit 2 

Gate Requirements by Time of Day 

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JACOBS 

CONSULTANCY 

CAPACITY/DEMAND ASSESSMENT 

Capacity Update 

The capacity of the Airport has normally been thought of as governed by the NEF 

constraints contained in the Tripartite Agreement. While the noise boundary conditions are 

very likely to govern, as traffic increases, other elements of the Airport may also have 

capacity constraints. Each major element is discussed below. 

Airport Capacity and Slot Management 

Billy Bishop Toronto Centre Airport 
JACOBS 

CONSULTANCY 

NEF Constraints 

The NEF constraints established in the Tripartite Agreement are dependent on the traffic 

mix, the time of flights and the approach slope for arriving aircraft: 

• The modified Q400 currently operated at the airport (Q402) is quieter than the earlier 

series of this aircraft; 

• Higher approach slopes being flown at the Airport result in a lower noise impact; 

• HeUcopter operations are required to be incorporated in the noise calculations under 

some conditions. Less than Vz of the helicopter operations at the Airport are medevac 

operations; 

• The volume of flight training operations and recreational flying affects the noise 

envelope and therefore the noise controlled slots available for commercial operations; 

and 

• Flights before 07:00 and after 10:00 are heavily weighted in the noise modelling 

program, so a small change in quiet period operations has a big impact on total noise 

constrained slots. 

Various noise scenarios were developed, with changing mixes of aircraft t3^es, day/night 

operations and volumes of non-scheduled service traffic (GA, hehcopters, etc.). The scenario 

selected for managing slots that most closely matched the Port Authority's business 

objectives and its commitments to managing noise (the Operating Scenario) is the scenario 

that restricts quiet period operations to the seven existing scheduled service flights that 

operate 22:00-06:59 and to the evening operations of general aviation from 22:00 to 22:59 

and in which the forecast fleet mix of heavy turboprops is 90% Q402 aircraft. This scenario 

yields 202 slots. 

Taxiway/Apron Demands 

The schedules generally show all gates being used overnight, with up to ten departures in a 

fairly short period in the morning peak period. This wiU create a potential congestion issue 

on the apron when Runway 26 is used for arrivals and departures. The departure queue can 

potentially block access to several of the gates as Exhibit 3 shows. 

Airport Capacity and Slot Management 

Billy Bishop Toronto Centre Airport 
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JACOBS 

CONSULTANCY 

Passenger Terminal 

The new passenger terminal is in the process of completion: seven gates are expected to be 

available by March 2010, and a total often gates are expected by October 2010, subject to 

project completion. 

Gates 

As Exhibit 1 illustrated, with the turn times for the large turboprop aircraft and a 20 minute 

buffer between flights, the estimated gate capacity is: 

• For domestic gates — 13 turns per day; 

• For transborder gates — 9 turns per day; and 

• For a swing gate — 11 turns per day. 

It is important to recognize that a capacity of, say, 13 turns per day on a domestic gate does not 

mean that all such gates would be used for 13 turns per day. There may be times that a gate is 

available that are not commercially useful to carriers. 

Passenger Terminal Demand Forecast Methodology 

The forecast demands on the passenger terminal and access system to the Airport were 

developed from the schedules developed in Chapter 11 and the following: 

• The forecast schedules were combined with Jacobs Consultancy's terminal demand model 

to determine peak hour demands on the terminals, given assumed arrival distributions of 

the passengers at the facilities and other assumptions with respect to load factors by time of 

day. 

• The model was modified to include an additional model element dealing with demands on 

the ferry, enabling ferry load and cycle time to be modified and showing passengers unaccommodated on ferries if they become overcrowded. 

Assumptions re Passenger Arrival Distributions 

Outbound passengers arrive at the terminal in a pattern that typically sees some passengers 

arriving very early — as much as two hours before their flight, and others arriving much closer to 

flight deparmre time. In a shutde type operation primarily involving short haul flights and 

business travellers, we typically expect most passengers to arrive in the period 70-30 minutes 

before the scheduled departure time. Exhibit 4 illustrates the assumed distribution pattern used 

prior to the operation of US Preclearance. 

With preclearance, we expect the Transborder traffic distribution to change. Although 

passengers wiU continue to come as close to departure as they can, US Homeland Security 

requires a cut-off of ticketing an hour before departure so that the passenger Ust can be 

reviewed. Exhibit 5 illustrates the assumed distribution with preclearance. 

Airport Capacity and Slot Management 

Toronto City Centre 

JT811000 
JACOBS 

CONSULTANCY 

Exhibit 4 

Distribution of Departing Passengers Arrival Times at the Terminal. No US Preclearance 

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Exhibit 5 

Distribution of Departing Passengers Arrival Times at the Terminal with US Preclearance 

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0.20 

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0.10 

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to to 100 90 80 70 60 50 40 30 20 10 

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Airport Capacity and Slot Management 

Toronto City Centre 
JACOBS 

CONSULTANCY 

Inbound passengers have a much different demand characteristic, especially at a primarily short 

haul, primarily business operation such as BBTCA. Passengers empty the aircraft quickly and 

move direcdy through the terminal, only impeded by picking up lu^age and, in the case of 

transborder traffic, by the processing of Customs and Immigration (Exhibit 6). 

Exhibit 6 

Inbound Passenger Distribution 

1.00 

0.90 

0.80 

0.70 

0.60 

0.50 

0.40 

0.30 

0.20 

0.10 

- Domestic 

-Transborder 

Oto 10 to 20 to 30 to 40 to 50 to 60 to 70 to 80 to 90 to 100 110 

10 20 30 40 50 60 70 80 90 100 to to 

110 120 

Assumptions re Load Factors by Time of Day 

Load factors do not remain constant throughout the day and we typically expect them to be 

higher during the peak demand periods. Table 3 illustrates the assumed load factors. These load 

factors are used to create planning day demands and planning peak hour demand estimates 

Table 3 

Assumed load factors 

Time of Day 

5:00am-9:00am 

9:00am-3:30pm 

3:30pm-7:00pm 

After 7:00pm 

Load Factor 

75% 

60% 

75% 

Airport Capacity and Slot Management 

Toronto City Centre 10 
JACOBS 

CONSULTANCY 

Air Terminal Demands 

Exhibits 7 and 8 illustrate the forecast time of day demands on the air terminal buildings for the 

166 slot schedule in 2010. 

Exhibit 7 

Time of Day Arriving Passenger Demand 2010 

Arriving Passengers in Hour 

600 ' 

500 

200 

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Forecast Time of Day Departing Passenger Demand 2010 

Departing Passengers per Hour 

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Airport Capacity and Slot Management 

Toronto City Centre 

JT821000 

11 
JACOBS 

CONSULTANCY 

The terminal design was based on planning peak hour passenger levels of 672 departures and 

672 arrivals and assumes fuU staffing by CATSA and CBSA. 

DmaDDmain 

The nominal schedules include four departing transborder flights in the peak hour. The peak 

outbound demand is 210 transborder enplanements. Taking into consideration the distribution 

of passenger arrivals at the air passenger terminal and the distribution of outbound flights, the 

peak loading in the preclearance area is approximately 180 passengers in the morning peak, as 

Exhibit 9 Ulustrates. This passenger load will typically require a holdroom area of approximately 

3,100 sf (290sq.m.). The preclearance hold area is sufficiendy large and appears to have been 

sized for approximately 220 peak hour passengers. 

Exhibit 9 

Transborder Enplanements Hourly Demand 2010 

Passenger Demand by Right Departure Time 

200 

180 

160 

140 

120 

100 

80 

60 

40 

20 

Time of I3eparture 

•DDD DDQUnDD 

The peak transborder arrivals occur between 8am and 9am, with a peak forecast demand of 263 

deplaning transborder passengers. Taking into consideration the distribution of deplanements, 

the peak loading in the CBSA queuing area is somewhat less at 250 passengers as Exhibit 10 

illustrates. 

This area, in which there is typically no seating, requires an approximately 2,000sf (190sq.m.) to 

cope with the forecast peak loading. The area now under construction is approximately 260 

sq.m., more than sufficient to handle the forecast peak hour loading, provided that CBSA 

inspection lines are staffed. 

Airport Capacity and Slot Management I 

Toronto City Centre 12 \ 

JT821000 
JACOBS 

CONSULTANCY 

Exhibit 10 

Transborder Deplanements Hourly Demand 2010 

300 

250 

200 

150 

100 

50 

Passenger Demand by Flight Arrival Time 

I MM III III I'm Mi Ml ni l 

Time of Departure 

Ferry 

The new ferry will be in service by January 2010 and has an upper deck capacity of 150 

passengers, with additional capacity though the use of Shutde buses on the lower deck. Total 

people on board, including crew are limited to 200 by the ferry certification. 

Ferry Demands 

The time of day of arriving and departing air traveller demands translate into demands for ferry 

and ferry terminal capacity. In simple terms: 

• Departing passengers arrive at the ferry terminal in pattern that is driven by their flight 

departure time (Exhibits 4 and 5); 

• Arriving passengers arrive at the ferry terminal very quickly on deplaning (Exhibit 6); 

• Passengers queue for the ferry and take the next available ferry unless there is insufficient 

capacity on the ferry; and 

• The accumulation of passengers in the ferry terminals is a fiinction of ferry cycle time and 

ferry capacity. 

Airport Capacity and Slot Management 

Toronto City Centre 

JTB21000 

13 
JACOBS 

CONSULTANCY 

To model ferry demands, the aviation demands were translated into ferry demands at a 15 

minute ferry headway — i.e., the ferry leaves the Eireann Quay passenger transfer facihty every 

15 minutes and leaves the Island passenger transfer facihty every 15 minutes. 

When the pattern of arrival of passengers at the Eireann Quay passenger transfer facihty to 

catch outbound flights is considered, the demands on the ferry are much less peaked than the 

departure schedules. Exhibit 11 illustrates the projected demands on the ferry departures from 

the Eireann Quay passenger transfer facihty. 

Exhibit 11 

Forecast Outbound Ferry Loads on 15 minute Headway 2010 

140 

120 

o 100 

111 

Q. 

CO 

oc 

Ul 

o 

z 

UJ 

(0 

(0 

80 

60 

40 

20 

12 1 2345678 9 10 11 12 12345678 9 10 11 

AM AM AM AM AM AM AM AM AM AM AM AM PM PM PM PM PIM PIM PM PM PIM PM PIM PM 

TIME OF DAY 

The pattern of departures means that even without taking into consideration the distribution of 

the passenger's arrival at the Eireann Quay passenger transfer facihty, the new ferry will be able 

to deal with the loads. 

The situation with the inbound demand is similar but with several severe peaks. Because the 

passenger loads aU arrive at the Island passenger transfer facihty within 5-10 minutes of the 

aircraft arriving at the gate, the demand levels can be sharply peaked. Exhibit 12 illustrates the 

inbound arrivals in 15 minute segments. 

The new ferry wiU go a long way to taking pressure off what would otherwise be the lowest 

capacity point in the system. Nonetheless, both upper passenger deck and shutde buses on the 

car deck wiU need to be used to meet the forecast demands by October 2010. 

Airport Capacity and Slot Management 

Toronto City Centre 14 
JACOBS 

CONSULTANCY 

Exhibit 12 

Inbound (Arriving) Passengers in 15 Minute Segments 2010 

250 

Arriving Passengers in 15 minutes 

, . • .";? .(J> .-^ . • .«? .i> .-^ . • .# .i> .4> .N^ .'sS» .«S> .-^ .-^ .<f .>S' ."5* A- %• %• o- ^«i- ^s- »K- ^ - ^ - ^v ^v ^ ^ ^ ^ - ^ - ^ - ^ - ^ - ^ - ^ • 

Time of Day 

The model calculates the passengers that would not be accommodated on the first ferry 

departure because of capacity constraints (assuming that a reasonable level of service is to be 

maintained). The model was run with a ferry capacity of 150 (upper deck only) and 200 (upper 

deck plus car deck). Exhibits 13 and 14 illustrate the inbound passengers not served on the first 

ferry with only the passenger deck in use and with 50 or more passengers in shutde buses on the 

car deck. 

With only the upper deck used for air passengers, in the morning inbound rush, some 

passengers will have to wait for a ferry because of crowding. There is a need to implement the 

movement of shuttie buses on the ferry as soon as possible. 

The need to keep a high level of service cannot be emphasized enough. The Airport's 

business model is working precisely because the level of service is high in terms of travel 

time, hassle and congestion. If this model is allowed to break down, the consequences 

could damage the viabiUty of the entire concept. 

Because outbound passengers arrive in less "lumpy" pattern, the same issues do not exist at the 

2010 traffic levels, although there is the possibility if only the passenger deck is used to move 

passengers that there may be some passengers that cannot board one ferry at approximately 

07:30. 

Airport Capacity and Slot Management 

Toronto City Centre 

JT821000 

15 
JACOBS 

CONSULTANCY 

Exhibit 13 

Inbound Passengers Not Served on the First Ferry after their Arrival with 150 Passenger 

Capacity - Upper Deck Only ( 2010) 

120 

100 

» 80 

O) 

60 

Passengers not Served on First Ferry 

I I I I—r-r-i—r-

.•J> .«? .^ .-^ .• .<f> .(J> .-§» .• <J> .^ .-^ .• .<? .^ .-^ .•J> .<;? .iJ* .4 

^ • *• <b- o,- ^ - »N- ,^K- ^ - ^ - ^ v ^ v ^ - ^ - ^ - ^ - ^ - ^ - ^ - ^ - ^ • 

Time of Day 

Exhibit 14 

Inbound Passengers Not Served on the First Ferry After their Arrival with 200 Passenger 

Capacity - Shuttle Buses on the Car Deck ( 2010) 

Passengers not Served on First Ferry 

50 

45 

40 

35 

30 

25 

20 

15 

10 

; 

, 

1 

i 1 ^ 1 

1 1 1 1 

.K* .^?> .(J> .'b'* . • .•($> . ^ .4^ . • .«f> . ^ .>§> . • .(f> . ^ .<§> .<? .<S> .>f» ."? 

Time of Day 

A- «• <6- <S- ^ - ,^<- ^N- ^ - <>>•• ^W- ^t.- ^ - .Ji- ^ - ^ - ^ - ^ - ,^ - ^ - .^••' 

Airport Capacity and Slot Management 

Toronto City Centre 16 
JACOBS 

CONSULTANCY 

Passenger Transfer Facilities 

The two ferry passenger transfer facilities were each designed to cope with a passenger load of 

90 passengers at a high level of service. With a single ferry on a 15 minute cycle, the 

accumulation of passengers in the facUities will exceed the capacity of the buildings. In the 

Eireann Quay facility, the loading will decrease the level of service, but wiU be workable. The 

Island facihty will see a peak demand of as many as 200 passengers, meaning that the terminal 

will be congested with passengers backed up into the corridors to the air terminal. 

Ground Access and Curb 

The main components of the groundside facHities (excluding the ferry) are: 

The main access road Eireann Quay (formerly Bathurst St.); 

The public parking facihties: 

The spaces on the north side of Western Channel at the foot of Eireann Quay; 

The spaces in the "Stadium" parking lot (on the west side of the park); 

The spaces adjacent to the air terminal building; 

The roadway in front of the passenger transfer facihty at the south end of Eireann Quay. 

This is referred to as the terminal frontage road (TFR); 

The taxi holding area; and 

The shuttie bus that operates between the Royal York Hotel and the passenger transfer 

facihty at the foot of Eireann Quay. 

The section of Eireann Quay south of Queens Quay West could be characterized as a minor 

collector street. Nominally, there are two northbound lanes when parking is prohibited (08:00-

18:00). Rigorous channehzation is not present in this section of roadway. When vehicles are 

parked in the northbound curb lane, the capacity of this roadway is significantiy reduced. The 

capacity of this section of roadway is estabhshed by the signal timing at the intersection of 

Eireann Quay and Queens Quay West. The timing of these signals is under the jurisdiction of 

the City of Toronto. 

There are 27 pubUc parking spaces and 1 handicapped parking space on the north side of 

Western Channel by the passenger transfer facihty. 

There are 192 parking spaces in the Stadium Road lot. The spaces in this lot are shared by the 

pubhc and by employees of the Airport. The lot has recendy been paved and marked. 

The roadway in front of the passenger transfer facihty has two lanes. During peak periods 

vehicles are stopped in both of these lanes to load and unload. Approximately 20 meters of 

curb length are available in front of the facihty. 

Airport Capacity and Slot Management 

Toronto City Centre 17 

jnnooo 
JACOBS 

CONSULTANCY 

The taxi holding facihties consist of a two lane queue, 90 meters in length, and three parallel 

parking spaces on the inbound roadway immediately upstream of the curb in front of the 

passenger transfer facihty. There is nominal capacity for 28 taxis, although as many as 34 can be 

seen in the queue. 

Table 4 compares 2010 forecast demand for landside access facihties to current capacity. The 

taxi holding areas are currentiy at capacity during the peak periods of demand. The terminal 

frontage road is very congested during peak periods. Vehicles are stopped in both lanes to loads 

and unload. There is limited opportunity to provide more capacity for this facihty. Both parking 

and taxi storage are at capacity now. 

The demand for access is also related to the pattern of traffic arrival. The large ferry wiU dehver 

passengers to the Eireann Quay passenger transfer facUity from the Island in 150-200 person 

"lumps" putting heavy demands on the taxi queue and terminal curb. 

On the Island, the parking area adjacent to the air terminal building has approximately 170 

spaces. The surface is asphalt pavement and the individual spaces are well channehzed. 

Officially, both the pubhc and employees can park in this area. 

Table 4 

Comparison of Forecast Demand for Access Facilities to Capacity 

2010 Demand 

Current Supply 

Peak Hour 

Passengere 

(Inbound & 

Outi)ound) 

980 

Daily Arr/Dep 

Passengers 

7190 

Curb Length Required (Meters) 

2 Minute Dwell 

Time 

38 

90 Second 

Dwell Time 

28 

20 

Taxi Holding 

Required 

(Vehicles) 

80 

34 

Public Parking 

Demand 

(Spaces) 

450 

390 

TPA OBJECTIVES 

Whether the slot cap is controlled by the NE F constraints or other system capacities, there wiU 

be a slot cap that wiU hkely be 202 movements per day or less unless and until capacity can be 

improved. Slot and schedule management requires a rules-based system that is fair to the carriers 

being scheduled. Generally, when we discuss slot management, we are discussing slots with an 

associated time or timeframe. The slots limited by the Tripartite Agreement are on a daily basis, 

but in terms of carrier needs and demands and in terms of the capacity of other elements of the 

system, they will be time-based. 

As a foundation to developing slot allocation rules, it is valuable to propose objectives for the 

Port Authority in managing the slots. In general terms, the Authority wants to manage a 

financially sound airport creating maximum economic value for the GTA while respecting the 

Tripartite Agreement. With this fundamental statement, it appears that the Port Authority's 

specific objectives in managing the slots at the airport wiU be: 

Airport Capacity and Slot Management 

Toronto City Centre 18 
JACOBS 

CONSULTANCY 

To ensure that the number of slots aUocated respects the Tripartite Agreement, and to take 

measures to adjust the number of slots as necessary to respect the Agreement; 

To ensure that the total number of slots and the timing of the slots takes into consideration 

the level of service objectives of the Authority and the capacity of aU elements of the 

airport — taxiways, aircraft parking stands, air terminal facihties, ferry passenger transfer 

facihties, ferries and ground access; 

To ensure that the slot allocation method is logical and fair to users; 

To encourage the use of aU slots by the quietest large turboprops; 

To encourage the use of aU slots by the largest permitted turboprop aircraft; 

To encourage the use of slots to maximize passenger choice of destinations served, 

consistent with air carrier's commercial needs for a minimum number of daily services on a 

route; 

To ensure that aU slots allocated are linked to aircraft stands (there must be a place for the 

aircraft to be served before a slot is granted); 

To ensure that aU large turboprop aircraft stands are linked to a permanent terminal facihty. 

This objective is to prevent a recurrence of the "temporary" terminals that were 

constructed in the past and to ensure that carriers serving the airport have a long term plan 

for, and commitment to, use of the Airport and are not using services for predatory pricing 

against those with a more substantial investment; 

To serve aU transborder flights with a single pre-clearance area and a single CBSA area; and 

To allocate slots on a take or pay basis so that revenues are not foregone through unused 

slots. 

BBTCA RULES FOR CAPACITY & SLOT MANAGEMENT 

The Airport has some unique aspects that may not exist at other airports: 

• Slots are both daily constrained and, during peak periods, hourly constrained; 

• Airport operating costs should be borne by aU carriers pro rata based on slots aUocated, 

regardless of whether or not used; and 

• The Port Authority needs to be an active participant in preventing any predatory behaviour 

that materiaUy harms the Airport. 

Taking these unique requirements into consideration, the commercial carrier operating 

agreements need to have Airport specific rules, including: 

Airport Capacity and Slot Management 

Toronto City Centre 19 

jTeziooo 
JACOBS 

CONSULTANCY 

• Each carrier should be obhgated to sign a CCOA. The CCOA should similar in all material 

respects for all carriers; 

• The specific overall slot cap number cannot be set in stone: the slot cap wUl be estabhshed 

from time to time by the TPA taking into consideration the noise cap in the Tripartite 

Agreement and other capacity constraints; 

• A neutral slot coordinator should be appointed; 

• Slots need to be allocated on a time basis; 

• Slots need to be linked to gate avaUabihty; 

• Apphcations for routes already served should be given lower priority than apphcations for 

new routes; and 

• The TPA needs to be able to withdraw or reduce slots to comply with the Tripartite 

Agreement or other capacity constraints. 

SLOT COORDINATION 

Slot management/coordination wiU be an ongoing role for a coordinator. It will be the 

coordinator's responsibihty to coordinate both the time based slots and the total daily slots to 

comply with the total slot capabihty estabhshed by the TPA from time to time. 

Airport Capacity and Slot Management 

Toronto City Centre 20 
JACOBS 

CONSULTANCY 

Next Steps for Slot Coordination 

The immediate action required in terms of slot coordination is: 

• To determine the number of slots that can be made available for 2010 taking into 

consideration the scheduled service aircraft type mix, the current level of general aviation 

and hehcopter operations and the amount of forecast traffic in the quiet hours. Given the 

capacity constraints in terms of Eireann Quay, ferry passenger transfer facilities, etc. it is 

recommended that the slots not exceed 202 in 2010 and only be set as high as this if the 

shuttie bus operation is enhanced to reduce congestion on Eireann Quay and in the ferry 

passenger transfer facihties. 

• To appoint a slot coordinator; and 

• To incorporate the key akport specific elements of the slot coordinated regime in the 

CCOA. 

Airport Capacity and Slot Management 

Toronto City Centre 21 
Exhibit B 

Air Canada v. Toronto Port Authority and Porter Airlines Inc., Dockets T-488-10 and T-692-10 

Reasons for Judgment and Judgment (July 21, 2010) 
Federal Court CouT federate 

Date: 20100721 

Dockets: T-488-10 

T-692-10 

BETWEEN: 

AIR CANADA 

and 

Applicant 

TORONTO PORT AUTHORITY 

and PORTER AIRLINES INC. 

CERHFICAHE OF JUDGMENT 

Respondents 

I HEREBY CERTIFY that the Court (Hughes J.) on July 21, 2010 ordered and 

adjudged at the end of his Reasons for Judgment and Judgment as follows; 

"FOR THE REASONS PROVIDED 

THIS COURT ORDERS AJNOD ADJUDGES that; 

1. These applications are dismissed; and 

2. The parties are to agree as to costs within a reasonable 

time, failuig which any of them may by a short letter apply to this 

Court for ail order and directions in that respect." 

yacqueline Smith" 

Registry Officer 

CERTIFIED AT TORONTO. Ontario, this 21^ day of .July A.D. 2010. 
Federal Court Cour federale 

Toronto, Ontario, Jidy 21,2010 

PRESENT: The Honourable Mr. Justice Hughes 

BETWEEN: 

AIR CANADA 

and 

TORONTO PORT AUTHORITY 

and PORTER AIRLINES INC. 

Date: 20100721 

Dockets: T-488-10 

T-692-10 

Citation: 2010 FC 774 

REASONS FOR JUDGMENT AND JUDGMENT 

Applicant 

Respondents 

[1] These two a|^lications have been brought by Air Canada and were heard together on 

common evidence. Both deal with certain steps taken by the Respondent Toronto Port Authority in 

respect of commercial airport operations carried out at the Toronto Island Aiiport, now known as 

Billy Bishop Toronto City Airport Tlie other Respondent Porter Airlines Inc. is, at present, the only 

commercial passenger airline operating out of that aiiport. 
Page; 2 

[2] For the reasons that follow, I find that the applications are dismissed. 

I. The Applications 

1) T-4S8-10 

[3] This implication deals with what Air Canada characterizes as a decision made by Toronto 

Port Authority dated December 24,2009, On that day, TPA released a bulletin entitled: 

TPA announces capacify assessment results for Billy Bishop 

Toronto City Airport, begins accepting formal carrier proposals 

That bulletin read: 

Third-party, lATA-accreditedslot coordinator will be appointed in 

early 2010 to manage carrier demand and slot allocation process 

Toronto - The Toronto Port Authority ("TPA ") today confirmed that 

it has received aprelimindry executive summcay outlining the results 

of an updated noise impact study and capacity assessment for the 

Billy Bishop Toronto City Airport ("BBTCA "). The findings of the 

third-party study will now be refined to determine the number of 

daily commercial flights and equipment mix that can be 

accommodated at the airport during the coming years. 

The comprehensive analysis evaluated all hey factors impacting 

airport operations, including: 

the 1983 Tripartite Agreement 

noise guidelines 

hours of operation at the BBTCA and the impact of early 

morning and late evening flights on the neighbouring community 

terminal, runway and passenger ferry infrastructure limitations 

the availability of parking and transportation options to and 

fi'om Eireann Quay 

mix and types of commercial, private and leisure aircraft 

helicopter and MEDEVAC flights 

"The Billy Bishop Toronto City Airport is an attractive facility for 

passengers and carriers alike, " said Mark McQueen, Chairman of 
Page; 3 

the TPA Board of Directors, "But it has both a modest physical 

footprint and is governed by the tripartite Agreement, which serves 

lo cap the rmmber of daily commercial flights that can operate from 

the BBTCA. Based upon the ir^ormal requests we 've received fi'om 

commercial carriers, demand for new slots far exceeds the supply 

available. This 'slot controlled' situation is no different than other 

North American airports, such as Pearson, Vancouver, Newark 

Liberty, JFK, LaGuardia, or Washington Reagan All major airlines 

recognize that an airport can only award the slots that exist, even if 

that won't satisfy every carrier request— a circumstance that exists 

at most slot-controlled airports." 

The third-party study considered current BBTCA usage by leisure 

aircrafts and helicopters, in addition to the approximate 2,500 lifesaving MEDEVAC service operations per annum. The study also 

considered that existing BBTCA commercial carrier operations will 

utilize approximately 120 slots in the period leading t4p to April 

2010, some of which are designated as "Night Operations. " Night 

Operations are defined as services operating between 6:45 - 7 a.m. 

and 10-1 1 pm. Under the existing Tripartite Agreement, the 

BBTCA is closed to all non-emergency flights between 11 p.m. and 

6:45 am. 

"Now that we have the results in hand the Toronto Airport Authority 

will initiate the next phase of the process, " said Geoff Wilson, 

President and CEO of the TPA. "We will solicit formal business 

proposals for additional BBTCA airline service, while ensuring that 

the process continues to remain open and transparent." 

The next phase of the process will also see the TPA appoira an 

independent, lATA-accreditedslot co-ordinator to manage 

commercial carrier demand at the BBTCA and allocate available 

slots. The co-ordinator will act as a neutral party during commercial 

carrier negotiations and be responsible for awarding slots based on 

internationally recognized processes. 

Based on the initial results of the study, the TPA anticipates that 

once phase two of the new BBTCA terminal is fully completed in the 

second half of 2010, between 42 and 92 additional commercial slots 

will be available for award by the lATA-accredited slot coordinator 

for utilization by incumbent and new commercial carriers under a 

number of variables and scenarios. Further refinement to usage 

patterns by existing BBTCA stakeholders is currently underway to 

determine the precise number of slots that could be awarded among 

the incumbent and prospective new carriers The TPA expects 

updated data to be available in January 2010. 
Page: 4 

"Our objective is to increase and diversify the number of 

destinations services by the airport," acMed Wilson. "There are 

many attractive short haul destinations that are still not served by the 

BBTCA and we are anxious to continue improving choice and 

convenience for all travellers. " 

The TPA will announce a process to receive and consider proposals 

jrom prospective commercial carriers early in the new year. All 

proposals will be expected to outline: i) proposed flight destinations; 

ii) service frequency; Hi) proposed equipment; iv) what 

arrangements will specifically be made to hancSe a proponent's 

passengers at the BBTCA, and v) a commercial carrier's long term 

commitment to BBTCA passengers. 

As is customary at many airports, all commercial carriers providing 

service from the BBTCA will be required to enter into a commercial 

carrier operating agreement ("CCOA ") with the TPA before they 

can commence flight operations. Commercial carriers must also 

secure appropriate terminal space from the City Centre Terminal 

Corp, - BBTCA's terminal operator - which his the exclusive right 

and contractual obligation to provide all commercial carriers with 

access to its new facility once the construction project is completed 

in 2010. To date, the TPA understands that no commercial carriers 

have responded to the November 9, 2009 public call by City Centre 

Terminal Corp. soliciting proposals to utilize the new BBTCA 

terminal 

"I encourage all prospective commercial carriers with a desire 

to fly into the BBTCA in 2010 to take advantage of the opportunity 

to utilize the new terminal, " said Wilson. "It is unclear how any 

commercial carrier would expect to be granted slots through this 

process without a clear plan as to how they intend to manage 

passenger traffic, security screening and border clearance. " 

With the rapid increase in monthly traffic and the number ofne\^ 

carriers seeking access to the airport, the BBTCA capacity study also 

identified the need for the TPA to make further cc^ital expenditures. 

In January 2009, the TPA Board moved to acquire a new, larger 

ferry to accommodate the anticipated passenger growth that 

ultimately came to pass in 2009. 

"Despite the difficult recession, Porter's continued passenger 

growth, combined with new carrier proposals, means that our 

task of modernizing the BBTCA is not yet complete," continued 

Mr: McQueen. "Over the near term we will be looking at what 
Page: 5 

immediate steps we need to take to ensure that passengers continue 

to enjoy the success that has become the BBTCA." 

[4] A copy of this bulletin was sent to an official of Air Canada by an official of TPA on 

December 24,2009, under cover of a letter which stated, in part: 

Thank you for your letter dated December 23, 2009 and 

Mr. Rovinescu 's letter lo Mr. Paul dated December 18, 2009. 

Please refer to the attached Bulletin which was released today and 

describes the progress on our assessment of airport opacity as well 

as outlines the concepts for the process which will be used to assess 

and allocate commercial scheduled service capacity. 

It would be premature at this time to comment on the information 

provided by you, as we are preparing a formal process to receive 

and consider proposals from prospective commercial carriers early 

in the new year. 

With respect to terminal arrangements, you will need to contact City 

Centre Terminal Corp. 

[5] Air Canada, following receipt of this letter and bulletin, filed the first of its two applications 

for judicial review, 1-488-10. The basis for the appUcation was set out in the Notice of Apphcation 

as follows: 

This is an application for judicial review of the December 24, 2009 

decision (the "Decision") of the Toronto Port Authority (the "TPA ") 

announcing a process (the "Proposed Process") through which it 

intends to award slots at the Billy Bishop Toronto City Airport (the 

"IslandAirport") cojnmencing in 2010. In the Decision, the TPA 

announced that pursuant to the Proposed Process: 

(a) it will appoint an independent. LATA-accredited, slot 

coordinator to manage commercial carrier demand and 

allocate slots at the Island Airport; and 

(b) commercial carriers will be required to make terminal 

arrangements exclusively with City Centre Terminal Corp. 

("CCTC "), a corporation related to or controlled by one or 

more of the same individuals who are shareholders, directors 
Page: 6 

or officers of Porter Airlines Inc. ("Porter"), for terminal 

space at the Island Airport. 

The relief requested was for: 

(a) an Order setting aside the Decision and the Proposed 

Process for the allocation of existing and newly available 

additional slots as the Island Airport; 

(b) an Order that the TPA act within its jurisdiction pursuant to 

the Canada Marine Act. S.C. 1998, c. 10 and in accordance 

with the common law in its allocation of slots in (a) above; 

(c) an Order enjoining the TPA from taking any steps to 

implement the Proposed Process; 

(d) costs of this application; and 

(e) such farther and other relief as to this Honourable Court 

seems justThe balance of the Notice of Application sets out recitals of fact and law of the type commonly 

found m a Statement of Claim. 

2) T-692-10 

[6] This is the second of Air Canada's two applications. It deals with what Air Canada 

characteiiiies as a decision made by the Toronto Port Authority dated April 9,2010. On that day, 

TPA released a bulletin entitled: 

Toronto Port Authority issues format Request for Proposals for 

additional carriers at Billy Bishop Toronto City Airport 
Page: 7 

That bulletin read in part: 

Appoints world's largest independent airport coordination 

organization to review formal business proposals and oversee slot 

allocation for additional airline service 

Toronto - The Toronto Port Authority ("TPA ") today announced 

that a formal Request for Proposals ("RFP ")for additional 

commercial airline carriers at the Billy Bishop Toronto City Airport 

("BBTCA ") has been issued and is now available to interested 

qualified proponents. 

"As the BBTCA evolves into a world-class city centre airport, it has 

been our stated objective to diversify the number of destinations 

offered in an effort to meet the demands of our business and leisure 

travellers." said Geoff Wilson, President and CEO of the TPA. 

"The issuance of the formal RFP is the next major phase of the 

transparent process that we outlined in December. We 're excited 

about the opportunities and additional airline services that this RFP 

will generate for the people of Toronto, which follows the parameters 

stipulated by the Tripartite Agreement." 

Request for proposals for additional carriers 

To date, the TPA has received informal expressions of interest from 

Air Canada (which the carrier has publicly disclosed) and one U.S.-

based commercial carrier. The TPA invites all qualified industry 

parties interested in providing carrier services at the BBTCA to 

participate in the RFP process. 

"As the RFP contains commercially-sensitive information, and given 

that related court proceedings recently initiated against the TPA by 

Air Canada are ongoing, ar^party interested in receiving the RFP 

must first enter into a standard commercial non-disclosure 

agreement," added Mr. Wilson. "We are committed to respecting the 

confidentiality of all parties involved, and as such, the TPA will enter 

into the same form of non-disclosure agreement with each interested 

party to protect proprietary information contained in each new 

proposal." 

Comprehensive slot allocation process 

To review the formal business proposals received through the RFP 

process, the TPA also announced the appointment of Airport 

Coordination Limited ("ACL"), an independent consultancy firm 

specializing in demand and ccpacity assessment and scheduling 
Page: 8 

process management, to manage commercial carrier demand and 

allocate available slots for the BBTCA. 

As part of its responsibilities as an independent slot coordinator for 

the BBTCA, ACL will implement a slot allocation methodology that 

is similar to those used at other North American airports such as 

Pearson, Vancouver, Newark Liberty, JFK, LaGuardia and Reagan. 

Capacity assessment factors 

The TPA also confirmed that it has received the final results from the 

capacity assessment report for the BBTCA conducted by a thirdparty consultant, Jacobs Consultancy, an USSll billion organization 

that is one of the world's largest providers of technical services. 

The study considered that existing BBTCA commercial carrier 

operations will lailise approximately 112 slots in the period leading 

up to the pending allocation of additional slots. After an extensive 

analysis that evaluated the key factors ejecting airport operations, 

Jacobs Consultancy recommended that the maximum number of 

commercial slots available at the BBTCA is 202 upon the completion 

of the new terminal. 

According to the Jacobs Consultancy analysis, which is based upon 

the 1983 Tripartite Agreement emd obligations contained in existing 

agreements with incumbents, approximately 90 additional 

movements per day will be made available for allocation by ACL 

among the existing commercial carrier and new carriers at the 

BBTCA upon the successjul completion of the new process. The 

recent acquisition of the Marylin Bell I, as well as the completion 

of the new terminal facilities, makes possible the increase in the 

number of slots available for allocation. Importantly, the 202 slot 

count is predicated upon the 19S3 Tripartite Agreement and the 

necessary NEF Contour analysis, as it governs facility usage and 

ambient noise. Under the Tripartite Agreement, commercial and 

recreational flights are not permitted at the BBTCA between 11 p.m. 

and 6:45 a.m. 

The current and earlier NEF Contour analyses heavily weigh Night 

Operations movements, which meaningfully and artificially lowered 

slot counts in prior years. Under the NEF Contour formula, a single 

operation between 10p.m. and 11 p.m. (defined as a Night 

Operation) equates to approximately 16 Daytime Operation slots. 

"We had a choice to make as an organization: provide for 

90 additional Daytime movements and zero Night movements, or 

10 Daytime movements cmdjive Night movements," added Mark 
Page: 9 

McQueen, Chairman of the TPA Board of Directors. As the two new 

airlines proponents have requested more than 100 slots between 

them, we had no choice but to maximize the number of slots 

available. We recognize that this approach did not produce the 

number of slots sought, but we are governed by the airport's limited 

footprint and the Tripartite Agreement. The decision to prohibit 

additional commercial Night Operations will tg?holdour curfew 

policy and minimize any impact on the Waterfront community." 

Carbon offset efforts 

To further mitigate the intact of the BBTCA's operations on the 

environment and its neighbouring communities, the TPA will be 

acquiring carbon offsets in the near term. 

[7j A copy of this bulletin was sent to an ofBcial of Air Canada by an official of TPA on 

April 9,2010, under cover of a letter which stated: 

Further to our letter dated December 24, 2009. and your letter of 

inquiry dated January 13, 2010 we are attaching a Bulletin which 

has been released today and announces the Request for Proposals 

("RFP ") process to consider additional carriers at the BBTCA. 

As the RPF contains commercially sensitive irformation, interested 

parties will need to first enter into a .standard commercial nondisclosure agreement ("NDA "). As the TPA is committed to 

respecting your business confidentiality, we will also enter into the 

same form of NDA. 

As you have expressed interest in providing service at the BBTCA, 

we are enclosing with this letter the Carrier NDA for your perusal 

and execution Once we have received your executed NDA, we will 

forward the RFP and the TPA's executed NDA. 

We look forward to your participation in this process. 

[8] On May 4, 2010, Air Canada filed its second application for judicial review, T-692-10, the 

basis for which is set out in its Notice of Application as follows: 

/. This is an application for judicial review in respect 

of the April 9, 2010 decision (the "April Decision ") of the Toronto 
Page; 10 

Port Authority (the "TPA ") announcing a Request for Proposals 

(the "RFP Process ") to allocate slots and otherwise grant access 

to commercial carriers seeking access to the Billy Bishop Toronto 

City Airport (the "Island Airport"). 

2. The April Decision purports to implement the TPA's 

decision regarding a process (the "Proposed Process") for 

allocation of slots and access to the Billy Bishop Toronto City 

Airport (the "Island Airport") announced on December 24, 2009 

(the "December Decision "). 

3. The Proposed Process is described in the Applicant's 

Notice of Application for judicial review of the December 

Decision in the proceeding bearing Court File T-488-10 

(the "DecemberApplication"). 

4. The April Decision of the TPA: 

(a) takes steps to have the TPA enter into a contractual 

relations to award flight slots and otherwise grant 

access to the Island Airport to commercial carriers 

participating in the RFP Process; 

(b) enables commercial carriers to enter into nondisclosure agreements for the purpose of concluding 

a commercial carrier operating agreement 

("CCOA") with the TPA; 

(c) appoints Airport Coordination Limited ("ACL ") as 

an "independentslot coordinator" to manage 

commercial carrier demand and allocate slots at the 

Island Airport; 

(d) permits ACL to implement a slot allocation similar to 

that used at "other North American airports such as 

Pearson, Vancouver, Newark Liberty, JFK, 

LaGuardia and Reagan "; 

(e) permits the TPA to receive expressions of interest, 

including from a U.S.-based commercial carrier, and 

invites parties to participate in the RFP process. 
Page: 11 

[9] The rehef claimed by Air Canada in this second Notice of Application requested; 

(a) an Order setting aside the April Decision and the RFP 

Process for the allocation of existing and newly available 

additional slots at the Island Airport; 

(b) an Order setting aside any contractual arrangements that 

have been made pursuant to or arising from the April 

Decision or the RFP Process including, inter alia, such 

artangements that allocate slots or otherwise grant access to 

the Island Airport; 

(c) an Order that the TPA act within its jurisdiction pursuant to 

the Canada Marine Act, SC 1998, c. 10 and in accordance 

with the corrimon law in its allocation of slots at the Island 

Airport; 

(d) an Order ergoining the TPA from taking any further steps to 

implement the April Decision or the RFP Process; 

(e) costs of this application; and 

(f) such further and other relief as to this Honourable Court 

seems just. 

[ 10] Unlike the first Notice of Application which set out a Statement of Claim-like narrative, this 

second Notice set out the grounds for the apphcation briefly as foliovsrs: 

THE GROUNDS FOR THE APPLICATION ARE: 

5. AspartoftheDecember Application, counsel for the TPA 

made certain representations to the Court on March 23-24, 2010 and 

at a case management conference on April 12, 2010 concerning the 

implementation of the Proposed Process while the December 

Application was pending. Asa result. Air Canada seeks to en.%ure 

that the implementation of that Proposed judicial review. 

6. Air Canada, in the December Application, sets out the 

pounds for its application to set aside (md enjoin the 

implementation of the December Decision. 
Page: 12 

7. The April Decision in effect implements the Proposed 

Process outlined in the December Decision. 

8. Air Canada repeats and relies on the same grounds set out in 

the December Application in this notice of application challenging 

the April Decision. 

[11] Although the Respondent Toronto Port Authority was the "decision-maker" in the matters 

raised in both applications. Porter also was named as a patty Respondent and participated fully in 

these proceedings. 

3) At the Hearing 

[12] hi oral argument at the hearing of these applications, Counsel for Air Canada, 

Mr. Finkelstein re-stated the relief claimed by his client as being: 

1. A declaration that the process followed by the Toronto Port 

Authority was fatally flawed; 

2. Ttat the April 2010 Commercial Carrier Operating 

Agreement (2010 CCOA) between the Toronto Port 

Authority, Porter and Porter Aviation Holdings Inc. be set 

aside; 

3. That the process for allocation of slots at Billy Bishop 

Toronto City Aiiport be commenced again in a "proper" 

fashion including consultations with Air Canada, 

H. The Parties. BBTCA. Slote and f ATA 

[13] The Applicant, Air Canada, is Canada's largest domestic and international airline. It has 

corporate affiliation of one kind or another with Jazz Air and earlier. Air Ontario which are and 
Page: 13 

were smaller regional airlines operating in Canada and to some extent internationally. Air Canada 

presentiy serves the greater Toronto area from facilities located at Pearson Intemational Aiiport. 

The Respondent Porter Airlmes Inc. does not have facilities at Pearson. 

[ 14] The Respondent Toronto Port Authority (TPA) describes itself this way in bulletins that it 

has published, such as the bidletin of April 9, 2010: 

The Toronto Port Authority was incorporated on June 8. 1999 as a 

government business enterprise under the Canada Marine Act as the 

successor to the Toronto Harbour Commissioners. It is a federal 

public atdhority providing transportation, distribution, storage and 

container services to businesses. The TPA owns and operates the 

Billy Bishop Toronto City Airport, Marine Terminals 51 and 52, and 

the Outer Harbour Marina. The TPA also provides regulatory 

controls and public works services to enhance the safety and 

efficiency of marine navigation and aviation in the port and harbour 

of Toronto. 

[15] Tlie Respondent Porter Airlines Inc. (Porter) is a commercial airline based at Billy Bishop 

Toronto City Airport (BBTCA). It came into existence through predecessors incltiding those 

described as Regional Holdings (Regco) beginning in about 2002. Porter has a number of affiliated 

entities including Porter Aviation Holdings Inc., City Centre Terminal Corp. and others all dealing 

in one way or another with operations of that airline and at that airport. The Respondent Porter 

began commercial airline operations in about 2006 with two aircraft and limited regional routes, and 

now has several more aircraft operating routes to many places in Ontario, Quebec, the Maritimes 

and the United States. 

[ 16] Not a party, but central to these proceedings, is the airport located at the west end of Toronto 

Island proximate the downtown core of the City of Toronto, Access is provided by a ferry operating 
Page: 14 

iQ what is known as the Westem Gap. The airport has operated imder a number of names including 

Toronto Island Airport, Toronto City Centre Airport and Billy Bishop Toronto City Airport 

(BBTCA)- The land is owned by the City of Toronto and leased to the Respondent Toronto Port 

Authority. Over the years, this airport has served various functions, including providing facilities for 

medical emergency aircraft and for "general aviation" (GA), which is a term indicating small 

private and charter aircraft. Commercial passenger airline activities have fix>m time to time been 

carried out using this aiiport by City Express (now defunct), Air Ontario, Jazz Air and, more 

recently, Porter. 

[17] Another term that must be discussed at the beginning is "slot". Sometimes the word 

"movement" is used instead. In commercial aviation terms a "slot" is used to designate the 

provision for the taking off or landing of an aircraft - each is a "slot". In the context of thesis 

proceedings, there are "quiet time" slots which are those occurring between 6:45 a.m, and 7:00 a.m. 

and 10:00 p.m. and 11:00 p.m. Also used is the term "peak time" slots which indicates those slots 

assigned at times when passenger traffic is greatest, such as business travel in the early morning and 

late afternoon. 

[ 18] lATA is the acronym for the Intemational Air Transport Association, founded in 1945. It is 

an association comprised of airlines v^liich represent over ninety (90%) percent of the world's 

scheduled intemational air traffic. Air Canada is a member. Porter is not. No airport is a member; 

however, several airports can achieve a status with lATA called "aiitport advisor**. BBTCA is not an 

airport advisor. lATA publishes guidelines which are not mandatory but may be adopted for use by 

aiiports for, among other things, slot management. Some airports, such as Pearson, have adopted 
Page: 15 

these guidelines. Other airports follow them to some degree. Among these guidelines are those 

respecting slot management, wherein aiiports are designated as Level 1, Level 2 or Level 3. Level 1 

essentially means that slots are managed on a co-operative basis; Level 3 means that demand for 

slots exceeds supply, and a slot co-ordinator has been appointed to manage slots and impose the 

determinations made on the users. Moving up the levels usually involves some consultation 

between the users, and on occasion those hoping to be users, of the airport. 

in. The Evidence 

[19] All of the parties filed evidence in these proceedings. Since the proceedings were taken by 

way of apphcations, no live witnesses appeared before the Court. No party raised any serious isstje 

as to the credibility of any witness, nor does the Court make any finding in that regard. All 

witnesses are considered to be credible. Each party submitted expert evidence. Porter took objection 

to some of Air Canada's evidence, which I will note below. 

[20] Orders were issued in each of these applications to the effect that some of the evidence filed 

wovild be sealed and remain confidential unless and until a fiuther Order of the Court vras made in 

that respect. The hearings were held in open Court. 

[21] In particular, filed in evidence was: 

A) For the Applicant Air Canada 

1. Affidavits of Leslie Allan Lupo, sworn February 3,2010 and May 14, 2010 

together with exhibits as identified therein (AppUcant's Record, pp. 79-564). 
Page: 16 

He was cross-examined on June 9,2010, and certain exhibits identified at 

that time (Applicant's Record, pp. 2757-2793). Lupo is Senior Legal 

Counsel at the Intemational Air Transport Association (lATA). It is unclear 

whether he is giving evidence only as to the practices followed by lATA or 

going beyond that to speak to expertise on "international standards." To the 

extent that his evidence goes beyond that of lATA I will give it httie weight 

as his expertise beyond LATA was not established. 

Affldavits of Gustavo Baumberger sworn February 5,2010 and August 18, 

2010 together with exhibits as identified (Applicant's Record, pp. 565-822). 

He was cross-examined on June 15,2010, and an exhibit identified at that 

time (AppUcant's Record, pp. 2906-2961). Baumberger is Senior VicePresident of Compass Lexicon, a consulting firm that specializes in the 

application of economics to legal and regulatory issues. No objection was 

taken as to his expertise. 

Affidavits of Marcel Forget sworn February 8,2010, May 19,2010 and 

June 7,2010 together with exhibits as identified (Applicant's Record, 

pp. 823-1235). He was cross-examined on June 14,2010, and an exhibit 

was identified at that time (Applicant's Record, pp. 2794-2905). A written 

response to an undertaking was subsequentiy provided (Applicant's Record, 

pp. 2962-2969). Forget is Vice President of Network Planning of Air 

Canada. He was presented as a feet witness. Porter's Counsel raised 

concerns that some of Forget's evidence did not come from first-hand 
Page: 17 

knowledge or was essentially argument of Counsel. I will give this part of 

his evidence little weight. 

4. Affidavit of Alain Boudreau sworn February 8,2010 together with exhibits 

as identified (Applicant's Record, pp. 1236-1389), He was cross-examined 

on June 7,2010, and exhibits were Identified at that time (Applicant's 

Record, pp. 2521-2682). A written response to an undertaking was produced 

(Applicant's Record, pp. 2962-2969). Boudreau is Senior Director Air 

Canada Jetz and Specialty Products for Air Canada. He was presented as a 

fact witaess. Porter's Counsel raises an objection that some of Boudreau's 

evidence does not arise fi^m first-hand knowledge. I will give this part of his 

evidence littie weight. 

5. Affidavits of Ehze LeGraw. sworn March 26,2010 and April 3 0,2010 

together with exhibits as identified (AppHcant's Record, pp. 1390-1394 and 

2486-2520). There was no cross-examination. LeGraw is a law clerk in the 

office of the Applicant's solicitors. Her affidavits serve to provide catain 

documents. 

6. Affidavit of Janet Jones sworn May 19,2010 together with exhibits as 

identified (Applicant's Record, pp. 1395-2312). Ihere was no crossexamination, Jones is a law clerk in the office of the Applicant's solicitors. 

Her affidavit serves to provide certain documents. 

B) For the Restx)ndent TPA 

1. Certahi documents provided in response to the Applicant's request imder 

Rule 318 (AppHcant's Record, pp. 2314-2485). 
Page: 18 

2. Affidavit of Alan J. Paul swom April 26,2010 together with exhibits as 

identified (TPA's Record, pp. 1-1423). He was cross-examined on Jxme 8, 

2010, and an exhibit identified iat that time (Applicant's Record, pp. 2970-

3135). A written answer to imdertakings was provided (Applicant's Record, 

pp. 3233-3325). Paul is Vice-President and Chief Financial Officer of the 

Toronto Port Authority (TPA). He was presented as a fact witness. 

3. Affidavit of Dr. Michael Trethewav swom April 29,2010 together with 

exhibits as identified (TPA's Record, pp. 1424-1648). He was crossexamined on May 28,2010, and an exhibit identified at that time 

(AppUcant's Record, pp. 3326-3369). Tretiieway is Executive VicePresident and Chief Economical of InterVISTAS Consulting Inc. with 

expertise ui tnmsportation economics. His evidence was presented as that 

of an expert. No challenge was made as to his expertise. 

4. Affidavits of Geoffrey Wilson swom April 30,2010 and May 27,2010 

together with exhibits as identified (TPA's Record, pp. 1649-2013). Wilson 

was cross-examined on June 11,2010 and a written answer provided as to 

certain imdertakings (Applicant's Record, pp. 3136-3325). Wilson is the 

President and Chief Executive Officer of the Toronto Port Authority ("IPA). 

He is the successor to the witaess Paul. He was presented as a fact witaess. 

C) For the Respondent Porter 

1, Affidavits of Michael Peluce swom April 29,2010 and May 26,2010, 

together with exhibits as identified (Porter's Record, pp. 1-1313). He 

was cross-examiaed on June 4,2010, and an exhibit identified, subject 
Page: 19 

to objection, at that time (Applicant's Record, pp. 3370-3468). A written 

answer to undertakings was provided (Porter's Record, p. 1359). Deluce 

is the Executive Vice-President and Chief Commercial Officer of the 

Respondent Porter Airlines Inc. (Porter) and several of its affiUate 

companies. He was presented as a fact witness. 

2, Affidavits of Roper Ware swom April 29, 2010 and June 2,2010, together 

with exhibits, as identified (Porter's Record, pp, 1315-1356). He was crossexamined on June 4,2010, and an exhibit identified at that time (AppUcant's 

Record, pp. 3370-3502). Ware is a PhD Professor of Economics at Queen's 

University; his expertise focuses on Industrial Organization, mcludbg 

antitrust economics and competition poUcy and strategic behaviour. He 

was retained to critique certain of the expert evidence submitted by the 

AppUcant. His evidence was submitted as expert evidence. No objection was 

taken as to his expertise. 

rV^ The Issues 

[22] Air Canada states the issues in its Factum simply as: 

1, Are the Decisions subject to judicial review? 

2. Are the Decisions invalid? 
Page: 20 

[23] Toronto Port Authority set out the matters that it submitted were at issue more fully in its 

Factum: 

(a) whether Air Canada may rely upon the grotmds of denial 

of procedural fairness and "fonnal and substantive 

unreasonableness", and breaches of statutes, none of which 

were enunciated in the Notices of Applications for Judicial 

Review; 

(b) whether Air Canada can properly pursue these judicial 

review applications, given that it is not "directiy affected", 

the Court's discretion in respect of such matters, and its past 

history of re-litigating the same or simUar claims; 

(c) whether the TPA, in respect of its actions complained of in 

these applications, is a federal board, commission or other 

tribuned, subject to judicial review; 

(d) whether, if the TPA's actions complained of are subject to 

judicial review, it was under a duty to consult Air Canada; 

(e) whether the Bulletin of December 24,2009, and the 

annoimcement therein with respect to the fiiture process of 

slot aUocation, is an order or matter capable of being 

judicially reviewed; 

(f) whether Air Canada is out of time to judicially review the 

decision to allocate "grandfathered" slots to Porter; 

(g) whether the TPA's actions complained of may be reviewed 

on the basis off "formal and substantive unreasonableness"; 

and 

(h) whether the decisions at issue were made for an irrelevant or 

improper purpose. 

[24] Porter put the issues more simply in its Factum: 

(a) Can Air Canada properly pursue these judicial review 

apphcations? 

(b) Has the TPA breached any duty of faimess it may have 

owed? 
Page: 21 

(c) Are the impugned "decisions" of the TPA reasonable? 

(d) Has the TPA acted with an improper purpose? 

[25] Some issues were not pursued, others restated or merged, and new issues arose during the 

course of oral argument. As matters have evolved, at the end of the hearing, the following issues 

emerged as those that I mtist address: 

1. In respect of the "decisions" at issue, was the Toix)nto Port Authority acting as a 

"federal board, commission or other tribunal" so as to be subject to judicial review 

of those decisions in this Court? 

2. Is Air Canada a "person interested" who has standing to seek jtidicial review of 

those "decisions" in this Court? 

3. Were tiie "decisions" of December 24,2009 and April 9,2010 of a kind that can be 

the subject of judicial review in this Court? 

4. Has Air Canada properly pleaded some of the grounds that it now urges in seeking 

judicial review? 

5. Was there an obUgation upon the Toronto Port Authority to consult with Air Canada 

before making the "decisions" of December 24,2009 and April 9,2010? 

6. Were the "decisions" both "fomially" and "substantively" reasonable? 

7. Did the TPA have any obligation to provide ''reasons" for its decisions, and 

if reasons were provided were they adequate? 

8. Were the "decisions" made for an improper purpose? 
Page: 22 

V. Chronology of Events 

[26] The history of events involving the Toronto Island Airport, the City of Toronto, the parties 

to the proceedings, their predecessors and affiliates and others is lengthy and complex. It would be 

impractical to set out every event hi detail. I will enumerate some of them in more or less 

chronological order: 

1. The Toronto Island Aiiport (which I will sometimes refer to as BBTCA) was built in 

the early 1930s on land located on the west end of Toronto Island. This land was, 

and continues throughout to be, owned by the City of Toronto. Ferry service 

accessing BBTCA from the mainland commenced in 1964. 

2, On June 30,1983, an agreement was entered into between the City of Toronto, the 

Toronto Harbour Commissioners (predecessors of the Respondent Toronto Port 

Authority) and the Minister of Transport respecting the Toronto Island Airport. That 

agreement is usually referred to as the Tripartite Agreement. That agreement granted 

to the Toronto Harbour Commissioners ( predecessor of the Toronto Port Authority) 

a 50-year lease for the Island Airport and related facihties subject to a number of 

teims and conditions such as the payment of rent. Among other things, the lessee 

(Toronto Harbour Commissioners) was obUged to regulate the overall fiequency of 

aircraft movement so as to respect certain noise restrictions. If the lessee defaulted 

and the default was not cured in a timely way, the Minister of Transport was entitled 

to step in and run the airport, failing which the airport would revert to the City of 

Toronto. 
Page: 23 

3- hi tiie 1980s, commercial airline service fix)m BBTCA was established and 

operatuig as a thriving service by an entity known as City Express, That entity was 

not affiliated with or related to any of the parties to these proceedings. Service was 

estabhshed linking BBTCA, Ottawa, Montreal, Newark and elsewhere. 

4. In 1991 City Express ceased its operations. 

5. In about 1990, Air Ontario, an Air Canada subsidiary, had commenced operations 

firom BBTCA. That entity and another Air Canada affiliate, Jazz continued 

operations at BBTCA until 2006 when aU operations by those entities ceased. 

Initially, these operations were tliriving, serving various destinations fi:om BBTCA; 

however, over the years the number of locations served, the firequency of flights and 

care and attention paid to the facilities diminished considerably. 

6. On June 11,1998, Royal Assent vras given to the Canada Marine Act, S.C. 1998, 

c. 10. That Act repeated repealed earUer legislation respecting navigation and 

shipping including the Toronto Harbour Commissions Act 1989,33-34-35 EHz II, 

c. 10- The Canada Marine Act made provision for Letters Patent to be issued to 

estabUsh a port authority (section 8) which Letters were not to be considered to be 

regulations but would be pubUshed in the Canada Gazette (sub-section 8(3)). 

7. On June 8,1999, Letters Patent became effective establishing the Toronto Port 

Authority and setting out certain activities to be carried out by that authority. 

Those Letters were published in the Canada Gazette, Part 1, June 5,1999. 

Section 7.2(j) atithorized the TPA to operate the BBTCA in accordance with the 

Tripartite Agreement. As of Jime 1999, Air Canada's affiliate airlkies were the only 

commercial airlines operating out of that airport. 
Page; 24 

8. The BBTCA was operathig at a loss while the Air Canada affiliates were operating 

there. By 2002, those operations had diminished considerably. The TPA had 

continuing discussions with Jazz requesting that it commit to operations at the 

aitport. In the meantime, the TPA also commenced discussions with Porter's 

predecessors as to Porter estabhshing airline services firom BBTCA and revitalizing 

services and facihties there. 

9. On July 18,2002, the Competition Bureau wrote a letter to the TPA witii a copy to 

Transport Canada respecting proposals made by RAH (a Porter predecessor) to the 

TPA as to commencing a new regional airline service from BBTCA (then referred to 

as TCCA). That letter stated that the Bureau understood that RAH intended to ramp 

up operations significantiy over a four-year period and was, among other things, 

seeking an exclusive right to 143 of the 167 slots available. That letter stated, in part: 

In relation to the RAH proposal, I would like to make three 

points. 

First, Lester B. Pearson International Airport ("Pearson") 

and TCCA are close substitutes Jdr one another for City of Toronto 

originating passengers with the same destinations. TCAA {sic} is not 

a Tnarket onto itself The fact that one carrier may dominate services 

on a particular service such as Toronto-Ottawa from TCAA [.«c] is 

only part of the competitive analysis. One would have to consider the 

competition that would exist from ccnriers operating out of Pearson. 

For passengers in the Greater Toronto Area and surrounding areas, 

other airports such as Hamilton and Buttortville would also be 

relevant as they fall within the catchment area of Pearson. 

AC dominates services out of the Pearson, and Pearson is by far the 

major airport serving the City of Toronto and surrounding areas. 

Consequently, even if a carrier other than AC were to provide the 

majority of services out of TCAA [sic], this carrier is unlikely to 

dominate any city pair service that is also available from Pearson. 

Second, as a general rule, exclusivity under the Competition 

Act is only problematic where it would lead to a substantial lessening 

or prevention of competition. Given the existing dominance of AC. 
Page: 25 

exclusivity of slots at TCAA [sic] to another carrier is unlikely to 

meet this requirement. 

Third, as a matter of cor^petition policy, exclusivity and 

the other restrictions contained in the RAH proposal may not be 

desirable or necessary to encot4rage new competition. The real 

concern of RAH is that AC will engage in predatory behaviour 

by dramatically increasing capacity in the short term in order to 

eliminate RAH. It is our view that these concerns could be addressed 

by capping AC at its current slot usage or allocation for a sufficient 

period of time to see if RAH can execute its business plan. We 

understand that AC wasitsing 24 of its 44 allocated slots up to the 

time of the public announcement of RAH and then moved to using 

38 slots in May of this year. It would c^pecff-, therefore, that AC 

already has responded to some degree to the potential threat of new 

entry at TCAA [sic] by increasing service. 

Given this fact, combined with its existing dominance at 

Pearson, a cap on AC at 38 or 44 slots could be justified as an 

interim measure to see if RAH or other new entrants could be found 

to offer service out of TCAA [sic]. We do not think that route 

exclusivity or change of gauge restrictions are necessary to address 

the concerns noted above. If the Toronto Port Authority wants to 

grant RAH exclusivity on all of the slots not used by AC, then we 

suggest that specific milestones be put in place in order to encourage 

RAH to implement its business plan in a timely manner. 

10. On September 6,2002, the TPA and RAH enter into a memorandum of 

understanding respecting establishment of an RAH airline service at the aiiport. A 

press release to that effect was issued on October 4,2002. 

11. The Competition Bureau sent a letter to RAH (Regco) dated February 10,2003, 

providing a competition assessment as to the proposals set out in the memorandum 

of understanding. That letter stated, among other things; 

The Pr^osed Agreement 

We understand that Regional Airlines Holdings Inc. 

("Regco ") and the Toronto Port Authority ("TPA ") entered into a 

Memorandum of Understanding ("MOU") on September 6, 2002. 
Page; 26 

The following is our understanding of the relevant facts related to the 

MOU: 

• All restriction identified in the MOU are limited in time 

for a toted period of 30 months following completion of 

Period 2 as outlined in Schedule A of the MOU and 

defined as the date of completion of the bridge linking 

the Toronto City Centre Island and the main land 

("the Bridge "). Our understanding is that the present 

target date for completion of the Bridge is May 2004. 

• TPA shall grant to Regco ari irrevocable option 

exercisable on or before February 28, 2003 to acquire 

from the TPA the exclusive right to utilize 115 large 

turboprop daily movement slots (as that term is defined 

in Schedule A of the MOU) at the TCCA on a "take or 

pay" basis. 

• Regco shall commence operating a regional airline 

based at the Toronto City Centre Airport ("TCCA ") 

upon completion of the Bridge. 

• TPA shall only make available to Air Canada and Air 

Canada Associates (as defined in the MOU) between 22 

and 32 large tt4rbo prop movement slots. 

TPA shall only lease to Air Canada or Air Canada 

Associates space in the new terminal if Air Canada or 

Air Canada Associates cannot renew their existing leases 

at their current location. 

• TPA shall limit A ir Canada and A ir Canada Associates 

to destinations currently served by them collectively from 

the TCCA. 

TPA shall hold in reserve 20 to 30 large turbo-prop slots. 

TPA shall not make available Or allocate to any other 

carrier any of the 20-30 movement slots held in reserve 

to Air Canada and Air Canada Associates, or any other 

carrier to enable such carrier(s) to provide service to or 

from the same destination as Regco. 

In the event that before the expiration of the roll-out 

period either the TPA increases the movement slots 

available for large turbo-prop aircraft at the TCCA 

beyond 167, or any of the 22-32 large turbo-prop slots 

allocated or to be allocated to Air Canada or Air 
Page: 27 

Canada Associates become available, TPA shall not 

grant such additional slots to any party without first 

offering such movement slots to Regco. 

The slots allocated for use by small turbo-prop aircrafts 

are not restricted for routes not served by Regco. 

The Agreement does not appear to affect the TPA's 

ability to respond to demands of cross-border carriers. 

Competition Assessment 

This matter was reviewed under sections 75, 77 and 79 

of the Competition Act. 

Relevant Product Market 

The starting point in assessing Regco's request is to 

define the relevant market (product and geographic market) and 

consider the prima facie evidence provided by market shares, and 

any other factors tltat might be relevant for interpreting the Act 

It is our view that the relevant product market effected by 

the MOU is the provision of airline services. 

In terms of the geographic dimension of the market, 

our view is that the relevant geographic market encompasses the 

provision of airline services to and from the Greater Toronto Area. 

In this regard, we consider that TCCA and Pearson draw passengers 

from the same catchment area and that services from these two 

airports compete with one another. 

We understand that each airport has certain locational 

and other advantages that are not available at the other airport. 

For example, because of the large scale and scope of Pearson's 

facilities, it can handle connecting traffic while TCAA [sic] is 

essentially serving point-to-point passengers. However, it would 

appear from the evidence that we have reviewed that either air 

carrier can provide a competitive service for passengers travelling 

to or from the Toronto area, including passengers located close to 

the downtown core. 

This was the case in the 1980 's when City Express 

competed with Air Canada on a number of routes offered at both 

TCCA and Pearson and we do not see any reason why the situation 
Page: 28 

would be different in today's environment. We also note the survey 

evidence that has been done which shows that even with limited 

frequency and no significant price differences between the service 

available at Pearson and at TCAA [sic], some passengers continue 

to use air services offered from both airports. It would appear to us 

very unlikely that even a monopolist carrier at TCAA [sic] could 

exercise market power given the competing alternatives of flying to 

Pearson and possibly other airports (Hamilton and Buttonville) in 

the region. In light of the proximity of the two airports and the 

evidence of substitution and competitive interaction from previous 

periods, it is our conclusion that air services offered from either 

Pearson or TCCA are part of the same geographic market 

Given this definition of the relevant market, it is clear 

that Regco will not be dominant in terms of airline services. 

Sections 77 & 79 

These sections cpply to dominant companies exploiting 

their market power in a way that substantially lessens or prevents 

competition in the marketplace. Exclusive contracts when they are 

entered into by dominant firms or are widespread in the market have 

the potential to impede entry of new competitors. For this to be a 

concern under the Competition Act, it would be necessary to show 

that Regco is a major supplier imder section 77 or to show 

dominance under section 79. Given the definition of the relevant 

market, this is not the case. It would also have to be shown that the 

exclusive contract was having the effect of preventing or lessening 

competition substantially in the market Given the existing 

dominance of Air Canada, limited exclusivity of slots at TCCA to 

a new entrant carrier is unlikely to meet this requirement 

Section 75 

One of the elements of the refusal to supply provision 

that would need to be satisfied in this case is whether a person would 

be substantially affected or precluded from carrying oh business as 

a residt of an inability to obtain slots. The Bureau has noted that the 

TCCA will make available to Air Canada between 22 to 32 slots. 

We also note that for many years, Air Canada has only utilized 

a limited number of slots at the TCCA. In addition, based on the 

number of slots available to Air Canada and to other carriers at 

Pearson, it would be difficult to cwgue that Air Canada or another 

carrier has been substantially affected or precluded from carrying 

on business, as a result of the arrangements set out in the MOU. 
Page: 29 

Conclusion 

In light of the above, it is our opinion that the proposal 

as set out in the MOU would not contravene the provisions of 

sections 75, 77 and 79 of the Act, and that the Commissioner wotdd 

not have grounds for causing an inquiry to be made pursuant to 

paragraph 10(l)(b) of the Act. 

This opinion is predicated on the assumption that the 

facts are accurate and that no material facts have been omitted or 

misrepresented in your submission. Finally, this opinion will 

continue to be valid so long as the material facts on which it was 

based remain unchanged and the conduct or practice is carried out 

as proposed This opinion will also continue to be valid imless there 

is an amendment of the provisions of the legislation upon which it is 

based. Should you be uncertain as to the impact of any amendment 

on the opinion you have received, you should seek legal advice or recontact the Competition Bureau. Of course, should there be a change 

in the material facts in the future, our opinion would need to be 

revisited. 

12. Jazz operations at BBTCA dhninished. Its lease expired in November 2004 and Jazz 

continued to operate on a month-to-month basis. By the end of 2005, Jazz had 

ceased its shuttle bus services and was using only about six (6) slots daily at 

BBTCA. 

13. In Febmary 2006, the Commercial Carrier Operating Agreement (CCOA), under 

which Jazz had been operating at BBTCA, came to the end of its term. TPA 

proposed a new CCOA to Jazz but it was never signed. Porter announced the launch 

of its airline service from BBTCA. Air Canada announced plans to reinstate its 

service, and meanwhile commenced an action in the Ontario Superior Court against 

TPA claiming extensive damages. This action has since been discontinued. The Jazz 

month to raonlh lease ended. 
Page; 30 

14. In March 2006, Jazz filed an appUcation for judicial review in the Federal Court, T431-06. This application was converted hito an action. A second application was 

filed by Jazz on August 8,2006, T-1427-06. Botii proceedings have since been 

abandoned. 

15. On May 3,2005, TPA and Porter (Regco and TCCA) entered into a Conunercial 

Carrier Agreement (tiie 2005 CCOA). That agreement stipulated that it was subject 

to the Canada Marine Act and the Tripartite Agreement. It provided for an initial 

"roU out" period during which Porter would receive a guaranteed number of slots, 

following which Porter would continue to be entitled to those slots on a "use it or 

lose it" basis. Porter was also entitled to "participate on a fair basis" in respect of any 

additional slots as may become available fix)m tune to time. 

16. In July 2006, Air Canada annoimced resumption of its services from BBTCA and 

accepted bookings. Such services were never resumed and the bookings were 

cancelled. In August 2006, the Competition Bureau announced that while it had 

concerns as to Air Canada's activities, they had been resolved by Air Canada's 

undertaking to stop such advertising and booking. 

17. On October 23,2006, Porter launched its service from BBTCA with two aircraft 

flying to Ottawa, Since that time, Porter has acquired several more aircraft and now 

services many more destinations in Canada and in the United Slates. By 2008, the 

BBTCA had become a profitable. No profit was ever made during the period that 

any of City Express, Air Ontario or Jazz were operating fixim that airport. 

18. In 2008, Jacobs Consultancy, a firm having expertise in airport capacity and slot 

movement, was retained by TPA to provide advice and report on capacity at 
Page; 31 

BBTCA havhig regard to noise limitations imposed by tiie Tripartite Agreement and 

other constraints. A report was made in 2008 which resulted among other things in 

the purchase of a new ferry in 2009 to service the airport. 

19. On September 28,2009, Air Canada wrote to TPA expressing an interest in 

commencing service from BBTCA early in 2010. Tfhis was the first request since 

February 2006 made by Air Canada or its affiliates for slots. 

20. On October 16,2009, TPA released a pubUc bulletin statmg that it had received 

enquiries firom interested parties in participating in expanded services to be offered 

at BBTCA. TPA indicated that it was in the process of receiving advice as to 

capacity having regard to noise restrictions imposed by the Tripartite Agreement. 

21. On October 22,2009, officials fixjm TPA and Air Canada met to discuss Air 

Canada's wish to participate in the expanded facilities at BBTCA. Air Canada was 

unclear as to the type of aircraft to be used or whether it or Jazz would be the 

proposed participant. Ak Canada expressed an interest in 60 slots. TPA invited 

Air Canada to participate once further advice had been received respecting the 

allocation process. 

22. hi October 2009, TPA met with Transport Canada, who recommended that TPA 

contact a slot co-ordinator at Pearson airport. It is not clear when that person was 

contacted or what was discussed. It appears that the person is a Mr. Smith, an 

employee of Air Canada. There is no document recording these discussions. 

23. In November 2009 a Porter affiliate CCTC, which was buUding new terminal 

facilities at BBTCA, announced that it would receive enquiries from others as to 

participating in the use of such facilities. 
Page: 32 

24. Air Canada representatives met with TPA officials December 17,2009. On 

December 18,2009, Air Canada wrote a letter to TPA requesting that it be assigned 

seventy-four (74) slots. 

25. In December 2009, Jacobs Consultancy provided a draft report to TPA respecting 

availability of a number of additional slots at BBTCA having regard to noise and 

other constraints such as the feiry, ferry terminal, parking and other matters. Among 

the proposals made was that TPA consider the appointment of a slot co-ordinator to 

manage the allocation of available slots at BBTCA. 

26. On December 24, 2009, TPA released the bulletin with a copy to Air Canada which 

is the Sfubject of the first judicial review herein, T-488-10. The substance of this 

bulletin has been set out in detail earUer in these reasons27. In January 2010 Jacobs Consulting provided its finalised report to TPA; it is not 

identical in wording to the drafi: of December 2009. The recommendation that a slot 

coordinator be appointed remained. 

28. January 7,2010, Air Canada met with TPA to discuss Porter's existing slots, 

additional slots and ^cihties as the Island Aiiport. 

29. January 21,2010, Air Canada contacted CCTC to inquire about space in the new 

termmal. CCTC responds January 25,2010, inviting fonnal discussion. The parties 

met February 5, 2010. 

30. In February 2010, TPA spoke to a person at London City Centre Airport, London, 

England; an aiiport that for years had dealt with slot problems with the assistance of 

a company caUed Airport Coordination Limited (ACL). ACL was subsequentiy 

retained to assist TPA with slot co-ordination. ACL was lATA accredited. 
Page; 33 

31. On March 22,2010, ACL provided a report to TPA making a number of 

recommendations as to the management of slots at BBTCA. 

32. April 9, 2010, TPA released the bulletin that is the subject of the second apphcation 

for jtidicial review, T-692'10. That bulletin invited formal proposals from persons 

interested in acquiring slots at BBTCA. The details have been set out earher. 

33. On tiie same day, April 9,2010, Porter and the TPA entered into a new CCOA - the 

2010 CCOA. Air Canada was unaware of this event at the time. 

34. April 20,2010, die Commercial Carrier Operating Agreement of 2005 (2005 

CCOA) between Porter and TPA expired. 

35. May 4,2010, the second application for judicial review, T-692-10, was filed by Air 

Canada. 

36. Air Canada responded to TPA's request for proposals on May 14,2010 stating, inter 

alia, that it accepts IPA's mandate, objectives and guiding principles as identified in 

section 1.2 of TPA's request for proposals. Section 1.2 is too lengthy to repeat in 

flill, but among other things, states that a slot co-ordinator has been appointed (ACL) 

to: 

"...allocate slots to carriers in accordance with TPA's slot 

allocation methodology and scheduling guidelines." 

[27] I have not endeavoured to set out all the events, nor set out in detail what was discussed or 

written, as the case may be. I have endeavoured to highlight major events. 
Page: 34 

VI. Position of the Parties 

[28] These applications were well presented and argued by all Counsel. I thank tiiem for their 

courtesy and professionalism throughout All Counsel argued forcefully and well on behalf of their 

respective clients. As a result, many different points have been raised for resolution. Fiisl, however, 

I will present an overview of the position of each party. 

[29] Air Canada is the AppUcant. It wants the TPA to undo its slot allocation process and start 

from scratch, in consultation with Air Canada. It wants the 2010 Commercial Carrier Operating 

Agreement, as signed with Porter, set aside, and that those parties, in the meantime, abide by the 

terms of the 2005 CCOA. Air Canada is aware of the fact tiiat it is not well liked by Porter and 

possibly tiie TPA; however, its Counsel argues that the applications are not about Air Canada, they 

are about the TPA and the decisions that it has made. It is about what Air Canada characterizes as 

the TPA's failure to follow due process in allowing fiill participation by everyone, not just TPA's 

favourite partner, Porter, in the "licensing" of slots at the airport. Air Canada's Counsel argues that 

the TPA is acting as a federal board, commission or other tribunal in this capacity, and is in that 

capacity subject to the judicial review process of this Court. 

[30] TPA argues that it is in respect of its operations at BBTCA acting as a commercial entity, 

and is not subject to judicial review by this Court in that regard. It argues that the "decisions" under 

review are not "decisions", but announcements and a request for proposals, and that Air Canada is 

not a "person interested" therefore lacks standing to seek judicial review. TPA argues that it has 

fiequentiy consulted with Air Canada concerning the aiiport. TPA should be fi^e to make the 
Page: 35 

normal business decisions that any ordinary business corporate entity would make with interference 

by way of judicial review. 

[311 Porter argues that it is the real target of Air Canada's legal activities. It argues that Air 

Canada and its affiliates left the island aiiport to deteriorate, preferring to operate from Pearson 

airport; and only when Porter, who was assuming all the risk, made the island ahport viable, did Air 

Canada wish to muscle its way back in by whatever means. Air Canada should not complain about 

Porter's dominance at BBTCA, since Air Canada is the dominant airline at Pearson and most other 

commercial airports in Canada. 

[32] What the Court must keep in mind is that what is before it are two discrete applications 

repeating certain "decisions" made by the TPA and processes followed by it respecting those 

"decisions". In order to deal with those discrete matters, the Court must address a number of issues 

raised by the parties. 

VII Issue #1: Is the Toronto Port Authority a "federal boards cororoission or other tribunal" 

so as to be subject to mdicial review? 

[33] Sections 18 and 18.1 of tiie Federal Courts Act, R.S.C. 1985, c. F-7 give tiie Federal Court 

jurisdiction to issue an injunction and other forms of prerogative relief and to judicially review and 

provide remedies in respect of a decision or order of a "federal board, commission or other 

tribunal". 
Page: 36 

[34] The Toronto Port Authority (TPA) was continued as a successor to the Toronto Harbour 

Commissioners under the provisions of the Canada Marine Act, and in particular, subsection 12(1) 

and Part I of the Schedule of that ^c^. Letters Patent were issued to the TPA effective June 8,1999. 

The purpose of the Canada Marine Act is set out in section 4, subsections (a) to (h); 

4, In recognition of the 

significance of marine 

transportation to Canada and 

its contribution to the Canadian 

economy, the purpose of this 

Act is to 

(a) implement marine policies 

that provide Canada with the 

marine infrastructure that it 

needs and that offer effective 

support for the achievement of 

national, regional and local 

social and economic objectives 

and will promote and safeguard 

Canada's competitiveness and 

trade objectives; 

(a 1) promote the success of 

ports for the purpose of 

contributing to the 

competitiveness, growth and 

prosperity of the Canadian 

economy; 

(b) base the marine 

infrastructure and services on 

international practices and 

approaches that are consistent 

with those of Canada's major 

trading partners in order to 

foster harmonization of 

standards among jurisdictions; 

(c) ensure that marine 

transportation services are 

organized to satisfy the needs of 

users and are available at a 

reasonc^le cost to the users; 

4. Compte tenu de 

I'importance du transport 

maritime au Canada et de sa 

contribution b. 1 'economie 

canadierme, lapresente loi a 

pour objet de : 

a) mettre en oeuvre une 

politique maritime quipermette 

au Canada de se doter de 

I 'infrastructure maritime dont il 

a hesoin, qui le .soutienne 

efflcacement dans la realisation 

de ses objectifs 

socioeconomiques nationaux, 

regionaux et locaux aussi bien 

que commerciaux, et I 'aide a 

promouvoir et preserver sa 

compititivite; 

a. 1) promouvoir la vitaUte des 

ports dans le but de contribuer 

d. la compititiviti, la croissance 

et laprosperite economique du 

Canada; 

b) fonder I'infrastructure 

maritime et les services sur des 

pratiques Internationales et des 

approches compatibles avec 

celles de ses principaux 

partenaires commerciaux dans 

le but de promouvoir 

I'harmonisation des normes 

qu 'appliquent les diffirentes 

autoritds; 

c) veiller d ce que les services 

de transport maritime soient 
Page: 37 

(d) provide for a high level of 

safety and environmental 

protection; 

(e) provide a high degree of 

autonomy for local or regional 

maruzgement of components of 

the system of services and 

facilities and be responsive to 

local needs and priorities; 

(f) manage the marine 

infrastructure and services in a 

commercial manner that 

encourages, and takes into 

account, input from users and 

the community in which a port 

or harbour is located; 

(g) provide for the disposition, 

by transfer or otherwise, of 

certain ports and port facilities; 

and 

(h) promote coordination and 

integration of marine activities 

with surface and air 

transportation systems. 

organises defagon a satisfaire 

les besoins des utilisateurs et 

lew soient offerts a un coiit 

raisonnable; 

djfournir un niveau eleve de 

sicurite et de protection de 

I'environnement; 

e) offrir un niveau ilevi 

d'autonomic aux 

administrations locales ou 

rigionales des composantes du 

reseau des services et 

installations portuaires et 

prendre en compte lesprioritis 

et les besoins locaux; 

f) girer 1 'infrastructure 

maritime et les services d'une 

faqon commerciale quifavorise 

etprend en compte 1 'apport des 

utilisateurs et de la collectiviti 

oii unport ou havre est sitae; 

g) prevoir la cession, 

notammentpar voie de 

transfert, de certains ports et 

installations portuaires; 

hjfavoriser la coordination et 

I'integration des activitds 

maritimes avec les riseaux de 

transport airien et terrestre. 

[35] Section 5 of the Act defines a number of terms including "ahport" and "user": 

5, The definitions in this section apply in this Part. 

"airport" 

« a^roport » 

"airport" means an airport situated in apart. 
Page; 38 

"letters patent" 

«lettres patcntes » 

"letters patent" means letters patent as amended by supplementary 

letters patent, if any. 

"port" 

<'<port» 

"port" means the navigable waters under the jurisdiction of a port 

authority and the real property and immovables that the port 

authority manages, holds or occupies as set out in the letters 

patent 

"user" 

« utilisateur » 

"user", in respect of a port, means a person that makes 

commercial use of, or provides services at, the port. 

[36] Section 2 defines "port authority": 

"port authority" 

« adntinistiation portuaire » 

"port authority" means a port authority incorporated or continued 

under this Act. 

[37] Section 7 of the Act speciSes where a port authority is or is not an agent of the Crown: 

7. (1) Subject to subsection (3), a port authority is an agent of Her 

Majesty in right of Canada only for the purposes of engaging in the 

port activities referred to in paragraph 28(2)(a.). 

Not an asent of Her Majesty 

(2) A wholly-owned subsidiary of a port authority is not an agent 

of Her Majesty in right of Canada unless, subject to subsection (3), 

<V it was an agent of Her Majesty in right of Canada on June 10, 

1996; and 
Page: 39 

(b) it is an agent of Her Majesty in right of Canada under an 

enactment other than this Act. 

Borrowing restriction 

(3) A port authority or a wholly-owned subsidiary of a port 

authority may not borrow money as an agent of Her Majesty in 

right of Canada. 

[38] Subsection 28(1) of the Act provides that, inter alia, the TPA has the powers of a natural 

person: 

28. (1) A port authority is incorporated for the purpose of operating 

the port in respect of which its letters patent are issued and for that 

purpose aruifor the purposes of this Act, has the powers of a natural 

person. 

[39] Sub-section 28(2)(a) of the Act is the provision referred to in section 7 of the Act under 

which an entity like tiie TPA would be acting as an agent of the Crown. Sub-section 28(2)(b) is 

directed to activities in respect of which it is not a Crown agent: 

(2) The power of a port authority to operate a port is limited to the 

power to engage in 

(•&) port activities related to shipping ru;tvigation, transportation of 

passengers and goods, handling of goods and storage of goods, to 

the extent that those activities are specified in the letters patent; and 

(h) other activities that are deemed in the letters patent to be 

necessary to support port operations. 

[40] Section 29 of the Act is directed to railways and airports. Sub-section 29(3) specifically 

deals with airports: 

(3) Subject to its letters patent, to any other Act, to any regulations 

made under arty other Act and to any agreement with the 

Government of Canada that provides otherwise, a port authority that 

operates an airport shall do so at its own expense. 
Page: 40 

[41] The Letters Patent issued to IPA pursuant to tfie Canada Marine Act purport to separate the 

powers exercised by the TPA under paragraph 28(2)(a) of that ^cr (Crown agent) in section 7.1 of 

the Letters Patent fixim tiiose exercised under paragraph 28(2)(b) (non-Crown agent) in section 7.2 

of the Letters Patent. 

[42] Section 7.1 of the Letters Patent, subsections (c), (e) and (p) state: 

7.1 Activities of the Authority 

Related to Certain Port 

Operations. To operate the 

port, the Authority may 

undertake the port activities 

referred to inparagngyh 

28(2)(a) of the Act to the extent 

specified below: 

(c) management, leasing or 

licensing the federal real 

property described in Schedule 

B or described as federal real 

property in any supplementary 

letters patent, subject to the 

restrictions contemplated in 

sections 8.1 and 8.3 and 

provided such management, 

leasing or licensing is for, 

or in connection with the 

following: 

(i) those activities described in 

sections 7.1 and 7.2; 

(ii) those activities described in 

section 7.3 provided such 

activities are carried on by 

Subsidiaries or other third 

parties pursuant to leasing or 

licensing arrangements; 

(Hi) tlw following uses to the 

extent such uses are not 

7.1 Activitis de 

I 'Administration Hies a 

certaines operations 

portuaires. Pour exploiter le 

port, I'Administrationpeut se 

livrer aux activitis portuaires 

mentionnees a I'alinea 28(2)a) 

de la Loi dans la mesure 

precisee ci-dessous: 

c) sous reserve des restrictions 

privues aux paragraphes 

8.1 et8.3, gestion, location ou 

octroi depermis 

relativement aux immeubles 

fideraux decrits a 1 'Annexe 

« B » Ou dans des lettres 

patentes supplememaires 

comme dtant des immeubles 

fid&raux, a condition que 

la gestion, la location ou 

I'octroi depermis vise ce qui 

suit: 

(i) les activitis decrites aux 

paragraphes 7.1 et 7.2; 

(ii) les activitis decrites au 

paragraphe 7.3pourvu 

qu 'elles soient meniespar des 

Filiales ou des tierces parties 

conformement aux 

arrangements de location ou 

d'octroi depermis; 
Page: 41 

described as activities in 

section 7.1, 7.2 or 7.3: 

(A) uses related to shipping, 

navigation, transportation 

of passengers and goods, 

handling of goods and storage 

of goods; 

(B) provision of municipal 

services or facilities in 

connection with such federal 

real property; 

(C) uses not otherwise within 

subparagraph 7.1(c)(iii)(A), (B) 

or (D) that are described 

in si^plementary letters patent 

(D) government sponsored 

economic development 

initiatives approved by 

Treasury Board; provided such 

uses are carried on by third 

parties. Other than 

Subsidiaries, pursuant to 

leasing or licensing 

arrangements; 

(e) granting in respect of 

federal real property described 

in Schedule B or described as 

federal real property in arty 

supplementary letters patent, 

road allowances or easements, 

rights of way or licences for 

utilities, service or access; 

(p) carrying on activities 

described in section 7.1 on real 

property other than federal real 

property described in 

Schedule Cor described as real 

property other than federal 

real property in any 

supplementary letters patent; 

(Hi) les utilisations suivantes 

dans la mesure ou elles 

nefigurentpas dans les 

activitis dicrites aux 

paragraphes 7.1, 7.2 ou 7.3: 

(A) utilisations Hies a la 

navigation, au transport 

despassagers et des 

marchandises et a la 

manutention ethl 'entreposage 

des marchandises; 

(B) prestation de services ou 

d'installations municipaux 

relativement a ces immeubles 

fediraux; 

(C) utilisations qui ne sontpas 

prevues aux divisions 

7.1c)Ctii)(A), (B) ou (D) mais 

qui sont decrites dans des 

lettres patentes 

supplimentaires; 

(D)projets de diveloppement 

iconomigue imanant du 

gouvernement et cgyprouvis par 

le Conseildu Tresor; pourvu 

qu 'elles soient menies par des 

tierces parties, a I'exception 

des Filiales, conformement 

aux arrangements de location 

ou d'octroi depermis; 

e) octroi d'emprises routieres, 

de servitudes ou depermis 

pour des droits de passage ou 

d'acces ou des services 

publics visant des immeubles 

fediraux decrits a I 'Annexe 

« B »ou dans des lettres 

patentes supplimentaires 

comme ctant des immeubles 

fediraux; 
Page; 42 

p) execution des activitis 

decrites au paragraphe 7.1 sur 

des immeubles, autres que des 

immeubles fideraux, 

decrits h I 'Annexe « C » ou 

decrits dans des lettres patentes 

supplimentaires comme etant 

des immeubles autres que des 

immeubles fediraux; 

[43] It must be noted that Schedule B, as referred to in subsection 7.1 (c) of the Letters Patent, has 

been intentionally deleted from the Letters Patent. Schedule C of the Letters Patent describes the 

airport as "Real Property Other than Federal Real Property". 

[44] Section 7,2 of the Letters Patent defines activities under sub-section 2S(2)(b) of the Canada 

Marine Act, i.e. non-Crown agent activity. Sub-section 7.2 (j) as amended by Supplementary Letters 

Patent January 3,2004 is specifically dhected to the operation of the Toronto City Centre Aiiport. 

7.2 Activities of the Authority Necessary to Support Port 

Operations, To operate the port, the Authority may undertake the 

following activities which are deemed necessary to support port 

operations pursuant topara^aph 28(2) (b) of the Act: 

(j) the operation and maintenance of the Toronto City 

Centre Airport in accordance with the Tripartite Agreement 

among the Corporation of the City of Toronto, Her 

Majesty the Queen in Right of Canada and The Toronto 

Harbour Commissioners dated the 30th day of June, 

1983 artdferry service, and the construction operation and 

maintenance of a bridge or tunnel across the 

Western Gap of the Toronto harbour to provide access 

to the Toronto City Centre Airport; 

[45] Air Canada argues that TPA is a "federal board, commission or other tribunal" either 

because it is a Crown agent under sub-section 28(l)(a) of the Canada Marine Act because, as 
Page; 43 

authorized by section 7.1 of the Letters Patent it is engaged in tiie "Ucensing" of slots, or tiiat the 

source of power under which the TPA was acting was a federal statute, the Ckmada Marine Act, and 

thus its decisions in the exercise of that power is subject to judicial review. 

[46] I will first deal with the Crown agent argument. It is clear that, in enacting sub-sections 

28(2)(a) and (b) of the Canada Marine Act, ParHament intended that a distinction be made in 

respect of activities which a corporation such as the TPA could carry out and be a Crown agent, and 

those which it could not. Those activities were delineated in sections 7.1 and 7.2 of the TPA's 

Letters Patent. 

[47] Sub-sections 7.1 (c) and (e) of the Letters Patent relate only to "Federal Real Property" as 

described in Schedule B to the Letters Patent or in any Supplementary letters patent Schedule B was 

intentionally deleted, and no supplementary letters patent address the matter. In fact. Schedule C 

describes the airport as being "Other than" Federal Real Property. Thus, sub-sections 7.1 (c) and (e) 

cannot make the TPA a Crown agent. 

[48] Suh-section 7.1 (p) addresses "Property Other than Federal Real Property" as described in 

Schedule C. Schedule C includes the Toronto City Centre Au^port. Thus, Air Canada argues, that 

sub-section is applicable to make the TPA a Crown agent if the aUocation of slots is considered to 

be a licensing activity. 

[49] Sub-section 7.20)> which is part of the "non" Crown agent activity, directiy addresses the 

operation and maintenance of the airport. It is clear that the allocation of slots is a fimdamental part 
Page: 44 

of such an operatioa Given this clear language, there can be no doubt that the TPA, in respect of 

the operation and maintenance of the airport, including the allocation of slots, is intended by the 

Canada Marine Act and Letters Patent created under that Act, not to be acting as a Crown agent. 

[50] Air Canada's Counsel argued that slots were akin to a licence and should be considered as a 

section 7.1 "licensing" activity as described by the Letters Patent. I reject this argument. Subsection 7.2(j) clearly embraces the aitport and its operation. No statute or Letters Patent describes a 

"slot" as a "licence". It cannot have been in the mind of the drafters tp separate out the allocation of 

slots firom the operation and maintenance of the aiiport so as to make the TPA a Crown agent in that 

narrow respect. As has been expressed many times by the Courts: "the normal interpretive rule is 

that a specific provision must prevail over a general one " e.g. Canada v. McGregor (1989), 57 

D.L,R. (4*) 317 per Urie J,A. for tiic Federal Court of Appeal. 

[51] Turning to the second argument made as to whether the IPA is a "federal board, 

commission or other tribunal", the Court must consider what powers were being exercised by the 

TPA and the source of those powers. The Federal Court of Appeal recently in Anisman v Canada 

(Border Services Agency), 2010 FC A 52 as amended April 29, 2010, has instructed that a two-step 

exercise has U) be conducted. First, it must be determined what jurisdiction or power the body or 

person seeks to exercise. Second, it must be determined what is the sovwce or the origin of the 

jurisdiction or power which the body or person seeks to exercise. Nation JA for the Court wrote at 

paragraphs 29 and 30: 

29 The operative words of the s. 2 definition of "federal board, 

commission or other triburial" state that such a body or person has, 

exercises or purports to exercise jurisdiction or powers "conferred 

by or under an Act of Parliament or by or under an Order made 
Page: 45 

pursuant to a prerogative of the Crown...". Thus, a two-step enquiry 

must be made in order to determine whether a body or person is a 

'federal board commission or other tribunal". First, it must be 

determined what jurisdiction or power the body or person seeks to 

exercise. Second it must be determined what is the source or the 

origin of the jurisdiction or power which the body or person seeks to 

exercise. 

30 In Judicial Review ofAdministrcaive Action in Canada, Vol 1, 

looseleaf (Toronto: Canvasback Publishing, 1998) at para. 2:4310, 

the learned authors, D.J.M. Brown andJ.M. Evans, state that in 

determining whether a body or person is a "federal board 

commission or other tribtmal", one must look at "the source of a 

tribunal's authority". They write as follows: 

• In the result, the source ofd tribunal's authority, and not the 

nature of either the power exercised or the body exercising it, 

is the primary determinant of whether it falls in the definition. 

The test is simply whether the body is empowered by or under 

federal legislation or by an order rrtade pursuant to a 

prerogative power of the federal Crown. [...] 

[52] Two earlier decisions of the Federal Court considered the nature of the powers exercised by 

a port autiiority: in both cases, the Halifax Port Authority. The first is Halterm Ltd v Halifax Port 

Authority (2000), 184 F.T.R. 16. In tiiat case, tiie Halifax Port Autiiority, like tiie TPA, was created 

pursuant to the Ccmada Marine Act, The appUcant Haltcim was a terminal operator providing 

stevedoring services and equipment used to load and offload vessels. It wanted to renew hs leases 

but found the terms offered by Halifax Port Authority to be unacceptable and sought judicial 

review. Justice O'Keefe found that the port authority was exercising federal power. He wrote at 

paragraph 29: 

29 In the present case, when the Port Authority is leasing or 

negotiating to lease federal real property to Halterm, it is 

exercising powers given to it pursuant to the Canada Marine Act. 

It is not exercising the private powers of a corporation as that 

wording is used in Cairns, supra. It is exercising the powers 

specifically given to it in the Canada Marine Act and thus, it is a 

"federal board, commission or other tribunal" within the Federal 
Page: 46 

Court Act when negotiating leases. As a result, this Court has 

jwisdiction to hear Halterm's judicial review cyyplication. This 

ground of the motion is therefore dismissed. 

[53] Subsequentiy, Justice Mactavish of this Court also had to deal with the Halifex Port 

Autiiority in DRl Vacations Ltd v Halifixc Port Authority, 2005 FC 860, [2006] 3 F.C.R. 516. In 

that case, the applicant was seeking to lease premises from the port authority to operate a souvenir 

shop and alleged that it was denied procedural feimess. Justice Mactavish found that the port 

authority was not acting as a "federal board". She distinguished, and in any event declined to 

follow, Halterm. She wrote at paragraphs 53 to 62; 

53 While I am satisfied that HP A is an organization with public 

responsibilities, that is not the end of the matter. It is necessary to go 

on to examine whether the particular powers which have been 

exercised in this case are public in nature or are more in the nature 

of private commercial activity. 

54 What is in issue in this case is the licensing of port space for 

what has variously been referred to in these proceedings as a 

"souvenir shop", a "market" and a "retail outlet". The purpose of the 

shop was described by counsel as being to "enhance the port 

experience" of the passengers and crew of cruise ships docking at the 

Port of Halifax. 

55 In my view, such a souvenir shop is a purely commercial 

enterprise, one which is incidental to the HP A's main responsibility 

for managing port activities relating to shipping, navigation, 

transportation of goods arid passengers and the storage of goods. As 

such I find that the HP A was not acting as a "federal board, 

commission or other tribunal" when it made the decision under 

review in this case. 

56 As a consequence, I am satisfied that the Court does not have 

jurisdiction to deal with this application for judicial review. 

57 In coming to this conclusion, I am also influenced by the fact 

that in enacting the Canada Marine Act and in creating the HPA, 

Parliament clearly intended to .ensure that the Port of Halifax is run 

in a commercially viable fashion. Entitling parties to judicially 

review every decision made in relation to federally owned port 
Page: 47 

property, however incidental that decision may be to the operation of 

the port itself would in my view, be the sort of absurd and very 

inconvenient result contemplated by Justice Thurlow in Wilcox, and 

moreover, woiddbe antithetical to the achievement of Parliament's 

intent in creating the HPA. 

58 The fact that the space in question is on federal land is not 

determinative of the issue, in my view. A number of the cases 

referred to above dealt with decisions relating to the expenditure or 

management of public property — that is tax dollars. These monies 

are monies to which ordinary private companies would not have 

access. Nevertheless, in cases such as Wilcox, Cairns and Toronto 

Indepertdent Dance Enterprises, the courts have found that the 

institutions in question were not acting as federal boards, 

commissions or other tribunals in making the decisions under 

review. 

59 In Halterm, the Court was dealing with the lease of real 

property for a container port terminal, whereas in this case, what is 

in issue is the licensing of space to be [page534] used for a souvenir 

shop. 

60 Halterm is, therefore, arguably distinguishable from the 

present situation in that the transaction in question in that case was 

much more directly related to the business of the HPA as apart. In 

my view, the provision of a souvenir shop for the pas.sengers and 

crew of cruise ships is considerably more incidental to the business 

of the Port of Halifax. 

61 However, for the reasons given, to the extent that Halterm is 

not distinguishable from the present case, I must respectfully decline 

tojbllow it. 

62 Before closing, I should note that my decision should not be 

interpreted to mean that the HPA could never be considered to be a 

"federal board commission or other tribunal" as contemplated by 

the Federal Courts Act It is clear that the question of whether an 

institution is acting as a "federal board, commission or other 

tribunal" in a given set of circumstances is one that has to be 

resolved on a case-by-case basis. 
Page: 48 

[54] In the present case, I return to tiie Letters Patent, which were drafted pursuant to the Canada 

Marine Act and pubUshed in the Canada Gazette, The Letters Patent were careful to separate out tiie 

operation and maintenance of the airport from other activities to be carried out by tiie TPA. 

Subsection 29(1) oiihsAAct creates the TPA as a corporate "nattiral person". Regard must be had to 

the distinction made by the Federal Court of Appeal in .<4eric. Inc. v Chairman of the Board of 

Directors, Canada Post Corporation, [1985] 1 F.C. 127 between the exercise of powers expressly 

mandated by a statue and the exercise of the general powers of management of a corporation. 

Where a statute expressly mandates that a certain inquiry be conducted or decision made, that is a 

power reviewable by the Court - general powers of management are not Ryan J. for the Court wrote 

at page 138: 

The decision of the Chairman of the Board which is under review 

was not made in the exercise of a general power of management 

conferred on the Canada Post Corporation. His decision was made 

in the exercise of an authority conferred on him by a regulation 

approved by the governor in Council pursuant to the Canada Post 

Corporation Act. The authority is an authority to entertain and 

dispose of an "appeal". The respondent suggested that the "appeal" 

is analogous to the sort of procedure often established by a business 

firm to handle customer complaints. But the procedure under section 

6 of the Regulations (which I examine in detail below) is very 

different from a mere system for settling complaints. The "tqipeal" 

provided by section 6 is precisely that: it is an appeal. lam satisfied 

that the Chairman, in entertaining and disposing of the appeal in this 

case, is a person within the meaning of that word as it is used in the 

definition of "federal board, commission or other tribunal" in the 

Federal Court Act. 

[55] In the present case, the TPA was expressly empowered by its Letters Patent to operate and 

manage the airport. TTiis is normal business activity. I refer to the decision of the Federal Court of 

Appeal iix Irving Shipbuilding Inc. v Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4*^ 

340 where that Court warned against judicial interference in circumstances where, even though the 
Page; 49 

Crown may be involved, normal business activity was being carried on. Evans JA for the Court 

wrote at paragraph 21; 

21 The fact that the power of the Minister, a public official, to 

award the contract is statutory, and that this large contract for the 

maintenance and servicing of the Canadian Navy's submarines is a 

matter of public interest, indicate that it can be the subject of an 

application for judicial review under section 18.1, a public law 

proceeding to challenge the exercise of public power. However, 

the fact that the Minister's broad statutory power is a delegation of 

the contractual capacity of the Crown as a corporation sole, and 

that its exercise by the Minister involves considerable discretion 

and is governed in large part by the private law of contract, may 

limit the circumstances in which the Court should grant relief on 

an application for Judicial review challenging the legality of the 

award of a contract. 

[56] In the present case, I find that the TPA was not, ui respect of tiie "decisions" under review, 

acting as a "federal board, commission or other tribunal". It was operating and maintaining the 

airport as an ordinary commercial activity. This Court lacks jurisdiction to review the ''decisions" at 

issue. 

[57] Nonetheless I will address the other issues raised in case of an appeal. 

VIIIIssue#2: Is Air Canada a **Dartv directly affected'* who has standing to seek judicial 

review of the "decisions" at issue? 

[58] I wiU consider this issue on tiie assumption that the TPA is, contrary to what I have found, a 

"federal board, commission or other tribunal". 
Page: 50 

[59] Section 18 of the Federal Courts Act is silent as to who can apply for judicial review except, 

in subsection 18(3), which directs that remedies can only be obtained by application for judicial 

review under section 18.1. Sub-sections 18.1(1) and (2) state that an ^plication for judicial review 

can only be brought by the Attorney General of Canada or anyone "directiy affected". 

[60] For some time, it has been considered that a commercial interest alone was not sufficient to 

make a person "directiy affected" such that they would have standing to seek judicial review. The 

leading case often relied upon is Rothmans ofPaU Mall Canada Ltd. v Canada (Minister of 

National Revenue), [1976] 2 F.C. 500. In tiiat case, the Federal Court of Appeal dismissed an 

application for judicial review of an excise tax decision respecting certain configurations of 

cigarettes manufactured by competitors of the applicant, but not the applicant LeDain JA for the 

Cotirt wrote, at paragraphs 12,13,14 and 16: 

12 The complaint of the appellants is that the change in 

departmental policy was adopted without first giving them an 

opportunity to be heard and that it had the effect of conferring a 

competitive advantage on the respondent companies by permitting 

them to market a longer cigarette fi?r the same amotmt of excise 

duty as is paid by the appellants. The appellants do not contend, 

nor is there any evidence to suggest, that they themselves have had 

arty interest in marketing a cigarette with a tobacco portion of less 

than four inches but an overall length, including the filter tip. of 

more than four inches. They do not seek the interpretation which 

they contend to be the correct one in order to permit them to do 

anything in particular that they are not able to do now, but rather 

to prevent the respondent companies from doing something which 

is thought to give the latter a commercial advantage. 

13 I am in agreement with the learned Trial Judge that such an 

interest is not sufficient to give the appellants the required status 

or locus standi to obtain any of the relief sought in their 

application. The appellants do not have a genuine grievance 

entitling them to challenge by legal proceedings the interpretation 

which the respondent officials have given to the definition of 

"cigarette'* in section 6 of the Excise Act for purposes of their 
Page: 51 

administrative application of the Act Such interpretation does not 

adversely affect the legal rights of the appellants nor impose any 

additional legal obligation upon them. Nor can it really be said to 

affect their interests prejudicially in any direct sense. If it permits 

the respondent companies to do something which the appellants 

are not doing, it is because the appellants choose not to do it. 

14 The appellants do not derive any rights, procedural or 

otherwise, frorn what may have been their own assumption as to 

how section 6 of the Excise Act would be applied to a cigarette in 

which the tobacco portion is less than four inches long but the 

overall length including the filter tip, is more than four inches. 

Before May or June, 1975, officials of the Department had not 

been called on to consider this question so there was no basis in 

their action for such an assumption. In so far as the interpretation 

is to be considered a "change" of administrative policy it can only 

be considered as such in relation to the internal memorandum 

circulated by Horner at the beginning of June. When the question 

was raised by the respondent companies in May and June the 

departmental officials were under no duty to advise the appellant 

companies and offer them an opportunity to make representations. 

I know of no authority which supports a general duty, when 

considering a change of administrative policy to be applied in 

individual cases, to notify and offer anyone who may be interested 

an opportunity to make representations. 

16 The circumstances in the present case are quite different and 

afford no basis for a conclusion that the respondent officials acted 

unfairly toward the appellants. There had been no previous 

representations by the appellants as to how the definition in 

section 6 in the Excise Act should be applied to cigarettes of the 

kind introduced by the respondent companies. There had been no 

undertaking to the appellants with respect to this question. Nor did 

such practice as there was with respect to industry representation 

give any reasonable expectation that representations of the kind 

made by the respondent companies, involving a matter of a 

competitive nature, were such as would come from the industry as 

a whole or be promptly communicated to the industry as a whole. 

In any event, the appellant companies learned of the proposed 

policy soon after it was adopted and had an opportunity to make 

representations. 
P^e: 52 

[61] I followed tiiis case, as weU as others in Aventis Pharma Inc. v Canada (Minister of Health), 

2005 FC 1396,45 C.P.R. (4*^) 6.1 also cited Merck Frosst Canada Inc v Canada (Minister of 

National Health and Welfare) (1997), 146 F.T.R. 249 where Hugessen J. wrote at paragraph 11; 

7 / Some of the cases have used concepts such as absence of 

standing and non-justiciability as a convenient shorthand to 

describe this limitation on the patentee's rights. Seizing on this the 

applicants argue, based on such cases as Canada v. Finlay, [1986J 

2 5. CR. 607, Canada v. BorowsM, [1981] 2 S CR. 575 and 

Operation Dismantle v. Canada, [1985] 1 SCR. 441, that they do 

indeed have standing and that the issues that they raise are, in fact, 

justiciable. The argument mistakes the form for the substance. It is 

not lack of standing or justiciability in the strict sense of those 

words which prevents the applicants from raising non-compliance 

with the health and safely concerns of the Food and Drug Act, and 

Regulations; it is simply that those matters are of no concern lo 

them and cannot be raised by them in an attack on a decision of 

the Minister to issue an NOC. It is the Minister himself who is 

charged with the protection of the public health and safety and no 

private interest of the applicants arises from his alleged failure to 

perform his duties with respect to other persons. 

[62] Subsequentiy in Ferring Inc. v Canada (Minister of Health), 2007 FC 300, [2008] 1 F.C.R. 

19,1 found that a mere economic interest was insufficient to allow standing. I wrote at paragraphs 

99 and 100: 

99 Section 18.1 [as enacted by S C. 1990, c. 8, s. 5; 2002, c. 8, s. 

27] of the Federal Courts Act, R.S.C., 1985. c. F-7 [s. 1 (as am. 

idem, s. 14)] affords any person "directly affected" by a decision of 

a federal board, commission or other tribunal the right to seek 

judicial review of that decision. As discussed in respect of 

subsections 3(1) of the NOC Regulations, a generic is not afforded 

an opportunity to intervene in proceedings respecting the listing of 

a patent or to seek de-listing since, at that point, no particular 

generic can be seen to be "directly affected," This is consistent 

with the law expressed in Rothmans of Pall Mall Canada Limited 

V, Minister of National Revenue (No. 1), [1976] 2 F.C. 500 (C.A.) 

that a person who is simply a member of a class generally affected 

by a decision, without more, has no status to seek judicial review 

(see also Apotex Inc. v. Canada (Govemor in Council), 2007 FC 

232). 
Page: 53 

100 It has been found that a mere economic interest is 

insufficient to support status to seek judicial review (Aventis 

Pharma Inc. v. Canada (Minister of Healtii) (2005), 45 C.P.R. (4th) 

6 (F.C-f at paragraph 13). That decision was appealed but the 

appeal was not proceeded with In that case, the innovator, 

Aventis, had apparently failed to list its patent in a timely fashion 

The generic Novopharm was awarded an NOC by the Minister. 

Aventis sought judicial review of that decision. The Minister 

sought to strike out those portions of Aventis' application 

challenging the issuance of an NOC. 

[63] I was reversed on this point by the Federal Court of Appeal in Ferring Inc. v Canada 

(Minister of Health), 2007 FCA 276,370 N.R. 263, where Richard CJ for tiie Court wrote, at 

paragraph 5: 

5 We differ from Justice Hughes on only one point As an 

alternative basis for dismissing the application of Ferring Inc., 

Justice Hughes concluded that Ferring Inc. did not have standing 

to bring an application for judicial review of the decision of the 

Minister. We do not agree. In our view, Ferring Inc. did have 

standing to challenge that decision because it was made by the 

Minister in the course of his administration of the NOC 

Regulations. However, that does not alter the outcome because 

Justice Hughes dismissed the application of Ferring Inc. on the 

merits. 

[64] The matter was recentiy reviewed by tiie Federal Court of Appeal in Irving Shipbuilding Inc. 

V Canada (Attorney General), 2009 FCA 116, 314 D.L.R- (4*) 340. In that case, a subcontractor 

challenged an award of a contract. The subcontiactor argued that it would have been engaged by 

the contractor who lost the bid. The challenge was on the basis of lack of procedural faimess. The 

Trial Judge found that the subcontractor did not have standing. The Court of Appeal, Evans J.A. 

writing for the Court, considered the issue of standing on the basis that it had to be addressed in 

context; in that case, in the context of procedural faimess, and that the court should not become 
Page: 54 

entangled in a semantic wasteland nor attempt to formulate or apply various "tests". He wrote at 

paragraphs 28, 32 and 33; 

28 In my view, the question of the appellants' standing should be 

answered not in the abstract, but in the context of the ground of 

review on which they rely, namely, breach of the duty of 

procedural fairness. Thus, if the appellants have a right to 

procedural fairness, they must also have the right to bring the 

matter to the Court in order to attempt to establish that the process 

by which the submarine contract was awarded to CSMG violated 

their procedural rights. JfPWGSC owed the appellants a duty of 

fairness and awarded the contract to CSMG in breach of that duty, 

they would be "directly affected" by the impugned decision. If they 

do not have a right to procedural fairness, that should normally 

conclude the matter. While I do not find it necessary to conduct an 

independent standing analysis, I shall briefly address two issues 

that arose from the parties' submissions. 

32 To attach the .significance urged by the respondents to 

Parliament's choice of the words "directly affected", rather than any 

of the common law standing requirements f'person aggrieved" or 

"specially affected", for example) would, in my view, ignore the 

context and purpose of the statutory language of subsection 18.1(1). 

As the Supreme Court of Canada said recently in Khosa (at para 

19f 

• ... most if not all judicial review statutes are drafted against 

the background of the common law of judicial review. Even 

the more comprehensive among them... can only sensibly be 

interpreted in the common law context... 

33 Moreover, since all these terms are somewhat indeterminate. 

Parliament's choice of one rather than another should be regarded 

as of relatively little importance. See also Thomas A Cromwell, 

Locus Standi: A Commentary on the Law of Standing in Canada 

(Toronto: Carswell, 1986) at 163-64 ("Locus Stmdi"), especially his 

apt description (at 163) of the "semantic wasteland" to be traversed 

by a court in attempting to apply the various "tests "for standing, 

both statutory and common law. Although directed at differences 

between the French and English texts of subsection 18.1(4) of the 

Federal Courts Act, the following statement in Khosa (at para. 39) 

seems equally apt in the interpretation of the words "directiy 

affected" in subsection 18.1(1): 
Page; 55 

A blinkered focus on the textual variations might lead to an 

interpretation at odds with the modem rule [of Statutory 

interpretation] because, standing alone, linguistic 

considerations ought not to elevate an argument about text 

above the relevant context, purpose and objectives of the 

legislative scheme. 

[65] From all of the foregoing, I conclude that there is no simple formula whereby a person 

having a commercial interest can be said to lack standing simply on that basis. The context of the 

situation and the basis for judicial review must be considered, 

[66] Here Air Canada has had a degree of involvement vdth tiie BBTCA and the TPA for some 

considerable time. Air Canada has, through affihates, operated from that airport. It has been 

involved in continuing discussions with the TPA, who is in charge of operating and maintaining that 

airport. The basis upon which judicial review is sought rests on allegatiotis of lack of procedural 

faimess. I find that Air Canada has standing to bring these applications but only if TPA were a 

"federal board, commission or other tribunal", which I have found otherwise. 

EX Jssne #3: Were the "decisions'* of Pecembcr 24,2009 and April 9,2010 of a kind that can 

be the subject of judicial review in this Court? 

[67] Section 18.1 of the Fet/era/Cottr/j^c^ permits judicial review of a "decision or an order" of 

a "federal board, commission or other tribunal". In addressing this issue I will assume that, contraiy 

to my finding, the TPA is such a "federal board, commission or other tribunal". 
Page; 56 

[68] When dealing with a body that is clearly a "federal board, commission or other tribunal" 

the Courts have been quite strict in looking at the appropriate legislation and considering whether 

what has been done is a "decision" as mandated by that legislation. If it is not, then there can be no 

judicial review. An example is Democracy Watch v Canada (Conflict of Interest and Ethics 

Commissioner), 2009 FCA 15, 387 N.R. 365 (F-C.A.) where Richard CJ for the court wrote at 

paragraphs 10 and 11: 

10 Where administrative action does not affect an applicant's 

rights or carry legal consequences, it is not amenable to judicial 

review (Pieters v. Canada (Attorney General), [2007]F.C.J. No. 

746, 2007 FC 556 at paragraph 60; Rothmans, Benson & Hedges 

Inc. V. Canada (Minister of National Revenue^ (1998), 148 F. T.R. 

3 at paragraph 28; see also Canadian Institute of Public and 

Private Real Estate Cos. v. Bell Canada, [2004] F.C J No 1103, 

2004 FCA 243 at paragraphs 5&7). 

11 The applicant has no statutory right to have its complaint 

investigated by the Commissioner arui the Commissioner has no 

statutory duty to act on it. There is no provision in the Act that 

allows a member of the public to request that the Commissioner 

begin an examination. Indeed, the Act specifically contemplates the 

route which a member of the public should take if it wishes to 

present information to the Commissioner: 

44.... 

• (4) In conducting an examination, the Commissioner may 

consider information from the public that is brought to his or her 

attention by a member of the Senate or House of Commons 

indicating that a public office holder or former public office holder 

has contravened this Act The member shall identify the alleged 

contravention and set out the reasonable pounds for believing a 

contravention has occurred.... 

• * * 

44. [...] 

• (4) Dans le cadre de Titude, le commissaire peut tenir 

compte des renseignements provenant du public qui lui sont 

communiquis par tout parlementaire et qui portent a croire que 

I'intiressi a contrevenu a lapresente loi Le parlementaire doit 
Page: 57 

priciser la contravention presumie ainsi que les motifs raisonnables 

qui le portent d croire qu'une contravention a ite commise. [..] 

[69] However, a broader approach has been taken by the courts where the functions in question 

were within the overall scope of the enabling legislation. Such a situation was considered by Justice 

Mactavish of tiiis Court in Shea v Canada (Attorney General) (2006), 296 F.T.R. 81, where this 

Court was asked to review procedures respecting the selection of persons for managerial positions. 

She wrote at paragraphs 42 to 44; 

42 The absence of a "decision" is not a bar to an application for 

judicial review under the Federal Courts Act as Section 18.1 

provides the Court with jurisdiction to grant relief to a party 

affected by "a matter" involving a federal board, commission or 

other tribunal: Canadian Museum of Civilization Corp. v. Public 

Service Alliance of Canada, Local 70396 [2006] F.C.J No. 884, 

2006 FC 703, at para. 47. 

43 The role of this Court thus extends beyond the review of 

formal decisions, and extends to the review of "a diverse range of 

administrative action that does not amount to a 'decision or order', 

such as subordinate legislation, reports or recommendations made 

pursuant to statutory powers, policy statements, guidelines and 

operating manuals, or arty of the myriad forms that administrative 

action may take in the delivery by a statutory agency of a public 

programme.": Markevich v. Canada, [1999] 3 F.C. 28 (QL) (T.D.), 

at para. 11, reversed on other grounds, [2001] F.C.J. No. 696, 

reversed on other grounds, [2003] S.C.J No. 8. See also Nunavut 

Tunngavik Inc. v, Canada (Attorney General) [2004] F.C.J. No. 

138, 2004 FC 85, at para 8. 

44 A wide range of administrative actions have been found to 

come within the Court's jurisdiction: see, for example Gestion 

Complexe Cousineau (1989) Inc. v. Canada (Minister of Public 

Works and Government Services), [1995] 2 F.C. 694; Momeault 

V. Canada (Attorney General), [2001] 1 F.C 30 (C.A.),and1mxy 

Holdings (c.o.b Quickie Convenience Stores) v. Canada (Minister 

of Health), [2003] 1 F.C. 541 (T.D.).), 2002 FCT 750. 

[70] Mactavish J dismissed that application as premature. 
Page; 58 

[71] Most importantiy, Irving Shipbuilding must be considered. Evans JA for the Court 

considered the issue of whether there existed a "reviewable decision" in the context of the enabling 

legislation, hi that case, there was a statutory authority imposed on the Minister to award contracts 

for, in that case, submarines. Evans JA said that where the exercise of the Minister's discretion is 

given considerable scope, the Court should be reluctant to step in. However, where a procurement 

process is closely linked to a statutory power, the greater the likelihood of judicial review. Evans JA 

wrote, at paragraphs 21 to 25: 

21 The fact that the power of the Minister, a public official, to 

award the contract is statutory, and that this large contract for the 

maintenance and servicing of the Canadian Navy's submarines is a 

matter of public interest, indicate that it can be the subject of an 

application for judicial review under section 18.1, a public law 

proceeding to challenge the exercise of public power. However, 

the fact that the Minister's broad statutory power is a delegation of 

the contractual capacity of the Crown as a corporation sole, and 

that its exercise by the Minister involves considerable discretion 

and is governed in large part by the private law of contract, may 

limit the circumstances in which the Court should grant relief on 

an application for judicial review challenging the legality of the 

award of a contract 

22 This Court reached a similar conclusion in Gestion 

Complexe Cousineau (1989) Inc. v. Canada (Minister of Public 

Works and Government Services), [1995] FCJ. No. 735, [1995] 

2 F. C. 694 (C.A.) at paras. 7-17 (^'Gestion Complexe'7 The Court 

held that the exercise by a Minister of a statutory power to call for 

tenders and xo enter into contracts for the lease of land by the 

Crown could be the subject of judicial review under the former 

paragraph IS(l)(a) of the Federal Court Act as a decision of "a 

federal board, commission or other tribtmal". 

23 Although not addressing the particular issue in dispute in the 

present case. Justice Decary, writing for the Court, also 

emphasized the difficulties facing an applicant in establishing a 

ground of review that would warrant the Court's intervention in 

the procurement process through its judicial review jurisdiction. 

Thus, he said (atpara. 20): 
Page: 59 

• As by definition the focus of judicial review is on the legality 

of (he federal govemrnent's actions, and the tendering 

procedure was not subject to arty legislative or regulatory 

requirements as to form or substance, it will not be easy, in a 

situation where the bid documents do not impose strict 

limitations on the exercise by the Minister of his freedom of 

choice, to show the nature of the illegality committed by the 

Minister when in the normal course of events he compares 

the bids received, decides whether a bid is consistent with the 

documents or accepts one bid rather than another. 

24 This view of the Court's jurisdiction is consistent with that 

generally adopted by other courts in Canada: see Paul Emanuelli, 

Government Procurement, 2nded. (Markham, Ontario: 

LEXISNEXIS, 2008) at 697-706, who concludes (at 698): 

• Asa general rule, the closer the connection between 

a procurement process and the exercise of a statutory power, 

the greater the likelihood that the activity can be subject to 

judicial review. Conversely, to the extent that the 

procurement falls outside the scope of a statutory power and 

within the exercise of government's residual executive power, 

the less likely that the procurement will be subject to judicial 

review. 

English authorities on public contracts and judicial review 

are considered in Harry Woolf Jeffiey Jowell and Andrew 

Le Sueur, de Smith's Judicial Review, 6th ed. (LondonSweet dt Maxwell Ltd., 2007), 138-45, where courts 

generally require an "additionalpublic element" before 

concluding that the exercise by a public authority of its 

contractual power is subject to judicial review, even when 

the power is statutory. 

25 Consequently, on the basis of both authority and principle, I 

agree that the award of the submarine contract by the Minister of 

PWGSC is reviewable under section 18.1 of the Federal Courts Act 

as a decision of a "federal board, commission or other tribunal" 

made in the exercise of "powers conferred by or under an Act of 

Parliament" (section 2). 

[72] In the present case, the TPA is given a broad mandate respecting the operation and 

maintenance of the airport. No specific procedural requirements are set down. As I have found, TPA 
Page; 60 

is acting as any other private sector commercial corporation and not as a "federal board, 

commission or other tribunal". 

[73] The "decisions" at issue here are not really "decisions" at all. They do not detennine 

anything. The bulletin of December 24,2009 is an announcement that certain studies had been 

conducted and that "now that we have the results in hand [the TPA] wiU solicit formal business 

proposals" and that "an independent, lATA-accredited slot co-ordinator" will be appointed. The 

bulletin stated that further announcements will be made. 

[74] In the context, there is no "decision or order" made. An announcement was made that soon 

proposals will be soUcited by the TPA. In fact, that was done and Air Canada submitted a proposal. 

In fact, ACL, an lATA-acciedited slot co-ordinator was retained. Ah Canada has not complained of 

that appointment. There simply is no "decision or order" in the December 2009 bulletin. 

[75] The April 2009 buUetin re:quested interested parties (such as Air Canada) "to participate in 

the RFP (Request for Proposal) process" and announced the appointment of ACL as slot coordinator. Again there is no "decision or order" affecting Air Canada. In fact, Air Canada submitted 

a Proposal and has made no complaint as to the appointment of ACL, In submitting its Proposal, Air 

Canada agreed with TPA's guiding principles and appointment of ACL as slot co-ordinator as set 

out in its response dated May 14,2010. 

[76] The steps taken by TPA, as announced in its December 2009 and April 2010 buUetins, are 

those respecting tiie normal commercial operation of the airport. They are not steps specifically 
Page; 61 

mandated by any legislation, nor are those steps specifically directed to Air Canada, They are not 

"decisions or orders" of the type for which judicial review is available in this Court. 

X Issue #4: Has Air Canada properly pleaded the srounds upon which it is now reiving for 

judicial review? 

[77] Both of these cases have proceeded by way of an application. Rule 301 of the Federal 

Courts Rules sets out what the Notice of Apphcation must contain; 

301. An application shall be commenced by a notice of application in 

Form 301, setting out 

(a) the name of the court to which the application is addressed; 

(b) the names of the applicant and respondent; 

(c) where the application is an application for judicial review, 

(i) the tribunal in respect of which the application is made, 

and 

(ii) the date and details of any order in respect of which 

judicial review is sought and the date on which it was first 

communicated to the applicant; 

(d) a precise staternent of the relief sought; 

(e) a complete and concise statement of the pounds intended to be 

argued, including a reference to any statutory provision or rule to be 

relied on; and 

<f) a list of the documentary evidence to be used at the hearing of the 

application 

[78] A |;espondent does not need to file anything more than a Notice of Appearance as set out in 

Rule 305. 
Page: 62 

305. A respondent who intends to oppose an application shall, 

within 10 days after being served with a notice of application, 

serve and file a notice of appearance in Form 305. 

[79] The jurisprudence varies widely as to what a Notice of AppUcation should set out and how 

detailed it must be. The reason tor such varied jurisprudence is because of the various sorts of 

matters that are considered by way of an application: immigration, public service disputes, citizens 

challenging government decisions, copyright infiingement and, in cases such as this, complex 

commercial matters. Subsection 18.4(1) of the Federal Courts Act directs that an application shall 

be heard and determined in a summary way withom delay. However, subsection 18.4(2) permits an 

application to be converted uito an action, if appropriate. An earlier application brought by Jazz Air 

was converted into an action and has since been abandoned. 

[80] Rule 301 requires a precise statement of the rehef sought and a complete and concise 

statement of the grounds intended to be argued. Rule 75 permits a document, for instance, a Notice 

of AppUcation, to be amended, the purpose in clearly setting out the relief sought and grounds to be 

argued is not only that the other parties wiU know the case to be met and not be caught by surprise, 

but also so that the Court hearing the matter will know what issues it will have to consider and 

detemtine. The Comt does not wish to be confronted at the hearing with a new argument or 

different reUef to be sought An appeUate Court should not be confiX)nted with an assertion that the 

Trial Judge did not appreciate the un-pleaded argument made or direct the reasons and judgement to 

new or different arguments or reUef sought 

[81 ] The Court has, for instance, in complex cases brought under the Patented Medicines (Notice 

of Compliance) Regulations, SOR/93-133, taken a strict position respecting not only a Notice of 
Page: 63 

Allegation, which is not a Court document, but also the Notice of AppUcation instituting the Court 

Procedure. As an example, there is the decision of Layden-Stevenson J (as she then was) in 

AstraZenecaAB v Apotex Inc, 2006 FC 7,46 C.P.R. (4*) 418, where she wrote at paragraphs 11, 

18 and 19: 

11 Astra argued, both in its written submission and in oral 

argument, but did not plead, reliance on the doctrine of issue 

estoppel. After hearing from both parties, I invited Astra to 

consider (prior to its reply) whether it wished to abandon its 

position. It did not. I wiH therefore address this question. 

18 I reject Astra's argument that the requirement in Rule 301 (e) 

can be characterized as a technical argument that elevates form 

over substance. The rule mandates that an application is to be 

commenced by a notice of application that must set out a complete 

and concise statement of the grounds intended to be argued. I also 

reject the submission that the jurisprudence does not evince the 

application of the rule to proceedings brought under the 

Regulations. In this respect, I refer specifically to Pharmacia Inc. 

etal. V. Minister of National Health and Welfare et al (1995), 60 

C.P.R. (3d) 328 (F.C.T.D.) at pp. 339, 340 affd (1995), 64 C.P.R. 

(3d) 450 (F.C. A.) at paragraph 1. See also: Bayer AG et al. v. 

Apotex Inc. eta l (2003), 29 C.P.R. (4th) 143 (F.C.) and Pfizer 

Canada Inc. and Pfizer Inc. v. Apotex Inc. and the Minister of 

Health [2005]F.C.J No. 1730, 2005FC 1421. 

19 If the intervening decision of the Court of Appeal crystallized 

Astra's issue estoppel argument, as alleged Astra could have 

utilized Rule 75 which provides that the Court may on motion, at 

any lime, allow a party to amend a document, on such terms as 

will protect the rights of all parties. Rule 75 applies to all 

proceedings. An application is a proceeding (see: Rules 61 and 

300). Indeed, Astra was aware of Rule 75 for it utilized it in Court 

File No. T-1747-00, a matter that concerned the same tablets and 

the same parties, in its application for an order of prohibition 

under the Regulations. As jdr the timing, as Mr. Radomski notes, 

the Federal Court of Appeal's decision was issued on November 3, 

2003. The evidence in this matter was far from complete at that 

time. Dr. Lindquist's (Astra's expert witness) second affidavit was 

not sworn until April 15, 2004. Apotex filed four affidavits after 

that date and Dr, Lindquist's third affidavit was not sworn until 
Page: 64 

September 24, 2004. At no point, did Astra seek to amend its notice 

of application. 

[82] However, the Courts have also taken a more flexible approach, particularly where no party 

has been taken by surprise and some general wording contained in the grounds can be taken to 

support the arguments made at the hearing. An example of this approach is that taken by de 

Montigny i'mKinsey v Canada (Attorney General), IQQI FC 543,313 F.T.R. 88 vdiere he wrote at 

paragraphs 31 to 34: 

31 Before turning to the substantive issues in this application, I 

must deal with two preliminary objections made by the 

respondents. First, counsel argued the constables did not raise the 

main grounds of their application in either their notice of 

application or supporting affidavits. Rather, they only raised them 

in their application records for the first time. Counsel cited 

Williamson v. Canada (Attorney General), [2005] F.C.J No. 1186, 

2005 FC 954, for the proposition that a party cannot raise issues 

on judicial review that were not raised in his initial notice of 

application and supporting affidavits. 

32 Rule 301 (e) of the Federal Courts Rules, SOR/98-106 (the 

Rules), states that applications are commenced by a notice of 

application setting out, inter alia, "a complete and concise 

statement of the grounds intended to be argued, including a 

reference to any statutory provision or rule to be relied on." This 

rule is meant to give a respondent the opportunity to address the 

grounds of review in his affidavit and ensure no one is taken by 

surprise. 

33 In the present case, the applicants submitted in their notices 

of application that the Commissioner had erred in fact and in law, 

arui had breached a principle of natural justice or procedural 

fairness. This is no doubt a cryptic way to set out the grounds of 

review. It reflects, unfortunately, a practice that is becoming more 

and more common - to simply paraphrase the text ofs. 18.1 of the 

Federal Courts Act as the grounds for the application. Such a 

practice must definitely be discouraged, arui counsel should strive 

to particularize the grounds they intend to argue to conform to the 

spirit of the Rules. This would certainly help both parties frame 

their arguments more precisely from the outset and eventually 

focus the debate. 
Page: 65 

34 Having said this, I am not prepared to refuse considering the 

constables' arguments on this basis. First of all, the respondents 

have not provided arty evidence tending to demonstrate that they 

were taken by surprise or prejudiced in preparing their record or 

submissions. In light of the fact that the constables' careers are at 

stake, I would also be extremely reluctant to prevent them from 

making all the submissions they articulated in their original 

memorandum. A delay could have been granted if the respondents 

felt it was necessary, but none was requested Indeed, counsel for 

the respondents did not really push that point at the hearing. 

[83] hi the present appUcation, Air Canada's Counsel, at the hearing, expressed the reUef sought 

differentiy flxim tiiat set out in either Notice of Application. Air Canada now wants the whole 

allocation of slots process set aside, including the 2010 CCOA between TPA and Porter. It wants a 

new process begun in which TPA "consults v^ath" Air Canada The grounds for tiiis relief, as argued 

at the hearing, were that Aur Canada had a right to be consulted essentially because it had a 

"legitimate expectation" that it would be consulted and that slot allocation decisions made in its 

absence are a nullity. Further, Air Canada argues that it was unaware, until the evidence was 

provided by the Respondents in the second application, that a new agreement, the 2010 CCOA, had 

been entered into. 

[84] ITie Respondents, in their written material and in their argument, have met Air Canada's 

arguments as to a right to be consulted and had legitimate expectations that it would be. Therefore I 

will deal with them. 

[85] Air Canada raised other arguments, including lack of proper rieasons and lack of "formal" or 

"substantive" reasonableness. These grounds were not set out in its Notice of Application and only 

the latter, "formal" and "substantive" reasonableness, was raised and met in written and oral 
Page: 66 

argument. I wUl deal with these arguments in case of an appeal, but I will nonetheless dismiss them 

for lack of a proper pleading. 

XI Issue #S: Was there an obligation on the Toronto Port Authority to consult with Air 

Canada before making the "decisions" of December 24.2009 and April 9.2010? 

[86] The argument made by Air Canada in support of its allegation that it should have been 

consulted before either of the two "decisions" were made by TPA, is convoluted. 

[87] Air Canada points to the Worldwide Schedule Guidelines formulated by lATA which 

contains provisions such as section 4.6 to the effect that where a change of level in the manner in 

which slots are to be allocated is contemplated, "interested parties should be consulted". Air Canada 

says that TPA's December announcement which stated that an "lATA-accredited slot co-ordinator 

"would shortly be appointed" was an indication that the TPA would adhere to lATA guidelines. 

Further, Air Canada says that its affiUate, Jazz, was offered (but never signed) a draft CCOA by 

TPA in 2006 which contained a provision, article 5.4(f), that Jazz would acknowledge that the 

airport is "an lATA-constrained airport". Similar language appears in the 2005 CCOA between 

Porter and TPA but not in the 2010 CCOA between tiiose parties. 

[88] The Respondents argue that it is too far a stretch to say tiiat TPA was in any way obligated 

to foUow lATA protocol. It is not a member of lATA and the aiiport is not an lATA affiUated 

aiiport. Further, they argue that the lATA protocol is just a guideline and in the circumstances only 

users, and not prospective users, of the airport are recommended for consultation. Yet further, the 
Page: 67 

reference in a draft contract, never signed, to an affiliate of Air Canada several years ago to lATA, 

and the reference in the December bulletin to an lATA-accredited slot co-ordinator, do not in any 

way give rise to any obligation assumed by the TPA to follow lATA protocol nor to any reasonable 

expectation by Air Canada that this would be done. 

[89] I have not set out in detail other references to IAT A pointed out by Air Canada's Counsel in 

other TPA documents. Those documents were never seen by Air Canada or any affiliate before the 

evidence was presented in these proceedings, and the references are as fleeting as those in the 

documents discussed above. 

[90] There clearly was no obUgation imposed upon, nor imdertaken by, TPA to follow rigorously 

or at all any lATA protocol. Did Air Canada have "reasonable expectation" timt it would? 

[91 ] The doctrine of reasonable or legitimate expectation was considered recentiy by the 

Supreme Court of Canada m two decisions. The first is Mount Sinai Hospital Centre v Quebec 

(Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281 in which Binnie J for 

the Court wrote that an existing permit holder was owed a duty of faimess by the permit issuer 

when modified permits were to be granted. A party has a right to procedural faimess dependent on 

the nature of that party's interest and the nature of the power exercised by the authority. The 

remedy, however, is to grant procedural relief even though such relief may result in substantive 

relief Binnie J wrote at paragraphs 18,29,30,35 and 36: 

18 If the respondents did not have a "right" to a modified 

permit, they nevertheless had a direct financial interest in the 

outcome of their explication sufficient to trigger the duty of 

procedural fairness. They were, after all, existing permit holders. 
Page: 68 

Their request wc^ for permit modifications. As stated by Le Dain J. 

in Cardinal v. Director of Kent Institution, supra, at p. 653: 

- This Court has affirmed that there is, as a general common 

law principle, a duty of procedural fairness lying on every 

public authority making an administrative decision which is 

not of a legislative nature and which affects the rights, 

privileges or interests of an individual.. 

29 Under our case law the availability and content of 

procedural fairness are generally driven by the nature of the 

applicant's interest and the nature of the power exercised by the 

public authority in relation to that interest: Brown arui Evans, 

supra, p. 7-13 et seq.; D. J. Mullan, "'Confining the Reach of 

Legitimate Expectations' Case Cornment: Sunshine Coast Parents 

for French v. School District No. 46 (Sunshine Coast)" (1991), 44 

Admin, L.R. 245, at p. 248. The docti-ine of legitimate expectations, 

on the other hand, looks to the conduct of the [page 3 04] public 

authority in the exercise of that power (Old St. Boniface, supra, at 

p. 1204) including established practices, conduct or 

representations thai can be characterized as clear, unambiguous 

and unqualified (Brown and Evans, supra, at p. 7-41), The 

expectations must not conflict with the public authority's statutory 

remit 

30 The doctrine of legitimate expectations is sometimes treated 

as a form of estoppel, but the weight of authority and principle 

suggests that an applicant who relies on the doctrine of legitimate 

expectations may show, but does not necessarily have to show, that 

he or she was aware of such conduct, or that it was relied on with 

detrimental results. This is because the focus is on promoting 

"regularity, predictability, and certainty in government's dealing 

with the public": S. A. de Smith, H Woolf and J Jowell, Judicial 

Review of Administrative Action (5th ed. 1995), at p. 417, to which 

the editors add, at p. 426, that insisting on estoppel-type 

requirements would 

• involve unfair discrimination between those who 

were and were not aware of the representation and would 

benefit the well-informed or well-advised. It would also 

encourage undesirable administrative practice by too readily 

relieving decision-makers of the normal consequences of 

their actions. 

The High Court of Australia espouses a similar view: 
Page; 69 

But, more importantly, the notion of legitimate expectation 

is not dependent upon any principle of estoppel Whether the 

Minister can be estopped in the exercise of his discretion is 

another question; it was not a question raised by the 

appellant Legitimate expectation does not depend upon the 

knowledge and state of mind of the individual concerned 

although such an expectation may arise from the conduct of a 

public authority towards an individual... 

(Haoucher v. Minister for Immigration, Local Government 

and Ethnic Affairs (1990), 19A.LD. 577, perTooheyJ, at p. 

590) 

See also Minister of State for Immigration arui Ethnic 

Affairs v. Teoh (1995), 183 C.L.R. 273 (H.C.). 

35 In affirming that the doctrine of legitimate expectations is 

limited to procedural relief, it must be acknowledged that in some 

cases it is difficult to distinguish the procedural from the 

substantive. In Bendahmane v. Canada, supra, for example, a 

majority of the Federal Court of Appeal considered the applicant's 

claim to the benefit of a refugee backlog reduction program to be 

procedural (p. 33) whereas the dissenting judge considered the 

claimed relief to be substantive (p. 25). A similarly close call was 

made in Canada (Attorney General) v. Canada (Commissioner of 

the Inquiry on the Blood System), [1996] 3 F.C. 259 (T.D.). An 

undue focus on formal classijication and categorization of powers 

at the expense of broad principles flexibly applied may do a 

disservice here. The inquiry is better^ framed in terms of the 

underlying principle mentioned earlier, namely that broad public 

policy is pre-eminently for the Minister to determine, not the 

courts. 

36 The classification of relief as "substantive " however should 

be made in light of the principled basis for its exclusion rather 

than as a matter of form. Where, as in Bendahmane v. Canada, 

relief can reasonably be characterized as procedural in light of the 

underlying principle of deference on matters of substantive policy, 

then generally speaking it should be. 

[92] The matter was addressed again by the Supreme Court of Canada two years later m 

Canadian Union of Public Employees (C U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, 
Page: 70 

[2003] 1 S.C.R. 539 where Binnie J for the majority (there were several in dissent) wrote tiiat the 

doctrine of legitimate expectations required that the Court consider whether there were estabhshed 

practices, conduct or representations that could be characterized as clear, unambiguous and 

unqualified. He wrote at paragraph 131: 

131 The doctrine of legitimate expectation is "an extension of 

the rules of natural justice and procedural fairness": Reference re 

Canada Assistance Plan (B.C.), [1991] 2 SCR. 525, at p. 557. It 

looks to the conduct of a Minister or other public authority in the 

exercise of a discretionary power including established practices, 

conduct or representations that can be characterized as clear, 

unambiguous and unqualified that has induced in the 

complainants (here the unions) a reasonable expectation that they 

will retain a benefit or be consulted before a contrary decision is 

taken. To be "legitimate", such expectations must not conflict with 

a stati4tory duty. See: Old St. Boniface Residents Assn. Inc. v. 

Wmnipeg (City), [1990]3SCR 1170; Baker, supra; Mount 

Sinai, supra, at para. 29; Brown and Evans, supra, dtpara. 7:2431. 

Where the conditions for its application are satisfied, the Court 

may grant appropriate procedural remedies to respond to the 

"legitimate " expectation. 

[93] In the present case, I find no clear, tmambiguous or unqualified estabhshed practice or 

conduct or representation by the TPA. Notwithstanding Air Canada's Counsel's able argument, 

there is simply insufficient evidence upon which this Court can find that Air Canada had any 

legitimate expectation that it would be consulted by TPA before any decision was made as to slot 

allocation. 

[94] I add two matters. First, the evidence is clear that tiiroughout the relevant time period there 

were meetings and conespondence witii and between TPA and Air Canada. Air Canada has never 

been reluctant to make its views known to the TPA. 
Page: 71 

[95] The second matter is that Air Canada has provided no evidence as to what it would say if a 

ta-oader reaching consultation was to be Ordered, We do know tiiat it wants more slots, including 

slots at favourable times. It already told TPA tiiat. Air Canada's Counsel, Ms. Batner, made a 

considerable presentation as to how, in her view, the number of slots could be increased; 

particularly if adjustments were made to the "quiet time" slots. I am in no position to evaluate such 

submissions, even if relevant. There is no evidence to support those submissions. I have no idea 

whether the submissions take into account aU the relevant factors and constraints. Air Canada has 

provided no evidence to support these submissions and no evidence that these are the submissions 

that it would have made to TPA, or that it was in any way precluded fi-om making these 

subntissions. 

Xn Issue #6: Did TPA "decisions"' lack "formar or ^'substantiaF reasonableness? 

[96] Air Canada's Counsel argue that each of the TPA "decisions" at issue lack botii "formal" 

and "substantive" reasonableness. I have disntissed this argument for failure to plead it, but deal 

with it anyway in case of an appeal. 

[97] Counsel argues that the Supreme Court of Canada in Dtmsmuir v New Brunswick, 2008 

SCC 9, [2008] 1 S.C.R. 190 established new grounds (not standards) for judicial review: a decision 

must be both "formally" and "substantively" reasonable. Reference is made to the majority decision 

written by Bastarache and LeBel JJ at paragraph 47: 

47 Reasonableness is a deferential standard animated by the 

principle that underlies the development of the two previous 

standards of reasonableness: certain questions that come before 

administrative tribunals do not lend themselves to one specific. 
Page; 72 

particular result. Instead, they may give rise to a number of 

possible, reasonable conclusions. Tribunals have a margin of 

appreciation within the range of acceptable and rational solutions. 

A court conducting a review for reasonableness inquires into the 

qualities that make a decision reasonable, referring both to the 

process of articulating the reasons and to outcomes. Injudicial 

review, reasonableness is concerned mostly with the existence of 

[page221] justification, transparency and intelligibility within the 

decision-making process. But it is also concerned with whether the 

decision falls within a range of possible, acceptable outcomes 

which are defensible in respect of the facts and law. 

[98] I disagree. That Court is directing its mind to a standard, not a ground. Paragraph 47 begins 

with the words "Reasonableness is a deferential standard..,'" ParE^raph 48 begins with the words, 

"The move towards a single reasonableness standard...^^ 

[99] What that Court was addressing in paragr^h 47 when it spoke of "formal" reasonableness 

is as set out in the second last sentence, "...the existence of justification, transparency and 

intelligibiUty". What that Court was addressing when it used the word "outcomes" is whether, as 

set out in the last sentence of paragraph 47, the decision "falls within the range of possible 

acceptable outcomes." 

[100] In the present applications, the December bulletin is clear, as is the Aiail buUetin. Botii set 

out what TPA intends to do and why; it iiitended to, and then did, appoint a slot co-ordinator. It 

intended to, and then did, receive proposals from prospective users, including Air Canada. 

[101] Not articulated in the "pleadings", but argued, was the validity of the 2010 CCOA between 

TPA and Porter. Air Canada was not previously advised that this would be entered into by those 

parties. It did not have a right or expectation to be advised That was a commercial business 
Page: 73 

decision that TPA was entitied to make. TPA's actions were within the acceptable range of 

reasonable actions and should not be set aside on the assumption, which I have found to be 

otherwise, that TPA is subject to judicial review, 

X m Issue #7: Did the TPA have any obligation to provide "reasons^' for its decision and, if 

reasons were provided, were they adequate? 

[102] In addressmg tins argument I repeat that it has been dismissed for failure to "plead" it and 

because the TPA is not subject to judicial review in this respect. Nonetheless, in case of an appeal, I 

will address it. 

[ 103] The "duty" to provide reasons rests on \\*iat the Supreme Court of Canada said in Baker v 

Canada (Minister of Citizenship otTd Immigration), [1999] 2 SCR. 817 where L'Heureux-Dub^ J 

for the Court wrote at paragraphs 43 and 44: 

43 In my opinion, it is now appropriate to recognize that, in 

certain circumstances, the duty of procedural fairness will require 

the provision of a written explanation for a decision. The strong 

arguments demonstrating the advantages of written reasons 

suggest that, in cases such as this where the decision has important 

significance for the individual, when there is a statutory right of 

appeal, or in other circumstances, some form of reasons should be 

required. This requirement has been developing in the common 

law elsewhere. The circumstances of the case at bar, in my 

opinion, constitute one of the situations where reasons are 

necessary. The profound importance of an H& C decision to those 

affected, as with those at issue in Orlowski, Cunningham, and 

Doody, militates in favour of a requirement that reasons be 

provided. It would be unfair jdr a person subject to a decision such 

as this one which is so critical to their future not to be told why the 

result was reached. 
Page: 74 

44 In my view, however, the reasons requirement was fulfilled in 

this case since the appellant was provided with the notes of Officer 

Lorenz. The notes Were given to Ms. Baker when her counsel asked 

for reasons. Because of this, and because there is no other record 

of the reasons for making the decision, the notes of the subordinate 

reviewing officer should be taken, by inference, to be the reasons 

for decision. Accepting documents such as these notes as sufficient 

reasons is part of the flexibility that is necessary, as emphasized by 

Macdonald and Lametti, supra, when courts evaluate the 

requirements of the duty of fairness with recognition of the day-today realities of administrative agencies and the many ways in 

which the values underlying the principles of procedural faimess 

[page849] can be assured. It upholds the principle that individuals 

are entitled to fair procedures and open decision-making, but 

recognizes that in the administrative context, this transparency 

may take place in various ways, I conclude that the notes of Officer 

Lorenz satisfy the requirement for reasons under the duty of 

procedural fairness in this case, and they wiU be taken to be the 

reasons for decision. 

[104] What must be recognized is that tiie "duty" to provide "reasons" arises only in "certain 

circumstances" and that duty may be fulfilled, for instance, by tiie simple provision of notes. Those 

certain circumstances may arise where tiiere is a legislated provision that reasons should be 

provided and may also arise where the process is adjudicative or quasi-adjudicative. However, ^ t 

circumstances are quite different when dealing witii noimal commercial transactions such as tiiose 

at issue here. There is no "duty" to provide persons potentially interested with "reasons" for every 

"decision" made. Transactions woitid grind to a halt 

[105] No reasons were required here. 
Page: 75 

XrVIssue#8; Were the "decisions" made for an improper purpose? 

[106] Air Canada argues that TPA, throughout the process, favoured Porter, and that its decisions 

were made to give Porter an unfair advantage respecting the use of the BBTCA, 

[ 107] Air Canada points out that the letters provided by the Competition Bureau in 2003 were 

based on the premise that Porter would be given exclusivity at BBTCA only for a limited period of 

time, and that time has now gone by. Porter was initially granted up to 112 slots which, by the 2010 

CCOA, were effectively grandfathered. Porter was also given, in the 2005 CCOA, a "fair" share of 

new slots. Porter was given 45 of the 90 new slots in the 2010 CCOA, Porter continues to enjoy 

almost all of tiie prime time slots. 

[ 108] TPA argues that it made a proper business decision. It sought advice from sources, including 

Jordan and ACL; and based on that advice, while not foHovring every piece of advice, it made 

rational, unbiased business decisions, 

[109] Porter argues that Air Canada or its afSIiates essentially abandoned the BBTCA, preferring 

to run its Toronto operations from Pearson aiiport where it is the major airline and Porter does not 

operate. Only when Porter began making a success of BBTCA did Aur Canada wsm to get back in. 

Porter warns that caution should be exercised in dealing with Air Canada given the past history of 

neglecting the BBTCA and squeezing out competition there. 
Page; 76 

[110] It was not unreasonable for TPA to grandfather Porter's existing slots, nor was it 

unreasonable to interpret a "fair" proportion of aUocation of new slots to be one-half of those slots. 

There is no evidence before me to suggest that TPA and Porter were doing anything more than 

engagmg in noimal, reasonable commercial activity. As I have found, there is no expectation that 

Air Canada should have in some way been consttited during the process. 

[Ill] The sihiation, while not identical to, is akin to tiiat considered by tiie Federal Court of 

Appeal in Irving Shipbuilding where Evans J, A. for tiie Court wrote at paragraph 46: 

46 The context of the present dispute is essentially commercial, 

despite the fact that the Government is the purchaser. PWGSC has 

made the contract pursuant to a statutory power and the goods and 

services purchased are related to national defence. In my view, tt 

will normally be inappropriate to import into a predominantly 

commercial relationship, governed by contract, a public law duty 

developed in the context of the performance of governmental 

functions pursuant to powers derived solely from statute, 

[112] It is not for this Court to rewrite or set aside what is in reality a commercial contract simply 

because one of tiie prospective parties beUeves it should have gotten a better deal. 

CONCLUSIONS ANP COSTS 

[113] hi conclusion, botii apphcations vM be dismissed. The TPA is not acting as a "federal 

board, commission or other tribunal" in the circumstances here; it made no "decision" that is subject 

to judicial review. Air Canada had no right or legitimate expectation to be consulted before TPA 

made slot commitments to Porter or otherwise. 
Page; 77 

[114] Counsel at the hearing advised that the parties may well agree as to the disposition of costs. I 

will therefore leave tiiat matter to them, provided however that if they cannot agree within a 

reasonable period any one or more of them may, by a short letter addressed to me, seek a fiurther 

order and directions as to costs. 
Page; 78 

JUDGMENT 

FOR THE REASONS PROVIDED 

THIS COURT ORDERS AND ADJUDGES that; 

1 - These applications are dismissed; and 

2. The parties are to agree as to costs witiiin a reasonable time, failing which any of 

tiiem may by a short letter apply to tins Court for an order and directions in tiiat 

respect. 

_"Roger T.Hughes" 

Judge 

I HEREBY Cti^i'ip/ ;ha; i-t ^^^ i document is a true copy of 

the original issued out of / filed in fiie Court on ttie 

day of - ^ ? 1 yftIO AD.20. 

Dated thfe..... ^ M ^Jf l 2Q _ 
FEDERAL COURT 

SOLICITORS OF RECORD 

DOCKET: 

STYLE OF CAUSE: 

PLACE OF HEARING: 

DATE OF HEARING: 

REASONS FOR JUDGMENT 

AND JUDGMENT; 

DATED: 

APPEARANCES: 

Neil Finkelstein 

Sarit E. Batner 

Brandon Kain 

Byron Shaw 

Peter K. Doody 

CoUeen M. Shannon 

Christiaan A. Jordaan 

Robert L. Armstiong 

Orestes Pasparakis 

Greg Shealien 

T-488-10/T-692-10 

AIR CANADA v. TORONTO PORT AUTHORITY 

AND PORTER AIRLINES INC. 

Vancouver, BC 

July 6-8,2010 

HUGHES J. 

July 21, 2010 

FOR THE APPLICANT 

FOR THE RESPONDENT 

Toronto Port Authority 

FOR THE RESPONDENT 

Porter Airlines Inc. 

SOLICITORS OF RECORD: 

McCarthy Tetrault LLP 

Barristers & Solicitors 

Toronto, ON 

Borden Ladner Gervais LLP 

Barristers & Solicitors 

Toronto, ON 

Ogilvy Renault LLP 

Barristers & Soticitors 

Toronto, ON 

FOR THE APPLICANT 

FOR THE RESPONDENT 

Toronto Port Authority 

FOR THE RESPONDENT 

Porter AirUnes hic. 
Exhibit C 

Toronto Port Authority press release (March 4, 2011) 

'Air Canada to Begin Service from Billy Bishop May 1' 
Toronto Port Authority Page 1 of 1 

Noro^ Co'porata Airpo»t Port Marin.a Media Contact 

HaE^aa 

ira 

Press Releases 

r. 

a-' 

t Past relea! 

For Immediate Release 

Air Canada to Begin Service from Billy Bishop May 1 

Toronto (March 4, 2011) - The Toronto Port Authority today announced that Air Canada and the City Centre 

Ternninal Corporation (CCTC), which owns the terminal building at the popular Billy Bishop Airport, have reached 

an agreement on a terminal lease arrangement that will see Air Canada start operations by May 1, 2011. 

The agreement was required for the Toronto Port Authority, which runs the airport, to finalise its operating 

agreement with Air Canada. Upon the completion of its terminal lease agreement, Air Canada finalized its 

operating agreement with the TPA. 

"We are very pleased that these negotiations have t)een successful," TPA CEO and President Geoff Wilson said 

'Opening the airport to new carriers is a key element of our long-term business plan, and can only serve the best 

interests of the passengers who love the easy access of our downtown airport." 

-30 -

Media Contact Suzanna Birchwood, Public Affairs, TPA 

416 863 2036 (w)/416 317 6405 (mobile) 

CariadS 

http://www.torontoport.com/PortAuthority/media_content.asp?id=510 3/7/201 
Exhibit D 

Air Canada press release (March 4, 2011) 

"Air Canada Announces May 1 Launch Date for Toronto City Centre Service" 
AIR CANADA ANNOUNCES MAY 1 LAUNCH DATE FOR TORONTO CITY CENT... Page 1 of 1 

AIR CANADA m 

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AIR CANADA ANNOUNCES MAY 1 LAUNCH DATE FOR TORONTO 

CITY CENTRE SERVICE 

MONTREAL, March 4 /CNW Telbec/ - Air Canada announced today that it will commence 

service from the Toronto Island's Billy Bishop Airport on May 1, 2011 following the 

conclusion of a terminal agreement with City Centre Terminal Corp., the airport terminal 

owned by Porter Aviation Holdings Inc. Air Canada's initial schedule will provide up to 15 

daily non-stop return flights between downtown Toronto and Montreal Trudeau International 

Airport. 

"Air Canada is extremely pleased to return to Toronto Island and expand the range of travel 

options for our customers. This unique service between downtown Toronto and Montreal will 

provide more choice and added convenience for our customers travelling between Canada's 

two largest cities," said Ben Smith, Executive Vice-President and Chief Commercial Officer. 

Ticl<ets for Air Canada's Toronto Island flights will go on sale March 7, 2011. The service will 

use state-of-the-art Bombardier Dash 8 Q-400 aircraft operated by Sky Regional Airlines 

Inc., an associated company of Skyservice Business Aviation. 

Air Canada is Canada's largest domestic and international full-service airline providing 

scheduled and charter air transportation for passengers and cargo from 60 communities 

large and small across Canada to more than 175 destinations on five continents. Canada's 

flag carrier is the 15th largest commercial airline in the world and serves 31 million 

customers annually. Air Canada is a founding member of Star Alliance, the world's most 

comprehensive air transportation network serving 1,172 airports in 181 countries. Air 

Canada customers can collect Aeroplan miles for future rewards through Canada's leading 

loyalty program, and Top Tier members enjoy reciprocal frequent flyer benefits including 

lounge and priority services. 

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http://aircanada.mediaroom.com/index.php?s=43&item=420 3/4/201