Date:
20070924
Docket: A-301-07
A-302-07
Citation: 2007
FCA 304
CORAM: DÉCARY
J.A.
LÉTOURNEAU J.A.
SHARLOW J.A.
BETWEEN:
CITY CENTRE AVIATION LTD., REGCO HOLDINGS
INC.,
PORTER AIRLINES INC. and ROBERT J. DELUCE
Appellants (A-301-07)
Respondents/Intervenors (A-302-07)
and
JAZZ AIR LP
Respondent (A-301-07)
Respondent (A-302-07)
and
TORONTO PORT AUTHORITY
Respondent (A-301-07)
Appellant (A-302-07)
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Ottawa,
Ontario, on September 24, 2007)
SHARLOW J.A.
[1]
These
appeals arise from an application by Jazz Air LP for judicial review of the
decision of the Toronto Port Authority to deny Jazz Air LP access to the
facilities of the Toronto City Centre Airport (T-1427-06).
That application was filed on August 8, 2006. It was the second such
application by Jazz Air LP. The first application (T-431-06) was filed on March
9, 2006 but discontinued on August 8, 2006, after Justice Rouleau upheld an
order by Prothonotary Milczynski converting the application to an action.
[2]
On
February 1, 2007, Prothonotary Milczynski granted the motion of City Centre
Aviation Ltd., Regco Holdings Inc., Porter Airlines Inc. and Robert J. Deluce
(collectively, “Porter Airlines”) and the Toronto Port Authority to strike the
second application of Jazz Air LP as an abuse of process (2007 FC 114). Jazz
Air LP appealed that order under Rule 51 of the Federal Courts Rules. On
June 12, 2007, Justice Hugessen allowed the appeal, set aside the prothonotary’s
order, and substituted an order allowing the application to proceed as an action
subject to certain conditions (2007 FC 624).
[3]
Justice
Hugessen agreed with the prothonotary that the actions of Jazz Air LP were
purely tactical and were designed to circumvent the order converting the first
application to an action, but he considered her remedy to go too far. His order
is intended to frustrate what he called the “misguided strategy” of Jazz Air LP
without denying them their day in court.
[4]
Porter
Airlines and the TPA have appealed the order of Justice Hugessen on the basis
that he erred in law in reversing the prothonotary’s order. The two appeals
raise substantially the same issue and were consolidated. The appellants argue
that, because Justice Hugessen found no error of law or fact on the part of the
prothonotary, he had no grounds for interfering with her order.
[5]
The
seminal case on the standard of review of a discretionary decision of a Federal
Court prothonotary is Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993]
2 F.C. 425, in which the standard of review of a discretionary order of a
prothonotary was described as follows by Justice MacGuigan, writing for the
majority at page 463.
|
[…] discretionary orders of prothonotaries
ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that
the exercise of discretion by the prothonotary was based upon a wrong
principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final
issue of the case.
|
[6]
Chief
Justice Isaac, in dissent, stated the test as follows (emphasis added):
|
I am of the opinion that [discretionary orders of prothonotaries] ought
to be disturbed on appeal only where it has been made to appear that
(a) they are clearly wrong, in the sense that the exercise of discretion
by the prothonotary was based upon a wrong principle or upon a
misapprehension of the facts, or
(b) in making them, the prothonotary improperly exercised his
discretion on a question vital to the final issue of the case.
|
[7]
The
only difference is that Chief Justice Isaac used the qualifier “improperly” in
the “final issue” branch of the test. It is not clear why he did so. He and
Justice MacGuigan both indicated that they were adopting by analogy the test
for reviewing the discretionary decision of a local judge, as stated by the
Ontario Court of Appeal in Stoicevski v. Casement (1983), 43 O.R. (2d)
436 (O.C.A.), which sets out substantially the test as stated by Justice MacGuigan
for the majority in Aqua-Gem.
[8]
Whatever
the explanation for the difference in the wording between the test as stated in
the majority and dissenting reasons in Aqua-Gem, this Court and the
Federal Court are bound by the decision of the majority unless and until it is
changed by a subsequent decision.
[9]
The
appellants argue that the test as stated by Justice MacGuigan for the majority in
Aqua-Gem has been changed by Z.I. Pompey Industries v. ECU-Line N.V.,
[2003] 1 S.C.R. 450. The standard of review of a discretionary decision of a
prothonotary is addressed in paragraph 18 of the reasons, which reads as
follows (emphasis added):
|
Discretionary orders of prothonotaries
ought to be disturbed by a motions judge only where (a) they are clearly
wrong, in the sense that the exercise of discretion was based upon a wrong
principle or a misapprehension of the facts, or (b) in making them, the
prothonotary improperly exercised his discretion on a question vital
to the final issue of the case: Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (C.A.), per MacGuigan J.A. at pp. 462-63.
|
[10]
In
stating this standard of review, the Supreme Court of Canada in Z.I. Pompey
cited the majority decision in Aqua-Gem but quoted the dissenting
reasons. We agree with Justice Hugessen that the Supreme Court of Canada did
not intend to alter the standard of review stated by the majority in Aqua-Gem.
The Supreme Court of Canada would not make such an important change to the
jurisprudence of this Court and the Federal Court, particularly on an issue
that was not relevant to the merits of the case before it, without saying it
was doing so and explaining why.
[11]
We
conclude that, despite paragraph 18 of Z.I. Pompey, the Federal Court
and this Court continue to be bound by the test as stated by Justice MacGuigan for
the majority in Aqua-Gem.
[12]
Further,
despite the able submissions of counsel for the appellants relying inter
alia on the new Federal Courts Rules enacted after Aqua-Gem,
we are not persuaded that this Court should change the test.
[13]
The
test was recently restated by Justice Décary, on this point writing for the
Court in Merck & Co. v. Apotex Inc., 2003 FCA 488, at paragraph 19. The
restated test reads as follows:
|
Discretionary orders of prothonotaries ought
not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are
vital to the final issue of the case, or
b) the orders are clearly wrong, in the sense
that the exercise of discretion by the prothonotary was based upon a wrong
principle or upon a misapprehension of the facts.
|
The
restatement simply reverses the two branches of the test so that they are
considered in a more logical order. Once it is determined that a de novo
review is required, it is not necessary to attempt to identify any error in the
decision under appeal.
[14]
In
this case, the motion to dismiss the proceeding as an abuse of process raised
questions vital to the final issue of the case. For that reason, Justice
Hugessen was required to exercise his discretion de novo, which is what
he did. The record discloses no error on the part of Justice Hugessen that
warrants the intervention of this Court.
[15]
These
appeals will be dismissed with one set of costs.
“K. Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-301-07
A-302-07
(APPEAL FROM AN ORDER OF THE HONOURABLE
MR. JUSTICE HUGESSEN DATED JUNE 12, 2007, DOCKET NO. T-1427-06)
STYLE OF CAUSE: CITY
CENTRE AVIATION LTD.,
REGCO HOLDINGS INC.,
PORTER
AIRLINES INC., and
ROBERT
J. DELUCE
Appellants (A-301-07)
Respondents/Intervenors (A-302-07)
and
JAZZ
AIR LP
Respondent (A-301-07)
Respondent (A-302-07)
and
TORONTO PORT AUTHORITY
Respondent
(A-301-07)
Appellant
(A-302-07)
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September
24, 2007
REASONS FOR JUDGMENT OF THE COURT BY: (Décary, Létourneau, Sharlow JJ.A.)
DELIVERED FROM THE BENCH BY: Sharlow
J.A.
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