Docket: A-39-16
Citation: 2016 FCA 227
CORAM: WEBB J.A.
RENNIE J.A.
GLEASON J.A.
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BETWEEN:
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DR. GÁBOR
LUKÁCS
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Applicant
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and
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CANADIAN
TRANSPORTATION AGENCY
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Respondent
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REASONS
FOR ORDER
GLEASON J.A.
[1]
The Court has before it a motion to strike this
application for mootness. For the reasons that follow, I would grant this
motion, without costs.
[2]
This application was launched in January of 2016.
It seeks declarations regarding the lack of authority of the respondent to make
a decision or order that has the effect of excluding or exempting Indirect Air
Service Providers (ISPs) from the requirement of holding a licence under the Canadian
Transportation Act, S.C. 1996, c. 10 (the CTA). In addition to
declaratory relief, the applicant also seeks in this application an order of
prohibition, enjoining the respondent from making a decision or order that
purports to exclude or exempt ISPs from the requirement of holding a licence
under the CTA. The applicant brought this application after the
respondent announced that it intended to undertake public consultations as to
whether it should modify its approach to the licencing of domestic ISPs or
resellers under the CTA.
[3]
Following the conclusion of those consultations,
and while this application was still pending, the respondent issued Decision
No. 100-A-2016 on March 29, 2016. In that decision the respondent determined
that:
1.
Resellers do not operate air services and are
not required to hold an air licence under the CTA, as long as they do
not hold themselves out to the public as an air carrier operating an air
service; and
2.
New Leaf Travel Company Inc., which is an ISP or
reseller, would not be required to hold an air licence under the CTA if
it proceeded with its proposed business model.
[4]
It is common ground between the parties that the
terms “ISP” and
“reseller” are interchangeable and refer to companies who sell air transportation
services but contract with a third party carrier to actually provide those
services. Thus, the decision that the applicant sought to prohibit in this
application was made by the respondent on March 29, 2016.
[5]
By order dated June 9, 2016, this Court granted
the applicant leave to appeal the respondent’s March 29, 2016 decision and that
appeal is currently pending before the Court.
[6]
There is a high threshold for striking an
application for judicial review on a preliminary basis in that such orders
should only be made where the application is so flawed as to be bereft of any
chance of success: Canada (National Revenue) v. JP Morgan Asset Management
(Canadian) Inc., 2013 FCA 250 at paras. 47-48, [2014] 2 F.C.R. 557. Where
an application has been rendered moot, this high threshold may be met
especially where, as here, the issues in the moot proceeding are fully engaged
in another matter that is pending before the Court.
[7]
A matter is moot when there is no longer a live
controversy between the parties and an order will therefore have no practical
effect: Borowski v. Canada, [1989] 1 S.C.R. 342 at para. 16, 57 D.L.R.
(4th) 231 and Lavoie v. Canada (Minister of the Environment),
2002 FCA 268 at para. 6, 291 N.R. 282. Even where a matter is moot, the Court
may still decide to hear a case if the circumstances warrant it.
[8]
Here, the issues raised by this application are
fully engaged by the pending appeal brought in respect of the respondent’s
March 29, 2016 decision. A remedy identical to the requested declaratory relief
will necessarily be considered by the Court in deciding the appeal. As for the
requested remedy of prohibition, there is no longer anything to prohibit as the
respondent has made the decision that the applicant sought to prohibit in this
application. I therefore conclude that this application is moot and can have no
practical effect. Moreover, there is no reason why it should be pursued – or
even stayed – as all the issues raised in the application are now before the
Court in the pending appeal of the respondent’s March 29, 2016 decision. Thus,
the only impact of this application would be the incurring of unnecessary costs
by the parties and the expenditure of unnecessary time by the Court.
[9]
I would accordingly grant this motion and strike
this application, without costs.
“Mary J.L. Gleason”
“I agree.
Wyman W. Webb J.A.”
“I agree.
Donald J. Rennie J.A.”
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