Date: 20111212
Docket:
A-355-10
Citation: 2011 FCA 347
CORAM: LÉTOURNEAU
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
AIR CANADA
Appellant
and
TORONTO PORT AUTHORITY
and PORTER AIRLINES INC.
Respondents
REASONS FOR
JUDGMENT
STRATAS J.A.
[1]
This
is an appeal from the judgment of the Federal Court (per Justice
Hughes): 2010 FC 774. The Federal Court dismissed two applications for judicial
review brought by Air Canada.
[2]
Air
Canada brought the two applications for judicial review in response to two bulletins
issued by the Toronto Port Authority concerning the Billy Bishop Toronto City Airport (the “City Airport”).
The Toronto Port Authority manages and operates the City Airport.
[3]
The
Federal Court judge dismissed the applications for judicial review on a number
of grounds. Three of those grounds and the Federal Court judge’s rulings on
them were as follows:
● The
Toronto Port
Authority’s bulletins and its conduct described in the bulletins were not
susceptible to judicial review. These matters did not trigger rights on the
part of Air Canada to bring a
judicial review.
● In
issuing the bulletins and in engaging in the conduct described in the
bulletins, the Toronto Port Authority was not acting as a “federal board,
commission or other tribunal.” Accordingly, judicial review was not available
under the Federal Courts Act, R.S.C. 1985, c. F-7. The Toronto Port Authority’s
conduct was private in nature, not public.
● Air
Canada failed to
establish that the bulletins and the conduct described in them offended duties
of procedural fairness, were unreasonable, or were motivated by an improper
purpose.
[4]
Air
Canada now appeals
to this Court from the dismissal of both of its applications for judicial
review.
[5]
Following
oral argument, we reserved our decision in this appeal. Somewhat later, the
Supreme Court of Canada released its decision in Canada
(Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504. That decision was of
potential significance to the second of these three grounds, and, in
particular, to the public-private distinction and whether the Toronto Port
Authority’s conduct described in the bulletins is reviewable. Accordingly, we
invited the parties to make further written submissions concerning that
decision. We have now received the parties’ further written submissions and we have
considered them.
[6]
For
the reasons set out below, I agree with the Federal Court judge’s dismissal of
Air Canada’s
applications for judicial review. Like the Federal Court judge, I find that
each of the above three grounds is fatal to the applications for judicial
review. It follows that I would dismiss the appeal, with costs.
A. Basic
facts
[7]
The
City Airport is located
on Toronto Island. Once
a quiet location frequented mainly by small aircraft and hobby fliers, it is
now a bustling commercial airport. This transformation was years in the making.
[8]
Key
to this transformation was an agreement, entered into in 1983 among the City of
Toronto, the Toronto
Harbour Commissioners and the federal Minister of Transport. Known colloquially
as the Tripartite Agreement, it granted to the Toronto Harbour Commissioners,
and later its successor, the Toronto Port Authority, a 50-year lease for the City Airport and related
facilities. Importantly, the Tripartite Agreement imposed an obligation on the
Toronto Harbour Commissioners, and later the Toronto Port Authority, to
regulate the number of takeoffs and landings in order to limit noise in the
nearby residential neighbourhood.
[9]
In
1990, Air Ontario, an Air Canada subsidiary, started operations at the City Airport. Later,
another Air Canada affiliate, Jazz, operated at the City Airport.
[10]
In
1998, the Canada Marine Act, S.C. 1998, c. 10 became law. A year later,
under its provisions, the Toronto Port Authority was established and letters
patent were issued to it: (1999) Canada Gazette Part I, vol. 133, no. 23
(supplement). These shall be examined later in these reasons. Under subsection
7.2(j) of the letters patent, the Toronto Port Authority was authorized to
operate and manage the City Airport in accordance with the
Tripartite Agreement.
[11]
By
2002, the Toronto Port Authority was operating at a loss. As we shall later
see, under the Canada Marine Act, the Toronto Port Authority was meant
to be financially self-sufficient. To remedy its financial situation, the
Toronto Port Authority tried to get Jazz to commit to the continuance and even
the enhancement of its operations at the City Airport. In
the meantime, the Toronto Port Authority started to enter into discussions with
another proposed airline about operating at the City Airport. That
airline was later known as Porter, operated by the respondent Porter Airlines
Inc.
[12]
As
part of this investigation, the Toronto Port Authority and the airline that was
later to be known as Porter approached the Competition Bureau for advice about
whether Porter could ramp up operations considerably at the City Airport,
taking 143 of 167 takeoff and landing slots. The Competition Bureau responded.
It defined the relevant market as including Lester B. Pearson
International Airport, considered
it to be a “close substitute” for the City Airport for Toronto
air passengers, and noted Air Canada’s dominance at Pearson Airport. It
concluded that capping Air Canada’s takeoff and landing slots at the City
Airport at a low level and granting Porter a number of takeoff and landing
slots at the City Airport would be justified “as an interim measure” to allow Porter
to establish a viable new service at the City Airport.
[13]
By
2004, Jazz reduced the number of locations served and the frequency of flights at
the City
Airport. By 2005, it
ceased shuttle bus services to the ferry by which passengers travelled to and
from the City Airport and it used
only six takeoff and landing slots at the City Airport.
[14]
Mindful
of the coming expiration of Jazz’s Commercial Carrier Operating Agreement for
the City
Airport, the Toronto
Port Authority proposed a new agreement with Jazz. Jazz rejected the proposal and
ceased all of its operations at the City Airport in 2006.
[15]
Soon
afterward, Porter announced the launch of its services from the City Airport. It had already
signed a Commercial Carrier Agreement with the Toronto Port Authority during
the previous year (2005). That agreement provided for an initial period during
which Porter would receive a guaranteed number of takeoff and landing slots,
following which Porter would be entitled to those slots on a “use it or lose
it” basis. Porter was also entitled to participate “on a fair basis” concerning
any additional slots that might become available.
[16]
After
Porter announced its launch, Air Canada announced plans to reinstate its
services at the City Airport. In addition, Air Canada’s affiliate,
Jazz, started an action in the Ontario Superior Court against the Toronto Port
Authority claiming damages. In this action, Jazz alleged, among other things,
that the Toronto Port Authority gave Porter a monopoly on terminal facilities
and the vast majority of takeoff and landing slots at the City Airport: see
Amended Statement of Claim, paragraph 31, Appeal Book, volume 14, pages
5746-5747. In 2006, Jazz also filed applications for judicial review in the
Federal Court, complaining of these same matters: see Notices of Application,
Appeal Book, volume 15, pages 5894-5916 and 6189-6201. Later, Jazz discontinued
or abandoned all of these proceedings.
[17]
Porter’s
flights from the City Airport steadily increased.
Porter, through its affiliate City Centre Terminal Corp., invested $49 million
into the City Airport’s
infrastructure, including the building of a new terminal and, later, expanding
it. For the first time in more than two decades, the City Airport began to
enjoy an operating profit.
[18]
Later,
in September, 2009, Air Canada expressed new interest in starting service from
the City
Airport. At this
time, the Toronto Port Authority was studying the possibility of allowing new
takeoff and landing slots within the limits of the Tripartite Agreement and was
open to additional carriers operating at the City Airport and engaged
in discussions with all of them, including Air Canada. The Toronto
Port Authority’s studies and discussions continued into 2010.
[19]
On
December 24, 2009 and April 9, 2010, the Toronto Port Authority issued the two
bulletins that are the subject of Air Canada’s applications for
judicial review in this case. Also on April 9, 2010, unknown to Air Canada at
the time, the Toronto Port Authority and Porter entered into a new Commercial
Carrier Operating Agreement, under which Porter’s existing landing slots were
grandparented, with the result that Porter received 157 of 202 available
takeoff and landing slots at the City Airport.
[20]
In
its application for judicial review of the second bulletin, Air Canada seeks the
setting aside of Porter’s 2010 Commercial Carrier Operating Agreement, among
other things. However, as we shall see, that application for judicial review
concerns the Toronto Port Authority’s “decisions” evidenced in the second
bulletin, not the Toronto Port Authority’s decision to enter into the 2010 Commercial
Carrier Operating Agreement with Porter. Air Canada has not
brought an application for judicial review of that decision.
B. Did
the Toronto Port Authority’s conduct described in
the bulletins constitute administrative action susceptible to judicial review?
[21]
As
mentioned above, before the Federal Court were two applications for judicial
review launched in response to the two bulletins. In response, the respondents
submitted to the Federal Court that judicial review was not available because
the Toronto Port Authority had not made a “decision” or “order” within the
meaning of the Federal Courts Act. All that the Toronto Port Authority
had done was to issue two information bulletins of a general nature. Air Canada disagreed with the
respondents and submitted to the Federal Court that there was such a “decision”
or “order” and so judicial review was available to it. The parties advanced
substantially similar submissions in this Court.
[22]
The
Federal Court judge agreed with the respondents’ submissions, finding that that
no “decision” or “order” was present before him because the Toronto Port
Authority’s bulletins “do not determine anything” (at paragraph 73).
[23]
Although
the Federal Court judge and the parties focused on whether a “decision” or
“order” was present, I do not take them to be saying that there has to be a
“decision” or an “order” before any sort of judicial review can be brought.
That would be incorrect.
[24]
Subsection
18.1(1) of the Federal Courts Act provides that an application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by “the matter in respect of which relief is sought.” A “matter” that
can be subject of judicial review includes not only a “decision or order,” but
any matter in respect of which a remedy may be available under section 18 of
the Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds
further light on this, referring to relief for an “act or thing,” a failure,
refusal or delay to do an “act or thing,” a “decision,” an “order” and a
“proceeding.” Finally, the rules that govern applications for judicial review
apply to “applications for judicial review of administrative action,” not just
applications for judicial review of “decisions or orders”: Rule 300 of the Federal
Courts Rules.
[25]
As
far as “decisions” or “orders” are concerned, the only requirement is that any
application for judicial review of them must be made within 30 days after they
were first communicated: subsection 18.1(2) of the Federal Courts Act.
[26]
Although
the parties and the Federal Court judge focused on whether a “decision” or
“order” was present, in substance they were addressing something more basic: whether,
in issuing the bulletins and in engaging in the conduct described in the
bulletins, the Toronto Port Authority had done anything that triggered any
rights on the part of Air Canada to bring a judicial review.
[27]
On
this, I agree with the respondents’ submissions and the Federal Court judge’s
holding: in issuing the bulletins and in engaging in the conduct described in
the bulletins, the Toronto Port Authority did nothing to trigger rights on the
part of Air Canada to bring a judicial
review.
[28]
The
jurisprudence recognizes many situations where, by its nature or substance, an
administrative body’s conduct does not trigger rights to bring a judicial
review.
[29]
One
such situation is where the conduct attacked in an application for judicial
review fails to affect legal rights, impose legal obligations, or cause
prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General),
2009 FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest
and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.
[30]
The
decided cases offer many illustrations of this situation: e.g., 1099065
Ontario Inc. v. Canada (Minister of Public Safety and Emergency Preparedness),
2008 FCA 47, 375 N.R. 368 (an official’s letter proposing dates for a meeting);
Philipps v. Canada (Librarian and Archivist), 2006 FC 1378, [2007] 4
F.C.R. 11 (a courtesy letter written in reply to an application for
reconsideration); Rothmans, Benson & Hedges Inc. v. Minister of National
Revenue, [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.) (an advance ruling that
constitutes nothing more than a non-binding opinion).
[31]
In
this case, Air Canada issued two notices of
application:
● The
first seeks judicial review of “the December 24, 2009 decision…of the Toronto Port
Authority…announcing a process…through which it intends to award slots” at the City Airport. Like the Federal Court
judge, I interpret this as a judicial review of the December 24, 2009 bulletin
issued by the Toronto Port Authority and the conduct described in it.
● The
second seeks judicial review of “the April 9, 2010 decision…of the Toronto Port
Authority…announcing a Request for Proposals process…to allocate slots and
otherwise grant access to commercial carriers seeking access” to the City
Airport. Like the Federal Court judge, I interpret this as a judicial review of
the April 9, 2010 bulletin issued by the Toronto Port Authority and the conduct
described in it.
[32]
I
shall examine each of the two bulletins and assess whether they, or the conduct
described in them, affected Air Canada’s legal rights, imposed legal
obligations, or caused Air Canada prejudicial effects.
(1) The first
bulletin
[33]
The
first bulletin is entitled “TPA announces capacity assessment results for Billy Bishop Toronto City Airport, begins
accepting formal carrier proposals.” This bulletin did five things, none of
which, in reality, is attacked by Air Canada in its first
application for judicial review:
● It
announced the results of a noise impact study and capacity assessment for the City Airport and stated that
the Toronto Port Authority anticipated that between 42 and 92 additional
takeoff and landing slots would be available. Nowhere in its application for
judicial review of the bulletin does Air Canada attack this study or
capacity assessment. Nowhere does it attack the Toronto Port Authority’s
assessment of the availability of takeoff and landing slots.
● It
announced that the Toronto Port Authority intended to solicit formal business
proposals for additional airline service at the City Airport. In its
judicial review of this bulletin, Air Canada does not attack this
intention.
● It
disclosed the appointment of a slot coordinator to allocate available takeoff
and landing slots at the City Airport. Air Canada does not say in
its application for judicial review that the slot coordinator was improperly
appointed, should not have been appointed, was biased, or conducted itself in
some other inappropriate way.
● It
stated that all airlines providing service from the City Airport will have to
enter into a commercial carrier operating agreement with the Toronto Port
Authority and secure appropriate terminal space from the City Centre Terminal
Corp. Air Canada does not attack
this aspect of the bulletin in its application for judicial review.
● It
announced that further capital expenditures on the City Airport would be
required to accommodate the additional air traffic. In its judicial review, Air
Canada does not attack
this aspect of the bulletin.
[34]
In
its first notice of application attacking this bulletin and the conduct
described in it, Air Canada set out the grounds for its attack. The grounds
focus on the Toronto Port Authority’s alleged bias in favour of Porter. Air Canada says that the matters
disclosed in the first bulletin perpetuate “Porter’s existing anti-competitive
advantage” and prevent “meaningful competition,” something that is “contrary to
the purposes of the Canada Marine Act and contrary to the common law.”
Air Canada complains about
“Porter’s exclusive access” to the City Airport and the “significant
competitive advantages” offered by the City Airport compared to
other airports in the Toronto area. It adds that when new takeoff and landing
slots are awarded, Porter’s dominance at the City Airport will be
maintained – Porter will continue to enjoy a vast majority of the overall
number of takeoff and landing slots.
[35]
But
the first bulletin and the conduct described in it does not do any of these
things. On the subject of takeoff and landing slots, the first bulletin only
sets out a process for the allocation of new slots and an approximate number to
be allocated under that process. In reality, Air Canada does not attack
anything that the first bulletin does or describes. Instead, Air Canada is really
attacking the Toronto Port Authority’s earlier allocation of takeoff and
landing slots to Porter, an earlier decision that is not now the subject of
judicial review. As mentioned in paragraph 16, above, Air Canada’s affiliate,
Jazz, attacked that matter and other allegedly monopolistic matters in 2006 by
way of an action and judicial reviews, but it later discontinued and abandoned
those proceedings.
[36]
If
Air Canada’s application for judicial review concerning the first bulletin were
granted and the matters described in the first bulletin were set aside, the
pre-existing allocation of takeoff and landing slots to Porter – the matter
that is the real focus of its complaint – would remain. But in its notice of application
Air Canada does not attack
that pre-existing allocation of takeoff and landing slots to Porter.
[37]
Therefore,
the first bulletin and the matters described in it – the matters that Air
Canada attacks in its first notice of application – do not affect Air Canada’s legal rights, impose
legal obligations, or cause Air Canada prejudicial effects. This bulletin and the
matters described in it are not the proper subject of judicial review. Other
matters may perhaps be causing prejudicial effects to Air Canada, but they are not the
subject of its first notice of application.
(2) The
second bulletin
[38]
The
second bulletin is entitled “Toronto Port Authority issues formal Request for
Proposals for additional carriers at Billy Bishop Toronto City Airport.” This bulletin
did three things, none of which, in reality, is attacked by Air Canada in its second
notice of application:
● It
announced that two airlines, one of which was Air Canada, expressed informal
interest in participating in the request for proposals for additional airline
service at the City Airport. It invited
others to participate in the request for proposal process.
● It
appointed an independent party to review the proposals and allocate slots based
on a methodology used at other airports.
● It
announced results from a capacity assessment report and stated that, based on
that report and the Tripartite Agreement, 90 new takeoff and landing slots could
be made available.
[39]
Again,
in reality, Air Canada does not attack
anything that the bulletin does. Nowhere in its second notice of application
for judicial review does Air Canada suggest that these things affect its legal rights,
impose legal obligations, or cause prejudicial effects upon it.
[40]
In
its second notice of application, Air Canada states that this
bulletin implements the process that was proposed in the first bulletin. But,
as we have seen, the process that was proposed in the first bulletin is not the
real focus of Air Canada’s attack. Air Canada’s real focus is
the pre-existing allocation of takeoff and landing slots, something over which
Jazz launched challenges in 2006 but later abandoned.
[41]
By
the time of its second application for judicial review, Air Canada was aware of the
allocation of takeoff and landing slots to Porter, set out in Porter’s 2010 Commercial
Carrier Operating Agreement. Its second notice of application alludes to that agreement. But the second
bulletin and the conduct described in it – the subject-matter of the second
application for judicial review – do not mention or allude to Porter’s 2010 Commercial
Carrier Operating Agreement. The second notice of application does not seek
review of the Toronto Port Authority’s decision to enter into that agreement
and allocate a significant number of takeoff and landing slots to Porter.
[42]
Therefore,
for the foregoing reasons, Air Canada’s two notices of application do not
attack any matter that affects
Air Canada’s legal rights, impose
legal obligations, or cause prejudicial effects. The notices of application did
not place before the Federal Court any matter susceptible to review.
[43]
This
is sufficient to dismiss the appeal. However, I shall go on to consider two
other grounds relied upon by the Federal Court judge to dismiss Air Canada’s applications for
judicial review.
C. Was the Toronto Port Authority acting as a “federal board,
commission or other tribunal” when it engaged in the conduct described in the
bulletins?
(1) This
is a mandatory requirement
[44]
An
application for judicial review under the Federal Courts Act can only be
brought against a “federal board, commission or other tribunal.”
[45]
Various
provisions of the Federal Courts Act make this clear. Subsection 18(1)
of the Federal Courts Act vests the Federal Court with exclusive
original jurisdiction over certain matters where relief is sought against
any “federal board, commission or other tribunal.” In exercising that
jurisdiction, the Federal Court can grant relief in many ways, but only against
a “federal board, commission or other tribunal”: subsection 18.1(3) of the Federal Courts Act. It
is entitled to grant that relief where it is satisfied that certain errors have
been committed by the “federal board, commission or other tribunal”: subsection
18.1(4) of the Federal
Courts Act.
(2) What
is a “federal board, commission or other tribunal”?
[46]
“Federal
board, commission or other tribunal” is defined in subsection 2(1) of the Federal
Courts Act. Subsection 2(1) tells us that only those that exercise jurisdiction or
powers “conferred by or under an Act of Parliament” or “an order made
pursuant to [Crown prerogative]” can be “federal boards, commissions or other tribunals”:
2. (1) In this Act,
“federal
board, commission or other tribunal”
« office
fédéral »
“federal board, commission or other tribunal” means any
body, person or persons having, exercising or purporting to exercise
jurisdiction or powers conferred by or under an Act of Parliament or by or
under an order made pursuant to a prerogative of the Crown…
|
2. (1) Les définitions qui suivent s’appliquent à
la présente loi.
« office fédéral »
“federal board,
commission or other tribunal”
« office fédéral » Conseil, bureau, commission ou autre
organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé
exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une
ordonnance prise en vertu d’une prérogative royale…
|
[47]
These words require us to examine the particular jurisdiction or
power being exercised in a particular case and the source of that jurisdiction
or power:
Anisman
v. Canada (Canada
Border Services Agency), 2010 FCA 52, 400 N.R. 137.
[48]
The
majority of decided cases concerning whether a “federal board, commission or
other tribunal” is present turn on whether or not there is a particular federal
Act or prerogative underlying an administrative decision-maker’s power or
jurisdiction. Anisman is a good example. In that case the source of the
administrative decision-maker’s power was provincial legislation, and so
judicial review under the Federal Courts Act was not available.
[49]
In
this case, all parties accept that the actions disclosed in the Toronto Port
Authority’s bulletins find their ultimate source in federal law.
[50]
However,
before us, the Toronto Port Authority submits that that alone is not enough to
satisfy the requirement that an entity was acting as a “federal board,
commission or other tribunal” when it engaged in the conduct or exercised the
power that is the subject of judicial review. It has cited numerous cases to us
in support of the proposition that the conduct or the power exercised must be
of a public character. An authority does not act as a “federal board,
commission or other tribunal” when it is conducting itself privately or is
exercising a power of a private nature: see, for example, DRL Vacations Ltd.
v. Halifax Port Authority, 2005 FC 860, [2006] 3 F.C.R. 516; Halterm
Ltd. v. Halifax Port Authority (2000), 184 F.T.R. 16 (T.D.).
[51]
The
Toronto Port Authority’s submission has much force.
[52]
Every
significant federal tribunal has public powers of decision-making. But
alongside these are express or implied powers to act in certain private ways,
such as renting and managing premises, hiring support staff, and so on. In a
technical sense, each of these powers finds its ultimate source in a federal
statute. But, as the governing cases cited below demonstrate, many exercises of
those powers cannot be reviewable. For example, suppose that a well-known
federal tribunal terminates its contract with a company to supply janitorial
services for its premises. In doing so, it is not exercising a power central to
the administrative mandate given to it by Parliament. Rather, it is acting like
any other business. The tribunal’s power in that case is best characterized as
a private power, not a public power. Absent some exceptional circumstance, the
janitorial company’s recourse lies in an action for breach of contract, not an
application for judicial review of the tribunal’s decision to terminate the
contract.
[53]
The
Supreme Court has recently reaffirmed that relationships that are in essence
private in nature are redressed by way of the private law, not public law: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. In that case, a government dismissed one of
its employees who was employed under a contract governed by the ordinary laws
of contract. The employee brought a judicial review, alleging procedural
unfairness. The Supreme Court held that in the circumstances the matter was
private in character and so there was no room for the implication of a public
law duty of procedural fairness.
[54]
Recently,
on the same principles but on quite different facts, the Supreme Court found
that a relationship before it was a public one and so judicial review was
available: Mavi, supra.
[55]
A
further basis for this public-private distinction can be found in subsection
18(1) of the Federal Courts Act which provides that the main remedies on
review are certiorari, mandamus and prohibition. Each of those is available
only against exercises of power that are public in character. So said Justice
Dickson (as he then was) in the context of certiorari in Martineau v.
Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; see also R.
v. Criminal Injuries Compensation Board, Ex p. Lain, [1967] 2 Q.B. 864.
[56]
The
tricky question, of course, is what is public and what is private. In Dunsmuir
and in Mavi, the Supreme Court did not provide a comprehensive answer to
that question.
[57]
Perhaps
there can be no comprehensive answer. In law, there are certain concepts that,
by their elusive nature, cannot be reduced to clear definition. For example,
in the law of negligence, when exactly does a party fall below the standard of
care? We cannot answer that in a short sentence or two. Instead, the answer
emerges from careful study of the factors discussed in many cases decided on
their own facts. In my view, determining whether a matter is public or private for
the purposes of judicial review must be approached in the same way.
[58]
Further,
it may be unwise to define the public-private distinction with precision. The
“exact limits” of judicial review have “varied from time to time” to “meet
changing conditions.” The boundaries of judicial review, in large part set by
the public-private distinction, have “never been and ought not to be
specifically defined.” See the comments of Justice Dickson (as he then was) in Martineau,
supra at page 617, citing Lord Parker L.J. in Lain, supra
at page 882.
[59]
While
the parties, particularly the Toronto Port Authority, have supplied us with
many cases that shed light on the public-private distinction for the purposes
of judicial review, only preliminary comments necessary to adjudicate upon this
case are warranted in these circumstances.
[60]
In
determining the public-private issue, all of the circumstances must be weighed:
Cairns v. Farm Credit Corp., [1992] 2 F.C. 115 (T.D.); Jackson v. Canada (Attorney
General)
(1997), 141 F.T.R. 1 (T.D.). There are a number of relevant factors relevant to the
determination whether a matter is coloured with a public element, flavour or
character sufficient to bring it within the purview of public law. Whether or
not any one factor or a combination of particular factors tips the balance and
makes a matter “public” depends on the facts of the case and the overall
impression registered upon the Court. Some of the relevant factors disclosed by
the cases are as follows:
● The character
of the matter for which review is sought. Is it a private,
commercial matter, or is it of broader import to members of the public? See DRL
v. Halifax Port Authority, supra; Peace Hills Trust Co. v.
Moccasin, 2005 FC 1364 at paragraph 61, 281 F.T.R. 201 (T.D.)
(“[a]dministrative law principles should not be applied to the resolution of
what is, essentially, a matter of private commercial law…”).
● The
nature of the decision-maker and its responsibilities. Is the
decision-maker public in nature, such as a Crown agent or a
statutorily-recognized administrative body, and charged with public
responsibilities? Is the matter under review closely related to those
responsibilities?
● The
extent to which a decision is founded in and shaped by law as opposed to
private discretion. If the particular decision is authorized by or emanates
directly from a public source of law such as statute, regulation or order, a
court will be more willing to find that the matter is public: Mavi, supra;
Scheerer v. Waldbillig (2006), 208 O.A.C. 29, 265 D.L.R. (4th) 749 (Div.
Ct.); Aeric, Inc. v. Canada Post Corp., [1985] 1 F.C. 127 (T.D.). This
is all the more the case if that public source of law supplies the criteria
upon which the decision is made: Scheerer v. Waldbillig, supra at
paragraph 19; R. v. Hampshire Farmer’s Markets Ltd., [2004] 1 W.L.R. 233
at page 240 (C.A.), cited with approval in MacDonald v. Anishinabek Police
Service (2006), 83 O.R. (3d) 132 (Div. Ct.). Matters based on a power to act that is
founded upon something other than legislation, such as general contract law or
business considerations, are more likely to be viewed as outside of the ambit of
judicial review: Irving Shipbuilding Inc, supra; Devil’s Gap Cottager
(1982) Ltd. v. Rat Portage Band No. 38B, 2008 FC 812 at paragraphs 45-46,
[2009] 2 F.C.R. 276.
● The
body’s relationship to other statutory schemes or other parts of government.
If the body is woven into the network of government and is exercising a power
as part of that network, its actions are more likely to be seen as a public
matter: Onuschuk
v. Canadian Society of Immigration, 2009 FC 1135 at paragraph 23, 357 F.T.R.
22; Certified
General Accountants Association of Canada v. Canadian Public Accountability
Board
(2008), 233 O.A.C. 129 (Div. Ct.); R. v. Panel on Take-overs and Mergers; Ex
Parte Datafin plc., [1987] Q.B. 815 (C.A.); Volker Stevin N.W.T. (’92)
Ltd. v. Northwest Territories (Commissioner), [1994] N.W.T.R. 97, 22 Admin.
L.R. (2d) 251 (C.A.); R. v. Disciplinary Committee of the Jockey Club, ex
parte Aga Khan, [1993] 2 All E.R. 853 at page 874 (C.A.); R. v. Hampshire
Farmer’s Markets Ltd., supra at page 240 (C.A.). Mere mention in a
statute, without more, may not be enough: Ripley v. Pommier (1990), 99
N.S.R. (2d) 338, [1990] N.S.J. No. 295 (S.C.).
● The
extent to which a decision-maker is an agent of government or is directed,
controlled or significantly influenced by a public entity. For example,
private persons retained by government to conduct an investigation into whether
a public official misconducted himself may be regarded as exercising an
authority that is public in nature: Masters v. Ontario (1993), 16 O.R.
(3d) 439, [1993] O.J. No. 3091 (Div. Ct.). A requirement that policies,
by-laws or other matters be approved or reviewed by government may be relevant:
Aeric, supra; Canadian Centre for Ethics in Sport v. Russell,
[2007] O.J. No. 2234 (S.C.J.).
● The
suitability of public law remedies. If the nature of the matter is such
that public law remedies would be useful, courts are more inclined to regard it
as public in nature: Dunsmuir, supra; Irving Shipbuilding,
supra at paragraphs 51-54.
● The
existence of compulsory power. The existence of compulsory power over the
public at large or over a defined group, such as a profession, may be an
indicator that the decision is public in nature. This is to be contrasted with
situations where parties consensually submit to jurisdiction. See Chyz v.
Appraisal Institute of Canada (1984), 36 Sask. R. 266 (Q.B.); Volker
Stevin, supra; Datafin, supra.
● An
“exceptional” category of cases where the conduct has attained a serious public
dimension. Where a matter has a very serious, exceptional effect on the
rights or interests of a broad segment of the public, it may be reviewable: Aga
Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law
and Control Over Private Power” in Michael Taggart, ed., The Province of
Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include
cases where the existence of fraud, bribery, corruption or a human rights
violation transforms the matter from one of private significance to one of great
public moment:
Irving Shipbuilding, supra at paragraphs 61-62.
(3) Application
of these principles to the facts of this case
[61]
In
my view, the matters set out in the bulletins – the matters subject to review
in this case –are private in nature. In dealing with these matters, the Toronto
Port Authority was not acting as a “federal board, commission or other
tribunal.”
[62]
While
no one factor is determinative, there are several factors in this case that
support this conclusion.
–
I –
[63]
First,
in engaging in the conduct described in the bulletins, the Toronto Port
Authority was not acting as a Crown agent.
[64]
Section
7 of the Canada Marine Act provides that a port authority, such as the
Toronto Port Authority, is a Crown agent only for the purposes of engaging in
port activities referred to in paragraph 28(2)(a) of the Act. Those
activities are “port
activities related to shipping, navigation, transportation of passengers and
goods, handling of goods and storage of goods, to the extent that those
activities are specified in the letters patent.” Port authorities can engage in
“other activities that are deemed in the letters patent to be necessary to
support port operations” (paragraph 28(2)(b) of the Act) but, by virtue
of section 7 of the Act, they conduct those activities on their own account,
not as Crown agents.
[65]
The
letters patent of the Toronto Port Authority draw a distinction between matters
on which it acts as a Crown agent and matters on which it does not. In section
7.1, the letters patent set out what port activities under paragraph 28(2)(a)
of the Canada Marine Act that the Toronto Port Authority may do –
activities for which the Toronto Port Authority is a Crown agent. In section
7.2, the letters patent set out all other activities that are necessary to
support port operations – activities for which the Toronto Port Authority acts
on its own account, and not as a Crown agent.
[66]
Subsection
7.2(j) of the letters patent is most significant. In that subsection,
the Toronto Port Authority is authorized to manage and operate the City Airport. For this
purpose, it is not a Crown agent. Subsection 7.2(j) reads as follows:
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 to paragraph 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 and ferry service, bridge or tunnel across
the Western Gap of the Toronto harbour to provide access to the Toronto City
Centre Airport.
|
7.2 Activités de l'Administration
nécessaires aux opérations portuaires. Pour exploiter le port, l'Administration peut se livrer
aux activités suivantes jugées nécessaires aux opérations portuaires
conformément à l'alinéa 28(2)b) de
la Loi:
[…]
j) exploitation
et entretien de l'aéroport du centre-ville de Toronto conformément à l'accord
tripartite conclu entre la Corporation of the City of Toronto, Sa Majesté la
Reine du chef du Canada et les Commissaires du havre de Toronto le 30 juin
1983, et service de traversier, pont ou tunnel au lieu dit Western Gap dans
le port de Toronto pour permettre l'accès à l'aéroport du centre-ville de
Toronto;
|
[67]
Air
Canada submits that the allocation of takeoff and landing slots at the City
Airport is a matter relating to licensing federal real property, a matter that
falls under subsections 7.1(c), (e) and (f) of the letters
patent. It submits that takeoff and landing slots are allocated by way of “licence.”
Air Canada also submits that subsection
7.1(a), which provides for the “issuance…of authorizations respecting
use…of the port,” embraces the granting of takeoff and landing slots. Accordingly, says Air Canada, when the Toronto Port
Authority allocates takeoff and landing slots, it does so as a Crown agent.
[68]
Air Canada is correct in saying
that section 7.1 of the letters patent includes “licences” over “federal real
property” and the issuance of “authorizations” for use of the port. Section 7.1
reads as follows:
7.1 Activities of the Authority
Related to Certain Port Operations. To
operate the port, the Authority may undertake the port activities referred to
in paragraph 28(2)(a) of the Act to
the extent specified below:
(a) development,
application, enforcement and amendment of rules, orders, by-laws, practices
or procedures and issuance and administration of authorizations respecting
use, occupancy or operation of the port and enforcement of Regulations or
making of Regulations pursuant to subsection 63(2) of the Act;
…
(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;
(iii) the following uses to the extent
such uses are not 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 supplementary 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 any
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 C or described as real property other than federal real property in
any supplementary letters patent;
provided
that in conducting such activities the Authority shall not enter into or
participate in any commitment, agreement or other arrangement whereby the
Authority is liable jointly or jointly and severally with any other person
for any debt, obligation, claim or liability.
|
7.1 Activités de l'Administration
liées à certaines opérations portuaires. Pour exploiter le port,
l'Administration peut se livrer aux activités portuaires mentionnées à
l'alinéa 28(2)a) de la Loi dans la
mesure précisée ci-dessous:
a) élaboration,
application, contrôle d'application et modification de règles, d'ordonnances,
de règlements administratifs, de pratiques et de procédures; délivrance et
administration de permis concernant l'utilisation, l'occupation ou
l'exploitation du port; contrôle d'application des Règlements ou prise de
Règlements conformément au paragraphe 63(2) de la Loi;
[…]
c) sous réserve des restrictions
prévues aux paragraphes 8.1 et 8.3, gestion, location ou octroi de permis
relativement aux immeubles fédéraux décrits à l'Annexe « B » ou
dans des lettres patentes supplémentaires comme étant des immeubles fédéraux,
à condition que la gestion, la location ou l'octroi de permis vise ce qui
suit:
(i) les activités décrites aux
paragraphes 7.1 et 7.2;
(ii) les activités décrites au
paragraphe 7.3 pourvu qu'elles soient menées par des Filiales ou des tierces
parties conformément aux arrangements de location ou d'octroi de permis;
(iii) les utilisations suivantes dans
la mesure où elles ne figurent pas dans les activités décrites aux
paragraphes 7.1, 7.2 ou 7.3 :
(A) utilisations liées à la navigation,
au transport des passagers et des marchandises et à la manutention et à
l'entreposage des marchandises;
(B) prestation de services ou
d'installations municipaux relativement à ces immeubles fédéraux;
(C) utilisations qui ne sont pas
prévues aux divisions 7.1c)(iii)(A),
(B) ou (D) mais qui sont décrites dans des lettres patentes supplémentaires;
(D) projets de développement économique
émanant du gouvernement et approuvés par le Conseil du Trésor;
pourvu qu'elles soient menées par des
tierces parties, à l'exception des Filiales, conformément aux arrangements de
location ou d'octroi de permis;
...
e) octroi d'emprises routières,
de servitudes ou de permis pour des droits de passage ou d'accès ou des
services publics visant des immeubles fédéraux décrits à l'Annexe
« B » ou dans des lettres patentes supplémentaires comme étant des
immeubles fédéraux;
[...]
p) exécution des activités
décrites au paragraphe 7.1 sur des immeubles, autres que des immeubles
fédéraux, décrits à l'Annexe « C » ou décrits dans des lettres
patentes supplémentaires comme étant des immeubles autres que des immeubles
fédéraux;
pourvu
que l'Administration ne s'engage pas de façon conjointe ou solidaire avec
toute autre personne à une dette, obligation, réclamation ou exigibilité
lorsqu'elle prend un engagement, conclut une entente ou participe à un
arrangement dans l'exercice de ses activités.
|
[69]
However,
in my view, the licences and authorizations mentioned in section 7.1 of the
letters patent do not relate to takeoff and landing slots at the City Airport. The granting
of takeoff and landing slots, even if they are legally considered to be the
granting of licences over federal real property, is an integral part of the
operation of the City
Airport, a matter that is dealt
with under section 7.2.
[70]
The
power to operate and maintain the City Airport in section 7.2 of the letters
patent is qualified by the words “in accordance with the Tripartite Agreement.”
Among other things, that Agreement deals with the quantity and timing of
takeoffs and landings at the City Airport. As a matter of
interpretation, section 7.2 explicitly embraces the subject-matter of takeoffs
and landings at the City Airport. Section 7.1 cannot be interpreted to
qualify or derogate from that subject-matter.
[71]
I
cannot interpret section 7.1 as somehow whittling down section 7.2 that vests
specific power in the Toronto Port Authority to engage in “the operation
and maintenance of the Toronto City Centre Airport.” The normal
rule of interpretation is that a specific provision such as section 7.2
prevails over a more general one such as section 7.1: Canada v. McGregor, [1989] F.C.J. No. 266, 57
D.L.R. (4th) 317 (C.A.).
[72]
In
any event, the bulletins do not grant any takeoff or landing slots. Fairly
characterized, they announce studies, intentions and plans that concern the
operation and maintenance of the City Airport. Takeoff and landing slots are
granted under Commercial
Carrier Operating Agreements.
–
II –
[73]
The
private nature of the Toronto Port Authority is another factor leading me to conclude
that the Toronto Port Authority was not acting as a “federal board,
commission or other tribunal” in this case.
[74]
As noted above, the
Toronto Port Authority received letters patent. One condition of receiving
letters patent was that the Toronto Port Authority was and would likely remain
“financially self-sufficient”: Canada Marine Act, paragraph 8(1)(a).
Buttressing this condition is subsection 29(3) of the Act. It provides as
follows:
29. (3)
Subject to its letters patent, to any other Act, to any regulations made
under any 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.
|
29. (3)
Sous réserve de ses lettres patentes, des autres lois fédérales et de leurs
règlements d’application ou d’une entente contraire avec le gouvernement du
Canada, l’administration portuaire qui exploite un aéroport doit le faire à
ses frais.
|
[75]
Subsections
8(1) and 29(3) of the Canada Marine Act are indications that, in
operating and maintaining the City Airport under section 7.2 of
the letters patent, the Toronto Port Authority may pursue private purposes,
such as revenue generation and enhancing its financial position. For the
Toronto Port Authority, to a considerable extent, the matters discussed in the
bulletins have a private dimension to them.
–
III
–
[76]
I
turn now to some of the other relevant factors commonly used in making the
public-private determination for the purposes of judicial review. I mentioned these
in paragraph 60, above.
[77]
In
no way can the Toronto Port Authority be said to be woven into the network of
government or exercising a power as part of that network. The Canada Marine Act
and the letters patent do the opposite.
[78]
There
is no statute or regulation that constrains the Toronto Port Authority’s
discretion. There is no statute or regulation that supplies criteria for
decision-making concerning the subject-matters discussed in the bulletins. Put
another way, the discretions exercised by the Toronto Port Authority that are
evidenced in the bulletins are not founded upon or shaped by law, but rather
are shaped by the Toronto Port Authority’s private views about how it is best
to proceed in all the circumstances.
[79]
There
is no evidence showing that on the matters described in the bulletins, and
indeed in its operation and maintenance of the City Airport, the Toronto Port Authority is
instructed, directed, controlled, or significantly influenced by government or
another public entity. As well, there are no legislative provisions that would
lead to any such finding of instruction, direction, control or influence.
[80]
Finally,
there is no evidence before this Court in this particular instance that would
suggest that the matters described in the bulletin fall with the exceptional
category of cases where conduct has attained a serious public dimension or that
the matters described in the bulletin have caused or will cause a very serious,
exceptional effect on the rights or interests of a broad segment of the public,
such that a public law remedy is warranted.
[81]
For
the foregoing reasons, in engaging in the conduct described in the bulletins in
this instance, the Toronto Port Authority was not acting in a public capacity,
as that is understood in the jurisprudence. Therefore, judicial review does not
lie in these circumstances.
D. Procedural fairness, reasonableness
review and improper purpose
[82]
Assuming
for the moment that judicial review did lie in these circumstances, Air Canada submits that the
“decisions” evidenced by the bulletins should be set aside for want of
procedural fairness. However, in the particular circumstances of this case, no
duty of procedural fairness arose. Such duties do not arise where, as here, the
relationship is private and commercial, not public: Dunsmuir, supra; see also paragraphs
61-81, above. In different circumstances, as explained above, an action taken
by the Toronto Port Authority could assume a public dimension and procedural
duties could arise, but that is not the case here.
[83]
Further,
I find no reviewable error in the Federal Court judge’s rejection of Air Canada’s procedural fairness submissions
and, in fact, substantially agree with his reasons at paragraphs 86-95. In his reasons,
the Federal Court judge rejected Air Canada’s submission that the Toronto Port Authority
was obligated to follow the World Scheduling Guidelines promulgated by the
International Air Transport Association. He also held that the Toronto Port
Authority did not create any legitimate expectation of consultation on the part
of Air Canada, and that, in any
event, Air Canada had made its views
known fully to the Toronto Port Authority.
[84]
Air Canada also submits that the
“decisions” evidenced by the bulletins should be set aside because they are
unreasonable. The Federal Court judge rejected this submission. Again, I find
no reviewable error in the reasons of the Federal Court judge (at paragraphs
96-101), and substantially agree with them. In this case, the actions of the
Toronto Port Authority described in the bulletins were within the range of
defensibility and acceptability.
[85]
Air Canada also submits that the
Toronto Port Authority pursued an improper purpose. In its first notice of
application, Air Canada describes this as “prefer[ring] Porter over new entrants
and…perpetuat[ing] Porter’s significant anti-competitive advantage into the
future.”
Insofar as the bulletins and the conduct described in them are concerned – the
only matters that are the subject of the judicial reviews in this case – the
Federal Court judge stated that “[t]here is no evidence…to suggest that [the
Toronto Port Authority] and Porter were doing anything more than engaging in
normal, reasonable commercial activity.” There
is nothing to warrant interference with that factual finding. Therefore, I find no
reviewable error in the Federal Court’s judge’s rejection of Air Canada’s submissions on
improper purpose. To the extent that Air Canada considers that the bulletins,
the conduct described in them, other matters or any or all of these things have
resulted in damage to competition, it has its recourses under the Competition
Act.
E. Proposed disposition
[86]
For
the foregoing reasons, I would dismiss the appeal with costs.
"David
Stratas"
REASONS CONCURRING IN THE RESULT (Létourneau and Dawson JJ.A.)
[87]
We have read the
reasons now received from our colleague Stratas J.A. We concur with his
proposed disposition.
"Gilles Létourneau"
"Eleanor R. Dawson"