Jazz Air applied for judicial review in respect of a series of acts and decisions of the Toronto Port Authority alleging that the Port Authority acted in excess of its statutory jurisdiction by restricting Jazz Air’s access to and use of the Toronto City Centre Airport, including denying access for space for passenger facilities and discouraging or precluding fair, reasonable and competitive access by airline users of the Toronto City Airport

Administrative law – Decisions of administrative tribunals – Port Authority – Landlord and tenant – Leases – Judicial review application – Appeals – Appeal process – Jurisdiction

Jazz Air LP v. Toronto Port Authority, [2006] F.C.J. No. 1155, Federal Court, July 20, 2006, Rouleau D.J.

More than 16 years ago, the Toronto Port Authority granted a long-term lease to City Centre Aviation Limited (“CCAL”), as well as Stol Port Corporation to be fixed operators at the Toronto Island Airport. CCAL then proceeded to lease space to Jazz Air in one of two buildings available to provide passenger facilities. Some time later, Jazz Air was evicted on 28 days’ notice from the passenger facilities by CCAL.

Jazz Air brought an application for judicial review of the actions of the Toronto Port Authority. Prothonotary Martha Milcynski decided that the application for judicial review should be converted into an action. Jazz Air subsequently appealed from that decision.

The Prothonotary found that some of the impaired decisions and actions of the Toronto Port Authority regarding development and operation of the Toronto City Airport spanned a number of years and involved considerable speculation. There also appeared to be an indication that Jazz Air may have exercised bad faith in dealing with the Toronto Port Authority and there was an allegation of conspiracy between the Port Authority and other parties in the eviction of Jazz Air. The Prothonotary concluded that these issues could not be disposed of in a summary fashion and that this was in essence a complex commercial dispute involving a series of decisions and transactions with serious allegations of conspiracy and was therefore better suited for a full trial.

The Prothonotary also held that the determination of the issues would likely require viva voce evidence and would require full production and discovery in order to ensure fairness to the parties.

Jazz Air argued that the judicial review application related to a course of conduct in which all decisions of the Port Authority were interrelated and therefore should have been allowed to proceed, and that the Prothonotary wrongly relied on her reasoning that the judicial review application was centred on a conspiracy between the Toronto Port Authority and the Respondents.

The Federal Court held that Jazz Air could not overcome the Federal Court rules providing that an application for judicial review should be limited to a single order in respect of which relief was sought and further subsections of the Federal Courts Act, which established that a single, uniform remedy is entitled to be pursued in an application for judicial review.

Jazz Air also did not allege any specific decision or conduct that was being challenged and further, there was no single order in respect of which relief was being sought.

The Court cited decisions establishing that discretionary orders of Prothonotaries ought not to be disturbed on appeal unless they were clearly wrong.

The Court held that the Prothonotary’s decision was correct in law and that her understanding of the facts was reasonable and supported by the evidence. The Court quoted the reasons of the Prothonotary concluding that:

… The decisions are not properly identified, the number of the decisions sought to be reviewed is indeterminate, and that there is consequently, a lack of a complete and concise description or statement of the grounds for review.

In the result, the appeal was dismissed with costs to the Respondents.

To stay current with the new case law and emerging legal issues in this area, subscribe here.