FCC Dismisses Judicial Review Applications Against Downtown Toronto Airport

On July 21, 2010, the Federal Court of Canada dismissed two judicial review applications by Air Canada against the Toronto Port Authority (TPA) and Porter Airlines Inc. (Porter) challenging the allocation of takeoff and landing slots at Billy Bishop Toronto City Airport. The court ruled that the matters complained of were not properly the subject of judicial review, that the TPA's agreement to award the majority of slots to Porter was reasonable and that there was no basis to conclude that Air Canada had been treated unfairly.

At issue in the applications were two public TPA bulletins announcing the process by which schedule slots would be allocated to new entrant airlines seeking to operate at the downtown Toronto airport. Alleging that the TPA had illegally designed the slot allocation process for the improper purpose of favouring Porter, Air Canada sought an order requiring the TPA to redesign its allocation regime in consultation with Air Canada and other potentially interested parties.

The court ruled that the TPA bulletins were not subject to judicial review, as they were not “decisions” or “orders” affecting Air Canada, and further because they contemplated commercial activity that was not properly reviewable by the court. Justice Roger Hughes declined to find that the TPA acted for any improper purpose, or that its allocation of most of the airport's slots to Porter was unreasonable: “There is no evidence before me to suggest that TPA and Porter were doing anything more than engaging in normal, reasonable commercial activity.”

Porter was represented by Ogilvy Renault LLP by a litigation team led by Robert Armstrong that included Orestes Pasparakis, Teresa Walsh and Greg Sheahan.

Toronto Port Authority was represented by Borden Ladner Gervais LLP with a team that comprised David Scott, Peter Doody, Colleen Shannon and Christiaan Jordaan.

Air Canada was represented by McCarthy Tétrault LLP with a team that comprised Neil Finkelstein, Sarit Batner, Brandon Kain and Byron Shaw.