COURT OF APPEAL FOR ONTARIO

DATE: 20000309

DOCKET: C32605

WEILER, ROSENBERG and GOUDGE JJ.A.

B E T W E E N :

AIR CANADA

(Appellant)

–and–

GREATER TORONTO AIRPORTS AUTHORITY

(Respondent)

R.G. Slaght, Q.C. and Nina Bombier, for the appellant

Brian G. Morgan and Mahmud Jamal, for the respondent

Heard: March 1, 2000

On appeal from the order of Cameron J. dated July 2, 1999.

BY THE COURT:

[1] This appeal concerns one element of a much broader action. The sole issue on this appeal is whether the motions judge erred in striking out part of Air Canada’s statement of claim against the Greater Toronto Airports Authority (“GTAA”). In the portion of Air Canada’s statement of claim that was struck out, Air Canada seeks a declaration that the GTAA has no jurisdiction or authority to impose fees and charges on the users of Pearson International Airport (“Pearson”). The statement of claim pleads, in paragraphs 94 to 101, that, pursuant to the Aeronautics Act, the Minister of Transport may make regulations respecting airport charges; that the power to make regulations may not be delegated and that the Act is a complete code with the result that only the Minister may levy airport charges. The motions judge held:

It is plain and obvious on the pleadings and the documents referred to therein that GTAA has the power and authority to impose rates, charges and fees to the extent permitted by the PAP, which were incorporated into the Ground Lease and GTAA’s letters patent subject to the Crown’s legislative authority.

[2] The appellant submits that Cameron J. failed to appreciate that there was an issue for trial as to whether:

a) any statutory jurisdiction existed for the delegation of the right of the Minister of Transport to impose fees and charges for the use of airports; and

b) the GTAA was operating Pearson for the benefit of the Crown.

[3] We are of the opinion that it was not necessary for Cameron J. to resolve the two issues outlined above in order to strike the portions of the statement of claim that he did. The basis on which the GTAA levies fees is not pursuant to a delegation of power by the Minister of Transport. The GTAA has a lease of the Airport property. The GTAA has power, as part of its corporate capacity, to charge for the use of its property. As a result of the Aeronautics Act, R.S.C. 1985, c.A-3, s.4 (1),4.2 and 4.4(2), The Airport Transfers (Miscellaneous Matters) Act (1992), c.5 and regulations passed pursuant to this legislation, the corporate power of the GTAA to set rates and charges and to act in the event of default of payment is recognized. Pearson was removed from the list of airports for which the Minister levies service charges when the Air Services Charges Regulation, SOR/97-258 was amended in 1992 on the assumption that the GTAA had power and authority to set the fees. Whether or not the GTAA is operating Pearson on behalf of the Crown, it was clearly not the intention of Parliament to create a complete code so that a designated airport authority like the GTAA has no authority to impose fees unless they are set out by regulation. No legislative lacunae exists.

[4] The agreement between the Minister and the GTAA also supports no other conclusion than that the GTAA can set user fees and charges.

[5] The appeal is dismissed with costs to the respondent.

Signed: “K.M. Weiler J.A.” “M. Rosenberg J.A.” “S.T. Goudge J.A.”