Court File and Parties
CITATION: Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392
DIVISIONAL COURT FILE NO. 594/19
DATE: 2020/06/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Pattillo, Lederer and Favreau JJ.
BETWEEN:
Momentum Decisive Solutions Canada Inc., d. b. a. Momentum Logistics
Applicant
– and –
Travel Industry Council of Ontario
Respondent
Michael Burokas, for the applicant
Tim Snell, for the respondent
HEARD at Toronto: May 22, 2020
REASONS FOR DECISION
[1] Momentum Decisive Solutions Canada Inc., d.b.a. Momentum Logistics (“Momentum”) seeks judicial review of a notice given by the Travel Industry Council of Ontario (“TICO”) to Momentum that it is required to register as a travel agent. In the notice letter, TICO advised Momentum that if Momentum continued to operate without registering as a travel agent, it could be subject to charges under the Travel Industry Act, 2002, S.O. 2020, c.30.
[2] At the beginning of the hearing, we asked the parties to address the issue of prematurity. After hearing submissions from counsel, we advised that the application was dismissed with reasons to follow. These are the reasons.
[3] As set out below, we find that TICO’s letter was not the exercise of a statutory power of decision and this matter is therefore not properly before the Court as an application for judicial review. In any event, the records filed by the parties are insufficient to allow the Court to decide the issue of whether Momentum operates as a travel agent.
Background
TICO and its powers
[4] Pursuant to the Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c.19, TICO is designated as the Administrative Authority to administer the Travel Industry Act, 2002, S.O. 2002, c.30.
[5] Section 4(1)(a) of the Travel Industry Act, 2002 prohibits anyone from holding themselves out as a travel agent unless they meet certain requirements and are registered under the Act. The Act defines “travel agent” as “a person who sells, to consumers, travel services provided by another person”.
[6] One of TICO’s responsibilities is to enforce the prohibition in section 4(1)(a). The Act gives TICO two enforcement mechanisms that may apply in these circumstances:
a. Under section 30(1) of the Act, “[I]f it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit”. Section 30(3) provides that an appeal lies to the Divisional Court from an order made by the Superior Court under section 30(1).
b. Under section 31(1)(c) of the Act, a contravention of the Act is an offence, and people who contravene the Act are therefore susceptible to prosecution.
Correspondence between TICO and Momentum
[7] Both parties on the application filed affidavits. Unfortunately, the affidavits contain very little evidence about Momentum and its business model. Based on the materials filed, it appears that Momentum sells charter services to governments and corporations for the purpose of business travel. No further information is provided about how Momentum operates.
[8] On July 19, 2019, TICO wrote to Momentum advising that, based on a review of its website, TICO had found that there were grounds to believe that Momentum was contravening the Travel Industry Act, 2002:
This letter is concerning a recent review of your website, www.maglogistics.com where it appears that you are selling travel services in the form of charters. The selling of travel services is a regulated industry in the Province of Ontario. The Travel Industry Council (TICO) is responsible for administering this legislation, the Travel Industry Act, 2002 (the “Act”).
It would appear that you are selling travel services as defined by the Act and according to our records you are not registered with TICO. Please be advised that this contravenes provincial legislation governing the travel industry in Ontario.
[9] The letter went on to request a response by August 1, 2019 and provided Momentum with a link to a registration website.
[10] Momentum responded to TICO by email and over the phone, taking the position that it was not required to register under the Travel Industry Act, 2002 because it was not operating as a “travel agent”. It argued that it is a “charter broker” and does not sell directly to “consumers”.
[11] On September 16, 2019, TICO wrote again to Momentum advising that it had not received a satisfactory answer to its earlier letter and that, if Momentum continued to operate without registering under the Travel Industry Act, 2002, it may face charges under the Act. After setting out the rationale for its position that Momentum’s activities were captured by the Act, the letter went on as follows:
As this activity falls under the Act, Momentum Logistics is therefore captured as a travel agent because it is selling travel services to consumers as defined under the legislation. Therefore, to bring this matter into compliance, it is TICO’s position that Momentum Logistics’ Ontario location is required to be registered as a travel agency.
As Registrar, I am obligated to uphold the legislation and may be required to take action if I have reasonable grounds for belief that Momentum Logistics is operating in contravention of the Act and Regulation.
Please be cautioned that continuing to operate as a travel agent without registration is a contravention of section 4 of the Act and may result in charges being laid in accordance with section 31(1) of the Act without further notice to you. Failure to provide a satisfactory written response to TICO within the next 7 days (Monday, September 23rd, 2019) regarding this matter will result in action being initiated.
Application for judicial review
[12] Momentum commenced this application for judicial review on October 29, 2019.
[13] In its notice of application for judicial review Momentum seeks:
a. The setting aside of the Respondent’s decision that the Applicant requires registration as a travel agent under the Travel Industry Act, 2002; and
b. A declaration that the Applicant does not require registration as a travel agent under the Travel Industry Act, 2002.
[14] In its factum responding to the application for judicial review, TICO initially took the position that the application for judicial review was premature. However, in advance of the hearing, TICO’s counsel sent a letter to the Court advising that his client was withdrawing the prematurity argument.
[15] A few days prior to the hearing, the panel nevertheless notified counsel for the parties that they would be expected to address the issue of prematurity at the beginning of the hearing.
Analysis
[16] As the argument on prematurity unfolded, it became evident that there is a more fundamental problem with Momentum’s application for judicial review. Based on the course of dealings between the parties and the scheme of the Travel Industry Act, 2002, TICO has not made a “decision” susceptible to judicial review. Accordingly, the Divisional Court does not have jurisdiction over this application for judicial review. In any event, even if the matter was subject to judicial review, we would have declined to decide the matter given the deficiencies in the record.
[17] Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1., sets out the Divisional Court’s jurisdiction on an application for judicial review as follows:
2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[18] Section 1 of the Judicial Review Procedure Act defines “statutory power” as “a power or right conferred by or under a statute” which includes the power “to exercise a statutory power of decision”.
[19] “Statutory power of decision” is defined as follows:
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
[20] In this case, relying on section 2(1)2 of the Judicial Review Procedure Act, Momentum’s counsel argued that his client is challenging the “proposed” exercise of a statutory power.
[21] The problem with this argument is that TICO did not exercise a statutory power of decision nor does it propose to exercise a statutory power of decision. Under the statutory scheme of the Travel Industry Act, 2002, TICO does not have the statutory power to decide whether Momentum can carry on its business without registering as a travel agent. Rather, TICO’s powers are limited to bringing an application for an injunction to the Superior Court, in which case the Court will determine whether Momentum is operating illegally. Alternatively, TICO can initiate a prosecution against Momentum, in which case the Court to which the prosecution is brought will decide whether Momentum is operating unlawfully. In either case, TICO does not have the statutory power to decide whether Momentum is operating unlawfully; its powers are limited to bringing legal proceedings wherein a court will decide whether Momentum is operating unlawfully.
[22] Momentum’s counsel argued that this Court should hear the application for judicial review because his client is left in the unfortunate position of not knowing whether it is required to register under the Travel Industry Act, 2002 and that it brought the application in good faith to make sure it complies with the law.
[23] There are at least three problems with this argument.
[24] First, the Divisional Court is a statutory court. Its jurisdiction is limited to matters conferred by statute. In the case of applications for judicial review, the Court’s jurisdiction is limited by the Judicial Review Procedure Act. Given the wording of section 2(1)2 of the Act, in the absence of a decision or proposed decision pursuant to a power conferred by statute, the Court does not have the authority to make general declarations about the rights of individual parties.
[25] Second, this is not a situation in which Momentum has been left in legal limbo. Very little time passed between TICO’s letter of September 23, 2019 in which it advised Momentum that, if it did not take immediate steps to become registered, TICO would refer the matter for an investigation that may lead to charges and the commencement of the application for judicial review. The issue will be resolved through the prosecution if TICO chooses to proceed with charges as contemplated by its letter. Alternately, Momentum may consider whether this is an appropriate case for an application made pursuant to Rule 14.5(3)(d) of the Rules of Civil Procedure, but this Court does not have the authority to adjudicate the issue.
[26] Third, even if the Court had the authority to hear this matter, we would have declined to do so due to the deficiencies in the record. Judicial review is a discretionary remedy. One of the concerns with an application for judicial review brought prematurely is that the record may not be complete for proper adjudication on the issues. Neither TICO nor Momentum has put forward evidence that would allow the Court to understand Momentum’s business model or how the company operates. For example, in its letter of July 13, 2019, TICO says that it relied on Momentum’s website to form the view that Momentum is operating as a travel agency. However, neither party included content from Momentum’s website in the record on the application. Similarly, Momentum filed three affidavits in support of the application, but each affidavit argues that Momentum is not a travel agency without providing any particulars of what Momentum does or how it operates.
[27] During argument, counsel for Momentum said that no further evidence is required because the application only raises a legal issue in relation to the interpretation of “consumer” in the definition of “travel agent” in the Travel Industry Act, 2002. This argument only serves to emphasize the point above that the Divisional Court’s role is not to provide legal opinions or declarations in the abstract. Even if the Court were empowered to do so, the record in this case is insufficient.
Conclusion
[28] For the reasons above, the application for judicial review is dismissed.
[29] At the conclusion of the hearing, TICO indicated that it does not seek its costs of the application. Accordingly, no costs are awarded.
Pattillo J.
Lederer J.
Favreau J.
Released: June 2, 2020
CITATION: Momentum Decisive Solutions Canada Inc. v. Travel Industry Council of Ontario, 2020 ONSC 3392
DIVISIONAL COURT FILE NO. 594/19
DATE: 2020/06/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Pattillo, Lederer and Favreau JJ.
BETWEEN:
Momentum Decisive Solutions Canada Inc., d. b. a. Momentum Logistics
Applicant
– and –
Travel Industry Council of Ontario
Respondent
REASONS FOR JUDGMENT
Released: June 2, 2020