Air CanadaTimothy Stake
Air Canada is hoping fourth time's a charm in its quest to regain access to the Toronto island airport, home to Porter Airlines Inc.
Jazz Air Income Fund, which flies regional routes on behalf of Air Canada, retained Lerners LLP to spearhead three previous proceedings to crack Porter's monopoly. But after Jazz abandoned the third of those cases this week, McCarthy Tétrault LLP is now doing the steering, representing Air Canada in its application for a judicial review in the Federal Court of Canada.
Neil Finkelstein is the lead counsel from McCarthy Tétrault in the new legal fight over daily slots, or takeoffs and landings, at the island airport, officially called Billy Bishop Toronto City Airport.
The Toronto Port Authority, a federal agency, is preparing to allocate slots to Porter, Air Canada and other carriers, said an affidavit filed in Federal Court by William Black, another lawyer in the Toronto office of McCarthy Tétrault.
Mr. Black warned that what should be the "allocation of a public resource" threatens to turn into a process that will "perpetuate and entrench Porter's improper anti-competitive advantage."
The respondents in the case, to be heard July 6-8, are the TPA and Toronto-based Porter. A written decision is expected by Mr. Justice Roger Hughes.
Lerners still represents Jazz in Porter's $850-million counterclaim in Federal Court against Jazz and Air Canada. One week has been set aside to hear the counterclaim, starting Jan. 17, 2011.
Jazz discontinued its application for a judicial review in Federal Court in 2006 into TPA decisions that led to Porter having a monopoly as it launched in October that year. Last year, Jazz abandoned its lawsuit in the Ontario Superior Court of Justice against Porter and the TPA.
Then on Monday, the Halifax-based carrier dropped its Federal Court lawsuit, leaving Air Canada to forge ahead with its application, which was launched in February. "Jazz discontinued its action because Air Canada's new judicial review application will be heard before Jazz's action could have been heard," Jazz spokeswoman Debra Williams said yesterday.
Porter declined to comment, but the TPA said Air Canada already had plenty of opportunities to schedule Jazz flights at the island airport.
"For many years, Air Canada had 100-per-cent access to the airport, which provided 27 daily round-trip flights to several destinations in Ontario, Quebec and Atlantic Canada," the TPA said in a statement. "However, Jazz Air began cancelling the majority of its routes in 2004 - only maintaining sporadic service between Toronto and Ottawa."
Ogilvy Renault LLP represents Porter, while Borden Ladner Gervais LLP represents the TPA.
While Jazz has complained that it was evicted from the island airport by a company headed by Porter chief executive Robert Deluce, the TPA counters that it "legally terminated its carrier agreement with Jazz Air in 2006 and sought out new commercial partners that would utilize the [terminal]to its fullest."
Air Canada general counsel David Shapiro said in an affidavit that the TPA will appoint a slot co-ordinator accredited by the International Air Transport Association (IATA). But he pointed out that, under the TPA's process, "Air Canada must make leasing arrangements exclusively with City Centre Terminal Corp.," a firm headed by Mr. Deluce.
Porter currently has 120 daily slots, with another 42 to 92 slots still up for grabs. Air Canada CEO Calin Rovinescu has requested 74 slots for service to Montreal, Ottawa and Newark, N.J.
But "the TPA intends to award 50 per cent of the additional slots to new entrant(s), and the remaining 50 per cent of the additional slots to Porter to add to its existing monopoly share," according to an affidavit by Alain Boudreau, an Air Canada senior director in charge of developing service at Billy Bishop.
"Should slots be concentrated at unpopular times, they would not enable Air Canada to offer a competitive service," said Marcel Forget, Air Canada's vice-president of network planning.
The country's largest airline also accuses the TPA of taking shortcuts that favour Porter, including unilaterally changing the island airport's designation under IATA guidelines, a move that helps "safeguard" Porter.