Controversial Leaked Documents from the Toronto Port Authority Board

	Document Summaries
link	Questions about Q400 and Fuel Efficiency
link	TPA's goon squad meets "Porky Pig" A spirited exchange of emails between Community Air Chair Brian Iler and TPA director Mark McQueen
link	Leaked legal opinion from theTPA's own legal council Davies, Ward, Phillips & Vineberg, outlining TPA board member Colin Watson's conflict of interest and recommending Mr Watson should not, under the Code of Conduct, participate in discussions of the Board relating to Porter, nor vote on decisions of the Board relating to Porter.
link	Press release regarding Toronto Port Authority board member Mr Colin Watson's Conflict of Interest in voting in favour of a $5 million ferry purchase, casting a deciding vote. According to legal opinion, Mr. Watson should not, under the Code of Conduct participate in discussions of the Board relating to Porter, nor vote on decisions of the Board relating to Porter.
link	Leaked letter from CommunityAIR Chair Brain Iler to PM Stephen Harper calling for the devolution of the TPA and handing its reins back to the City of Toronto.
link	Leaked letter from TPA board members to Sheila Fraser, Auditor General of Canada requesting a Special Examination of TPA financial records to be conducted by an impartial officer of Parliament.
link	Leaked letter and documents from 4 former Toronto Port Authority board members to Sheila Fraser, Auditor General of Canada outlining changes to previously approved minutes of the TPA, challenging the fairness, integrity and honesty of the TPA board.
link	Leaked legal opinion regarding the wrongful removal of Michelle McCarthy from the position of chair of the Toronto Port Authority Board and replacing her with Mark McQueen.
link	Board member Christopher Henley's letter informing the Honourable Minister Cannon of the legal opinion that Mark McQueen's appointment was unlawful and that good governace had ground to a halt at the TPA, Board member informs Minister that Minister's staff threatened directors with removal
link	Leaked TPA Board meeting minutes in which board members challenge Mark Mcqueen's authority to chair the Board citing that his position is unlawful according to the Board's own legal counsel; Mr McQueen's refusal to step down.
link	The Watson Report, June 25, 2009. This report deals with Board Member Colin Watson's alleged conflict of interest in voting in favour of the purchase of a new ferryboat while a "friend" of Robert Deluce, president of Porter Airlines.

Briefing Notes for Toronto Port Authority Directors

Introduction

These notes are prepared to assist new directors of the Toronto Port Authority in understanding the communities' views on the many issues that arise in relation to the Toronto Port Authority, and the Island Airport. There are several sections to these notes. Under these topics, a brief summary of the issues is set out, with reference to the relevant attached documents for a detailed understanding of the issue.

Further documentation of the issues can be found on CommunityAIR's website, www.communityair.org. CommunityAIR would be pleased to discuss these issues at any time. Contact its chair, Brian Iler, at biler@ilercampbell.com, or 416-598-0103.

Who Are We?

CommunityAIR is a community-based volunteer organization formed in 2001 in response to the announced planned expansion of the Toronto Island Airport. It has deep roots in the residential, recreational and cultural communities in Toronto's waterfront, and draws significant support from many citizens of Toronto. All are inspired by the potential uses of the waterfront's best 215 acres - once that airport is shut down.

Issue: Port Governance

The Port of Toronto is not a port of national significance, and should not be governed by a Port Authority under the Canada Marine Act, but by the City of Toronto, or an agency to which it has a majority of appointees.. It was an error to have included Toronto in the list of ports to have Port Authorities when the Act was originally passed. See Tab 1 for CommunityAIR's Submission to the House of Commons Standing Committee on Transport, Infrastructure and Communities in February, 2008, which addresses this issue.
Four of the Port Authority's directors are intended to be representative of port users, to be appointed following a consultation process set out in the TPA Letters Patent. None of the current TPA directors are appointed by this process, in violation of the Canada Marine Act. See Tab 2, for our Backgrounder on the Mandatory Requirements of the Canada Marine Act.
As a result, there is little accountability by the TPA board to those most affected by its decisions - the people of Toronto. The only effective way to enshrine accountability is to devolve control of the TPA assets to the City. See our March 11, 2008 press release at Tab 3. There is strong political support for devolution - see the results of our Candidates' Survey in the recent federal election, at tab 4.

Issue: TPA Finances

The TPA has squandered public assets for the benefit of private interests. It has consistently lost money each year of its existence, although it is required to be self-sufficient by law. See Brian Iler's Submission to the House of Commons Standing Committee on Transport, Infrastructure and Communities in February, 2008 at Tab 5.
The total of public assets that the TPA has either dissipated, or managed to obtain from government coffers is a shocking $$153.2 million. See CommunityAIR's December 5, 2008 press release "Another New Ferry! What are they Thinking?!"at tab 6 for a summary of how we arrive at that figure. While Porter's operations may now generate sufficient revenues to allow the TPA to earn net income, it is clearly insufficient to reimburse the TPA's coffers for the massive use of public funds to support Porter.
An internal Transport Canada document (Tab 7) dated November 11, 2004, leaked to the press in September, 2006, sets out its flimsy grounds for giving $20 million to Porter (compensation for not being able to start an airline?) and another $15 to the TPA. This document also reveals Porter's agreement to pay the airport's operating losses, plus 25% of the TPA's head office costs. That has not happened.
The TPA owes $38 million to the City in unpaid taxes - known as PILTs - as confirmed in the TPA's financial statements. It is wrong for a public agency to not pay its fair share of the City's expenses.

Issue: Island Airport Noise and Other Constraints

A number of legal requirements of the agreement among the City, the federal government, and the TPA that governs the operation o f the airport - the "tripartite agreement" - have been ignored by the TPA. These requirements were inserted in the 1980s at the request of the City of Toronto for the protection of the waterfront communities. The agreement is at tab 8. Our correspondence to the TPA on these issues, among others, of November 14, 2007 (Tab 9a), and its December 4 reply are at tab 9b.
A key provision is intended to ensure noise from aircraft do not exceed certain levels. If an aircraft's noise emissions, as stated in the database of the ICAO, exceed any of the maximums set out in the tripartite agreement, the aircraft is prohibited from the Island airport. According to the ICAO, noise emissions from the Q400, flown by Porter, exceed those maximums. The TPA is obliged to charge every aircraft that uses the Island Airport in breach of this provision, a fee of $5,000 in 1981 dollars. To our knowledge, no such charges have been imposed on Porter.
Other aircraft also appear to contravene the tripartite agreement's noise constraints - we asked the TPA about the Piaggio 180, which frequently flies into the airport, on June 13, 2008, but did not get the courtesy of a response - see tab 10.
The tripartite agreement also contains strict controls on the types of aircraft that may be used for commercial passenger service from the Island Airport - only those that are STOL are permitted. The Q400 used by Porter is, according to Transport Canada, not a STOL aircraft. See confirmation by (then) Transport Minister Cannon at tab 11.
Transport Canada has stated, correctly, that the "general aviation" category includes permission for a Dash-8 aircraft to be used from the Island Airport, but, surprisingly, takes the view that the Q400 is a Dash-8. However, what is determinative in law is what the parties who signed the tripartite amending agreement in 1985 considered a Dash-8 - the only such aircraft in existence at that time was the Dash-8-100, an aircraft approximately half the size and weight, while the Q400 came into service only in 2000 - see http://en.wikipedia.org/wiki/De_Havilland_Canada_Dash_8
The tripartite agreement also contains a requirement that noise from the airport not exceed the NEF contours set out in Schedule F to the tripartite agreement - see tab 12 for section 34 and Schedule F. The actual NEF contours are determined by Transport Canada in accordance with agreed upon procedures. Those actual NEF contours studies have not been disclosed to the communities, and the community is concerned that they may well establish that the current level of activity exceeds the permissible limits. The City of Toronto has now requested that Transport Canada conduct a new NEF Contour study - see December 2, 2008 letter at tab 13. Pursuant to s. 34 of the tripartite agreement, Transport Canada is obliged to conduct such a study upon the City's request.
The TPA has engaged Jacobs Consultancy to undertake a noise study. This is the same company, engineers and noise technicians who said that noise from the Island Airport would be no problem when the Sypher Mueller business plan was written (published in January 2002) In fact Sypher Meuller is now owned by Jacobs Consultancy.

In a meeting held with community groups on 25 November 2008, Ken Lundy, the airport manager, said that the study has been underway since August 2008 but no one in the community was informed until sometime in October. Lundy claimed that the study is expected to be completed by late January 2009. Members of the community are concerned because there has been virtually no consultation on the study and the placing of sound monitors seems to be haphazard. The objective of the study is noise remediation, a laudable goal, but there seems to be little effort to scientifically study the noise levels of the aircraft. Our concern is that this noise study will be used to challenge the noise provisions in the Tripartite Agreement.

Promises were made at that meeting to provide information - including the terms of reference for the study. Letters confirming these promises were sent following the meeting - see tab 14 (attachment A and attachment B). There has been no response, to our knowledge.
Another constraint on the Island Airport operations is the curfew set out in paragraph 30B of the tripartite agreement. Our observations, and TPA responses to complaints made, establish that Porter frequently breaches curfew. While we have understood that the TPA has attempted to fine Porter for its violations, the communities which are intended to be protected by the curfew are insistent that fines are insufficient - they want the curfew respected and enforced by the TPA, as operator of the Airport.
A summary of all of these issues, and how the City of Toronto may take steps to enforce them, is found at tab 15.

Issue: Airport Safety

The Island Airport fails to come close to meeting international safety standards for "runway safety areas". Unlike Pearson, which was criticized for its inadequate safety area as a result of the Air France crash in 2005 (which is significantly longer than the Island Airport's), an overshoot on a landing will result in the aircraft sinking in the water of the harbour, or Humber Bay, with dire consequences.
The Island Airport is adjacent to a bird sanctuary, and there are thousands of waterfowl on the waterfront. Bird strikes are a serious danger, as they can cause severe damage to aircraft. There have been numerous documented bird strikes on Porter aircraft at the Airport - seven since August 1 this year - see Transport Canada's CADORS reports at http://www.tc.gc.ca/aviation/applications/cadors/English/main.asp
Given these and other serious safety concerns, summarized in our letter to Prime Minister Stephen Harper on September 14, 2007, and to (then) Transport Minister Cannon on January 17, 2008, and our Press Release on the Q400 dated October 29, 2007, at tab 16, the Airport should be closed.
Insurance companies will provide insurance only if all material risks have been communicated to them. If an accident occurs, and the safety risks were not disclosed to the TPA insurer, the insurer is entitled to refuse coverage. While we have raised this issue with Porter and the TPA board of directors, there has been no response - see tab 17.

Issue: Airport Access

The only access from the City to the Island Airport is by a narrow two-lane road, Eireann Quay that runs between a community centre, day care centre, two schools and Little Norway Park. On two sides of the park are high density coops and condos. Eireann Quay is already jammed at times with taxis, jeopardizing the health and safety of those using those facilities.
The TPA has converted the strip of land on the west side of Eireann Quay to queuing lanes, in contravention of a lease from the City for that strip, which requires it to be maintained as a parking lot. This is in litigation, and a decision of the courts is anticipated shortly.
The TPA has threatened to open up an easement through Little Norway Park to improve access, in the event the court decision is unfavourable. This would outrage the communities, and greatly inflame the tensions between the TPA and the City and its citizens.

Issue: Medevac

Contrary to the lavish media campaign launched by the TPA in 2007, the Island Airport does not serve critically ill patients. In fact, our study (see tab 18), based on data provided by the Ministry of Health, establishes that the Island airport location for its helicopter ambulances significantly increases the response time for those patients - to their grave detriment. From page nine of this study:

...more than 70% of emergency Medevac flights are located north of the City, and the Toronto Island airport location offers the poorest response times. In fact, between 2001 and 2003, in order to reach critically ill patients, the Medevac flew an extra 18,000 miles from Toronto Island over the amount that would have been required departing from Buttonville.

ORNGE, the service that operates this service, agrees with our study, but states that its hands are tied, owing to the lease Ontario Realty Corporation has signed with the TPA. As a result, we have suggested to the TPA's then chair that the TPA consider releasing ORC from this obligation. There has been no response. See tab 19

You will be aware that the helicopter noise is a severe irritant, particularly during the curfew hours. Moving the helicopters to another vastly more suitable location is essential. In the interim, as the operator of the ORNGE helicopters has, on occasion, breached that curfew by conducting maintenance operations, and by permitting helicopters to return to the airport after the emergency has ceased, instruction by the TPA that such practices must cease are required.

Issue: Environmental and Health Concerns

There are a considerable number of unaddressed concerns on environmental contamination emanating from the airport. See:

The November 23, 2003 memo by Lake Ontario Waterkeeper at tab 20 - we have no knowledge as to whether the serious concerns raised by it have been addressed. Note that paragraph 20 of the tripartite agreement forbids the TPA from discharging any noxious, contaminated or poisonous substances.
In March, 2002, the Toronto Medical Officer of Health prepared a report that identified legitimate concerns about the negative impacts of the expansion of the Toronto Island airport on health and the environment (see tab 21).
In November, 2002, a further Toronto Medical Officer of Health report (at tab 22) stated:

the TCCA is a significant local point source of noise and air pollution that is located in an area that provides for enjoyment of the natural environment. Moreover, these increased emissions and health risks apply in an environment that is already somewhat degraded by regional air pollution, local traffic congestion and historical soil contamination. At minimum, it is recommended that a proper assessment of current and projected air quality and noise exposures be made.

Both Toronto Medical Officer of Health reports were referenced in a request to the TPA dated September 30, 2003 by CommunityAIR (tab 23) that the omission of consideration of them in the Environmental Assessment then underway, be corrected. That request was ignored, to our knowledge.

In 2008, the Toronto Board of Health has recommended (see tab 24) that:

the Toronto Port Authority and the Toronto City Centre Airport to undertake, in consultation with the Medical Officer of Health, Transport Canada, the Ontario Ministry of Environment and Environment Canada, an airport ambient air monitoring program which includes assessment of nitrogen oxides, sulphur oxides, carbon monoxide, particulate matter, and volatile organic compounds, particularly acrolein

We are unaware if any progress has been made on that study. As this report indicates, a lack of available data and limitations in available methods prevent Toronto Public Health from carrying out a valid burden of illness calculation for airport emissions.