November 14, 2007
Dear Director:
I write to you on behalf of the many citizens of Toronto who care about their waterfront and want their legal rights respected. While we have some e-mail addresses for directors of the TPA, we do not have them all, and I would appreciate your passing this on to all directors.
These rights exist for the protection of the citizens of Toronto and its neighbourhoods and recreational resources.
As a director of the Toronto Port Authority, you have a duty to ensure that the legal obligations of the TPA, and those with whom it deals, are honoured.
This is consistent with your obligation, as set out in s. 22(1)(a) of the Canada Marine Act to act honestly and in good faith with a view to the best interests of the port authority. The best interests of the TPA cannot be served by ignoring its legal obligations.
The Toronto Port Authority is in breach of those rights in a number of instances.
These are the breaches:
The Q400 is not permitted at the Island Airport.
In 1985, there was significant pressure to open up the Island Airport for commercial uses. Owing to strong public opposition, a very limited exception from the prohibition on uses other than general aviation was created in the Tripartite Agreement, which has governed the operations of the Island Airport since 1983, – “limited commercial STOL service” – which permitted only aircraft capable of meeting the definition of “short takeoff and landing” (STOL) to be used for commercial service from the Island Airport.
That STOL capability was defined as the ability of an aircraft to take off and land at a 6° angle. Transport Canada has now confirmed that the Bombardier Q400 aircraft does not meet the STOL requirements (see Appendix 1).
Instead both Transport Canada and the TPA take the position that the Q400 is a “Dash-8”.
This is patently wrong.
When the Dash 8 was added to the Tripartite Agreement as a permitted aircraft, the only Dash 8 plane that could have been in the contemplation of the parties was the Series 100/200 – a 37 to 40passenger plane – about half the capacity, and about half the weight, with very different performance characteristics.
The understanding of the parties at the time as to what they considered to be a Dash-8 is determinative. The fact that the aircraft industry, and Transport Canada, consider the Q400 a derivative of the earlier Dash-8 models (and therefore within the family of Dash-8s) is irrelevant to the correct interpretation of the Tripartite Agreement.
The Q400 is not a Dash-8 as contemplated in 1985, or a STOL aircraft, and is not permitted to be flown from the Island Airport.
This issue has been raised with your staff, and no satisfactory response has been received.
The Q400 is Prohibited as an “Aircraft Generating Excessive Noise”
The close proximity of, then planned and now built, residential communities led to strict noise constraints in the Tripartite Agreement.
One of those constraints is the prohibition in paragraph 14(1)(e) of aircraft generating “excessive noise”.
Paragraph 14(2)(b) defines excessive noise: for planes weighing more than 5700 kg, other than STOL (which we now know the Q400 is not), as creating a noise level more than 92 EPNdB on approach.
To avoid any ambiguity as to what standard is used for this noise limit, the Tripartite Agreement references data issued by the International Civil Aviation Organization, the UN-affiliated world body governing civil aviation.
ICAO noise data for the Dash 8 -Q400 establishes a clear violation: they establish that the approach noise level is between 93.1 and 94.8, levels in excess of the permitted maximum noise of 92 EPNdB.
This is consistent with observations – the most irritating noise for residents and port users is caused by the Q400 reversing its engines on landing.
Based on ICAO data, the Q400 is an aircraft generating excessive noise and is prohibited from using the Island Airport.
Further, s.15 of the Tripartite Agreement establishes a penalty which is to be charged by the Port Authority of $5,000 (in June 1981 dollars) for each violation.
The TPA is obliged to charge this penalty for breaches to date.
This issue has been raise with your staff, and with Porter, and no response has been received.
Use of Parking Garage
Parking is in very short supply on Bathurst Quay.
Until last year, residents and visitors were able to use a portion of the underground parking garage on the east side of Stadium Road. Their use was terminated and that parking facility was, in part, allocated to airport users.
That allocation was in violation of the terms of the lease of that garage, originally from Harbourfront Corporation. Bathurst Quay Community Land Co-operative Inc. is now the owner.
That lease clearly requires that the garage be used only by office workers in the Tip Top building during office hours (there has been no amendment to reflect the fact that the Tip Top building now has been converted to condominiums), and for the general public outside of those hours. Any change to that use will result in the termination of the lease. A sublet to the TPA is clearly outside of the permitted uses.
The continued use by the Port Authority, and others using or working at the Island Airport, is contrary to this lease and it is, therefore, in jeopardy of termination.
The City of Toronto will complete its appointment process for its directors on the board of the landlord shortly. Once constituted, the landlord will be considering these facts.
The community is entitled to use of this garage in accordance with the lease terms.
Eireann Quay Parking Lot Can’t be Used for Queuing Lanes
The City is the owner of the lands which the TPA is now attempting to use for queuing lanes for its airport ferry. In 1988, the City leased these lands to the THC, the predecessor of the TPA.
That lease, at page 4 paragraph A7, states:
“That the Lessee (i.e. the TPA) will maintain the development of the said demised premises substantially in accordance with:
(a) Plan BQ-1 as revised July 6, 1986…”
City staff properly protected the Bathurst Quay community in negotiating this lease back in 1988 by including this clear obligation on the tenant to maintain the lands leased in accordance with this detailed plan. That detailed plan does not permit the queuing lanes. It does not even allow access to the north end of the parcel – there is to be a fence running the entire length – see note 6 on the second page of the Plan.
The TPA has no authority to convert the parking lot to queuing lanes, and breaches the lease in attempting to do so.
We demand that you take all necessary steps to bring the TPA into strict compliance with these obligations forthwith.
We are also advising the directors of Porter Air of their obligations to inform its investors, and potential investors, of these issues, as they constitute, in our view, material risks that must be disclosed to them.
Please confirm to us that these rights will be honoured and respected by the TPA.