Decision No. 847-A-1994
December 28, 1994
APPLICATION by the Ministry of Consumer and Commercial Relations of the Province of Ontario for a review, pursuant to section 41 of the National Transportation Act, 1987, R.S.C. 1985, c. 28 (3rd Supp.), of the National Transportation Agency determination of public interest contained in its letter dated March 17, 1993 in respect of an application by Destinair Airlines Inc.
File No. M4895/D79-4-1
Docket No. 931154R
On January 4, 1993, Destinair Airlines Inc. (hereinafter Destinair) filed an application for a licence to operate a Class 9-4 Charter non-scheduled international service using fixed wing aircraft in Group G.
By letter dated March 17, 1993, the National Transportation Agency (hereinafter the Agency) determined that it is in the public interest to issue a non-scheduled international licence to Destinair.
On August 18, 1993, Elkind, Lipton & Jacobs, on behalf of the Ministry of Consumer and Commercial Relations of Ontario (hereinafter the applicant), filed an application for a review, pursuant to section 41 of the National Transportation Act, 1987 (hereinafter the NTA, 1987), of the Agency determination of public interest contained in its letter dated March 17, 1993, on the grounds that Destinair is not fit to be licensed.
The Agency is of the opinion that in order for the applicant to be successful in its application for review of the public interest determination, the Agency must find that it is no longer in the public interest to issue a non-scheduled international licence to Destinair. In order for the Agency to make such a finding, it would have to be satisfied that the fitness of a proposed licensee was a factor which was relevant to its public interest determination under section 94 of the NTA, 1987 and that the allegations on which the applicant bases its case are, on a balance of probabilities, true.
The applicant has filed extensive pleadings which set out the factual basis of its application. The Agency notes that a number of these substantive allegations are based on pleadings filed in a pending civil action between Island Getaways and Destinair. Island Getaways accuses Destinair of improperly dealing with funds which were advanced to it and of obtaining those funds by improper means. Destinair, for its part, vigorously denies these charges saying that any money advanced to it was properly used for the purpose for which it was intended. From this factual basis, the applicant urges the Agency to draw conclusions with respect to Destinair. In essence, the applicant seeks to establish that Destinair:
- was seriously undercapitalized;
- acted in a manner which was totally financially irresponsible and reckless;
- operated without regard to its financial obligations and attempted to use passenger deposits as a source of working capital; and
- relied on deceit to accomplish its goals without regard to the impact of its actions on consumers who had made advance payments for charter flights.
Destinair, since it denies the factual basis of the application, rejects these conclusions.
Whether or not the question of a carrier's fitness to operate is a relevant consideration in determining the public interest under section 94 of the NTA, 1987, the Agency considers that the applicant has not established, on balance of probabilities, that the substantive allegations it has made and on which its application for review depend are true. It relies on allegations made by others, allegations which are hotly contested by Destinair. Since the burden of proof in an application pursuant to section 41 of the NTA, 1987 is on the applicant, and since the factual underpinning of the application is in doubt, the Agency must conclude that the applicant has failed to make out its case under section 41 of the NTA, 1987.
In light of the foregoing, the application by the Ministry of Consumer and Commercial Relations of the Province of Ontario for a review, pursuant to section 41 of the NTA, 1987, of the Agency determination of public interest contained in its letter dated March 17, 1993 in respect of an application by Destinair Airlines, Inc. is hereby denied.