The Right Honourable

Stephen Harper

Prime Minister of Canada

Prime Minister

If your office is not acquainted with the Toronto Port Authority (TPA) and the Toronto City Centre Airport (TCCA) and its expansion and current tunnel controversy, it might wish to concern itself with the matter. 

Your party suffers from a paucity of seats in Toronto and with an election mentioned weekly, the issues surrounding the controversy and your government’s ties with the TPA will win you no favour with the local electorate.  Indeed, the dispute, while it appears local, has elements that are applicable nationally.

One of the elements is governance with regard to Canadian Port Authorities, another is ministerial interference in an arm’s length federal agency, a third is Transport Canada’s and the TPA’s multiple breaches of a legal document and the last is use of tax dollars to support a private company.

Governance

In the case of governance of Canadian Port Authorities, Minister Baird appointed Colin D. Watson to the Toronto Port Authority Board, and should have been aware that Mr. Watson’s actions as a board member over a vote to purchase a new ferry for the use at the Toronto City Centre Airport was the subject an investigation by the Conflict of Interest and Ethics Commissioner.

Curious as to the process Commissioner Dawson followed in reaching the conclusion that Mr. Watson’s vote did not commit a conflict of interest, I wrote the Commissioner asking if the Toronto Port Authority’s Letters Patent were not considered and pointed out that the code of conduct covered under The Letters Patent, Schedule E, Code of Conduct states:

1.2 Principles. This Code shall be interpreted in accordance with the

following general principles:

(c) public confidence and trust in the integrity and impartiality of the

Authority may be as equally compromised by the appearance of a

conflict as by the existence of an actual conflict.

The Commissioner’s office responded.  “The Watson Report outlined the Commissioner’s conclusions following an examination under section 45 of the Act to determine whether or not Mr. Watson contravened subsection 6(1) or section 21 of the Act.  While the TPA’s Letters Patent were reviewed in order to better understand the context in which the board operated, she does not have the mandate to determine whether Mr. Watson contravened the board’s own Code of Conduct (emphasis mine).

There appear to be two questions here. 

If Parliament’s Conflict of Interest and Ethics Commissioner doesn’t have the authority to determine whether port authorities own board members violate their conflict of interest guidelines, shouldn’t that authority fall to the minister in charge?

The second question goes back to Mr. Watson’s vote on the new ferry.  Judging by some of the findings and testimony in The Watson Report, it seems, that Mr. Watson created the appearance of a conflict of interest under 1.2 Principles (c).  However, because of the restrictions placed on Ms Dawson under the Act, the question remains.  Did Mr. Watson create an appearance of a conflict of interest with his vote and thus a de facto conflict of interest?

In a related matter, on June 10,2009, four concerned TPA directors wrote the Auditor-General of Canada asking that she conduct a special investigation of the TPA.  On June 25, 2009, Auditor-General Fraser reported that her office does “not have the mandate to do so.”

Accordingly, without an outside watchdog and with a minister calling the shots, it appears that a politicized port authority board can freely breach its own conflict of interest guidelines and conduct its financial affairs, paying its own auditors for oversight. 

Ministerial Interference

As for oversight by the minister in charge, consider Mr. Baird’s predecessor, Mr. Cannon’s relation to the TPA board.  The following is an excerpt from a May 6, 2008 letter by TPA director Christopher Henley to Minister Cannon.

“Additionally, I wish to formally notify you that over the last year your

office has on multiple occasions attempted to interfere with and

repeatedly attempted to direct and influence directors in connection with

issues that are the sole purview of the board of directors provided for in the

Canada Marine Act, the Regulations, the Letters Patent and the By-laws.

I also understand that one of your office staff has threatened directors with

removal or replacement if they did not comply with his directives.  This

is unacceptable and needs to stop.”

I fear Mr. Baird is no different.  In response to the TPA board’s deadlocked over the vote on a new ferry, the minister rather than attempting conciliation and compromise appointed two new members to the board of a port authority whose port ranks as 19^th in tonnage shipped yet has the same number of directors, nine (9), as the country’s first ranked port. 

Mr. Baird has a clear a political agenda with regard to the TPA or he is grossly incompetent.  Either way, he cannot be considered suitable to provide objective oversight.

More recently, Mr. Baird has indicated through the media that he is well disposed to the TPA’s request for your government’s infrastructure money to help build a pedestrian tunnel to the airport.  It appears that the request is coming from the board’s chair Mark McQueen alone.  On a phone-in television show on Wednesday August 26, Mr. Douglas Reid, a TPA board member, stated that the request for funds for the tunnel had not come before the board, let alone received board approval.  It seems strange that Mr. Baird has found a reason not to give Toronto infrastructure money for streetcars because process was not followed, yet he will allow the port authority tax dollars even though process is not followed.

When Mr. Baird approves Mr. McQueen’s request, he will do so in spite of Regulation P.C. 2005-690 under the Canada Marine Act, passed by the federal government on May 2, 2005.  It reads,

 “The Toronto Port Authority shall not use, or authorize or permit another

person to use, the port to build a bridge or similar fixed link between the

mainland of the City of Toronto and the laceName w:st="on">TorontolaceName> laceType w:st="on">IslandslaceType>.”

Prime Minister, a tunnel for the purposes of transporting passengers to the airport is a similar use to a bridge. It is a similar fixed link albeit under water rather than over.  I believe that Minister Baird will show the same disregard for the regulation as he has shown for those provisions of the Tripartite Agreement that do not fit into his scheme for the TCCA.

Tripartite Breaches

Mr. Baird and his predecessor Mr. Cannon have shown complete disregard for provisions in the Tripartite Agreement, a legal document governing the island airport use and agreed to by Transport Canada, the TPA and the City of Toronto, that do not accord with the ministry’s plans for expanding the airport’s use beyond that described in Paragraph 9 (1): general aviation and limited commercial STOL operations.

The Tripartite Agreement allows for STOL planes with a 6 degree climb and descent capability.   On January 25, 2007, Minister Cannon in a letter admitted that the Q400, Porter Airlines’ aircraft of choice, does not have that capability.  The minister then went on under the flimsiest of reasons (because it is called a Dash aircraft, it must be a STOL) to justify the use of the plane.  The TPA ignores the issue.

The Tripartite Agreement prohibits aircraft that do not meet the International Civil Aviation Organization’s noise threshold levels.  The Q400 violates the Agreement’s noise threshold in two out of three measurements.  Minister Baird after being informed has done nothing.  The TPA’s response is to drag its feet with a committee and a study, yet to be completed, a year after the violations were brought to their attention.

The Tripartite Agreement calls for Transport Canada to designate flight paths for helicopters once their movements surpass 4,000 annually.  The City asked Transport Canada to designate flight paths over a year ago.  I brought the matter to Mr. Baird’s attention on July 6, as you can see in the attached email.  His office has not deigned to acknowledge receipt of the email let alone provide a response.

Tax Dollars

Mr. Baird’s willingness to allow infrastructure money for the TPA tunnel project is only one instance in which the federal government has ensured that a privately held company has benefited through tax dollars.  A $20 million settlement by the Liberal government of the day over a cancelled bridge allowed Porter Airlines a start-up at the TCCA. 

Furthermore, Porter Aviation Holdings has benefited by between $200 and $450 million in financing from Export Development Canada (EDC) for its Q400 aircraft.  On February 29, 2008 EDC listed a transaction for between $50 and $100 million to Porter Aviation Holdings and on February 13, 2009 and June 24, 2009, the total was between $150 and $350 million for the two dates.

Prime Minister, the above should acquaint your office with controversy over the Toronto Port Authority and the laceName w:st="on">TorontolaceName> laceType w:st="on">CitylaceType> laceName w:st="on">CentrelaceName> laceType w:st="on">AirportlaceType> and its expansion and current tunnel controversy and how it reflects nationally through governance of port authorities, ministerial interference, breaches of legally bound covenants by your government and questionable use of tax dollars.  Will your office concern itself with the controversy?

Respectfully,

Bob Kotyk

Volunteer Researcher

Community AIR