Joe, this is a bit tiresome.

These arguments have been made repeatedly before. You just don’t like the conclusions we draw.

But, one last time:

First, there’s always a balance to be sought between writing something so that all possible issues are addressed, and keeping a post short enough that people will actually read it. My posting are already sometimes regarded as “reading like a lawyer wrote them”. I chose to omit the TPA’s position, as it is quite capable of putting it out there, and we can then rebut.


I’ve written on a number of occasions about the TPA’s efforts to avail itself of the ICAO “averaging” provision. It is in our submission to the Ontario Securities Commission last May, that may (or may not have) led to Porter having to redo its prospectus and disclose the terrible financial results from its first quarter 2010.

No effort to hide or duck that issue.

The TPA does puts up what we view as pretty feeble arguments to justify the Q400’s presence at the airport. Here’s why (and this is a bit technical, so forgive me):

On the TPA’s attempt to justify the Q400’s continuing breach of the prohibition on “excessively noisy aircraft”, it argues that a “trade-off” in provisions of ICAO Annex 16 allows the two Q400 noise measurements that they admit are over the  limits to be “traded off” by the difference between the limit for the third category, and the actual Q400 measurement.

However, the “averaging” provision in the ICAO rules states clearly that it is intended to address compliance with the ICAO’s noise limits, not the Tripartite Agreement’s.

Here’s the ICAO rule:

5.5.1 If the maximum noise levels are exceeded at one or two measurement points:

a)      the sum of excesses shall not be greater than 3 EPNdB;
b)      any excess at any single point shall not be greater than 2 EPNdB; and
c)      any excesses shall be offset by corresponding reductions at the other point or points.

 The maximum noise levels the ICAO is referring to here are these ICAO maximums – far higher than those set out in the Tripartite Agreement.

Here’s the provision from the Tripartite Agreement:

noise level in excess of 84.0 EPNdB on takeoff (flyover), or in excess of 83.5 EPNdB on sideline at takeoff (lateral to the flight path) or in excess of 92.0 EPNdB on approach, all calculated in accordance with the procedures set out in ICAO Annex 16, Chapter 5 and Appendix 2;

Note that this defines the manner of calculating the noise emitted by the Q400, and does not refer at all to the way in which those calculations are considered in relation to the Tripartite Agreement’s maximums.

As a fundamental principle of legal interpretation, to import such an averaging provision into the Tripartite Agreement,  which would undermine the very protection the City was seeking for the waterfront and its communities, clear and unambiguous words are necessary. There are none.

What the ICAO averaging does is forgive any noise violation by “borrowing” from another noise measurement that happens to be lower than the maximum. Not a surprise, as the ICAO is essentially an organization controlled by the airline industry world-wide. The effect is that two loud noises are simply permitted, if another noise is less.

The Tripartite Agreement sets three separate and independent limits for noise – takeoff, sideline, and approach. We believe it would completely shock the people who negotiated this agreement to find the TPA now saying that breaches of two of the Tripartite Agreement limits are OK because the third measurement is below the limit. If the noise is over one of the limits, it is too loud. The fact that one is quieter is of no effect on the other breaches – without very clear language stating that that is the case. That language, as noted, just isn’t there.

On the STOL issue you raise, the STOL restriction is central to the Tripartite Agreement.

In fact the Agreement is titled  “Agreement to Provide for the Continued Use of Certain Parcels of Land for the purpose of a Permanent Public Airport for General Aviation and Limited Commercial STOL (Short Take-off and Landing) Service Operations".

When the agreement was signed in 1983, it was with the full awareness that the Island Airport was a substandard airport with short runways, minimal safety zones and a series of obstacles around the airport, as listed in the Canada Flight supplement.

A STOL capability, as defined in the Agreement as amended in 1985, was believed necessary to compensate, in part, for these deficiencies with the Island Airport. And to constrain airport expansion to something tolerable.

Surely if the Minister of Transport states that the Q400 is not STOL, as he has, that ends the argument.


We do know that Bombardier stipulates that the Q400 is not capable of using the short runways at the Island Airport. Only by reducing the weight of the aircraft by reducing the number of passengers from 78 to 70, and reducing the fuel aboard so that flights of only 500 nautical miles or less are possible from that airport, can the Q400 be used.

Finally, yes, it certainly IS odd that David Miller was unable or unwilling to enforce these constraints. As you might expect, we regularly pressured him, Councillors, and City staff to do so. There were a number of factors, we understand, that led to our not being successful:

·         David was of the view that Porter was likely to fail, and that it would be a waste of valuable political capital to take this on. Some years on, he may well yet be proven right.

·         Porter and the Port Authority have strong support from the right wing of Council, not surprisingly, and there was certainly some concern that if it came to a vote on Council there was some risk of losing it.

·         Given the severe constraints on the City’s finances, it was clear that the City staff did not have much stomach for a costly legal battle, notwithstanding the clear merits of the case.

·         And it was also made clear that the City’s desperate need for financial support from the federal government meant that David had to swallow hard and moderate his approach to the Island Airport if he was to have any hope of money from Ottawa.

But, really, it is the Port Authority that has the duty and responsibility, as a public body, to respect and enforce the rules it is bound by. The fact that it is immune from accountability to the City and its communities is a travesty, that needs to be addressed. Perhaps if Porter finally fails, and a more sympathetic government takes power in Ottawa, the TPA can finally be dissolved and its functions returned to City control.

Brian Iler