A retired Nova Scotia pilot’s proposed class action lawsuit against airport improvement fees will remain in the air after Prince George Airport Authority Inc. (PGAA) and two other BC airports failed to ground the case.
Brian Roy filed his original notice of civil claim on March 25, 2019. He alleges 20 airports are wrongly charging the "passenger tax" on airline employees and their family members who use an employee travel pass. Roy also accused the airports of concealing their governing agreements.
Last September, Justice Lisa Warren heard an application by PGAA, Vancouver International Airport Authority and Victoria International Airport Authority to dismiss Roy’s lawsuit because Roy has never been a BC resident and the Class Proceedings Act requires one.
The three BC defendants also accused Roy of abuse of process.
“He disputes the BC defendants’ characterization of his conduct as an abusive effort to circumvent the statutory residency requirement, and asserts that he is merely attempting to address a defect in his pleadings,” Warren said in her March 19 decision.
As a remedy, in February 2024, Roy proposed adding a BC resident named Benjamin Scott.
Warren decided that Roy’s lack of standing in BC was not enough to nullify the claim and accepted the addition of Scott as the representative plaintiff. Warren said the court has the inherent jurisdiction to backdate an order and add Scott as a plaintiff to the date the claim was initiated.
The three defendants accused Roy of abuse of process by “forum shopping” — taking multiple actions in different jurisdictions — by commencing a claim with a token plaintiff as a placeholder and taking steps to “circumvent” the residency requirement.
Warren ruled they fell “far short” of the high threshold to dismiss Roy’s action.
“The only conduct on the part of Mr. Roy that could potentially be criticized was the commencement of the claim in his name despite the express language of (the residency requirement of the Class Proceedings Act),” Warren wrote. “I have concluded that it would be just and equitable in this case to add Mr. Scott to cure that defect.”
Of the three BC defendants, Prince George charges the highest airport improvement fee at $35 per each originating departing passenger. Victoria and Vancouver charge $25 each. Vancouver, however, charges $5 for passengers flying only in BC or Yukon.
When YVR launched its version of the tax on passengers in 1993, it claimed it was a temporary measure to pay for terminal expansion.
