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MOTION RECORD of the MOVING PARTY (Motion to Compel Answers and Productions and for Other Relief)

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MOTION RECORD of the MOVING PARTY (Motion to Compel Answers and Productions and for Other Relief) Court File No.: A-242-16 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Appellant – and – CANADIAN TRANSPORTATION AGENCY and NEWLEAF TRAVEL COMPANY INC. Respondents MOTION RECORD OF THE MOVING PARTY (Motion to compel answers and productions and for other relief) Dated: September 30, 2016 DR. GÁBOR LUKÁCS Halifax, NS [email protected] Appellant TO: CANADIAN TRANSPORTATION AGENCY 15 Eddy Street Gatineau, Quebec J8X 4B3 Allan Matte Tel: (819) 994 2226 Fax: (819) 953 9269 Email: [email protected] Solicitor for the Respondent, Canadian Transportation Agency AND TO: D’ARCY & DEACON LLP 1 Lombard Place, Suite 2200 Winnipeg, MB R3B 0X7 Brian J. Meronek, Q.C. Tel: (204) 942-2271 Fax: (204) 943-4242 Email: [email protected] Ian S. McIvor Tel: (403) 541-5290 Email: [email protected] Solicitors for the Respondent, Newleaf Travel Company Inc. TABLE OF CONTENTS 1 Notice of Motion 1 2 Affidavit of Dr. Gábor Lukács, affirmed on September 30, 2016 11 A Order of the Federal Court of Appeal granting Leave to Appeal, dated June 9, 2016 17 B Reasons for Order of the Federal Court of Appeal, dated June 9, 2016 20 C Notice of Appeal, filed on June 28, 2016 27 D Notice of Motion, dated July 21, 2016 36 E Affidavit of Mr. William F. Clark, sworn on July 23, 2016 47 F Order of the Court (Scott, J.A.), dated July 24, 2016 53 G Affidavit of Mr. Donald James Young, sworn on July 23, 2016 (redacted), with Exhibit “A” 56 H Direction of the Court (Scott, J.A.), dated July 29, 2016 69 I Written Examination directed to Mr. Clark, dated August 25, 2016 71 J Written Examination directed to Mr. Young, dated August 25, 2016 76 K Answers to Written Examination of Mr. Clark, dated September 9, 2016 137 L Answers to Written Examination of Mr. Young, dated September 9, 2016 144 M Letter of Dr. Lukács to Mr. Brian J. Meronek, counsel for NewLeaf, dated September 16, 2016 170 N Transcript of recording of telephone conversation with Mr. Chris Lapointe, Vice-President Commercial Operations for Flair Airlines Ltd., taken on July 8, 2016 175 3 Written Representations of the Appellant 195 OVERVIEW 195 PART I STATEMENT OF FACTS 196 A. The present appeal (main proceeding) 196 B. The pending motion for interim relief 197 (i) Transcript of cross-examination was not pro- vided 199 (ii) Refusals on the cross-examination of Mr. Clark and Mr. Young 199 (iii) The July 8, 2016 telephone call with Mr. Chris Lapointe 200 PART II STATEMENT OF THE POINTS IN ISSUE 202 PART III STATEMENT OF SUBMISSIONS 203 A. Transcript of the cross-examination 203 B. The Affidavit of Mr. Clark 203 C. Leave to file a supplementary affidavit 205 D. Refusals of Mr. Young 207 (i) Arrangements for repatriation of stranded pas- sengers 207 (ii) NewLeaf’s capitalization and financial stability 209 (iii) Damages to NewLeaf if the sought order is granted 211 (iv) Mr. Young’s credibility and expertise 213 E. Schedule for remaining steps in the July 21, 2016 motion 216 F. Costs 217 PART IV ORDER SOUGHT 218 PART V LIST OF AUTHORITIES 220 Statutes and Regulations: 4 Air Transportation Regulations, SOR/88-58 224 — section 2 (interpretation) 225 — section 8.1 (financial requirements) 231 5 Canada Business Corporations Act, R.S.C., 1985, c. C-44 233 — section 113 234 6 Canada Transportation Act, S.C. 1996, c. 10 235 — section 41 (leave to appeal) 236 — section 53 (review of Act) 237 — section 55 (definitions) 238 — sections 57-60 (prohibitions) 242 — section 61 (license for domestic service) 243 7 Criminal Code, R.S.C. 1985, c. C-46 244 — section 183.1 245 — paragraph 184(2)(a) 246 8 Federal Courts Rules, S.O.R./98-106 248 — Rule 81 249 — Rules 82-87 250 — Rule 94 252 — Rule 97 253 — Rule 100 254 — Rule 369 255 Case Law: 9 Canadian Tire Corporation v. Canadian Bicycle Manufacturers Association, 2006 FCA 56 257 — paragraph 9 261 — paragraph 10 262 10 Lukács v. Canadian Transportation Agency, 2016 FCA 103 264 — paragraph 16 271 11 R. v. Goldman, [1980] 1 S.C.R. 976 276 — page 18 293 1 Court File No.: A-242-16 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Appellant – and – CANADIAN TRANSPORTATION AGENCY and NEWLEAF TRAVEL COMPANY INC. Respondents NOTICE OF MOTION TAKE NOTICE THAT THE APPELLANT will make a motion in writing to the Court under Rule 369 of the Federal Courts Rules, S.O.R./98-106. THE MOTION IS FOR: 1. An Order directing NewLeaf Travel Company Inc. to send Dr. Lukács a copy of the transcript of the August 25, 2016 cross-examination, as required by Rule 86 of the Federal Courts Rules. 2. An Order pursuant to Rules 81, 100, 94, and 97 of the Federal Courts Rules: (i) striking out paragraph 9 of the affidavit of Mr. William F. Clark and the answers of Mr. Clark to questions 8-9 on the written examina- tion; or alternatively (ii) directing Mr. William F. Clark to respond to question 9(a) by stat- ing the file numbers in question, and to produce documents as directed in question 9(d) in the written examination. 2 3. An Order pursuant to Rule 84(2), granting Dr. Lukács leave to file a sup- plementary affidavit for the July 21, 2016 motion for the purpose of ad- ducing as evidence the transcript of the July 8, 2016 telephone conver- sation shown at Tab 2N. 4. An Order pursuant to Rules 100, 94, and 97 of the Federal Courts Rules, directing Mr. Donald James Young to produce documents and properly answer: (i) questions 45 and 61; (ii) questions 3-4, 54-58, and 65-66; (iii) questions 1, 46-48, 50-52, 64, and 123; and (iv) questions 6-7, 10-15, 69-92, and 93-122. 5. An Order setting a schedule for the remaining steps in the July 21, 2016 motion, and permitting Dr. Lukács 15 days from the receipt of NewLeaf’s memorandum to serve and file his reply in respect of that motion. 6. Costs and/or reasonable out-of-pocket expenses of this motion in any event of the cause; and 7. Such further and other relief or directions as the Appellant may request and this Honourable Court deems just. 3 THE GROUNDS FOR THE MOTION ARE: 1. On June 9, 2016, this Honourable Court granted Lukács leave to appeal a decision made by the Canadian Transportation Agency [the Agency] dated March 29, 2016 and bearing Decision No. 100-A-2016 [Decision Under Appeal]. 2. In the Decision Under Appeal, the Agency purported to decide among other things that NewLeaf Travel Company Inc. [NewLeaf] is not required to hold a licence under the Canada Transportation Act, S.C. 1996., c. 10. 3. A Notice of Appeal has been filed on June 28, 2016, and subsequently the appeal has been perfected. A requisition for hearing has been filed on August 16, 2016, and the appeal is now awaiting hearing. PENDING MOTION FOR INTERIM RELIEF 4. On July 21, 2016, Lukács brought a motion for an interlocutory relief, pending disposition of the appeal, for an order: (a) staying the decision of the Canadian Transportation Agency dated March 29, 2016 and bearing Decision No. 100-A-2016 pending disposition of the appeal; and (b) enjoining NewLeaf Travel Company Inc. from operating as an In- direct Air Service Provider [IASP or reseller], unless it posts a per- formance bond and/or security and/or guarantee in the amount of $3,744,000 for the claims of stranded passengers. 4 5. NewLeaf tendered the affidavits of Mr. William F. Clark and Mr. Donald James Young, sworn on July 23, 2016, in opposition to the motion for interim relief. 6. On July 29, 2016, this Honourable Court directed that Dr. Lukács be cross-examined in Halifax between August 24 and 26, 2016, and that Mr. Young and Mr. Clark be cross-examined in writing. 7. On August 25, 2016, NewLeaf cross-examined Dr. Lukács on his July 21, 2016 affidavit. NewLeaf did not provide Lukács with a copy of the transcript of the cross-examination. 8. On or around August 25, 2016, Dr. Lukács cross-examined Mr. Clark and Mr. Young on their July 23, 2016 affidavits by directing written questions to them (including requests to produce documents), as per the Direction of this Court. 9. On September 9, 2016, Mr. Clark and Mr. Young provided answers to certain questions, but they failed to produce any documents as requested, and Mr. Young outright refused to answer the vast majority of the ques- tions and/or to produce documents. 10. On or around September 16, 2016, Dr. Lukács wrote to counsels for NewLeaf, and requested answers to the outstanding questions and pro- ductions by September 23, 2016. Neither NewLeaf nor its affiants pro- vided additional answers or productions. 5 11. The core areas of factual dispute between the parties are: (i) the existence and/or sufficiency of arrangements to repatriate stranded passengers in the event that NewLeaf ceases operations; (ii) the capitalization and/or financial stability of NewLeaf; (iii) the existence and quantum of damages, including lost profits, in the event that the sought order is granted; and (iv) the credibility of the evidence of Mr. Clark and Mr. Young. THE AFFIDAVIT OF MR.CLARK 12. Paragraph 9 of Mr. Clark’s affidavit, as clarified in his answers to ques- tions 8-9, concerns Mr. Clark’s belief as to the state of the law, and as such it is not confined to facts, contrary to Rule 81(1).
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