“He disputes the BC defendants’ characterization of his conduct as an abusive effort to circumvent the statutory residency requirement”

As a remedy, in Feb. 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.

A judge has refused to dismiss a claim that seeks to eliminate airport improvement fees at three major British Columbia airports.

The Federal Court judge made the decision in response to arguments from the airports that the claim should be struck out.

The claim, which was filed in 2023, aims to eliminate the fees that passengers pay at Vancouver, Victoria and Prince George airports.

The case arose after the court rejected an attempt by a U.S. hedge fund to launch a class action lawsuit against the airports to collect unpaid taxes. The hedge fund, which is the assignee of claims arising from a 1978 tax case, had argued that the airports' improvement fees were actually taxes that the federal government failed to collect.

The hedge fund's claim was dismissed due to a lack of standing, as none of its members were residents of British Columbia. However, the judge permitted the claim to be amended to add a British Columbia resident as a representative plaintiff.

The judge also decided to backdate the amendment to the date of the initial claim. This decision was made despite arguments from the airports that it would amount to an abuse of process.

In her March 19 decision, Federal Court Judge Catherine Warren said she is not persuaded that the claim should be struck out.

"The BC defendants characterize Mr. Roy’s conduct as an abusive effort to circumvent the statutory residency requirement, and he asserts that he is merely attempting to address a defect in his pleadings," said Warren, in part, in her decision.

As a remedy, in February 2024, Roy proposed the addition of a British Columbia resident named Benjamin Scott as a representative plaintiff.

Warren decided that Roy’s lack of standing in British Columbia was not enough to nullify the claim and accepted the addition of Scott as the representative plaintiff.

She 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 argued that such an order would constitute an abuse of process. They contended that Roy engaged in "forum shopping" by commencing the claim with a token plaintiff as a placeholder and taking steps to "circumvent" the residency requirement.

However, Warren ruled that 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)," wrote Warren. "I have concluded that it would be just and equitable in this case to add Mr. Scott to cure that defect."

Of the three British Columbia airports, Prince George charges the highest airport improvement fee at $35 for each originating departing passenger. Victoria and Vancouver charge $25 each.

Vancouver, however, charges $5 for passengers flying only in British Columbia 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.