It's located here:
https://www.otc-cta.gc.ca/eng/ruling/426-a-2012
Here are Sunwing's arguments for defending its application :
Sunwing
[29] Sunwing submits that in the application now under consideration by the Agency, section 60 of the CTA and sections 8.2 through 8.5 of the ATR set out the requirements that must be met where a licensee seeks to provide an air service using aircraft, with flight crew, provided by another person. According to Sunwing, these provisions together ground the Agency’s grant of power, and delineate the confines of its statutory authority, with respect to the provision of aircraft with flight crews. Sunwing does not agree with Transat’s submission that the Agency has the discretion to consider Canada’s national transportation policy set out in section 5 of the CTA when ruling on wet lease applications. Even if this were the case, Sunwing contends that the minor supplementation of Sunwing’s fleet with four wet leased aircraft for the coming winter season ensures that Sunwing will fully contribute towards a competitive economic and efficient national transportation system along with advancing the well-being of Canadians and enable competitiveness and economic growth.
[30] Sunwing contends that where approval of the Agency is required pursuant to section 8.2 of the ATR, if the application for that approval does not meet the requirements set out, the Agency shall not grant the approval; conversely, where those requirements are fulfilled, the Agency must grant the approval. With respect to the requirement set out in paragraph 8.2(3)(j) of the ATR, Sunwing asserts that sufficient information was provided by its statement that the wet lease is necessary to support its 2012-2013 shoulder and peak season flying requirements and that once this information has been provided, the Agency has no discretion as to whether it will accept that information.
[31] With respect to the parties’ comments on filing times, Sunwing states that the requirement that section 60/8.2 applications should be provided at least 45 days before the first planned flight has been honoured more by an application for an exemption from the 45‑day filing requirement than by complying with such requirement. In this regard, Sunwing points out that between 2010 and 2012 all requests for exemptions from the filing time were granted.
[32] Further, Sunwing submits that the filing of the Sunwing/Travel Service application on October 11 was not part of a nefarious scheme to avoid full and proper consideration of its application. It points out that, while Sunwing and Travel Service reached an agreement in principle in June with respect to the wet leasing of aircraft for Sunwing’s 2012-2013 season, further detailed negotiations ensued along with the exchanging of numerous drafts of the proposed Extended Charter Agreements.
[33] Sunwing states that it has no objection to a policy review of wet leasing. Sunwing maintains, however, that the only way the current wet leasing approval process can be modified is through a policy review and either an amendment to section 8.2 of the ATR or directions issued by the Minister to the Agency pursuant to section 76 of the CTA. Sunwing strongly objects to any attempt by the Agency to review and alter its current process as part of the consideration of this application.
[34] As to Transat’s proposed option that it would provide Sunwing with the necessary aircraft, Sunwing states that the A310 and A330 aircraft available from Transat are unsuitable for the market requirements of Sunwing and are far more expensive to operate than the B737 800 type aircraft.
[35] With respect to WestJet’s reference to the impact on Sunwing’s Canadian status, Sunwing submits that the allegations are unfounded; are not relevant to the application; and may be dealt with separately by Agency.
[36] In response to the objection of Air Line Pilots Association International, Sunwing responded that, in its view, the Association does not have standing in regard to the application.
Here is part of the CTA's decision:
My comments:[40] In this case, a number of interveners have expressed the opinion that in determining whether applicants meet the requirements of section 8.2 of the ATR, the Agency must consider the necessity of such arrangements pursuant to paragraph 8.2(3)(j) of the ATR and that in doing so, the Agency must consider a broad range of factors. WestJet and Transat suggest that wet lease arrangements were initially intended to address unexpected or unforeseen situations, not to be part of a business model. The Agency is of the opinion that as the air industry continues to evolve, the Agency must ensure that its regulatory framework and its administration continue to be relevant. While the Agency recognizes that it has not to this point typically chosen to exercise its discretion under paragraph 8.2(3)(j) of the ATR, the Agency considers that the responses to the Notice in this application raise fundamental issues of interpretation regarding the intent of the objectives of requiring Agency approval of all wet leases.
[41] The responses to the Notice and issues raised suggest that it would be both timely and beneficial to clarify the Agency’s approach to wet lease applications. Accordingly, the Agency will initiate a consultation to seek the views of the industry and other interested parties regarding the intent of the wet lease approval requirements, and what should be considered, including information required by the Agency for its assessment of “necessity” under paragraph 8.2(3)(j) of the ATR. This is consistent with the Agency’s ongoing commitment to ensure that the administration of its regulations is transparent and is understood by stakeholders.
[42] Sunwing’s late filing of its application has created a difficult situation. Sunwing should not have presumptively assumed that its late filed application would be automatically approved, especially when it involved an unprecedented request for approval of wet leases over an extended time period. As other carriers have commented, this approach must have been developed over many months, however, Sunwing chose not to file its application until shortly before the planned deployment. However, the Agency must consider the implications of a decision to deny or approve the remaining requested flights. There may be other options than the wet lease, including dry lease arrangements, however, given the short time frame and to avoid disruptions, the Agency does not deem it feasible to explore the viability of such options. Therefore, in order to not inconvenience passengers who have already purchased travel with Sunwing, the Agency has decided to approve the remaining flights from November 8, 2012 to May 31, 2013.
[29] They operate just 10 aircraft year round and have already wet-leased 7 aircraft this year.
[30] ALPA and Air Transat have both stated that section 8.2(3)(j) of the ATR requires that the applicant provide a "REASON" for why a wet-lease is "NECESSARY", and that the CTA should evaluate the application in light of the given reason. Sunwing replied that they think that 8.2(3)(j) of the ATR is only there for cosmetic or statistical reasons and astonishingly, the CTA agreed with them. Sunwing states that in complaince to 8.2(3)(j) of the ATR, they did provide a reason for needing the Wet-Lease, and that the the CTA has no power to deny them what they ask for as long as all the information, including a reason, is in the application. Basically, the reason they provided is that "they need them". I should note that for the two 767s they leased this summer, no reason whatsoever was provided, and the CTA still approved those wet-leases.
[31] Here they tell the CTA that they have always made they applications inside of the 45 days limit and the CTA has always approved the request anyways in the past, so they expect that to continue. And they were correct.
[36] Who is ALPA to oppose such a lease-agreement ? They only represent 3000 Airline pilots in Canada. It is not stated anywhere in this document, but CAW, the Union representing Sunwing's Canadian pilots also wrote to the CTA to oppose the Wet-Leases. The CTA blew them away also........
