Docket: A-95-22
Citation: 2024 FCA 122
CORAM:
|
STRATAS J.A.
RENNIE J.A.
LEBLANC J.A.
|
BETWEEN: |
REGIONAL MUNICIPALITY OF HALTON, THE CORPORATION OF THE TOWN OF MILTON, THE CORPORATION OF THE TOWN OF HALTON HILLS, THE CORPORATION OF THE CITY OF BURLINGTON, THE CORPORATION OF THE TOWN OF OAKVILLE and THE HALTON REGIONAL CONSERVATION AUTHORITY |
Appellants |
and |
CANADIAN TRANSPORTATION AGENCY and CANADIAN NATIONAL RAILWAY COMPANY |
Respondents |
REASONS FOR JUDGMENT
STRATAS J.A.
[1] The Canadian National Railway Company applied to the Canadian Transportation Agency under subsection 98(2) of the Canada Transportation Act, S.C. 1996, c. 10, for the approval of the location of certain railway lines it intends to construct in the Town of Milton, Ontario. These railway lines were part of a larger project, the construction of a terminal that would be used to transfer goods from train to truck and truck to train.
[2] Under subsection 98(2), the Agency had to be satisfied that “the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line”
. The Agency also had to be satisfied that the Crown met its duty to consult with Indigenous peoples.
[3] On those matters, the Agency was satisfied. It granted CN’s application, imposing certain conditions: Determination No. R-2021-172 (22 November 2021).
[4] The appellants, at times collectively called “Halton”
in these reasons, are various public authorities and municipalities that opposed CN’s application. They now appeal to this Court, with leave, under subsection 41(1) of the Act. They ask this Court to quash the Agency’s decision.
[5] For the following reasons, I would dismiss the appeal with costs.
A. The legal scope of this appeal
[6] Subsection 41(1) limits the respondents’ appeal to “question[s] of law or…jurisdiction”
. This Court has interpreted this to include “extricable questions of law or legal principle”
that arise from questions of mixed fact and law and issues of procedural fairness: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 19-28.
[7] Sometimes when a party seeks leave to appeal under subsection 41(1), the party does not raise a question we can consider. When that happens, the appeal is doomed to fail or cannot be said to be “fairly arguable”
and we deny leave: Apotex Inc. v. Allergan Inc., 2020 FCA 208 at para. 8; Lukács v. Swoop Inc., 2019 FCA 14; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at para. 9; Canada (Minister of Human Resources Development) v. Rafuse, 2002 FCA 31, 222 F.T.R. 160 at para. 12; Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141, 178 F.T.R. 159 (C.A.) at para. 7.
[8] But even where we grant leave, this issue always remains live: whether we have a “question of law or of jurisdiction”
before us under subsection 64(1) goes to our subject-matter jurisdiction. We cannot take on things that Parliament forbids us from taking: See Emerson at para. 9, citing Green v. Rutherforth (1750), 27 E.R. 1144, 1 Ves. Sen. 462, at page 471; Penn v. Lord Baltimore (1750), 27 E.R. 1132, 1 Ves. Sen. 444, at page 446; Attorney General v. Lord Hotham (1827), 38 E.R. 631, 3 Russ. 415; Thompson v. Sheil (1840), 3 Ir. Eq. R. 135. And of even longer standing is the principle of legislative supremacy, one corollary of which is that Parliament’s laws bind courts, just like everyone else: Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 at 805-806 S.C.R.; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paras. 71–72; Ref. re Remuneration of Judges of the Prov. Court of P.E.I.; Ref. re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 at para. 10.
[9] In considering our jurisdiction in cases like this, we must remain on high alert. The say-so of a party that a “legal test”
or “the Act”
is involved is not enough. “Skilful pleaders”
who are “armed with sophisticated wordsmithing tools and cunning minds”
can express grounds in such a way as to make them sound like legal questions “when they are nothing of the sort”
: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 49. Put another way, “the mere say-so of a party that a ‘legal test’ is implicated”
or the expression of grounds of appeal “in an artful way to make them appear to raise legal questions when they do not”
is “insufficient to found an appeal”
: Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 51.
[10] Instead, we must look at the substance of what is being raised, not the form. See generally JP Morgan at paras. 49-50, cited in Emerson at para. 29; British Columbia Broadband at para. 51.
[11] In this appeal, Halton offers a number of grounds for setting aside the Agency’s decision and phrases them as legal issues—for example, adequacy of the Agency’s reasons—to try to get past the limitation in subsection 41(1). However, in my view, Halton’s real concern is mere disagreement with the Agency’s weighing of various factors and its conclusion that the location of the railway line is reasonable, matters we are powerless to address.
B. The standard of review
(1) Substantive matters
[12] We must review the substantive aspects of the Agency’s decision using the appellate standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 17, 33-52; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 7-37. Thus, the Agency had to be correct on questions of law as defined by this Court in Emerson or, put conversely, had to avoid legal error.
(2) Procedural matters
[13] Where a party in the reviewing court submits that the administrative decision-maker did something procedurally unfair and the party did not raise the point before the administrative decision-maker, the administrative decision-maker did not make a decision on any argued procedural point. In that circumstance, it does not make sense to speak of a standard of review of a decision because, quite simply, there was no decision. In that situation, the Court should simply evaluate whether the procedures were fair within the meaning of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at 837-841 S.C.R. However, in that situation, since the party did not raise the point before the administrative decision-maker, the party may be precluded from raising the matter in the reviewing court due to the doctrine of waiver. In this case, more will be said about this: see paragraphs 37-38 below.
[14] As for instances where an administrative decision-maker has made a procedural decision after receiving submissions, standard of review need not be addressed in detail in this case. The procedural issues the appellants raise in this Court largely do not implicate that situation. And due to the nature of the issues raised, they can be resolved without considering the standard of review.
C. The Agency’s interpretation of subsection 98(2) of the Act
[15] The appellants have not demonstrated that the Agency committed legal error in its interpretation of subsection 98(2) of the Act. The Agency’s interpretation of subsection 98(2) is consistent with its text viewed in light of its context in the Act and its purpose. Its interpretation is also consistent with previous case law of this Court concerning subsection 98(2): Canadian National Railway Co. v. Canadian Transportation Agency, 1999 CanLII 20684 (F.C.A.) (CNR 1999) at paras. 7-20; Sharp v. Canada (Transportation Agency), [1999] 4 F.C. 363 at paras. 7-16 (C.A.).
[16] The appellants submit that the Agency erred in determining what constitutes an interest of the locality in response to a particular application under subsection 98(2) of the Act. I disagree. The words of subsection 98(2) specifically contemplate this: the Agency is to “[take] into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line”
. There is nothing in the context of the section in the wider Act or the purposes of the Act to suggest otherwise.
[17] In CNR 1999 at para. 12 and Sharp at para. 11, this Court, interpreting subsection 98(2), held that the Agency must consider the “effect of the physical co-existence of railway lines in proximity to localities”
and must assess this on a case-by-case basis. This the Agency did.
[18] The Agency properly looked at the text of subsection 98(2). It noted (at para. 31) that it had to determine whether the location of the railway line is “reasonable”
, in part by considering the interests of the localities that will be affected by the line. It also noted (at para. 245) that “what constitutes an interest of the locality is not determined in advance, either by the statute or by any guidelines”
. So it decided to determine the interests of the localities on the facts. This was entirely consistent with CNR 1999 and Sharp. I see no error of law in the Agency’s approach. For good measure, Halton has not identified any topic that the Agency failed to consider under the rubric of “the interests of the localities”
.
[19] Halton also submits that the Agency proceeded against the proper interpretation of subsection 98(2) by wrongly “weighing”
the two subsection 98(2) considerations rather than “balancing”
them. Subsection 98(2) does not refer to “balancing”
or “weighing”
but those concepts seem implicit in the wording of the subsection: the requirements for “railway operations and services”
on the one hand and the “interests of the localities”
on the other hand are juxtaposed against each other, implying that they should be weighed or balanced. Without doubt, the Act does not preclude weighing or balancing under subsection 98(2). Indeed, it is hard to conceive how the Agency could balance the subsection 98(2) considerations without actually assessing the weight or force of the considerations; balancing and weighing are not mutually exclusive or antithetical concepts.
[20] A fair, holistic reading of the Agency’s reasons shows that it did weigh and balance these subsection 98(2) considerations, just as the subsection seems to require it to do. At one point in its reasons (para. 242), the Agency was quite explicit on the point, stating that it “has a broad discretion to decide what weight to give the evidence of a given interest of a locality”
when it is “balancing that interest against the requirements for railway operations and services”
.
D. Adequacy of reasons
[21] The appellants submit that the Agency’s reasons are insufficient. I disagree.
[22] In the case of statutory appeals from administrative decision-makers, do we apply the legal standard to evaluate first-instance courts’ reasons in cases like R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869? Or must we consider some or all of the Supreme Court’s observations in Vavilov on the adequacy of administrative decision-makers’ reasons when they are assessed under reasonableness review? I note that there is some overlap between the two. Both require the reviewing court to read reasons functionally and contextually in light of the record as a whole, including the evidence adduced and the key submissions made.
[23] This last point is key and it is often overlooked by those seeking to overturn a decision. All decision-makers, particularly administrative decision-makers to whom the legislature has assigned a decision-making task for reasons of efficiency and expedition, aim to synthesize their reasons down to the essential factors that led them to decide the way they did. They are not to create an encyclopedic account of all of the evidence and all of the parties’ positions, as if their task is to report in detail everything that happened during the numerous days of the hearing. Instead, they are to distill and synthesize, ensuring that the parties, reviewing courts and the public observing the matter can discern where the administrative decision-maker was coming from and why it decided the way it did.
[24] In words equally apposite to the review of administrative decisions, this Court has stressed the “realities about the craft of writing reasons”
and has described it as an “imprecise art suffused by difficult judgment calls that cannot be easily second-guessed”
: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 69. Again, in words worthy of note in the context of administrative decision-making, this Court described the plight faced by judges with writing reasons in a technical hearing that has lasted for weeks on end:
Immersed from day-to-day and week-to-week in a long and complex trial such as this, trial judges occupy a privileged and unique position. Armed with the tools of logic and reason, they study and observe all of the witnesses and the exhibits. Over time, factual assessments develop, evolve, and ultimately solidify into a factual narrative, full of complex interconnections, nuances and flavour.
When it comes time to draft reasons in a complex case, trial judges are not trying to draft an encyclopedia memorializing every last morsel of factual minutiae, nor can they. They distill and synthesize masses of information, separating the wheat from the chaff and, in the end, expressing only the most important factual findings and justifications for them.
Sometimes appellants attack as palpable and overriding error the non-mention or scanty mention of matters they consider to be important. In assessing this, care must be taken to distinguish true palpable and overriding error on the one hand, from the legitimate by-product of distillation and synthesis or innocent inadequacies of expression on the other.
(Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at paras. 49-51.) These observations are particularly apt in a case like this with a voluminous, complex and sprawling record speaking to a diverse array of interests, where the governing standard is whether the placement of the railway lines is “reasonable”
, a somewhat subjective standard elusive of precise definition.
[25] Here, in my view, under any legal standard, the Agency’s detailed and comprehensive reasons—446 often heavily detailed paragraphs stretching over 100 pages, as well as an appendix—are adequate. In particular, the Agency found that the concerns of the appellants, particularly the appellant municipalities, had been or would be addressed through mitigation by the appellant municipalities themselves or were not specific to the location of the railway line. The Agency agreed with the prior joint hearing panel that the project’s direct effects were small and those effects were likely to occur regardless of whether CN’s project proceeds.
[26] One measure of adequacy is whether the parties were able to articulate to this Court why, in their view, the Agency’s evaluation of whether or not the location of the railway lines was “reasonable”
should be sustained or quashed on appeal. On that measure, the Agency’s reasons pass muster. Both sides knew where the Agency was coming from on all issues and argued their cases without difficulty.
[27] Finally, and perhaps most importantly, in evaluating the adequacy of the Agency’s reasons, one must consider what exactly the Agency was deciding.
[28] Some cases decided by some administrative decision-makers, by virtue of the relative concreteness and objective nature of the factors to be considered, can be written up in a very precise, concrete, objective way. Here, one might think of an adjudicative decision-maker that merely has to find the exact facts, identify the correct law, and apply the law to the facts.
[29] But other cases involve the subjective task of balancing conflicting, often qualitatively imprecise factors against a vague standard, such as “reasonableness”
or “in the public interest”
. The conclusion rests more upon the overall impression of the administrative decision-maker, sometimes an impression more subjective than objective or mathematical, one that beggars precise description.
[30] In this case, the Agency had to be satisfied that, in the language of subsection 98(2), “the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line”
. On the facts of this case, the “interests of the localities”
included interests relating to municipal revenues, air quality and noise, land use planning, requirements for railway operations and services, and mitigation of effects. The evidence on each of these was massive and sometimes complex.
[31] The Agency’s task under subsection 98(2) is not one that can be conducted with scientific or mathematical precision. This is not a case where the various detrimental effects of the railway line and the requirements for “railway operations and services”
can be assigned a precise value and can be weighed against each other with exactitude in order to determine whether the location of the railway line is “reasonable”
. Rather, the Agency is in the realm of well-informed impressions that are difficult to describe with exactitude.
[32] On some issues, all that can be expected in the reasons in a case like this is a description of the main concerns presented by the parties, an articulation of observations informed by the evidence, some comment on the key evidence adduced, some observations relevant to the balancing required under subsection 98(2), and a conclusion that leaves neither this Court nor the parties wondering why the Agency decided the way it did on the key, contested issues.
[33] Overall, the Agency’s reasons do just that. They are adequate.
E. Procedural fairness
[34] The appellants submit that the Agency was procedurally unfair in two respects: (1) it did not entertain submissions concerning the possible impact of a planned merger between CN and an American railway company; and (2) it denied the appellants the opportunity to adduce more evidence.
[35] The planned merger involving CN never went through. Therefore, even assuming that the Agency’s failure to entertain submissions on it was a reviewable error—under whatever standard of review, if any, applies—the procedural error did not affect the appellants’ rights, as any error would now be moot. In such circumstances, relief cannot be granted: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1 at 224 S.C.R.
[36] On the issue of further evidence, some background is needed. CN’s project was subject to a federal environmental assessment. It also needed the Agency’s approval under subsection 98(2) of the Act. A joint review hearing panel was established for both purposes. It told the parties that this was a “single window process”
: the parties had to offer all of their evidence for both purposes in this single, combined hearing. The joint panel received or had access to thousands of pages of evidence filed over several years.
[37] At the end of the joint panel’s hearing, a very lengthy one, it announced—consistent with everyone’s understanding—that the evidentiary record was closed. The appellants did not object.
[38] In the circumstances, the lack of objection constituted waiver or lack of timely objection. This prevents the appellants from raising this alleged procedural error in this Court: Taseko Mines Limited v. Canada (Environment), 2019 FCA 320, 66 Admin. L.R. (6th) 1 at para. 47; Canadian National Railway Company v. Canada (Transportation Agency), 2021 FCA 173 at para. 68; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340 at para. 48; Algoma Tubes Inc. v. Canada (Attorney General), 2022 FCA 89 at para. 19.
[39] Somewhat later, after the joint panel’s process, when the parties were before the Agency, the appellant municipalities requested the opportunity to file more evidence. The Agency rejected the request based on the “thorough and lengthy submission and evidence-gathering process”
pursued by the joint panel, a process that was meant to be the only forum for the introduction and testing of evidence. As the Agency noted in its reasons (at para. 76), Halton had “fully participated in the Review Panel process”
and provided extensive evidence and submissions, both before and at the public hearing.
[40] The appellant municipalities applied for reconsideration of that decision. In response, the Agency permitted further written submissions from the parties on matters that arose after the earlier hearing had ended.
[41] Given these facts, the appellants submit that the Agency’s decision at a late stage of the process to stop the introduction of further evidence was procedurally unfair. The appellants have not persuaded me of this. In any event, the appellants have not identified with particularity the evidence they say they would have adduced, nor have they shown that it would have had any possible effect on the Agency’s findings. And the Agency was entitled at some point to close the evidentiary record so it could deliberate and decide.
[42] Halton also submits that it was denied procedural fairness because the Agency declined to order further production from CN. But, as the Agency notes (at para. 10), through the multi-year joint panel review process, CN had responded to hundreds of “extensive, detailed and comprehensive”
information requests and answered further questions and undertakings at the hearing. I am satisfied that Halton had more than enough production to participate fully and fairly before the Agency.
[43] Halton also raises other matters such as the granting of a one-day extension to CN to file a five-page surreply and an error on the part of CN in not copying the appellants on a letter to the Agency (later fixed). These procedural decisions are minor, do not constitute material procedural defects, and do not vitiate the Agency’s decision.
[44] Noting a number of its procedural concerns, Halton suggests that the Agency’s mind was closed. This suggestion, equivalent to an allegation of bias, is most serious. The party raising bias must show “a real likelihood or probability of bias”
, not just a “mere suspicion”
. It must also offer “substantial”
and “cogent evidence”
in support of it. See R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at paras. 112, 117; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at paras. 25-26. The bias allegation here falls well short of the mark. At most, the Agency merely disagreed with Halton’s procedural arguments and such disagreement does not give rise to bias: Samson v. Canada (Attorney General), 2021 FCA 212 at para. 4; Bergey v. Canada (Attorney General), 2017 FCA 30 at para. 65.
[45] The overall test for procedural fairness in a case such as this is whether, considering the context, the parties knew the case to meet and had a full and fair chance to respond: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at para. 56. Further, procedural rights must be balanced against the public interest in effective, expeditious and efficient decision-making. Those are judge-made tests. But, absent constitutional concern, and there is none here, it is open to legislators to pass legislation expanding or restricting judge-made tests. Here the legislator has spoken and has supplied a legislative standard that we must keep front of mind when evaluating procedural fairness. The Agency must “conduct all proceedings in a manner that is proportionate to the importance and complexity of the issues at stake and the relief claimed”
: Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), S.O.R./2014-104, s. 4. I conclude that the process followed by the Agency, which built upon the joint panel process, including the reasons it wrote, passes this test.
[46] The appellants submit that the Agency’s procedural rulings were evidence of a closed mind on the issues before it. Given the rejection of the appellants’ procedural challenges above, this submission must also be rejected. The detailed nature of the Agency’s reasons including their attentiveness to Halton’s arguments and the Agency’s willingness to receive additional submissions from the parties on multiple occasions belie any suggestion that the Agency was actually or apparently biased or that its mind was closed.
[47] At any time during the course of the proceeding, if the appellants felt that the Agency was not acting in an impartial manner, they could have registered a timely objection. They did not. Thus, they cannot raise the objection in this Court.
F. Other issues
[48] Finally, at various places in their memorandum of fact and law and in their oral submissions, the appellants challenge how the Agency dealt with issues such as municipal revenues, air quality, land use planning, the requirements for railway operations and services, and the mitigation of effects—in other words, how the Agency applied legal standards to the evidence before it.
[49] In this appeal under subsection 41(1) of the Act, we cannot consider submissions on questions of mixed fact and law. A number of the points the appellants raise are factually suffused questions of mixed fact and law or questions of fact. In this regard, I adopt CN’s submissions in its memorandum of fact and law at paragraphs 66-78 and 81-82. For example:
Municipal revenues. The appellants submit that the Agency did not consider municipal revenues as an interest of the locality. I disagree. As the respondents suggest, the Agency (at paras. 408-413) considered municipal revenues but simply provided them less weight than the appellants would have liked.
Air quality. The appellants submit that the Agency contradicted itself by saying that it could consider environmental effects, but later saying that it could not. I disagree. Instead, I agree with the respondents that no contradiction exists. The Agency reasonably concluded (at paras. 247-250) that to the extent an environmental effect was to be considered by another administrative decision-maker under other legislation, the Agency should not duplicate that jurisdiction unless it was part of its jurisdiction under subsection 98(2) of the Act. After all, according to the Agency, it was not empowered to conduct a second environmental assessment and “[e]nvironmental assessments and rail construction authorizations are two different regulatory authorizations decided under two different statutory regimes”
(at para. 247). The Agency reasonably went on to review the environmental assessment report of the review panel and the Minister’s Decision statement as part of its task of determining whether an interest of the locality was affected by the railroad line (at paras. 248-250).
Land use planning. The appellants argue that the Agency erred in law by finding (at paras. 390-391) that planning personnel had sufficient time to adapt to the terminal and the project is isolated from any residential development. I disagree. Instead, I agree with the respondents that these criticisms are directed toward factually suffused findings of mixed fact and law or findings of fact, matters that this Court has no jurisdiction to decide.
Railway operations and services. The appellants argue that the Agency erred in law by ignoring whether it would be more efficient to use the existing terminal rather than to conduct the new project. I disagree. Instead, I agree with the respondents that the Agency considered this issue (at paras. 329-332). Once again, this was a factually suffused issue of mixed fact and law, an issue on which we cannot interfere.
Mitigation. The appellants argue that the environmental effects, particularly air quality, are “immitigable”
. This goes to the merits of what the Agency decided, on which we cannot interfere. It is not a question of law or legal principle. Instead, I agree with the respondents that the term “immitigable”
is irrelevant to this limited-scope, but nevertheless important, appeal.
[50] At other times during oral argument, perhaps out of understandable enthusiasm, the appellants seemed to exhort us to interfere on behalf of the residents of Halton to prevent them from suffering ill-effects from CN’s planned facility. However, under this legislative regime passed by our democratically elected government, the assessment of those ill-effects is for the Agency, not us. We would be acting contrary to law if we were to wade in and make our own assessment. Our task is limited to reversing the Agency’s decision for legal error or procedural unfairness. Here, we see no legal error and no procedural unfairness.
[51] I thank all counsel for excellent and helpful submissions made in the best interests of their clients.
G. Proposed disposition
[52] I would dismiss the appeal with costs.
“David Stratas”
“I agree.
Donald J. Rennie J.A.”
“I agree.
René LeBlanc J.A.”
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