Docket: T-268-25
Citation: 2025 FC 543
Ottawa, Ontario, March 24, 2025
PRESENT: The Honourable Mr. Justice Manson
BETWEEN: |
HEIDELBERG MATERIALS CANADA LIMITED |
Applicant |
and |
TORONTO PORT AUTHORITY DOING BUSINESS AS PORTSTORONTO |
Respondent |
JUDGMENT AND REASONS
I. Introduction
[1] This is an application for judicial review of a decision of the Minister of Transport dated January 16, 2025 (the “Decision”
) to approve rehabilitation work on the Ship Channel Bridge at Cherry Street in Toronto (the “Bridge”
) pursuant to subsection 7(6) of the Canadian Navigable Waters Act, RSC 1985, c N-22 (the “
CNWA”
) on a schedule which would completely block all marine navigation through the Toronto Ship Channel for three consecutive months, from January 2, 2025 to April 15, 2025.
[2] For the reasons outlined below, the application is dismissed.
II. Background
A. The parties
[3] The Applicant, Heidelberg Materials Canada Limited (“Heidelberg”
), is a Canadian subsidiary of Heidelberg Materials AG, a multinational heavy building materials company headquartered in Heidelberg, Germany. Heidelberg is one of Canada’s largest manufacturers and suppliers of construction materials, including cement and cementitious materials, for use in residential, commercial, industrial, and public and private construction projects.
[4] Heidelberg operates a cement terminal facility at the eastern end of the Port of Toronto Ship Channel (“Toronto Ship Channel”
). Heidelberg uses the Toronto Ship Channel to move cement to its facility for storage before being shipped to customers throughout eastern Canada and the northern United States. In order for Heidelberg and its commercial vessel operator to access their cement terminal facility, the vessels must pass through the Cherry Street Bridge (the “Bridge”
). The Bridge is a moveable bridge over the Toronto Ship Channel, located at the entrance to the Toronto Ship Channel within the Port of Toronto.
[5] The Respondent, PortsToronto, is a port authority under the Canada Marine Act, SC 1998, c 10. As a government business enterprise, it operates self-sufficiently and separately from the City of Toronto and the federal Minister of Transport (the “Minister”
). PortsToronto operates and manages the Port of Toronto and its infrastructure, including the Bridge.
B. The Approval Process for Work on the Cherry Street Bridge
[6] The Bridge opened in 1930, and virtually all of the mechanical and electrical components of the Bridge date to its original construction. It is constructed of approximately 500 tons of steel and uses a 750-ton counterweight to pivot the steel truss and a 43-meter section of roadway upwards into an open position on a trunnion (axel) to allow large commercial vessels to pass through.
[7] A joint rehabilitation project was agreed to between PortsToronto and the City of Toronto with important phases of the project to commence in January 2025. As part of that project, PortsToronto engaged with stakeholders who would be impacted by the Bridge closure, which was planned for two 12-week periods from January to April in each of 2025 and 2026.
[8] While the planning and engagement process was underway, the Bridge’s lifting mechanism experienced an unanticipated mechanical failure in April 2024, requiring emergency repairs, which spanned roughly five months.
[9] On August 22, 2024, PortsToronto submitted an application to Transport Canada titled “Ports of Toronto Ship Channel Bridge Steel Repairs and Cleaning and Coating Rehabilitations”
seeking approval from the Minister to undertake the required repairs (the “Application”
). In the Application, PortsToronto explained the Bridge will be left in a down position, closing the channel to navigation from January to April each of 2025 and 2026 as the planned repairs will prevent the Bridge from operating (“Original Schedule”
). PortsToronto wrote that “No impacts are anticipated to traffic nor the environment with standard construction procedures.”
[10] In Transport Canada’s navigation assessment dated November 26, 2024, it noted that “[n]o impacts are anticipated to vessel traffic.”
[11] On December 4, 2024, PortsToronto published a notice inviting interested persons to provide written comments on the Application proposal to the Minister within 30 days pursuant to subsections 7(3) and 7(4) of the CNWA.
[12] On December 30, 2024, Heidelberg made submissions opposing PortsToronto’s application, not disputing that the Bridge needs repairs, but on the basis that the closure of the Bridge would completely block all marine navigation through the Toronto Ship Channel for three months. This would force it to transport its supply via truck, which would be more expensive and there were insufficient trucks to do so. Heidelberg claimed that the announcement was “unexpected”
and that it had “insufficient notice”
of PortsToronto’s plans. However, the evidence showed that Heidelberg had notice of PortsToronto’s plans to close the Bridge since at least January 2024.
[13] On January 9, 2025, the Minister provided a summary of Heidelberg’s submissions to PortsToronto and asked for comment on the alternative proposal put forward by Heidelberg, where the Bridge would be opened for two weeks during early to mid-March. In response, PortsToronto explained the urgency of the Bridge repairs, stating that “the alternative of delaying or not rehabilitating this 90+ year old [Bridge] with haste would more than likely lead to catastrophic failure.”
PortsToronto also provided two alternative solutions (together with Heidelberg’s proposal, the “Alternative Proposals”
), with the caveat that these alterative solutions would not only delay the rehabilitation of the Bridge, but cost significantly more to implement.
III. The Decision
[14] On January 16, 2025, a Navigation Protection Program Officer, acting on behalf of the Minister, approved the application under subsection 7(6) of the CNWA. The Minister’s approval was subject to the condition that “scaffolding must be removed and the bridge shall be operational by April 15 of any year.”
[15] In the letter appending the approval, the Officer wrote as follows:
In order to issue this approval, the Minister has considered each of the factors listed in subsection 7(7) of the Act, additional information provided by you (if applicable) and any adverse effects that the decision to approve the work may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
[16] The Minister’s approval was supported by a “Record of Considerations”
, which provides a summary of the several stages of the 5-month approval process, including the requested approval, technical navigation assessments, public consultation submissions received, and culminates in a final recommendation.
[17] The final recommendation acknowledges the comments received by Heidelberg regarding the effects of the closure of the Bridge, and notes that two additional options were proposed to mitigate the impacts, but that these would see the closure extend further into the navigation season. It concludes as follows:
Given the time of year for the proposed works and the past failure, my recommendation is to approve the scaffolding for the repairs to take place. The risk of failure would have far greater impacts on navigation into the channel.
IV. Issues
[18] The issues are:
1)As a preliminary issue, whether the two affidavits contained within the Respondent’s Record are admissible?
2)Is the Decision reasonable?
V. Analysis
A. Standard of Review
[19] The preliminary issue before this Court does not engage a standard of review.
[20] The standard of review applicable to the Minister’s Decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 25).
[21] While reasonableness is a deferential standard, it is nevertheless a robust evaluation of whether an administrative decision is transparent, intelligible and justified (Vavilov at paras 12-13, 15). A decision which is appropriately justified, transparent and intelligible is one that reflects “an internally coherent and rational chain of analysis”
and “is justified in relation to the facts and the law that constrain the decision maker”
(Vavilov at paras 85, 91-96, and 105-106).
B. Relevant Statutory Provisions
[22] The relevant statutory provisions of the CNWA for the purposes of this application are excerpted in Appendix A.
C. Preliminary Issue: Whether the Two Affidavits Contained Within the Respondent’s Record Are Admissible?
[23] Heidelberg asserts that the affidavits of Bojan Drakul and Kim Ly are inadmissible because they provide evidence that goes to the merits of the matter and do not fall under any of the exceptions to the general rule against admitting new evidence on judicial review (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20).
[24] PortsToronto submits that what Heidelberg is actually seeking is a motion to strike the entire affidavits, and accordingly, should have been brought by way of a notice of motion setting out the relief sought and the parameters in dispute, pursuant to Rule 359 of the Federal Courts Rules, SOR/98-106 [Rules]. Regardless, PortsToronto asserts that the affidavits are admissible as they provide background and context to this Court and provide evidence in response to Heidelberg’s request for new relief raised for the first time in their memorandum of fact and law.
[25] The affidavit of Bojan Drakul provides background information to the issues raised on this judicial review and evidence relevant to assessing the new relief sought by Heidelberg in their memorandum of fact and law. This includes a report attached as an exhibit concerning the emergency repairs done on the Bridge during the spring and summer of 2024, which was a fact known by the Minister, a copy of correspondence between PortsToronto and Heidelberg in January 2024, where PortsToronto informed Heidelberg that repairs would be needed on the Bridge commencing in January 2025 for three months, and a letter from PortsToronto’s engineers advising of the significant risk of additional failures and cost if one of the Alternative Proposals for the Bridge’s rehabilitation was chosen. This evidence provides helpful information to the Court on the context of the issues and new periphery issues raised before it, including the requested relief for a declaration mandating an Alterative Proposal, and is admissible.
[26] Similarly, the affidavit of Kim Ly does not provide evidence that goes to the merits of the judicial review, but again provides helpful background information to the Court. The affidavit attaches copies of the affidavit of David A. Assalone, senior counsel of Heidelberg, his direction to attend a cross-examination, and the transcript of the cross-examination of Mr. Assalone, all which were produced in relation to Heidelberg’s motion for an expedited hearing. Both parties agree that the affidavit and cross-examination go to the issue of urgency only. I agree and find this affidavit evidence provides background information that was already in the Court record.
[27] I advised the parties at the hearing that the extremely short time frame necessitated by Heidelberg’s motion to expedite required the Court to consider all the evidence in this matter in a few days, and the “urgency”
, given cost of trucking versus shipping as the main thrust of Heidelberg’s submissions for the urgent hearing, hardly amounted to any irreparable harm as alleged. Additionally, given Heidelberg’s concession that this application is principally about money, which is the same conclusion reached from this evidence, I fail to see any prejudice in admitting this evidence.
[28] For these reasons, I will allow the affidavits for the limited purposes identified above.
D. Is the Decision Reasonable?
[29] At the hearing, Heidelberg narrowed its arguments to the assertion that the core issue of the Decision relates to how the Minister dealt with the choice of the options with respect to what would be better for navigation. As indicated above, Heidelberg’s view of “better for navigation”
is essentially about the cost to Heidelberg of trucking versus shipping its cement.
[30] In narrowing its arguments, Heidelberg made a number of concessions that it had previously argued in its memorandum of fact and law. The following items were no longer in dispute at the hearing:
On a reasonableness review of the Decision, this Court must consider the entire record before the decision maker, and not just the approval letter (Canada (Justice) v DV, 2022 FCA 181 at para 14; Zeifmans LLP v Canada, 2022 FCA 160 at para 10);
The Minister took into account the correct statutory factors under subsection 7(7) of the CNWA;
The Minister was alive to the Alternative Proposals, including the proposal by Heidelberg; and
This application is principally about money and the cost to Heidelberg in respect of both the cost to truck its cement and in the respect of the loss of its alleged manufacturing capacity.
[31] Heidelberg argues that the Decision is unreasonable because the conclusion that the repair work should proceed on the Original Schedule was based on two illogical conclusions. First, that “the risk of failure would have far greater impacts on the navigation into the channel,”
and second, that the other Alternative Proposals, which would extend further into the navigation season, would have a greater impact on navigation.
[32] I disagree with Heidelberg’s assertion that the Minister’s conclusion that “[t]he risk of failure would have far greater impacts on the navigation into the channel”
is not supported by evidence that failure was imminent. The Minister had evidence before her, as stated in the Record of Considerations, that in the summer of 2024, the Bridge failed, and although some repairs were completed, further repairs were needed. The Record of Considerations states as follows:
In the summer of 2024, the Cherry street bridge failed and required repair that required the bridge to be closed during the summer months and greatly affected navigation into the channel. Because of this repairs were completed to adequately allow for the bridge to open, with intention of completing the proper repairs outside of the main navigation season.
[…]
Given the time of year for the proposed works and the past failure, my recommendation is to approve the scaffolding for the repairs to take place. The risk of failure would have far greater impacts on navigation into the channel.
[emphasis added]
[33] Although Heidelberg emphasizes that there was no evidence that there would be a greater risk of failure if one of the Alternative Proposals was chosen over the Original Schedule, such evidence is not necessary to support the reasonableness of the Decision.
[34] A reasonable decision is one that falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law (Vavilov at para 86 quoting Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). The Minister justified her conclusion on the basis that there was evidence before her that there was a risk that the Bridge would fail. This included the response from PortsToronto that the repairs taken in the summer of 2024 were temporary and “can not permanently resolve such issues”
and that the rehabilitation of the Bridge was “needed urgently”
. The choice of the Original Schedule was a reasonable decision justified by the evidence before her.
[35] I also disagree with Heidelberg that the Decision was based on the “illogical”
conclusion that completing the repairs under one of the Alternative Proposals would have greater impacts on navigation. Contrary to Heidelberg’s assertions, the Minister did not misapprehend and fail to consider the two pieces of evidence discussed below.
[36] I appreciate Heidelberg’s argument that the Minister may have, at some point, been under the erroneous impression that there would be no impact on navigation during the Bridge closure from January to March. However, even if that was true at some point earlier in the assessment process, it was not the case when she made her Decision. This is evidenced by her consideration of Heidelberg’s comments that they used the Bridge during this time, which she put to PortsToronto for comment, and in the Record of Considerations that notes that the repairs are intended to be completed outside the “main navigation season”
[emphasis added].
[37] Additionally, while Heidelberg asserts that the only evidence before the Minister regarding use of the Bridge during the relevant time came from Heidelberg, this evidence did not bind the Minister to arrive at the conclusion Heidelberg hoped its evidence would lead to. The Record of Considerations shows the Minister considered this evidence, noting that “comments were received by one company that will be affected by the full closure of the bridge.”
This was not a misapprehension or failure to account for such evidence. Rather, as shown by the Record of Considerations, the Minister weighed the evidence before her, including Heidelberg’s submissions regarding the impact of the closure, PortsToronto’s submissions regarding risk of further failure, and the potential impacts of such failure, and found the evidence weighed in favour of fixing the Bridge according to the Original Schedule.
[38] Heidelberg’s argument, in essence, invites this Court to reweigh and reassess the evidence and substitute the decision it prefers for that of the Minister. This is not the role of this Court in a judicial review application. The Minister’s Decision is supported by the legal and factual constraints that bear on it (Vavilov at paras 125-126).
[39] The Applicant has not raised a reviewable error. This application is dismissed.
VI. Conclusion
[40] The Decision is reasonable.
[41] This application is dismissed with costs to the Respondent. The parties shall endeavour to agree on costs quantum within one week of the date of this judgment, failing which they shall provide the Court with submissions on costs, limited to five pages each, by the end of that week.
[42] Given that this application is dismissed, the Applicant’s relief being requested is no longer at issue. That said, if the Applicant had been successful, the appropriate relief would have been to send the matter back for redetermination, not a declaration mandating the acceptance of an Alternative Proposal (Vavilov at paras 141-142). This requested relief was not raised in the notice of application and is not properly before this Court (Rules, r 301; Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 at paras 36, 38). Nor do I find the Applicant’s “basket clause”
in their notice of application sufficient to allow this Court to exercise its discretion to grant this new relief as the Respondent has shown that they would be prejudiced by the requested relief, if granted (Boubala v Khwaja, 2023 FC 658 at para 28).
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