Date: 20081126
Docket: A-335-08
Citation: 2008 FCA 374
Present: LÉTOURNEAU
J.A.
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Appellant
and
CANADIAN TRANSPORTATION AGENCY
and THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1]
The
respondent, the Canadian Transportation Agency (CTA), makes a motion pursuant
to Rule 369 of the Federal Courts Rules to have an e-mail dated December
26, 2007 removed from the materials filed by the appellant, Canadian Pacific
Railway Company (CPR), as well as from the Agreement as to the content of the
Appeal Book.
[2]
The e-mail
came from Marc Shannon, counsel to the CPR. The CTA submits that the filing in
the appeal proceedings was inadvertent and that the document was not before it
when it issued its decision on December 28, 2007.
[3]
A brief
summary of the facts is necessary to understand the litigation about the
e-mail.
[4]
On
November 14, 2007, the CTA invited several parties to participate in a
consultation related to “Multi-Car Block” incentives and related allowances and
disallowances and the effect they should have upon statutory-revenue (for crop
year 2006-07) under the Western Grain Revenue Cap Program.
[5]
The
invitation was sent by way of e-mail from a website address of the CTA. The
consultation was a two-stage process. The Railways (CN and CPR) had until
November 28, 2007 to provide comments to the CTA on issues contained in the
attached Consultation Document. The non-Railway participants then had until
December 7, 2007 to provide their comments to the CTA on the attached
Consultation Documents as well as rebuttal comments to the Railway submissions.
A copy of the non-Railway participants would be sent by the CTA to all parties.
The consultation process would be closed by December 7, 2007.
[6]
The CPR
objected that it wanted to make a reply to the non-Railway participants’
submissions: see Appeal Book, Tab 12. It appears from the cross-examination of
Jim Riegle, an employee of the CTA, that the CTA seemingly dismissed the CPR’s
objection: see transcript of cross-examination at page 27. I could not find the
actual response of the CTA, but it is almost certain the objection was
dismissed because the procedural aspects of the consultation process had been
determined and there was an urgency to deal with the issues. Hence the tight
time-frame for the consultation and the release of the CTA’s decision before
the end of 2007.
[7]
On December
26, 2007, two days before the release of the CTA’s decision, counsel for the
CPR sent rebuttal submissions to the non-Railway participants’ submissions.
They were sent by e-mail to the CTA website address where they stayed until
opened in early January 2008 by Karen Tucker, upon her return from Christmas
vacation: see affidavit of Jim Riegle, August 12, 2008 at paragraph 5.
[8]
According
to Mr. Riegle, the rebuttal submissions of the CPR were not put before the
Agency as they were only dealt with in January 2008. The CTA’s decision was
already written and sent to translation by the time the CPR’s rebuttal
submissions were received in the electronic mailbox on December 26, 2007: ibidem,
at paragraph 7 and see Mr. Riegle’s cross-examination at page 36. In addition,
the consultation was a two-stage process which ended on December 7, 2007: ibidem.
[9]
Counsel
for the CPR submits that the rebuttal submissions were before the CTA and
therefore should be included in the Appeal Book. If they were not, they should
still be part of the Appeal Book because they are relevant to the determination
of the appeal. Counsel relies upon Rules 343 and 344, especially 344(g).
[10]
I am
satisfied that the rebuttal submissions of the CPR were not before the CTA when
it made its decision and were not considered by the CTA. For this reason alone,
they should not be part of the record on appeal: see 1185740 Ontario Ltd. v.
Canada (Minister of National Revenue
– M.N.R.),
[1999] A.C.F. no. 1432; Paquette v. Canada (A.G.), 2002 FCA 441; Sawridge
Band v. Canada, 2006 FCA 52; Stawicki v. Canada (Canada Revenue Agency),
2006 FCA 262.
[11]
There is
also another reason why the impugned material should not be part of the record
on appeal.
[12]
The CTA
determined, as it was entitled to do, the form and length of its consultation
process which, as previously mentioned, was subject to a tight schedule. The
CPR was not given a right to rebut the non-Railway participants’ submissions.
It could neither unilaterally force the CTA to accept its rebuttal submissions nor
overrule the CTA’s decision not to allow such submissions by simply putting
submissions in the electronic mailbox of the CTA. To allow these submissions to
be part of the appeal record would allow the CPR to do indirectly what it could
not do directly.
[13]
For these
reasons, the CTA’s motion to expunge the impugned material from the Appeal Book
and the Agreement as to the content of the Appeal Book will be allowed.
“Gilles
Létourneau”
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