A-553-80
Canadian National Railway Company (Appellant)
v.
Canadian Transport Commission and British
Columbia Forest Products Ltd. (Respondents)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, March 18; Ottawa, March 24,
1981.
Transportation — Appeal from Railway Transport Com
mittee's order for disclosure to British Columbia Forest Prod
ucts Ltd. of costs and revenues information filed by appellant
with an application to abandon a branch line — Whether the
Committee's decision is appealable under s. 64(2) of National
Transportation Act — Whether s. 329(3) of the Railway Act
precludes the attacking at a public hearing of a finding
concerning actual loss — Whether s. 253(4) of the Railway Act
limits the general discretion of the Commission under s. 331 to
permit publication of information concerning the costs of a
railway if it is in the public interest — Appeal dismissed —
National Transportation Act, R.S.C. 1970, c. N-17, as amend
ed, ss. 45, 64(2) — Railway Act, R.S.C. 1970, c. R-2, ss.
253(2),(3),(4), 254(1),(3), 329(3), 331.
Appeal from a decision of the Railway Transport Committee
pursuant to leave that was granted subject to the determination
of the appealability of the decision. The Committee ordered
disclosure to British Columbia Forest Products Ltd. of costs
and revenues information filed with an application for the
abandonment of a branch line if it could show that certain data
were relevant and essential to their case, and the appellant was
unable to demonstrate any actual and substantial harm. Sub
section 64(2) of the National Transportation Act gives a right
of appeal on a question of law or jurisdiction upon leave
therefor having been obtained within one month after the
making of the order, decision, rule or regulation sought to be
appealed from. Sections 253 and 254 of the Railway Act
require the railway to submit a statement of costs and revenues
of the railway attributable to the line sought to be abandoned.
Section 331 of the Railway Act prohibits the publication of
confidential information unless in the opinion of the Commis
sion such publication is necessary in the public interest. Subsec
tion 329(3) of the Railway Act provides that any determination
of costs by the Commission is final and binding upon all
parties. The issues are whether the Committee's decision is
appealable under subsection 64(2) of the National Transporta
tion Act; whether the finding concerning actual loss by the
Commission pursuant to subsection 253(4) of the Railway Act
cannot be attacked at a public hearing by virtue of subsection
329(3); and, whether the requirement in subsection 253(4) that
the Commission shall give notice of the principal conclusions
concerning actual loss, limits the general discretion given to the
Commission by section 331 to permit publication of informa
tion concerning the costs of a railway company.
Held, the appeal is dismissed. The ruling made is a "deci-
sion" of the kind contemplated by subsection 64(2) of the
National Transportation Act because it is one made within the
jurisdiction of the Commission as provided by section 331 of
the Railway Act, notwithstanding that as yet no one has been
ordered to do anything nor has anything been done pursuant to
the ruling. As to the second issue, subsection 329(3) affirms
that the Commission's cost determination is final but that fact
does not affect the discretion reposed in the Commission to
decide what, if any, public participation there may be in
making that determination. As to the third issue, subsection
253(4) establishes the minimum amount of information which
the Commission is required to publish with respect to its report.
Such minimum requirement in no way limits the overriding
discretion provided to the Commission for more extensive publi
cation if in its opinion it is in the public interest to do so. Since
the formulation of an opinion is involved, the Court would not
substitute its opinion for that of the Commission.
Attorney General of Canada v. Cylien [1973] F.C. 1166,
referred to. In re Anti-dumping Act and in re Danmor
Shoe Co. Ltd. [1974] 1 F.C. 22, referred to. British
Columbia Packers Ltd. v. Canada Labour Relations
Board [1973] F.C. 1194, referred to.
APPEAL.
COUNSEL:
S. Cantin and F. C. Hume for appellant.
G. W. Nadeau, Q.C. for respondent Canadian
Transport Commission.
J. E. Foran and M. M. Monnin for respond
ent British Columbia Forest Products Ltd.
SOLICITORS:
Law Department of Canadian National Rail
way, Montreal, for appellant.
G. W. Nadeau, Q.C., Ottawa, for respondent
Canadian Transport Commission.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for respondent British Columbia Forest
Products Ltd.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal from a decision of the
Railway Transport Committee (hereinafter called
the Committee) of the Canadian Transport Com
mission (hereinafter called the Commission) pur
suant to leave granted by the Court. The order
granting leave, inter alia, reserved to the Court
hearing the appeal "any question as to the timeli
ness of the application [for leave to appeal, pre
sumably] and as to whether the said decision is one
that may be appealed under subsection 64(2) ..."
of the National Transportation Act, R.S.C. 1970,
c. N-17, as amended.
At the outset of the appeal argument was heard
from counsel for each of the parties and for the
Canadian Transport Commission, on the question
as to whether the decision appealed from is appeal-
able under subsection 64(2). That subsection per
mits an appeal to this Court on a question of law,
or a question of jurisdiction upon leave therefor
having been obtained within one month after the
making of the order, decision, rule or regulation
sought to be appealed from. In this case leave to
appeal having been already granted it is necessary
for the Court to decide only whether the decision
appealed from is one which is appealable. If it is,
then the question of the timeliness of the applica
tion for leave is to be considered.
It was respondent, British Columbia Forest
Products Ltd.'s submission that, by analogy to the
line of judgments of this Court in section 28
judicial review applications, commencing with the
judgment Attorney General of Canada v. Cylien,'
the decision made by the Commission in this case
was merely a ruling made as to the manner in
which the public hearing was to proceed and was
not a decision on the ultimate question which the
Commission is empowered to decide, namely,
whether the application of the appellant for a
branch line abandonment ought to be granted. In
other words, it merely exercised its incidental
jurisdiction in the conduct of the application
before it. It thus was not a final decision of the
' [1973] F.C. 1166. See also: In re Anti-dumping Act and in
re Danmor Shoe Co. Ltd. [1974] 1 F.C. 22; British Columbia
Packers Ltd. v. Canada Labour Relations Board [1973] F.C.
1194.
Tribunal appealable to this Court.
I do not think it necessary in this case to decide
whether the reasoning in the judicial review cases
is applicable in deciding whether the decision, in
respect of which leave to appeal is sought under
subsection 64(2) of the Act, is one which is appeal-
able. Rather I think it is necessary to ascertain
whether in the Railway Act, R.S.C. 1970, c. R-2,
there is statutory authority for the Commission to
make the kind of decision that it made in this case.
The decision must, thus, be examined.
Very briefly the facts are these. The appellant,
pursuant to sections 253 to 258 of the Railway
Act, applied to abandon its operations over a cer
tain branch line in British Columbia. Subsections
253(2),(3) and (4) and subsections 254(1) and (3)
set out the manner in which the Railway Trans
port Committee of the Commission is to consider
abandonment applications. Those sections read as
follows:
253... .
(2) If a company desires to abandon the operation of a
branch line, the company shall file an application to abandon
the operation of that line with the Commission in accordance
with any rules that may have been made by the Commission
pursuant to subsection (1); and the Commission shall cause
such public notice of the application to be given in the area
served by the branch line as the Commission deems reasonable.
(3) Concurrently with the filing of its application to abandon
the operation of a branch line the company shall also submit to
the Commission a statement of the costs and revenues of the
company attributable to the line in each of such number of
consecutive financial years of the company as the Commission
may prescribe (hereinafter in this section and section 254
referred to as the "prescribed accounting years"); and the
company shall forthwith thereafter, in each station on the line
in accordance with any regulation of the Commission in that
behalf, post a notice of the application to abandon the operation
of the line.
(4) If the Commission is satisfied that the application to
abandon the operation of a branch line has been filed in
accordance with the rules and regulations of the Commission,
the Commission shall, after investigation, and whether or not it
has afforded the company an opportunity to make further
submissions, review the statement of costs and revenues
referred to in subsection (3), together with all other documents,
facts and figures that in its opinion are relevant, and shall
prepare a report setting out the amounts, if any, that in its
opinion constitute the actual loss of the branch line in each of
the prescribed accounting years, and the Commission shall
cause such public notice of the principal conclusions of the
report to be given in the area served by the branch line as the
Commission deems reasonable.
254. (1) If the Commission finds that in its opinion the
company, in the operation of the branch line with respect to
which an application for the abandonment of its operation was
made, has incurred actual loss in one or more of the prescribed
accounting years including the last year thereof, the Commis
sion shall, after such hearings, if any, as are required in its
opinion to enable all persons who wish to do so to present their
views on the abandonment of the branch line and having regard
to all matters that to it appear relevant, determine whether the
branch line is uneconomic and is likely to continue to be
uneconomic and whether the line should be abandoned; but if
the Commission finds that in its opinion the company has
incurred no actual loss in the operation of such line in the last
year of the prescribed accounting years, it shall reject the
application for the abandonment of the operation of the line
without prejudice to any application that may subsequently be
made for abandonment of the operation of that line.
(3) In determining whether an uneconomic branch line or
any segment thereof should be abandoned, the Commission
shall consider all matters that in its opinion are relevant to the
public interest including, without limiting the generality of the
foregoing,
(a) the actual losses that are incurred in the operation of the
branch line;
It will thus be seen that, concurrently with the
filing of its application for abandonment, the rail
way must also submit to the Commission a state
ment of the costs and revenues of the company
attributable to the line for the prescribed account
ing years. The respondent, British Columbia
Forest Products Ltd., a principal user of the line,
sought both from the appellant, and from the
Committee by means of an application made pur
suant to section 45 of the National Transportation
Act, information as to the costs and revenues of
the appellant in more detail than that set forth in
the principal conclusions of the Commission
required to be published in accordance with sub
section 253(4) of the Railway Act. The appellant
contended that the determination of actual loss
was for the Commission to decide and the costs
and revenues figures provided by it to the Commis
sion for such a determination were confidential
and were matters to be discussed solely between
the railway and the Commission.
After an oral hearing on November 5, 1979, the
Commission ruled that:
... the matter of costs and revenues can and should be gone
into at the forthcoming hearing, and, in view of that, that
BCFP was entitled to some disclosure of costs information. To
determine what information should be disclosed would require
hearing arguments regarding each item with reference to
balancing the relevancy and essentiality of the information
requested with any harm that may result from its disclosure.
The Commission subsequently issued written
reasons for its ruling the operative portion of
which reads as follows:
In summary, the question of revenues and costs is not a futile
or idle one in the context of this abandonment application. It is
an important part of the issues to be debated at the public
hearing. As such, if BCFP, who is unquestionably an interested
party in this matter, can show that certain data is relevant and
essential to their case, and C.N. is unable to demonstrate any
actual and substantial harm that will result from its disclosure,
the Committee will order disclosure of that data.
At the request of the parties, we have not considered the
specifics of which data should be disclosed, but rather, have
confined our remarks to the general principles that govern
disclosure in this case. If the parties cannot agree on the
specifics, we will hear argument and decide on the disclosure of
specific data.
A careful reading of its reasons clearly indicates
that the Commission took as its authority for
making its carefully circumscribed ruling, the
provisions of section 331 of the Railway Act read
ing as follows:
331. Where information concerning the costs of a railway
company or other information that is by its nature confidential
is obtained from the company by the Commission in the course
of any investigation under this Act, such information shall not
be published or revealed in such a manner as to be available for
the use of any other person, unless in the opinion of the
Commission such publication is necessary in the public interest.
[Emphasis mine.]
While I am not unmindful of the fact that
subsection 64(2) of the National Transportation
Act gives a right of appeal after obtaining leave
only from orders, decisions, rules and regulations,
I am satisfied that, in the circumstances of this
case, the ruling made is a "decision" of the kind
contemplated by that section because it is one
made within the jurisdiction of the Commission as
provided by section 331 of the Railway Act. I say
this notwithstanding the fact that as yet no one has
been ordered to do anything nor has anything been
done, apparently, pursuant to the ruling. I have
formed my opinion on the basis that section 331
gave to the Commission the jurisdiction to make
the ruling it made. As such it is an appealable
decision under subsection 64(2) of the National
Transportation Act. Thus since leave has already
been given, subject to a determination of the
appealability of the decision, the appeal can pro
ceed to be heard on its merits.
This is not to say that the Court in another case
might decide that leave to appeal ought not to be
granted notwithstanding that the decision sought
to be appealed is an appealable one. In any given
case it is for a Judge of the Court to decide
whether leave should be granted or refused.
In so far as the timeliness of the application for
leave to appeal is concerned, since the delay in
filing the application was apparently occasioned by
the appellant seeking a review of the decision of
the Commission by the Review Committee, as was
its right, and since the appeal raises a fairly
arguable ground, time should be extended, if
necessary nunc pro tunc.
I turn now to the merits of the appeal. The
argument of the appellant, as I understood it, is as
follows. Subsection 253(4) of the Railway Act,
supra, imposes inter alia, a duty on the Commis
sion to prepare a report setting out the amounts, if
any, that in its opinion constitute the actual loss of
the branch line in each of the prescribed account
ing years. The principal conclusions of the report
shall be the subject of public notice in the area
served by the branch line. It was said that the
actual loss finding must be made prior to proceed
ing further in the determination of whether the
branch line is uneconomic, is likely to be uneco
nomic and should be abandoned in accordance
with the requirements of subsection 254(1), supra.
In counsel's submission, the finding of actual loss
is a condition precedent to the holding of a public
hearing and that finding cannot be attacked at
such a hearing. This, it was said, is a determina
tion of costs by the Commission and, by virtue of
subsection 329(3), is final and binding upon all the
parties interested or affected thereby. 2 In his view
all that interested persons can do at a public
hearing is "to present their views on the abandon
2 329 .
(3) Any determination of costs by the Commission for any
of the purposes of this Act is final and binding upon all
parties interested or affected thereby.
Ment". That does not, he said, include the right to
express their views on whether the line is or is
likely to be uneconomic that matter having been
disposed of by the Commission in its determination
of the condition precedent in respect of actual loss.
I do not so view sections 253 and 254. Subsec
tion 254(1) provides that, at an abandonment
hearing:
all ... persons ... [may] ... present their views on the aban
donment of the branch line ....
Those words do not limit the scope of their presen
tations. The Commission so found in its reasons in
the following passage:
Clearly, by the provisions of s. 254(1), all interested parties
are entitled to present their views on whether the branch line is
uneconomic. The matter of actual loss and the extent of such
loss has to be an important element in the uneconomic test. It is
also pursuant to s. 254(3) a matter that the Committee must
consider in determining whether a branch line should be aban
doned. It is thus more than simply a prerequisite to be met in
order to go on to the next step in the abandonment process. It is
a matter of continuing importance throughout the abandon
ment application process.
We find nothing in either s. 253 or s. 254 that would limit
the Commission to receiving submissions only from the railway
with regard to actual loss. There must be an actual loss in at
least one of the prescribed accounting years before the Com
mittee can consider authorizing abandonment. However, the
matter of actual loss remains an important factor in determin
ing first whether the line is uneconomic and likely to continue
to be uneconomic and secondly, whether the line should be
abandoned. As such, it may be the subject of comments and
submissions from other parties.
I agree with this interpretation of the subsec
tions in question and cannot usefully add anything
to it. Moreover, in my opinion, subsection 329(3)
does not in any way affect the interpretation. That
subsection affirms that the Commission's cost
determination is final but that fact does not affect
the discretion reposed in the Commission to decide
what, if any, public participation there may be in
making that determination.
Appellant's counsel next argued that the con
cluding words of subsection 253(4), viz, "... and
the Commission shall cause such public notice of
the principal conclusions of the report to be given
in the area served by the branch line as the
Commission deems reasonable" have the effect of
limiting the general discretion given to the Com
mission by section 331 to permit publication of
information concerning the costs of a railway com
pany if it is of the opinion that it is in the public
interest to do so. The short answer to that conten
tion is, it seems to me, that the concluding words
of subsection 253(4) establish the minimum
amount of information which the Commission is
required to publish with respect to its report. Such
minimum requirement in no way limits the over
riding discretion provided to the Commission for
more extensive publication if in its opinion it is in
the public interest to do so. In that connection it
should be observed that since the formulation of an
opinion is involved, this Court would not substitute
its opinion for that of the Commission, nor has it
been asked to do so in this appeal.
Accordingly for the foregoing reasons, I would
dismiss the appeal and certify to the Commission
that in the opinion of the Court the Railway
Transport Committee did not err in its ruling
dated February 4, 1980 herein appealed.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.