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CTA - Procedure. Canadian National Railway Company v. Canadian Transportation Agency et al.
In Canadian National Railway Company v. Canadian Transportation Agency et al. (Fed CA, 2025) the Federal Court of Appeal dismissed two appeals, these brought against "two decisions of the Canadian Transportation Agency (Agency) dismissing the company’s requests under section 32 of the Canada Transportation Act, S.C. 1996, c. 10 (CTA) to vary its Volume-Related Composite Price Index (VRCPI) and Maximum Revenue Entitlement (MRE) for the 2021/2022 and 2022/2023 crop years (relevant crop years)".
Here the court considers Canadian Transportation Agency's authority to "review, rescind or vary any of its previous decisions" [CTA 32]:[12] Section 32 of the CTA (section 32) allows an interested party to apply to the Agency to, inter alia, review, rescind or vary any of its previous decisions. Section 32 states:"Powers of Agency"
"Attributions de l’Office"
"Review of decisions and orders"
"Révision, annulation ou modification de décisions"
"32 The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing."
"32"" L’Office peut réviser, annuler ou modifier ses décisions ou arrêtés, ou entendre de nouveau une demande avant d’en décider, en raison de faits nouveaux ou en cas d’évolution, selon son appréciation, des circonstances de l’affaire visée par ces décisions, arrêtés ou audiences."
"(Emphasis added.)"
"(Je souligne.)" [13] The sole condition prescribed by Parliament for the exercise by the Agency of its discretion under section 32 is that there be, in the opinion of the Agency, "“a change in the facts or circumstances pertaining to the decision”" (which I will refer to going forward simply as a "“cifoc”") since the decision in question. The Agency has also issued a comprehensive Interpretation Note which CN Rail does not challenge, in which it sets out the following test for the exercise of its power under section 32, which states in part:There is a basic legal principle in favour of the finality of court and tribunal decisions. This principle is in the interests of parties to a proceeding who have legitimate expectations that a decision, once rendered, is final. Accordingly, there are very limited circumstances where the Agency can reopen its final decisions and orders.
[…]
The Agency has adopted a comprehensive statement of the test to be applied in section 32 applications. It is as follows:
In dealing with an application for review, the Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.
[…]
(Emphasis added.) [14] Thus, to succeed on an application for review or reconsideration under section 32 (a "“section 32 request”"), the applicant must convince the Agency of the existence of a cifoc pertaining to the decision since its issuance and, secondly, that such a change is sufficient to warrant a review, rescission or variance of that decision (sufficiency threshold).
....
[41] In my view, the Agency’s reconsideration power under section 32 is wide and extensive and constitutes "“an expeditious manner to correct an error or to meet changed circumstances”" (Amoco Canada Petroleum Ltd. et al. and Canadian Pacific Ltd, [1974] CTC 300 at 306, 321). Section 32, properly interpreted, allows for the exercise of discretion by the Agency in the determination of what constitutes a cifoc pertaining to the decision in question, constrained only by the limits imposed by the CTA, with the finality of the Agency’s decision generally being upheld. As such, I do not consider that section 32 places any express limits on what may be taken into consideration by the Agency in determining the circumstances in which new facts or circumstances equate to a cifoc. When interpreting the CTA, the "“the Agency is expected to bring its transportation policy knowledge and experience to bear on its interpretations of its assigned statutory mandate.”" (Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650 at para. 98). The Agency draws upon its regulatory experience, its knowledge of the industry and its expertise in the transportation sector when interpreting legislation within its mandate (Emerson at para. 73). As such, the Agency exercises it authority under section 32 when it is deemed suitable, proper and fitting to do so in the Agency’s opinion, having regard to relevant legislative constraints and the broader context of the decision under review. These are the various aspects of the Agency’s Decisions which acknowledged the forecasting variances but also explained why it was unnecessary and inappropriate, under the circumstances, to consider such variances as amounting to a cifoc withing the meaning of section 32. At paras 32-59 the court further considers the application of CTA s.32 to the case, including it's statutory interpretation.
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