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JR - SOR - Cabinet Confidentiality. Canadian National Railway Company v. Halton (Regional Municipality) [cabinet confidentiality]
In Canadian National Railway Company v. Halton (Regional Municipality) (Fed CA, 2024) the Federal Court of Appeal allowed appeals, here brought by the CNR against "the Federal Court granting an application for judicial review and setting aside two decisions made under the CEAA 2012 in respect of the Project". The CEAA 'decisions' opposed CNR "approval to build and operate an intermodal logistics hub in Milton, Ontario (Project)".
Here the court comments on cabinet confidentiality [under Evidence Act (Cda) s.39], and how it may limit the cabinet's ability to fulfil it's JR reasonableness duties:[94] As the Supreme Court held in Vavilov, reasonableness review accounts for context, including the institutional setting and applicable constraints: paras. 88-98. The Governor in Council is limited in what it can provide by way of explanation for its decision, for practical and legal reasons, including Cabinet confidentiality. Cabinet confidentiality extends not only to records of Cabinet deliberations, but also to documents that reflect the content of those deliberations: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 at para. 97; Babcock v. Canada (Attorney General), 2002 SCC 57 at para. 18.
[95] A claim of Cabinet confidentiality was made under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 in respect of the material submitted by the Minister to the Governor in Council. Accordingly, and not atypically, the only "“reasons”" for the GIC Decision are in the Order in Council. I nonetheless agree with the Federal Court’s decision not to draw an adverse inference from the non-disclosure: FC Reasons at paras. 146-150 and 170. I decline to conclude that the GIC Decision was unsupported or based on an incomplete record: see, e.g., Parker v. Canada (Attorney General), 2023 FC 1419 at para. 222; Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42 at para. 218. Indeed, the section 39 certificate reveals that the Minister’s submission to the Governor in Council included a letter from the Minister to the President of the Treasury Board, a signed ministerial recommendation, a draft Order in Council, and accompanying materials from September and December 2020.
[96] I also conclude that the claim of Cabinet confidentiality does not thwart a proper review of the GIC Decision. Where reasons are limited, the reviewing court can nonetheless assess reasonableness by considering the decision, the outcome, and "“surrounding documents and circumstances and whatever bits of reasoning and rationale, if any, it has before it”": Portnov v. Canada (Attorney General), 2021 FCA 171 at para. 54 [Portnov], citing Vavilov at paras. 136-138. A review conducted in this manner can be meaningful and effective: Portnov at para. 54.
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