Simon's Megalomaniacal Legal Resources

Discretion - Breadth of Statutory Discretionary Authority

. Canadian National Railway Company v. Halton (Regional Municipality)

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 emphasizes how to read a statute for the breadth of it's granted discretionary authority:

[91] When reviewing the reasonableness of a decision, the statutory language defining the decision-making authority is key: Vavilov at para. 108; Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210 at para. 40 [Innovative Medicines]. Where the legislature uses "“broad, open-ended, or highly qualitative language”" such as "“in the public interest”" to describe the decision maker’s powers, it contemplates flexibility for the decision maker in interpreting the relevant statute: Vavilov at para. 110; Gitxaala Nation v. Canada, 2016 FCA 187 at para. 144 [Gitxaala].

[92] Here, the language of subsection 52(4) — which requires the Governor in Council to determine whether the SAEEs identified by the Minister are "“justified in the circumstances”"—indicates that Parliament has afforded the Governor in Council broad discretion in its decision-making:

"Governor in Council’s decision "

"Décision du gouverneur en conseil "

"52 (4) When a matter has been referred to the Governor in Council, the Governor in Council may decide "

"52 (4)"" Saisi d’une question au titre du paragraphe (2), le gouverneur en conseil peut décider : "

"(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or "

"a)"" soit que les effets environnementaux négatifs importants sont justifiables dans les circonstances; "
"(b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances. "

"b)"" soit que ceux-ci ne sont pas justifiables dans les circonstances."

There is no prescribed list of factors that may or must be considered: Reference re Impact Assessment Act, 2023 SCC 23 at para. 26.

[93] Decisions of the Governor in Council, like the one under review, may involve "“public interest determinations based on wide considerations of policy and public interest, assessed on ‘polycentric, subjective or indistinct criteria and shaped by the administrative decision makers’ view of economics, cultural considerations and the broader public interest’”": Mikisew at para. 118; Roseau River First Nation v. Canada (Attorney General), 2023 FCA 163 at para. 13 [Roseau River]; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 at paras. 18-19 [Raincoast]; Gitxaala at para. 150. These decisions are owed the "“widest margin of appreciation”" on judicial review: Raincoast at paras. 18-19; Mikisew at para. 119.