Federal Court of Appeal schedules hearings for environmental law cases

This coming week, hearings scheduled before the Federal Court of Appeal and the Federal Court will address issues relating to the Canadian Environmental Assessment Act, admiralty proceedings, and tax law.

Federal Court of Appeal

The court set Canadian National Railway Company v. Attorney General of Canada et al., A-121-24 on July 25, Thursday. In this case, the Canadian National Railway Company (CN) started constructing a large terminal in Milton, Ontario to facilitate the transfer of standard-sized (intermodal) containers between rail cars and trucks in 2021 after a six-year approval process.

Some of the respondents – the Regional Municipality of Halton, the Corporation of the Town of Milton, the Corporation of the Town of Halton Hills, the Corporation of the City of Burlington, the Corporation of the Town of Oakville, and the Halton Region Conservation Authority – filed a judicial review application challenging the decisions leading to the project’s approval.

Last Mar. 1, the Federal Court granted the application in relation to two decisions, set them aside, and remanded them for redetermination. The Federal Court’s decision had the effect of stopping the construction activities. CN appealed and moved to stay the Federal Court decision pending a final judgment.

Some of the respondents argued that the balance of convenience favoured the refusal of the stay and that CN’s motion materials failed to address the significant emissions that continued construction would cause.

Last May 2, in Canadian National Railway Company v. Halton (Regional Municipality), 2024 FCA 84, the Federal Court of Appeal granted CN’s motion to stay until it could render a final judgment on the appeal. The balance of convenience favoured staying the Federal Court decision, the appeal court held.

CN’s costs to suspend its construction and the public interest in completing the project appeared to outweigh the harmful effects of construction emissions, the appeal court said. The respondents’ evidence on emissions from construction activities appeared to be outdated, the appeal court explained.

The court scheduled Attorney General of Canada et al. v. Regional Municipality of Halton et al., A-124-24 on July 25, Thursday. This case arose from CN’s proposal to build a multi-modal logistics hub in Milton.

The respondents brought an application for the judicial review of the federal environment minister’s decision under s. 52(2) of the Canadian Environmental Assessment Act, 2012 and the governor in council’s decision under s. 52(4) of the same legislation.

On appeal, the appellants wanted to set aside the Federal Court judgment concerning the two decisions. The appellants claimed that the Federal Court erred in finding the decisions unreasonable, conducted an incorrect and improperly formalistic review of the decisions, and misconstrued the relevant statutory scheme.

Federal Court

The court set Milgram Foundation v. Attorney General of Canada et al, T-1758-18 on July 23, Tuesday. Here, a judicial review application alleged that the minister of national revenue’s acceptance of the applicant’s voluntary disclosure created a binding agreement that the minister could assess only taxation years 2003–14 to correct past omissions that the applicant disclosed to the minister. The applicant also argued that the minister’s decision violated this agreement.

The respondents – citing r. 369 of the Federal Courts Rules, SOR/98-106 – moved to strike entirely six affidavits in the applicant’s application record and numerous paragraphs of two other affidavits in the application record.

Last Nov. 10, in Milgram Foundation v. Canada (Attorney General), 2023 FC 1499, the Federal Court dismissed the respondents’ motion to strike. The judge hearing the application on its merits would be in the best place to evaluate and to weigh the contents of the affidavits and the transcripts of any cross-examinations on those affidavits.

The court scheduled East Coast Metal Fabrication (2015) Inc. v. Bigmoon Canada Limited et al, T-2659-22 on July 23, Tuesday. In this admiralty matter, the plaintiff claimed a judgment against the defendants in the amount of over $1.34 million, which represented fees for services offered to the defendants under a manufacturing and supply agreement.