Federal Court of Appeal sets hearings for transportation, environmental law cases

This week, hearings scheduled before the Federal Court of Appeal and the Federal Court involved matters relating to the environmental impacts of railway terminal construction, a flight cancellation, patent infringement allegations, and insurance for damaged or lost cargo.

Federal Court of Appeal

The court set Canadian National Railway Company v. AGC et al., A-121-24 on June 18, Tuesday. This environmental law case arose from an intermodal railway terminal that the appellant had started constructing on its land in Milton, Ontario.

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 – applied for judicial review of decisions leading to the project’s approval.

Construction stopped after the Federal Court set aside two of the disputed decisions and remanded them for redetermination. The appellant appealed and moved to stay the Federal Court’s order until there was a final judgment on the appeal.

Last May 2, in Canadian National Railway Company v. Halton (Regional Municipality), 2024 FCA 84, the Federal Court granted the stay motion. First, the court found a serious issue in this case. Second, the appellant would suffer irreparable harm if the stay was not granted and if the appeal ultimately succeeded, the court said.

Lastly, the balance of convenience favoured granting the stay, the court ruled. The appellant’s costs of suspending construction and the public interest in completing the project appeared to outweigh the harmful effects of emissions from construction activities, the court explained.

The court scheduled WestJet v. Lareau et al, A-267-22 on June 20, Thursday. In this case, the Canadian Transportation Agency ordered the appellant to pay the respondent compensation relating to a flight cancellation.

The appellant challenged the agency’s decision. The agency – invoking s. 41(4) of the Canada Transportation Act, 1996 – argued that it could participate as of right in an appeal from its own decision.

Last Apr. 19, in Westjet v. Lareau, 2024 FCA 77, the Federal Court issued a judgment construing the matter as an informal motion for directions under r. 54 of the Federal Courts Rules, S.O.R./98-106. The court granted the motion, allowed the agency to file its memorandum of fact and law, and held that the agency could participate in the appeal’s hearing.

Federal Court

The court set Kobold Corporation et al. v. NCS Multistage Inc., T-451-20 on June 18, Tuesday. Here, the plaintiffs alleged that the defendant infringed and induced others to infringe a patent involving a tension release packer for a bottomhole assembly.

The plaintiffs filed a motion under r. 51 of the Federal Courts Rules. They challenged the case management judge’s dismissal of its request for an order compelling the defendant to provide a further and better affidavit of documents and Schedule 1 productions.

Last Mar. 4, in Kobold Corporation v. NCS Multistage Inc., 2024 FC 286, the Federal Court granted the motion, set aside the judge’s decision, and directed the defendant to provide a further and better affidavit of documents and Schedule 1 productions.

The court scheduled McCain Foods Limited v. J.R. Simplot Company et al, T-1624-17 on June 19, Wednesday. Here, the plaintiff claimed that the defendant infringed a patent relating to a process for treating vegetables and/or fruit with a pulsed electrical field before cooking to reduce the resistance to cutting.

The case management judge determined that r. 237(3) of the Federal Courts Rules did not permit the court to order the examination for discovery of an employee of a company’s subsidiary as the company’s representative if the company did not agree to the employee acting as such.

On Aug. 27, 2021, in McCain Foods Limited v. J.R. Simplot Company, 2021 FC 890, the Federal Court dismissed the motion for appeal from the judge’s decision. Rule 237(3) did not allow the court to order such an examination, given that the employee would not be considered the company’s representative under r. 237(1) of the Federal Courts Rules in that situation, the court said.

The court set Deltro Electric Ltd. v. Continental Casualty Company c.o.b. CNA Canada et al, T-644-22 on June 21, Friday. In this case, the plaintiff asked for damages for damaged and/or lost cargo under an insurance policy. The plaintiff also wanted an order granting relief from forfeiture under the policy.