Federal Court of Appeal allows documents disclosure in favour of Canadian National Railway

The Canadian National Railway Company (CN) has obtained a favourable ruling for disclosure in its appeal before the Federal Court of Appeal against a decision by the Canadian Transportation Agency.

The dispute in Canadian National Railway Company v. Canada (Transportation Agency) 2023 FCA 245 concerned CN's motion for an order requiring the Canadian Transportation Agency to disclose certain documents. CN wanted to place these documents before the appeal court.

CN, specializing in transporting western grain, operates under a revenue cap set by the agency, partly based on a forecast known as the "volume-related composite price index." CN contended that a recent inaccurate forecast unreasonably reduced the rate cap, limiting its charges. However, the agency refused to vary its decisions, prompting CN to appeal.

In its notice of appeal, CN initially sought a broad range of documents, reports, and working papers from the agency. However, the agency objected to the disclosure. Before the oral hearing, CN significantly narrowed its request, focusing on materials related to the decision under appeal and the forecasting models used by the agency.

The Federal Court of Appeal noted that in reviews of administrative decision-making, public scrutiny and meaningful review are interrelated. If an administrative decision-maker improperly withholds the documents and information it relied upon for its decision, the spectre of immunization of decision-making arises. The administrative decision-maker could become a law unto itself, accountable to everyone else.

The appeal court analyzed the relevance of the material sought by CN to its grounds of appeal. The court highlighted that the requested materials may bear upon the revenue cap and price index integral to CN's challenge. The court was satisfied that CN's request was not a fishing expedition and could be relevant to the appeal.

The court deemed irrelevant concerns about materiality, proportionality, and the need for cost-effectiveness. The agency raised deliberative privilege as an issue, but the court clarified its limitations, emphasizing that it cannot be used to withhold key evidence or new arguments. The court also noted that corruption or bad faith allegations might warrant disclosure.

Ultimately, the court issued an order requiring the appeal book to include the specified materials, except for a briefing note covered by deliberative privilege. Acknowledging potential confidentiality issues, the court directed the parties to collaborate on agreed-upon indices for a public and confidential appeal book.