36223 Canadian Pacific Railway Company v. Attorney General of Canada, et al.  (Administrative law — Canadian Transportation Agency — Independence of Agency — Fettering of discretion to pass regulations)

On appeal from the decision of the Federal Court of Appeal. In 2014, the federal government passed Bill C-30, which became the Fair Rail for Grain Farmers Act. CP says that the proponents of Bill C-30 made numerous public pronouncements indicating that the government intended the Agency to use its expanded regulation-making power to increase the 30 km interswitching distance to 160 km for all commodities in the Prairie Provinces. (“Interswitching” is a service whereby one railway company picks up a shipper’s traffic at the shipper’s siding facility and transports it to an interchange point with a second railway company. The traffic is transferred to the tracks of the second railway company, and the line haul is completed.) CP alleges that Bill C-30 actually continued or extended the Agency’s discretion to make regulations. It says that the Agency then made regulations echoing the Government’s stated intentions without engaging in an independent assessment of the need for or efficacy of extending the interswitching distance limit, or forming an opinion on what would have been an appropriate distance, or whether that distance ought to apply to all regions or all commodities. CP also says that the Agency did not consult any affected parties on these issues. The amendments also prescribed the rate to be paid to the railway company for interswitching. In so amending the regulation, the Agency stated that it was required to prescribe new regulations to extend the interswitching distance from 30 km to 160 km for all commodities in the Prairie Provinces.

The Federal Court of Appeal dismissed CP’s leave to appeal the Extended Interswitching Regulations pursuant to s. 41 of the Canada Transportation Act, S.C. 1996, c. 10, without reasons. On April 23, 2015, the Supreme Court of Canada ordered an oral hearing on the application in accordance with s. 43(1)(c) of the Supreme Court Act.

On May 11, 2015, the Court granted the application for leave following the oral hearing.