Agency File No. 19-00189 CANADIAN TRANSPORTATION AGENCY IN THE MATTER OF: Investigation into possible freight rail service issues in the Vancouver area, pursuant to subsection 116(1.11) of the Canada Transportation Act, S.C. 1996, c.10, as amended BETWEEN: CANADIAN TRANSPORTATION AGENCY - and – CANADIAN NATIONAL RAILWAY COMPANY AUTHORITIES TO THE RESPONSE ON BEHALF OF CANADIAN NATIONAL RAILWAY COMPANY 1500, 410 22nd Street East Saskatoon SK S7K 5T6 Lawyer in charge of file: Douglas C. Hodson, Q.C. Phone: (306) 975-7101 Fax: (306) 975-7145 Email: [email protected] LIST OF AUTHORITIES Case Authorities Tab 2747-3174 Québec Inc. c. Québec (Régie des permis d'alcool), [1996] 3 SCR 919 ................................... A A.L. Patchett & Sons Ltd. v Pacific Great Eastern Railway, [1959] SCR 271 .............................................. B Arsenault v Treasury Board (Department of National Defence), 2016 FCA 179 .......................................... C Baker v Canada (Minister of Citizenship & Immigration), 1999 SCC 699 .................................................... D Bell Canada v 7262591 Canada Ltd., 2018 FCA 174 ................................................................................... E Canadian Cable Television Assn. v American College Sports Collective of Canada Inc., [1991] 3 FC 626 (FCA) ................................................................................................................................................ F Canadian National Railway v Viterra Inc., 2017 FCA 6 ............................................................................... G Harris v. Barristers' Society (Nova Scotia), 2004 NSCA 143 ........................................................................ H Hutchinson v Canada (Minister of the Environment), 2003 FCA 133 ............................................................ I Robotham v WestJet Airlines, 2014 ONSC 3141 ......................................................................................... J Decisions Decision No. 360-R-2014 ............................................................................................................................. K Letter Decision No. 2014-10-03 .................................................................................................................... L Russel Metals Inc. v Canadian Pacific Railway Company, Decision No. 273-R-2012 ................................ M Other References Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 ....................................................................................................................... N Hansard, Senate Debates, Vol. 150 No. 158, 09 November 2017 .............................................................. O 2 2747-3174 Québec Inc. c. Québec (Régie des permis d'alcool), 1996 CarswellQue 965 1996 CarswellQue 965, 1996 CarswellQue 966, [1996] 3 S.C.R. 919... 1996 CarswellQue 965 Supreme Court of Canada 2747-3174 Québec Inc. c. Québec (Régie des permis d'alcool) 1996 CarswellQue 965, 1996 CarswellQue 966, [1996] 3 S.C.R. 919, [1996] S.C.J. No. 112, 140 D.L.R. (4th) 577, 205 N.R. 1, 42 Admin. L.R. (2d) 1, 66 A.C.W.S. (3d) 1012, J.E. 96-2212, EYB 1996-67914 Le Procureur général du Québec (appelant) et La Régie des alcools, des courses et des jeux (appelante) c. 2747-3174 Québec Inc. (intimée) Lamer C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. Heard: March 27, 1996 Judgment: November 21, 1996 Docket: 24309 Proceedings: Reversing 65 Q.A.C. 245, (sub nom. Québec (Procureur général) c. 2747-3174 Québec Inc.) [1994] R.J.Q. 2440, (sub nom. 2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec) 122 D.L.R. (4th) 553 (C.A.) Counsel: Jean-Yves Bernard and Benoît Belleau, for appellants. Simon Venne and Marie Paré, for respondent. Subject: Public; Constitutional Headnote Liquor control --- Liquor licencing and control boards — Powers and procedures — Appeal or review — Grounds — General Liquor control — Liquor licencing and control boards — Powers and procedures — Appeal or review — Grounds — Liquor control board revoking bar's liquor permits following complaints of excessive noise — Board exercising quasi- judicial function and having to comply with requirements of impartiality and independence — Board being sufficiently independent despite government's powers to dismiss directors for specific reasons and large number of contacts between board and cabinet minister — Reasonable apprehension of bias arising because board's employees investigating and prosecuting complaints as well as participating in adjudication of complaints — Board's directors not being impartial because having power to both decide to hold hearing following investigation and to participate in adjudication — Board's decision being quashed because decision not being made by independent and impartial tribunal — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) — Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2, 75, 86(8). Administrative law --- Requirements of natural justice — Bias Administrative law — Requirements of natural justice — Bias — Liquor control board revoking bar's liquor permits following complaints of excessive noise — Board exercising quasi-judicial function and having to comply with requirements of impartiality and independence — Board being sufficiently independent despite government's powers to dismiss directors for specific reasons and large number of contacts between board and cabinet minister — Reasonable apprehension of bias arising because board's employees investigating and prosecuting complaints as well as participating in adjudication of complaints — Board's directors not being impartial because having power to both decide to hold hearing following investigation and to participate in adjudication — Board's decision being quashed because decision not being made by independent and impartial tribunal — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) — Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2, 75, 86(8). Human rights --- Miscellaneous issues Human rights — Right to independent and impartial tribunal — Liquor control board revoking bar's liquor permits following complaints of excessive noise — Board exercising quasi-judicial function and having to comply with requirements of impartiality and independence — Board being sufficiently independent despite government's powers to Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1 2747-3174 Québec Inc. c. Québec (Régie des permis d'alcool), 1996 CarswellQue 965 1996 CarswellQue 965, 1996 CarswellQue 966, [1996] 3 S.C.R. 919... dismiss directors for specific reasons and large number of contacts between board and cabinet minister — Reasonable apprehension of bias arising because board's employees investigating and prosecuting complaints as well as participating in adjudication of complaints — Board's directors not being impartial because having power to both decide to hold hearing following investigation and to participate in adjudication — Board's decision being quashed because decision not being made by independent and impartial tribunal — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) — Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2, 75, 86(8). The provincial liquor control board, which was responsible for issuing and cancelling liquor permits, revoked the permit of the bar following a hearing into complaints of excessive noise. Section 75 of the Act respecting liquor permits (Que.) required that a permit holder not disturb the public tranquility, and s. 86(8) of the Act allowed the board to cancel a permit for a violation of s. 75. The bar claimed that the board's decision violated s. 23 of the Charter of Human Rights and Freedoms (Que.), which states that every person has the right to a hearing by an independent and impartial tribunal for the determination of his or her rights and obligations. Section 56(1) of the Charter states that a tribunal, for the purposes of s. 23, included an agency exercising quasi-judicial functions. The bar claimed that the board was not impartial because its employees participated in every stage of the complaint process, including the investigation and the filing of complaints, the presentation of the case before the directors, and the making of the board's decision. The board's lawyers both made submissions to the directors, who made the decision to cancel a permit, and then advised the directors, who had no legal training, in making their decision. The directors had the power to both decide to hold a hearing and to decide the case on its merits. As well, the bar claimed that the board was not independent, because its directors held office for only five-year terms, and their appointment could be revoked by the government before the expiry of the term for specific grounds such as defalcation, mismanagement, or gross fault. The bar also claimed that the board was not independent, because the board was under the control of a cabinet minister who evaluated the board's chair, and who could require information concerning the board's activities. The bar successfully challenged the decision before the Quebec Superior Court. The court declared that s. 2 of the Act, which established the board, was invalid because the board did not comply with s. 23. The Quebec Court of Appeal reversed the Superior