Date: 20250228
Docket: T-390-24
Citation: 2025 FC 384
Toronto, Ontario, February 28, 2025
PRESENT: Mr. Associate Judge Michael D. Crinson
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Applicant
and
MINISTER OF TRANSPORT, DIRECTOR GENERAL, RAIL SAFETY AND
TEAMSTERS CANADA RAIL CONFERENCE
Respondents
ORDER AND REASONS
[1] On this motion brought by the Applicant, Canadian National Railway Company (CN) pursuant to Rule 318 of the Federal Courts Rules, CN has asked for an Order compelling the Minister of Transport (the “Minister”) and the Director General, Rail Safety (“Director General”) (together, the “Transport Respondents”), to provide CN with all documents, material and information that were before the Transport Respondents relating to the making of the Duty and Rest Period Rules of Railway Operating Employees (the “DRP Rules”). In addition, whether or not the above order is granted, CN has asked for a period of sixty days within which to serve its supporting affidavits and documentary exhibits.
[2] For the reasons that follow, the Transport Respondents are ordered to produce the requested documents, and CN shall have sixty (60) days following the production by the Transport Respondents of the documents to serve and file supporting affidavits and documentary exhibits.
[3] On November 25, 2020, the Director General approved new Work/Rest Rules, entitled Duty and Rest Period Rules for Railway Operating Employees (the DRP Rules) for certain railway operators. Those DRP Rules included a maximum cumulative duty period in “any consecutive 7 days”
and in “any consecutive 28 days”
, as required by the Minister pursuant to sections 9.1 and 9.2 of the DRP Rules.
[4] CN sought an exemption from the requirements under sections 9.1 and 9.2 of the DRP Rules. The Director General denied CN’s request for an exemption in a communication dated January 26, 2024, which reads as follows:
On September 25, 2023, Canadian National Railway (CN) applied under subsection 22(4) of the Railway Safety Act (RSA), for an exemption from the requirements of sections 9.1 and 9.2 of the Duty and Rest Period Rules for Operating Employees (DRPR) which addresses employee cumulative duty periods.
Section 22 of the RSA gives the Minister of Transport the authority to exempt a specified railway company from the application of a specified provision of rules in force under section 19 or 20 of the RSA.
In my opinion, granting CN an exemption from the requirements of sections 9.1 and 9.2 of the DRPR is not in the public interest and is likely to threaten safe railway operations.
Having had regard to current railway practice, to the views of the railway company, the views of each relevant association or organization, and to other factors I consider relevant, I, Stephen Scott, Director General, Rail Safety, as authorized by the Minister of Transport under section 45 of the RSA, hereby deny the exemption requested.
[5] Among other things, the Decision noted that the DRP Rules “address important issues associated with operator fatigue and ensure that improved fatigue management practices are a permanent part of safer railway operations in Canada” and that “[c]ritical to addressing fatigue in the rail industry are the increased length of minimum rest period between duty periods…”. The Decision listed a series of considerations and “other factors” that the Director General considered in rendering the Decision but did not specifically detail what those considerations and other factors included.
[6] As part of its Notice of Application, CN requested production, pursuant to Rule 317 of the Federal Courts Rules of, among other things, all “documents, material and information that were before the Director General, Rail Safety and the Ministry of Transport relating to the making of the Duty and Rest Period Rules for Railway Operating Employees” (DRPR Materials)
[7] The Transport Respondents objected to the production of the DRPR Materials on the basis that “the relevance of such documents, material and information has not been established.”
[8] In support of the request on this motion for the DRP Rules Materials the Applicant set forth five grounds to justify the request:
the grounds of review under the Notice of Application establish that the DRPR Materials are relevant. More broadly, the Decision cannot be understood without insight into the background, purpose and development of the DRPR.
the DRPR Materials were before the Director General and directly referenced by him, and he drew upon them in rendering the Decision.
the Director General considered the DRPR when applying the incorrect legal test in the Decision.
the DRPR regulatory scheme formed part of the information the Director General drew upon in making the Decision and this information must therefore form part of the evidentiary record before this Court.
CN’s procedural fairness concerns support the production of the DRPR Materials.
[9] The only basis given by the Transport Respondents for the refusal prior to this motion to produce the documents at issue is relevance, or more specifically that the relevance of such documents, material and information has not been established.
[10] In the context of a motion pursuant to Rule 318 of the Federal Courts Rules (the “Rules”) a document is relevant if it:
… may have affected the decision of the Tribunal or that may affect the decision that this Court will make on the application for judicial review (Telus, supra at paragraph 5; Pathak, supra at paragraph 10)
Maax Bath Inc. v. Almag Aluminum Inc., 2009 FCA 204 at para. 9
[11] Further, on a request for documents pursuant to Rule 317 and a motion pursuant to Rule 318 an absolute determination is not required. To state the test for production as such is to set the bar too high. Rather, as the Federal Court of Appeal instructs, it is sufficient if there is an arguable case that the documents sought might well be relevant to the grounds or relief set out in the pleading:
[17] In assessing relevance, the Court must also remember that Rule 317 is not a summary judgment provision. It is not meant to be a tactical opportunity for a respondent to nip in the bud a judicial review or statutory appeal before complete disclosure is made and analyzed. If there is an arguable case that the documents sought might well be relevant to the grounds or relief set out in the pleading, they should be disclosed. Fine, precise and final determinations of relevance are for the judge or panel hearing the merits of the application or appeal. By then, the judge or panel will have the benefit of the parties’ submissions on the complete evidentiary and legal picture and, thus, will be empowered to make the best possible decision on relevance.
Canadian National Railway Company v. Canada (Transportation Agency), 2023 FCA 245 at para. 17
[12] The decision at issue here is the denial of a request for an exemption from the application of the DRP Rules pursuant to section 22 of the Railway Safety Act, R.S.C. 1985, c.32. Specifically, section 22(2) of that Act provides,
(2) If, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations, he or she may, by notice, on any terms and conditions that are specified in the notice,
(a) exempt a specified company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or (2.1) or of rules in force under section 19 or 20; or
(b) exempt a specified person from the application of a specified provision of regulations made under subsection 18(2).
[13] In rejecting the requested exemption the Director General states, the exemption sought is not in the public interest and is likely to threaten safe railway operations. In arriving at that conclusion, the Director General goes on to add that regard was had “to current railway practice, to the views of the railway company, the views of each relevant association or organization, and to other factors I [the Director General] consider relevant”.
[14] The decision at issue, the reasons given for rejecting the requested exemption and the notice of application make clear that the essence of this proceeding is whether or not the decision is unreasonable or procedurally unfair. The nature of that decision is not a determination of whether the proposed exemption is the most safe practice. Rather it is a comparative exercise to determine whether the proposal is in the public interest and whether it is not likely to threaten safe railway operations.
[15] This is not a situation in which the Applicant is embarking on a fishing expedition. The intent and purpose of the DRP Rules was a factor in the decision that is the subject of this Application. The broad, open-ended and non-specific statement by the Director General to any factors thought to be relevant, has itself made the scope of relevance broader to include what was thought by the Director General to be relevant.
[16] The Director General’s refusal included as factors “current railway practice” which should be expected to include the DRP Rules, and other non-specified factors the Director General considers relevant. I agree with the Applicant that these other non-specified factors might well be argued to include documents, material and information that were before the Transport Respondents relating to the making of those DRP Rules.
[17] In light of the stated considerations and the non-specified factors the Director General considered and given that the DRP Rules are the point of comparison for evaluating an exemption, there is an arguable case that the documents sought might well be relevant to the grounds or relief set out in the notice of application and they should be disclosed. The judge hearing the merits of the application will make the final determination of relevance to the issues ultimately argued before that judge.
[18] As the moving Applicant has been successful on the motion, costs shall be payable by the Respondents on this motion to the Applicant in the cause.
ORDER
THIS COURT ORDERS that:
The Minister of Transport and the Director General, Rail Safety shall deliver to the Applicant with all documents, material and information that were before the Director General, Rail Safety and the Ministry of Transport relating to the making of the Duty and Rest Period Rules of Railway Operating Employees.
The Applicant shall within sixty (60) days of receiving the documents referred to in paragraph 1 of this Order serve and file its supporting affidavit(s) and documentary exhibits.
Costs shall be payable by the Respondents on this motion to the Applicant in the cause.
"Michael D. Crinson"
Associate Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-390-24
STYLE OF CAUSE:
CANADIAN NATIONAL RAILWAY COMPANY v MINISTER OF TRANSPORT, DIRECTOR GENERAL, RAIL SAFETY AND TEAMSTERS CANADA RAIL CONFERENCE
THE MATTER WAS HEARD VIA ZOOM VIDEOCONFERENCE
DATE OF HEARING:
June 28, 2024
ORDER AND REASONS:
CRINSON A.J.
DATED:
FEBRUARY 28, 2025
APPEARANCES:
Guy Pratte
Veronica Sjolin
Nadia Effendi
For The Applicant
Sean Gaudet
Laura Tausky
Uyen Tran
For The Respondents
MINISTER OF TRANSPORT AND THE DIRECTOR GENERAL, RAIL SAFETY
Michael Church
For The Respondent
TEAMSTERS CANADA RAIL CONFERENCE
SOLICITORS OF RECORD:
Borden Ladner Gervais LLP
Toronto, ON
For The Applicant
Attorney General of Canada
Department of Justice
Ontario Regional Office
For The Respondents
MINISTER OF TRANSPORT AND THE DIRECTOR GENERAL, RAIL SAFETY
CALEYWRAY
Toronto, ON
For The Respondent
TEAMSTERS CANADA RAIL CONFERENCE