Decision Date: December 3, 2018

Panel: Alan Andison

Keywords: Environmental Management Act – s. 91.11(5); Administrative Tribunals Act – s. 25; stay application; spill response information order; constitutional division of powers

Canadian National Railway Company, Canadian Pacific Railway Company, and BNSF Railway Company (the “Applicants”) appealed Spill Response Information Orders (the “Orders”) issued by the Director of the Environmental Emergency Program (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”). The Orders required each of the railway companies to provide information to the Director about their respective transportation of crude oil (by volume and route) through BC for the years 2018 to 2020, in accordance with a schedule set out in the Orders. For example, the Orders stated that the information for January 1, 2018 to September 30, 2018 was required by November 30, 2018.

The Orders were issued under Division 2.1 of the Environmental Management Act (the “Act”), which sets out requirements regarding spill preparedness, response and recovery that apply to certain federally regulated railways operating in BC. In particular, section 91.11(5) of the Act authorizes a director to request information relating to the substances transported by regulated persons.

The dissemination of information regarding the shipment of dangerous goods by rail, including crude oil and bitumen, is also regulated under Protective Direction No. 36 (“PD 36”), issued by the federal Minister of Transport under the federal Transportation of Dangerous Goods Act, 1992.

In their Notices of Appeal, the Applicants argued that the Director lacked the constitutional jurisdiction to issue the Orders. In summary, they submitted that the provincial legislation relied upon as authority for the Orders was outside of the province’s legislative authority under sections 92(13) and 92(16) of the Constitution Act, 1867.

Each of the Applicants applied for a stay of the Orders, pending the Board’s decision on the merits of the appeals.

In their stay applications, the Applicants submitted that, if a stay was denied and they were required to comply with the Orders, the consequences could be dire. The Applicants submitted that the confidentiality of information regarding the volume and routing of dangerous goods transported by railways is protected by a robust federal regime, and if this information was made public, it could be used to plan and execute a malicious attack on the railways.

In response to the stay applications, the Director offered to keep the information confidential except as required by law, until either a resolution of the appeals in favour of the Director, or the appeals are withdrawn, or as otherwise agreed to by the parties.

In determining whether the stay applications ought to be granted, the Board applied the three-part test set out in the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.). The Director did not contest the first two parts of the test; i.e., that the appeals raised serious issues to be decided; and, the Applicants’ interests would likely suffer irreparable harm unless a stay was granted. Regarding the third part of the test, the Director argued that the balance of convenience favoured granting a stay based on the terms of his proposal; i.e., that the Applicants would disclose the information to the Director in accordance with the Orders, but he would keep the information confidential.

The Board concluded that the balance of convenience weighed in favour of granting a stay of the Orders. However, the Board declined to impose the Director’s proposed terms for a stay. The Board found that, once the information was disclosed to the Director, the disclosure could not be reversed, and there was no authority for the proposition that the information could be prevented from subsequent disclosure to the public. Specifically, the Board was not convinced that ordering a stay based on the Director’s proposed terms would protect the information, once it was in the Ministry’s possession, from a request from the public for disclosure under the BC Freedom of Information and Protection of Privacy Act.

The Board also found that there would be no prejudice to the Director if a stay was granted without the Director’s proposed terms. The Board found that the Director had not established that he required the information to support the Ministry’s emergency planning and preparedness objectives. There was no emergency preparedness void that needed to be filled, given that railway transport of dangerous goods was already covered by federal legislation, and the information was already provided to other government agencies.

Accordingly, the stay applications were granted.