IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
British Columbia (Environmental  
Management Act) v. Canadian National  
Railway Company,  
2022 BCSC 135  
Date: 20220128  
Dockets: S202461 and S202967  
Registry: Victoria  
In the matter of the Environmental Appeal Board, Decision Nos. 2018-EMA-043(c),  
2018-EMA-044(c) and 2018-EMA-045(c) [Group File: 2018-EMA-G03], and in the  
matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241  
Between:  
Director, Environmental Management Act and  
Attorney General of British Columbia  
Petitioners  
And:  
Canadian National Railway Company,  
Canadian Pacific Railway Company, and  
BNSF Railway Company  
Respondents  
And:  
Environmental Appeal Board  
Respondent  
Before: The Honourable Mr. Justice Steeves  
Reasons for Judgment  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 2  
Counsel for the Petitioners:  
M. Rankin and K. Wolfe  
Counsel for the Respondents  
Canadian National Railway Company  
and Canadian Pacific Railway Company:  
N. R. Hughes and K. Hanowski  
Counsel for the Respondent  
BNSF Railway Company  
R.R.E. DeFilippi  
R.J.B. Gage  
Counsel for the Respondent  
Environmental Appeal Board:  
Place and Date of Trial/Hearing:  
Victoria, B.C.  
June 21 - 25, 2021  
and July 20, 2021  
Place and Date of Judgment:  
Victoria, B.C.  
January 28, 2022  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 3  
Table of Contents  
Paragraph  
Range  
A. INTRODUCTION  
[1] - [8]  
[9] - [22]  
B. BACKGROUND  
C. CONSTITUTIONAL QUESTION  
D. THE THREE DECISIONS OF THE EAB  
(a) Decision of September 10, 2019  
(b) Decision of September 17, 2019  
(c) Decision of May 29, 2020  
E. ANALYSIS  
[23] - [27]  
[28] - [39]  
[29] - [33]  
[34] - [36]  
[37] - [39]  
[40] - [386]  
[45] - [146]  
[47] - [61]  
[62] - [65]  
[66] - [86]  
[87] - [140]  
(a) Confidentiality  
(i) EAB decision of September 10, 2019  
(ii) EAB decision of September 17, 2019  
(iii) The standard of review  
(iv) Applying the standard: were the EAB’s confidentiality  
decisions reasonable?  
1. The nature of a reasonableness review  
2. Sections 41 and 42 of the ATA and the common law  
3. Balancing of interests  
[88] - [93]  
[94] - [106]  
[107] - [118]  
[119] - [137]  
[138] - [140]  
[141] - [146]  
[147] - [251]  
[151] - [160]  
[161] - [163]  
[164] - [173]  
[174] - [244]  
[176] - [185]  
[186] - [204]  
[205] - [225]  
[226] - [244]  
[245] - [251]  
[252] - [277]  
[278] - [318]  
[286] - [288]  
4. Procedural issues  
5. Decision of September 17, 2019  
(v) Summary  
(b) Two-step constitutional analysis  
(i) Constitutional Context  
(ii) EAB decision of May 29, 2020  
(iii) Positions of the parties  
(iv) Discussion of constitutional issues and evidence  
1. Evidence relied on by the EAB  
2. Are interprovincial railways targeted?  
3. Operations and management of federal undertakings  
4. Security of interprovincial railways  
(v) Pith and substance of s. 91.11 of the EMA  
(c) Assignment to a class in s. 91 or s. 92  
(d) Interjurisdictional immunity  
(i) Decision of the EAB  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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(ii) Positions of the parties  
(iii) Discussion  
[289] - [297]  
[298] - [318]  
[319] - [329]  
[330] - [386]  
[332] - [336]  
[337] - [340]  
[341] - [345]  
[346] - [386]  
[347] - [363]  
[364] - [386]  
[365] - [370]  
[371] - [386]  
[387] - [400]  
(e) Double aspect, ancillary powers and incidental effects  
(f) Paramountcy  
(i) Legal Context  
(ii) EAB decision of May 29, 2020  
(iii) Positions of the parties  
(iv) Discussion  
1. Error in the reasoning of the EAB  
2. Federal paramountcy does not apply  
Operational conflict  
Frustration of purpose  
F. SUMMARY  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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A.  
INTRODUCTION  
[1]  
In this judicial review under the Judicial Review Procedure Act,  
R.S.B.C. 1996, c. 241 (JRPA”) three decisions of the Environmental Appeal Board  
(“EAB”) dated September 10, 2019, September 17, 2019 and May 29, 2020 are  
challenged by way of two petitions with separate court files. They were heard  
together.  
[2]  
The Petitioners are the Director appointed under the Environmental  
Management Act, S.B.C. 2003, c. 53 (“EMA”) and the Attorney General of British  
Columbia, representing the Province of British Columbia (“Petitioners” or “Province”).  
The Respondents are the Canadian National Railway Company (“CNR”), Canadian  
Pacific Railway Company (“CPR”) and BNSF Railway Company (“BNR”)  
(“Railways”). The Railways are interprovincial railways for the purposes of the  
Constitution Act, 1867, (U.K.), 30 & 31 Vic., c. 3, reprinted in R.S.C. 1985, App. II,  
No. 5 [Constitution Act]. The broad issue in the EAB decisions and the two petitions  
is the constitutionality of the spill contingency planning provisions under s. 91.11 of  
the EMA, a statute of the Province of British Columbia. A definition of “regulated  
person” in the Spill Preparedness and Recovery Regulations, B.C. Reg. 185/2017  
(“Spill Regulation”) is also challenged. There is also an issue regarding the EAB  
granting a confidentiality order over certain documents, and hearing evidence in the  
absence of the public and the media (i.e., holding an in camera hearing).  
[3]  
The EAB decision of September 10, 2019 allowed an application by the  
Railways to have some of the documentary evidence sealed from the public and the  
media. The Railways say this information is security sensitive. The EAB decision of  
September 17, 2019 confirmed the reasoning of the previous decision and allowed  
an application by the Railways to hear some evidence in camera.  
[4]  
The EAB decision of May 29, 2020 agreed with the Railways that s. 91.11 of  
the EMA and s. 2(1)(b)(i) of the Spill Response and Preparedness Recovery  
Regulations, B.C. Reg. 185/2017 (“Spill Regulation”) regulate interprovincial railways  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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and, therefore, they are ultra vires the Province of British Columbia. However, the  
EAB disagreed with the Railways that the doctrine of federal paramountcy applies.  
[5]  
In its petition filed on July 27, 2020, the Province seeks judicial review of all  
three of the EAB’s decisions. In particular, the Province seeks an order setting aside  
the EAB’s decisions and, with respect to the constitutionality decision, remitting the  
matter back to a differently constituted panel with directions. The Province also  
seeks a declaration from this Court that s. 91.11(5) of the EMA and s. 2(1)(b)(i) of  
the Spill Regulation are validly enacted by the Province.  
[6]  
The Railways oppose the relief sought by the Petitioners in the one petition.  
In a cross-petition filed on September 14, 2020, the Railways seek a declaration that  
s. 91.11(5) of the EMA is inoperative against them by virtue of federal paramountcy.  
[7]  
The parties agree that the standard of review for the EAB decision of May 29,  
2020 is correctness. However, for the decisions of September 10, 2019 and  
September 17, 2019, the Petitioners say the standard is correctness while the  
Railways say the standard is reasonableness.  
[8]  
The Government of Canada was given notice of the constitutional issues  
raised in the petitions but it did not appear.  
B.  
BACKGROUND  
[9]  
In October of 2017, in response to questions in the provincial legislature  
about the July 2013 railway accident in Lac-Mégantic, Québec, the Government of  
British Columbia brought into force new spill preparedness, response, and recovery  
requirements under the EMA. It says the change is “part of a comprehensive set of  
legislative amendments intended to establish a world leading spill response regime  
that would address the risks associated with rapidly increasing volumes of crude oil  
and diluted bitumen being transported through British Columbia.”  
[10] The requirements are set out in Part 7, Division 2.1, s. 91.11 of the EMA and  
in the Spill Regulation. Section 91.11 of the EMA provides:  
 
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Railway Company  
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Regulated persons -- spill contingency planning  
91.11 (1) A regulated person must ensure that  
(a)  
on or before the prescribed date, the regulated person has a  
spill contingency plan that complies with the regulations,  
(b) the spill contingency plan is reviewed, updated and tested in  
the prescribed manner and at the prescribed frequency,  
(c) the spill contingency plan is made available to employees of  
the regulated person in accordance with the regulations,  
(d) the spill contingency plan demonstrates that the regulated  
person has the capability to effectively respond to a spill, and  
(e) if required by the regulations, the spill contingency plan is  
published in accordance with the regulations.  
(2)  
Before a spill contingency plan is prepared in relation to a regulated  
person, the regulated person must ensure that investigations, tests and  
surveys are undertaken in accordance with the regulations, if any, that are  
necessary to determine the magnitude of the risk to  
(a)  
(b)  
the environment and human health, and  
infrastructure  
that would result from a spill of the substance in respect of which the  
person is a regulated person.  
(3)  
A regulated person must ensure that, in accordance with the  
regulations,  
(a)  
records respecting investigations, tests and surveys referred to  
in subsection (2) are prepared and kept for the prescribed period,  
(b)  
(c)  
prescribed reports are prepared and submitted to a director,  
employees of the regulated person receive prescribed training  
to prescribed standards, and  
(d)  
employees of the regulated person engage in spill response  
training exercises and drills in the prescribed manner and at the  
prescribed frequency.  
(4)  
A regulated person must ensure that, if a spill occurs, a spill  
contingency plan is implemented to the extent the plan is applicable.  
(5) If ordered by a director, a regulated person must provide to the  
director, at the regulated person's own expense and in the time and manner  
specified by the director,  
(a)  
(b)  
a copy of the regulated person's spill contingency plan,  
information relating to  
(i)  
the operations or activities of the industry, trade or  
business, or  
(ii)  
substances used, stored, treated, produced or  
transported by the regulated person,  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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(c)  
prescribed declarations in respect of spill preparedness and  
response capability, and  
(d)  
prescribed information.  
(6)  
A director who requests a copy of a spill contingency plan may order  
that the spill contingency plan be amended in accordance with the director's  
directions and resubmitted in the time specified by the director, if the director  
is satisfied that the spill contingency plan does not comply with this Act or the  
regulations.  
(7)  
A director may order a regulated person to test the efficacy of the  
regulated person's spill contingency plan in the time and manner specified by  
the director.  
[11] The requirements in s. 91.11 of the EMA apply to a “regulated person”, which  
is defined in s. 2(1) of the Spill Regulation to include a person who transports  
defined substances (including crude oil or diluted bitumen) by railway or highway in  
a quantity of 10,000 litres or more.  
Regulated person  
2(1) For the purposes of the definition of “regulated personin section 91.1 of  
the Act, the following substances in the following quantities are prescribed:  
(a)  
a listed substance in any quantity, in the case of a person who  
transports the substance through a pipeline;  
(b) a listed substance in a quantity of 10 000 litres or more, in the case of  
(i)  
a person who transports the substance by railway, or  
(ii)  
a person who transports the substance on a highway.  
[Emphasis added].  
[12] The Railways in these petitions meet this definition.  
[13] The Director, Environmental Management Act, is a person employed by the  
Province and designated in writing by the Minister as a director of waste  
management (EMA, s.1(1)). In this case, the Director of Waste Management  
delegated authority to administer Division 2.1 of the EMA to the Director of British  
Columbia’s Environmental Emergency Program, Peder Brach (the “Director”). The  
Attorney General of British Columbia represents the Director and the Government of  
British Columbia and, pursuant to the Constitutional Question Act, R.S.B.C. 1996,  
c. 68, it participated in these proceedings and before the EAB.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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[14] The EAB is a statutory tribunal constituted under Part 8 of the EMA. It hears  
appeals from decisions made pursuant to the EMA. It participated in the hearing of  
these petitions.  
[15] CNR and CPR are Class I Rail Carriers under the Canada Transportation Act,  
S.C. 1996, c. 10. They are interprovincial railways with operations between  
provinces in Canada, including British Columbia, and throughout North America,  
including Washington State. BNR is a United States rail carrier which is federally  
regulated in Canada and it operates approximately 30 kilometres of railway track in  
the Vancouver area of British Columbia. The operations of the Railways are  
governed by federal legislation including the Railway Safety Act, R.S.C. 1985, c. 32  
(“RSA”) and the Transportation of Dangerous Goods Act, S.C. 1992, c. 34 (“TDGA”),  
and other federal laws.  
[16] Under s. 32 of the TDGA, on April 28, 2016, the federal Minister of Transport  
issued Protective Direction No. 36 (“PD 36”) which applies to the three railways who  
are parties in these petitions. This was a successor to Protective Direction No. 32  
(“PD 32”). Among other things, PD 36 requires railways to publish on their websites  
a chart that identifies the top 10 dangerous goods being shipped in each province.  
More detailed information is provided by the railways to local planning offices,  
including provincial officials, but under confidentiality restrictions. I will discuss PD 36  
in detail below.  
[17] On September 28, 2018 the Director issued spill response orders under  
s. 91.11 of the EMA to the Railways. These are separate from any requirements  
under the federal TDGA and PD 36 and they are the objects of the two subject  
petitions. A copy of parts of the orders are set out below.  
[18] The Director’s orders required the Railways to provide information about the  
shipment of crude oil and diluted bitumen. They were to provide the number of  
railcars transporting those substances and the volumes being transported, week by  
week, route by route and in British Columbia overall, on a quarterly basis from 2018  
to 2020. Other information required were electronic maps showing transportation of  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 10  
crude oil or diluted bitumen. The information was to be published by the Ministry of  
Environment and Climate Change Strategy (“Ministry”) at regular intervals after  
notice to the Railways. The intention was to publish the same information as  
collected and made public by the State of Washington, United States. I set out the  
details of these orders below. Publication is an issue under the issue of federal  
paramountcy and it is also discussed below.  
[19] In October 2018 the Railways offered to provide the information sought by the  
Director to the Ministry on the same confidential basis as set out in PD 36. The  
Ministry declined.  
[20] The Railways appealed the orders of the Director to the EAB on constitutional  
grounds. As part of its hearing process, the EAB allowed applications by the  
Railways to seal documents considered sensitive to security issues of the Railways  
and evidence about those documents was heard in camera. These were the  
decisions of September 10, 2019 and September 17, 2019.  
[21] The EAB also agreed with the Railways about the constitutionality of s. 91.11  
of the EMA and found it to be ultra vires the Province of British Columbia. This was  
the May 29, 2020 decision of the EAB. The EAB disagreed with the Railways that  
federal paramountcy applied.  
[22] The three decisions of the EAB are now the subjects of the two petitions.  
C.  
CONSTITUTIONAL QUESTION  
[23] In a notice dated May 21, 2021, the Railways delivered their constitutional  
questions to the Attorney General of Canada, the Director and the Attorney General  
of British Columbia. This notice is drafted somewhat differently than the pleadings of  
the Railways.  
[24] The notice was (attachments not included):  
TAKE NOTICE THAT on June 21st, 2021 in the Supreme Court of British  
Columbia (Victoria Registry), in proceeding nos. VIC-S-202461 and  
VIC-S-202967:  
 
British Columbia (Environmental Management Act) v. Canadian National  
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1.  
Canadian Pacific Railway Company (“CP”) and Canadian National  
Railway (“CN” and, collectively with CP, the “Railways”) intend to  
challenge the constitutional validity, constitutional applicability, and  
constitutional operability of:  
(a)  
Section 91.11 of the Environmental Management Act, S.B.C.  
2003, c. 53 (the “Act”); and  
(b)  
Section 2(b)(i) of the Spill Preparedness Response and  
Recovery Regulation, B.C. Reg. 185/2017 (the “Regulation”),  
(collectively, the “Impugned Legislation”).  
2.  
3.  
The material facts giving rise to these constitutional questions are set  
forth in paragraphs 1-58 of the Railways’ Petition Response in  
proceeding No. S-202461 (Victoria Registry) and paragraphs 1-6 of  
Part 2 of the Railways' Petition to the Court in proceeding  
No. S-202967 (Victoria Registry), copies of which are attached.  
The Railways intend to challenge the constitutional validity,  
applicability, and operability of the Impugned Legislation on the  
following bases, some of which are in the alternative:  
(a)  
The Impugned Legislation is ultra vires the Province as outside  
the Province’s legislative authority under s. 92 of the  
Constitution Act, 1867. The Impugned Legislation specifically  
targets federal undertakings by purporting to regulate virtually  
all aspects of the spill planning and preparedness practices of  
interprovincial railways. By virtue of sections 91(29) and  
92(10) of the Constitution Act, 1867, railways that cross  
provincial boundaries -- whether into another province or into  
another country -- are solely within federal jurisdiction. The  
Impugned Legislation is an unlawful attempt to single out and  
regulate the activities of interprovincial undertakings contrary  
to s. 92(10)(a) and (c) of the Constitution Act, 1867.  
(b)  
(c)  
The Impugned Legislation is constitutionally inapplicable to the  
Railways by virtue of interjurisdictional immunity because the  
Impugned Legislation impairs the core of the federal power  
over interprovincial undertakings or vital aspects of the  
Railways’ undertakings, including spill preparedness and  
planning and safety and security and the Railways’ allocation  
of personnel and resources in relation to those things.  
The Impugned Legislation, and the orders issued to the  
Railways under the Impugned Legislation by the Director,  
Environmental Management Act (the “Orders”), are  
constitutionally inoperable on the basis of paramountcy.  
Protective Direction No. 36 (“PD 36”), issued under s. 32 of the  
Transportation of Dangerous Goods Act, 1992, S.C. 1992,  
c. 34, provides for disclosure of certain information to  
municipalities under strict terms of confidentiality. The  
Impugned Legislation and the Orders would require the  
disclosure of that information to the Province, without any  
confidentiality protections. The Impugned Legislation and the  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 12  
Orders conflict with and undermine the purpose of the  
paramount federal legislative regime, which includes the  
Transportation of Dangerous Goods by Rail Security  
Regulations, SOR/2019-113, the Transportation of Dangerous  
Goods Act, 1992, S.C, 1992, c. 34, the Canada Transportation  
Act, S.C. 1996, c. 10, and the Railway Safety Act,  
R.S.C. 1985, c. 32 (4th Supp.), and consequently the  
Impugned Legislation and the Orders are constitutionally  
inoperative.  
[Emphasis in original].  
[25] As can be seen, in this notice of constitutional questions, the Railways  
challenge all of s. 91.11 as being ultra vires the authority of the Province. However,  
the Province in its petition and submissions focuses specifically on s. 91.11(5)(b)(i)  
of the EMA because, in their submission, that was the basis of the Director’s original  
orders in September 2018.  
[26] They say that the Director’s decisions were made under that provision and a  
proper construction of s. 99 and s. 100 of the EMA means that the authority of the  
EAB is limited to examining only s. 91.11(5)(b)(i). Once that analysis is complete  
then consideration of the broader context of the EMA can take place.  
[27] I note that the constitutional question posed by the Railways relates to  
s. 91.11 in its entirety, as set out above. Their challenge is clearly to what they claim  
to be an invalid intrusion by the Province into federal jurisdiction and, in my view, it  
would be artificial to limit that challenge to s. 91.11(5)(b)(i). I conclude that it is  
necessary to read the specific requirement to disclose information in s. 91.11(5)(b)(i)  
within the overall regulatory scheme as set out in s. 91.11. I must consider s. 91.11  
as a whole to determine that issue (Canadian National Transportation Ltd. v.  
Canada (Attorney General), [1983] 2 S.C.R. 206, at 270; Canadian National Railway  
Co. v. Courtois, [1988] 1 S.C.R. 868, at 894-895).  
D.  
THE THREE DECISIONS OF THE EAB  
[28] As above, the two petitions relate to three decisions of the EAB,  
September 10, 2019, September 17, 2019 and May 29, 2020. I summarize those  
decisions here.  
 
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(a)  
Decision of September 10, 2019  
[29] The EAB titled this decision “Application for Confidentiality Order.” In it, the  
EAB considered the application by the Railways (appellants before them) for a  
confidentiality order with respect to certain information before the EAB. The EAB  
allowed the application and the Petitioners seek a review of this decision.  
[30] This decision was made under s. 41 of the Administrative Tribunals Act,  
S.B.C. 2004, c. 45 (“ATA), which applies to the EAB by virtue of s. 93.1(1)(d) of the  
EMA. It requires that oral hearings must be open to the public. However, it also  
authorizes the EAB to “direct that all or part of the information be received to the  
exclusion of the public” where “the desirability of avoiding disclosure in the interests  
of any person or party affected or in the public interest outweighs the desirability of  
adhering to the principle that hearings be open to the public ...”  
[31] The basis of the Railways’ application to the EAB was their concern that  
some information (“Confidential Documents” and “Confidential Paragraphs”) required  
for the hearing before the EAB raised issues about the gathering and analyzing of  
security intelligence and the ability of the Railways to protect shipment by rail of  
things like crude oil. There were also concerns about third party interests under  
confidentiality agreements.  
[32] The panel concluded that notifying the media or other potentially interested  
parties was not a prerequisite to deciding the application. Further, delaying notice to  
the media and others would delay the hearing and none of the parties wished to do  
that (at paras. 52, 54).  
[33] The Railways’ application for a confidentiality order was allowed. The panel’s  
reasoning is summarized by the following:  
76.  
Based on the foregoing, I conclude that the important interests of the  
Applicants [Railways] would be protected by preventing public access to the  
Confidential Documents and Confidential Paragraphs, and these interests  
outweigh the public interest in access to that evidence in the appeal process.  
Keeping this evidence confidential to the Board and the parties will protect  
important interests of the Applicants and the public, including the fair  
 
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Railway Company Page 14  
administration of the appeal process, with minimal harm to the public interest  
in open appeal hearings.  
(b)  
Decision of September 17, 2019  
[34] This decision followed the decision of September 10, 2019 and it is recorded  
in a transcript of the proceedings that day. Here, the EAB allowed the Railways’  
application for certain witnesses to testify in camera. The Petitioners seek a review  
of this decision.  
[35] The EAB decision was made under s. 42 of the ATA, which, like s. 41 of the  
ATA, applies to the EAB by virtue of s. 93.1(1)(d) of the EMA. It authorizes the EAB  
to direct that evidence of a witness or documentary evidence will be received in  
confidence “if the tribunal is of the opinion that the nature of the information or  
documents requires that direction to ensure the proper administration of justice.”  
[36] The previous decision to seal some documentary evidence was also  
confirmed. The EAB concluded that, in order to give practical effect to that decision,  
the testimony of some witnesses and the documentary evidence associated with that  
testimony had to be given in camera.  
(c)  
Decision of May 29, 2020  
[37] This was the EAB’s decision on the merits of the Railways’ appeals of the  
Director’s orders. It decided that the impugned provisions of the EMA intruded into  
federal jurisdiction and were ultra vires.  
[38] Both the Petitioners and the Railways seek a review of this decision. The  
Petitioners in one petition challenge the EAB’s decision about the constitutionality of  
the impugned provisions of the EMA. In their response to the Province’s petition, the  
Railways agree with the EAB’s decision on the constitutionality issue but, in their  
cross-petition, the Railways challenge the EAB’s conclusions on federal  
paramountcy.  
   
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Railway Company  
Page 15  
[39] The issues identified by the EAB for this decision were as follows and I have  
included in square brackets my very brief summary of the EAB’s answer to each  
question:  
[59]  
These appeals raise the following issues:  
1)  
Does the Board have jurisdiction to determine the  
constitutional questions raised in these appeals?  
[The panel answered yes; see paras. 103-109]  
2)  
Should the Board first determine the reasonableness or  
necessity of the Orders, and only determine the constitutional  
issues if the Orders are found to be both reasonable and  
necessary?  
[No; see paras 110-120]  
3)  
What is the pith and substance of the Impugned Legislation?  
“[178] … the panel finds that the dominant purpose and effect  
of the Impugned Legislation is to provide a means for the  
Director to assess the Appellants’ [Railways’] spill  
preparedness resources and plans, and to require the  
Appellants to deploy their resources in a manner acceptable to  
the Director. [179] The Impugned Legislation is, in pith and  
substance, regulating the management and operations of  
interprovincial railways in terms of their spill preparedness and  
spill response planning, and is outside the power of the  
Legislature.  
[see paras. 121-179]  
4)  
5)  
6)  
If the Impugned Legislation is within the Legislature’s  
jurisdiction and the Orders are within the Director’s jurisdiction,  
are they inapplicable to the Appellants on the basis of  
interjurisdictional immunity?  
[Yes; see paras. 180-209]  
If the Impugned Legislation is within the Legislature’s  
jurisdiction and the Orders are within the Director’s jurisdiction,  
does the doctrine of paramountcy require that they not operate  
against the Appellants?  
[No; see paras. 210-222]  
If the Route and Volume Information requested in the Orders  
is collected and made available to the public, does this create  
an increased security risk to shipments of Crude Oil?  
[The panel concluded it was unnecessary to decide this issue  
in light of its decision on the constitutional issues; see  
para. 232]  
7)  
Does the collection of the Route and Volume Information in the  
Orders enhance spill preparedness planning?  
British Columbia (Environmental Management Act) v. Canadian National  
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[The panel concluded it was unnecessary to decide this issue  
in light of its decision on the constitutional issues; see  
para. 232]  
E.  
ANALYSIS  
[40] The EAB’s confidentiality decisions and its decision on the constitutional  
issues (including federal paramountcy) are at issue here.  
[41] As above, the EAB agreed with the Railways when it granted a confidentiality  
order and an order for in camera proceedings (decisions dated (September 10,  
September 17, 2019). The EAB also agreed with the Railways that the impugned  
parts of the EMA were ultra vires the Province of British Columbia (decision dated  
May 29, 2020). The EAB declined to answer the Railways’ question about whether  
the Director’s September 2018 orders were necessary or reasonable as a matter of  
security of the Railways. It also declined to consider and decide on the Railways  
expert evidence about security risks that might arise from the public disclosure of  
route and volume information.  
[42] The Petitioners now appeal all three of the EAB’s decisions and the Railways  
appeal the Board’s decision on paramountcy in the May 29, 2020 decision.  
[43] The parties agree that the standard of review for the EAB decision of May 29,  
2020 is correctness. They disagree on the standard for the September 10, 2019 and  
September 17, 2019 decisions; the Petitioners say the standard should also be  
correctness but the Railways say the standard is reasonableness. I discuss this  
issue below as part of the consideration of the two confidentiality decisions and I  
conclude the standard of review for the confidentiality decisions is reasonableness.  
[44] With that background, the following issues require consideration:  
(a)  
The confidentiality issues in the two EAB decisions (September 10,  
2019 and September 17, 2019) to keep confidential certain evidence  
and to hold an in camera hearing for part of the hearing, including the  
standard of review for these decisions;  
 
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(b)  
Step 1 of the two-step analysis for analyzing the pith and substance of  
the impugned legislation and review of the May 29, 2020 decision of  
the EAB on the basis of correctness;  
(c)  
Step 2: assignment to a class under s. 91 or s. 92 of the Constitution  
Act;  
(d)  
(e)  
(f)  
Interjurisdictional immunity;  
Double aspect, ancillary powers and incidental effects; and  
Federal paramountcy.  
(a)  
Confidentiality  
[45] As above, the EAB made two decisions with respect to the confidentiality of  
the evidence the Railways proposed to present to it. In the first decision (made  
before the hearing of the merits of the Railways’ appeals), dated September 10,  
2019, the EAB granted the Railways’ application for a confidentiality order with  
respect to certain documents. These included parts of the affidavit of a witness for  
the Railways, Lori Kennedy, CPR’s Director of Regulatory Affairs. The second  
decision was made by the EAB during the hearing on September 17, 2019. It  
granted the application of the Railways to proceed in camera with respect to some  
evidence of two witnesses of the Railways (Ms. Kennedy and Brandon Myers,  
Assistant Chief of the CNR Police).  
[46] The Petitioners now seek judicial review of those two decisions under the  
JRPA. I will review each of the decisions, discuss the standard of review to be  
applied to them and then provide my decision based on this review. As will be seen,  
I conclude that the standard of review to be applied to these two decisions is  
reasonableness and the EAB decisions were not reasonable.  
 
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(i)  
EAB decision of September 10, 2019  
[47] This decision granted the Railways’ application for a confidentiality order with  
respect to information that the Railways described as security related. The result  
was that the public and the media could not view some documents in evidence.  
[48] According to the Railways, about 21 documents and some paragraphs in  
affidavits contained information about the gathering and analyzing of security  
intelligence, the security practices of the Railways’ operations (historically and  
currently), the ability of the Railways to protect shipment by rail of things like crude  
oil and the effect that disclosure would have on the Railways’ security practices and  
operations. The Railways also said that some of the information was subject to  
confidentiality agreements with third parties. In addition, some of the information  
originated from regulatory agencies such as the Transportation Safety Board or law  
enforcement and intelligence agencies including the Royal Canadian Mounted  
Police (“RCMP”), the Federal Bureau of Investigation (“FBI”) in the United States,  
the CNR Police, the American Association of Railways Security Working Committee,  
and the Railway Association of Canada (at paras. 26, 70).  
[49] The Railways agreed to provide the EAB with the documents at issue for the  
purposes of deciding the application if the EAB so requested. However, the EAB did  
not make that request and it decided to accept affidavits prepared by the Railways  
that summarized the security-related evidence contained in the documents. The  
actual documents were not before the EAB.  
[50] The EAB described this process as “not unusual” and cited Sierra Club of  
Canada v. Canada (Minister of Finance), 2002 SCC 41 as an example. Other  
authorities note that when a court is called on to limit court openness and must  
decide whether openness poses a serious risk to an important public interest, direct  
evidence is not necessarily required to establish a serious risk to an important  
interest, and it is possible to identify objectively discernable harm on the basis of  
logical inferences. However, an inference must still be grounded in objective  
circumstantial facts and “this process of inferential reasoning is not a licence to  
 
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engage in impermissible speculation” (Sherman Estate v. Donovan, 2021 SCC 25,  
at para. 97; citing A.B. v. Bragg Communications Inc., 2012 SCC 46, at paras. 15-16  
and R. v. Chanmany, 2016 ONCA 576, at para. 45).  
[51] In its decision, the EAB stated that the Petitioners “raised no concerns about  
the relevance or the security-related nature of the documents” (at para. 22). The  
Petitioners dispute that assertion and, in fact, the decision itself confirms that the  
Petitioners objected to the process (at paras. 38, 71). I discuss this further below.  
The Railways provided counsel for the Petitioners copies of the documents at issue  
on counsel’s undertaking to treat the information as confidential and return them if  
the EAB denied the application.  
[52] The Petitioners opposed the application of the Railways for a confidentiality  
order (as well as the nature of the evidence before the EAB). They argued the  
common law, not an interpretation and application of s. 41 of ATA, was the relevant  
test for deciding whether or not to issue a confidentiality order. Specifically, it was  
submitted that the EAB should apply the tests set out Sierra Club, R. v. Mentuck,  
2001 SCC 76, and Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835  
and the Railways had not followed common law requirements to give notice of their  
application (citing Duteil v. British Columbia NursesUnion, 2018 BCSC 1976). As  
well, according to the Petitioners, the evidentiary foundation for the application was  
lacking and the public interest in an open hearing (especially given the constitutional  
nature of the proceedings) was outweighed by any interest of the Railways in  
preserving the confidentiality of the materials for their own economic self-interest.  
[53] The EAB decision of September 10, 2019, granting the Railwaysapplication  
for a confidentiality order, was made under s. 41 of the ATA. That provision is as  
follows:  
Hearings open to public  
41 (1) An oral hearing must be open to the public.  
(2)  
Despite subsection (1), the tribunal may direct that all or part of the  
information be received to the exclusion of the public if the tribunal is of the  
opinion that  
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(a)  
the desirability of avoiding disclosure in the interests of any  
person or party affected or in the public interest outweighs the  
desirability of adhering to the principle that hearings be open  
to the public, or  
(b)  
it is not practicable to hold the hearing in a manner that is  
open to the public.  
(3)  
The tribunal must make a document submitted in a hearing accessible  
to the public unless the tribunal is of the opinion that subsection (2) (a) or  
section 42 applies to that document.  
[54] The EAB reviewed the affidavits summarizing the information at issue and it  
concluded that they were all created by a regulatory, law enforcement or intelligence  
agency, and all were either marked confidential, created as part of a confidential  
intelligence-sharing process, or pertained to general intelligence information or  
railway security (at para. 29). The EAB also concluded that notifying the media or  
other potentially interested parties was not a prerequisite to deciding the application.  
And, notifying the media and others would delay the hearing and none of the parties  
wished to do that (at paras. 52-54). With respect to any interest third parties might  
have, the EAB concluded that it was the responsibility of the Railways to ensure they  
honoured any agreements with those parties (at paras. 56, 58; this is discussed  
further below).  
[55] The EAB decision noted that confidentiality orders are the exception to the  
general rule that hearings will be open to the public (at para. 60). In this case, if the  
order was granted, it would prevent public access to and scrutiny of the security-  
related evidence and it would thereby affect or deviate from the principle of  
openness that applies to judicial and quasi-judicial proceedings (at para. 73). Such  
orders are only to be granted in the exceptional circumstances set out in s. 41(2)(a)  
and 42 of the ATA, and to the minimum possible extent required in the  
circumstances. This, the EAB noted, “mirrors” some of the considerations set out in  
Sierra Club (at paras. 60, 62). The EAB reasoned that “[t]he Sierra Club test  
provides helpful guidance when applying section 41(2)(a) of the ATA, particularly in  
cases such as this that involve constitutional questions.”  
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[56] The EAB described the public interest in terms of “upholding the  
confidentiality of documents provided through inter-governmental and inter-agency  
cooperation” and noted that the cooperation here was aimed at safeguarding  
transportation infrastructure from a variety of threats (at para. 66). It reasoned that  
the Railways’ commercial interests in keeping the materials confidential  
“overlap[ped]” or were “shared” with the public interest in preventing disclosure for  
safety and security reasons: “The risk of damage to the railway does not only  
threaten the Applicants’ [Railways’] commercial interests, but also public safety, the  
environment, and important transportation infrastructure within British Columbia” (at  
paras. 67, 69).  
[57] The EAB also concluded that any infringement to freedom of expression in  
s. 2(b) of the Charter and the open court principle would only be partial because only  
some of the documents would be sealed (at para. 73). And, without a confidentiality  
order, the Railways would be unable to present evidence, thereby affecting their  
rights to procedural fairness and potentially undermining the fair administration of the  
EAB’s processes (at paras. 68, 76).  
[58] The EAB also stated that the Petitioners had not set out how the public “may  
actually benefit” from access to the information at issue, beyond general comments  
about the public interest in an open hearing process (at para. 74). Citing its earlier  
decision on the Railwaysapplication for a stay, the EAB noted the public already  
has access to sufficient information to get a full picture of what substances are being  
moved by rail throughout the Province.  
[59] The Railways’ application for a confidentiality order was allowed. I reproduce  
paragraph 76 of the EAB decision again as it summarizes the EAB’s reasoning on  
this issue:  
76.  
Based on the foregoing, I conclude that the important interests of the  
Applicants [Railways] would be protected by preventing public access to the  
Confidential Documents and Confidential Paragraphs, and these interests  
outweigh the public interest in access to that evidence in the appeal process.  
Keeping this evidence confidential to the Board and the parties will protect  
important interests of the Applicants and the public, including the fair  
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administration of the appeal process, with minimal harm to the public interest  
in open appeal hearings.  
[60] As for the extent of the confidentiality order, the EAB concluded it was not  
possible to redact or sever the documents themselves (at para. 77). However,  
confidential paragraphs in Ms. Kennedy’s affidavit could be redacted from the rest of  
the affidavit.  
[61] The EAB deferred the decision regarding holding portions of the oral hearing  
in camera to the panel that would be hearing the appeal, as they would be in the  
best position to make that determination. As above, a decision was made on  
September 17, 2019 to hold an in camera hearing for some evidence, as explained  
below.  
(ii)  
EAB decision of September 17, 2019  
[62] The EAB’s September 17, 2019 decision allowed the Railways’ application to  
proceed in camera for some of the evidence of two witnesses (Ms. Kennedy and  
Mr. Myers). As above, it is a brief decision made during the hearing and recorded in  
the transcript.  
[63] The September 17, 2019 decision was made under s. 42 of the ATA. It  
authorizes the EAB to direct that all or part of the evidence of a witness or  
documentary evidence will be received in confidence. It is as follows:  
Discretion to receive evidence in confidence  
42  
The tribunal may direct that all or part of the evidence of a witness or  
documentary evidence be received by it in confidence to the exclusion of a  
party or parties or any interveners, on terms the tribunal considers necessary,  
if the tribunal is of the opinion that the nature of the information or documents  
requires that direction to ensure the proper administration of justice.  
[64] The EAB determined that, for the same reasons as the EAB found in the  
September 10, 2019 decision, the testimony of the two witnesses should be given in  
camera. The EAB added that to hold otherwise would make the original  
confidentiality order of no practical effect.  
 
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[65] For Ms. Kennedy, her direct evidence on non-confidential information was  
open to the public but her direct evidence on confidential evidence was given in  
camera. Recognizing the unpredictability of cross-examination, the EAB adopted the  
process suggested by counsel for the Attorney General that the whole of the cross-  
examination of Ms. Kennedy (on both confidential and non-confidential information)  
be done in camera. For Mr. Myers, the whole of his direct and cross-examination  
would proceed in camera. Transcripts of proceedings held in camera would be  
sealed, as would the portions of the evidence referred to.  
(iii) The standard of review  
[66] The first step on an application for judicial review under the JRPA is to  
determine what standard of review applies to the challenged decisions.  
[67] The leading authority on the standard of review of decisions of administrative  
tribunals is Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC  
65. That decision describes the presumptive standard of review of administrative  
decisions as reasonableness (at para. 23). However, courts must depart from this  
presumption where the legislature states that a different standard should apply and  
where the rule of law requires it (at para. 17). The rule of law requires that the  
correctness standard be applied to constitutional questions, general questions of law  
of central importance to the legal system as a whole, and questions related to the  
jurisdictional boundaries between two or more administrative bodies (at para. 53).  
[68] The parties agree that the standard of review for the EAB’s decision of  
May 29, 2020 (that s. 91.11 of the EMA is ultra vires the Province of British  
Columbia) falls within the constitutional questions exception to the reasonableness  
presumption and the appropriate standard of review of this decision is correctness. I  
agree.  
[69] The parties do not agree on the standard of review for the EAB’s  
confidentiality decisions.  
 
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[70] The Petitioners say that the issue before the EAB for the confidentiality  
decisions was not only one of the statutory interpretation of s. 41(2) of the ATA. It  
was also one that “inevitably engages” s. 2(b) of the Charter because the EAB was  
being asked to restrict the public’s access to documents and evidence (citing  
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at 1338).  
Before the EAB, the Petitioners had argued that the relevant test to apply when  
considering an application for a confidentiality order is found in the common law  
(Sierra Club, Dagenais and Mentuck). The Petitioners say that when the relevant  
interpretive question before a tribunal engages the Charter, the standard of review is  
correctness.  
[71] The Railways say that the EAB’s determination of the appropriate test in  
relation to the confidentiality orders does not fall within one of the five exceptions to  
the reasonableness presumption identified in Vavilov. As a result, they say the  
standard of review is reasonableness. The Railways emphasize the continued  
applicability of Doré v. Barreau du Québec, 2012 SCC 12 post-Vavilov and they  
state that the EAB was not making a decision about whether s. 41 of the ATA  
complied with the Charter, but was making a discretionary decision that engaged  
Charter rights.  
[72] The EAB, who was a party to these judicial review proceedings, and properly  
focused its submissions on the standard of review and the legal principles that apply  
on judicial review, argued that a reasonableness standard should apply to the  
Court’s review of the EAB’s decisions of September 10, 2019 and September 17,  
2019. The EAB noted that a presumption of reasonableness applies to matters of  
statutory interpretation, including an administrative decision maker’s interpretation of  
its enabling statute and statutes closely connected to its functions. Also relying on  
Doré, counsel for the EAB noted that when a court is called on to consider whether  
an administrative decision maker has taken sufficient account of Charter values in  
making a discretionary decision, the standard of review is reasonableness.  
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[73] In considering these submissions I note that the EAB was adjudicating  
applications for a confidentiality order pursuant to s. 41 of the ATA, and for  
proceedings to be held in camera, its decision was pursuant to s. 42 of that statute.  
For the reasons set out below, this is the EAB interpreting and applying particular  
provisions of one of its enabling statutes.  
[74] While aspects of this task required that the EAB consider constitutional  
principles and Charter values (in particular the open court principle which is  
constitutionalized under the right to freedom of expression at s. 2(b) of the Charter),  
the specific issue before the EAB (i.e., whether to proceed with portions of the  
hearing in camera and whether to seal certain documents) was not a constitutional  
question or a general question of law of central importance to the legal system as a  
whole. The standard of correctness would apply in that case.  
[75] While Doré was decided prior to Vavilov, it is, in my view, instructive.  
Administrative bodies are empowered, and indeed required, to consider Charter  
values within the scope of their expertise, and to exercise their statutory discretion in  
accordance with Charter protections (Doré, at paras. 35, 42). When Charter values  
are applied to an individual administrative decision, they are being applied in relation  
to a particular set of facts. This attracts deference (at para. 36).  
[76] The question of the standard of review to be applied to tribunal decisions that  
engage the open court principle was discussed by the Ontario Court of Appeal in  
Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025; leave to appeal  
ref’d [2020] S.C.C.A No. 39079).  
[77] In Ferrier the issue was the openness of police board hearings. The  
relevance of the open court principle arose because the decision maker, who was  
appointed to consider whether the police board should give an extension of time to  
conduct a disciplinary hearing, queried whether that hearing should be held in  
camera. After receiving submissions, the decision maker ordered that the hearing  
proceed in camera. The decision maker rejected the argument that the test in  
Dagenais and Mentuck applied (this has come to be described as the  
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Dagenais/Mentucktest, at least in these proceedings). It reasoned that the  
extension decision was administrative (not judicial or quasi-judicial) and the test set  
out in s. 35(4) of the Police Services Act (which sets out certain exceptions to the  
rule that police board hearings are presumptively open to the public) applied.  
[78] On judicial review, the Divisional Court applied a reasonableness standard to  
the board’s decision and held that neither the open court principle, nor the  
Dagenais/Mentuck test applied because the hearing at issue was not judicial or  
quasi-judicial, and the statute itself laid out the balancing act to be undertaken. The  
CBC and certain First Nations appealed.  
[79] Justice Sharpe, for the Ontario Court of Appeal, began by considering the  
appropriate standard of review. He reasoned that the board’s decision on whether  
the Dagenais/Mentuck test had any bearing on the discretionary decision it had to  
make was reviewable on a correctness standard. The Dagenais/Mentuck test either  
applied or it did not -- there was no range of possible outcomes (at paras. 33-37).  
[80] Justice Sharpe then found that the board’s refusal to consider an applicable  
Charter right was neither correct nor reasonable (at para. 60). He reached this  
conclusion not on the basis that the Dagenais/Mentuck test, but because the  
statutory language (which required the board to consider whether the desirability of  
avoiding disclosure of public security or intimate financial or personal matters  
outweighed the desirability of adhering to the principle that proceedings be open to  
the public) was “fortified by” and “congruent with” s. 2(b) of the Charter (at paras. 62,  
65). Although the Dagenais/Mentuck test did not strictly apply, the measuring of  
proportional response in the context of an administrative hearing was bound to take  
on a similar hue” as applying the Dagenais/Mentuck test (at para. 66).  
[81] Ferrier was considered by the Federal Court in Corus Entertainment Inc. v.  
Canada (Attorney General), 2020 FC 1064. There, Justice Strickland noted that the  
issue before her was not, as it was in Ferrier, whether the Dagenais/Mentuck test  
had bearing on the discretionary decision (at para. 34). The issue was whether the  
adjudication board properly balanced the interests at stake including s. 2(b) Charter  
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rights and the competing interests in safety and privacy. That question was subject  
to reasonableness review (at para. 35).  
[82] Ferrier was also recently applied by the Federal Court in Fraser v. Canada  
(Public Safety and Emergency Preparedness), 2021 FC 821. Justice McVeigh  
agreed with the reasoning at paragraph 35 of Ferrier regarding the standard of  
review applicable to board decisions assessing whether the open court principle  
applies. At paragraph 42 she held that an assessment of whether the open court  
principle applies to parole board hearings (characterized as a “threshold question  
regarding the applicability of a Charter right”) is reviewable on a correctness  
standard.  
[83] I take from the above that a correctness standard applies when a reviewing  
court is considering a tribunal’s “threshold” decision on whether a Charter right is  
engaged. However, a reasonableness standard applies when reviewing how the  
tribunal took into account Charter rights and values in the context of its discretionary  
decision.  
[84] The EAB in this case did not refuse or fail to acknowledge that the application  
made by the Railways for a confidentiality order required that it consider the principle  
of open courts/open hearings and take into account the rights guaranteed by s. 2(b)  
of the Charter. The EAB made no explicit determination of whether the  
Dagenais/Mentuck test superseded the considerations set out in the ATA. Rather,  
the EAB took guidance from the constitutional principles and analysis in Sierra Club.  
Significantly, unlike in Ferrier, it did not conclude that the Dagenais/Mentuck test had  
no bearing or did not apply.  
[85] In this way, the EAB’s decision is not akin to the decision of the police board  
in Ferrier where a correctness standard was applied. Instead, the EAB’s decision,  
like the adjudication board’s decision in Corus, involved an exercise of discretion by  
applying facts to a particular statutory scheme and in light of the Charter values at  
issue. In light of these authorities, in the subject petition how the EAB balanced the  
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interests involved is a task that this Court is only at liberty to review on the basis of  
reasonableness.  
[86]  
I conclude that the standard of review for the EAB decisions of  
September 10, 2019 and September 17, 2019 is reasonableness.  
(iv) Applying the standard: were the EAB’s confidentiality decisions  
reasonable?  
[87] Having concluded that the appropriate standard of review to apply to the  
EAB’s decisions to issue a confidentiality order and to proceed in camera for the  
evidence of certain witnesses is reasonableness, I now consider whether the EAB’s  
decisions were reasonable.  
1.  
The nature of a reasonableness review  
[88] The Supreme Court of Canada in Vavilov provided guidance on how to  
conduct a reasonableness review and it is useful to summarize some of the  
elements of that review. As a starting point, the burden to show that a decision is  
unreasonable is on the party challenging the decision (at para. 100). In this case that  
is the Petitioners.  
[89] A reasonableness review is based on judicial restraint and respect for the  
distinct role of administrative decision makers (at paras. 75, 82). My role is to review,  
rather than decide the issue myself (at para. 83). That said, a reasonableness  
review remains a robust form of review and is not a “rubber-stamping” process (at  
para. 13).  
[90] The focus of a reasonableness review is on the decision actually made,  
including the reasoning process (i.e. rationale) and outcome (at para. 83). I am to  
begin my inquiry by giving “respectful attention” to the reasons provided, and  
seeking to understand the process the EAB used to arrive at its conclusions (at  
para. 84). The reasons are to be read as a whole and contextually in order to  
understand the basis on which the decision was made (at para. 97).  
   
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[91] A reasonable decision is one that is “based on an internally coherent and  
rational chain of analysis and that is justified in relation to the facts and law that  
constrain the decision maker” (at para. 85). In addition, an otherwise reasonable  
outcome cannot stand if it was reached on an improper basis (at para. 86). The  
hallmarks of reasonableness are, therefore: justification, transparency and  
intelligibility (at para. 99). To be reasonable, a decision must be based on reasoning  
that is both rational and logical (at para. 102).  
[92] Administrative decision makers will not necessarily be required to apply  
common law principles in the same manner as courts in order for their decisions to  
be reasonable (at para. 113). For example, it may be reasonable for a decision  
maker to adapt a common law doctrine to its administrative context. Whether an  
administrative decision maker has acted reasonably in adapting a legal doctrine  
involves a highly context-specific determination (at para. 113).  
[93] The reviewing court is not to re-assess the evidence (at para. 125). However,  
a reasonable decision is one that is justified in light of the facts (at para. 126). The  
decision maker must take the evidentiary record and factual matrix that bears on its  
decision into account. The reasonableness of a decision may be jeopardized where  
the decision maker failed to take into account the evidence before it (at para. 126).  
2.  
Sections 41 and 42 of the ATA and the common law  
[94] I have set out s. 41 of the ATA above and, as can be seen, s. 41(1) and (3) of  
the ATA create presumptions that the EAB’s oral hearings will be open to the public  
and that documents submitted in a hearing will be accessible to the public. However,  
the EAB retains discretion to receive information to the exclusion of the public if, in  
its opinion: the interests of any person or party affected in avoiding disclosure, or the  
public interest in keeping the information confidential, outweighs the value of  
adhering to the principle of openness; or it is not practicable to hold an open hearing  
(s. 41(2)(a) and (b)).  
[95] There is something of an issue between the parties about the relationship  
between s. 41 of the ATA and the common law authorities about the discretionary  
 
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limits on the openness of tribunal proceedings. The primary common law authorities  
are: Dagenais, Sierra Club and Sherman. The Supreme Court of Canada’s opening  
paragraphs of the latter decision sets out the common law approach and the  
protection of court openness under freedom of expression in s. 2 of the Charter:  
[1]  
This Court [SCC] has been resolute in recognizing that the open court  
principle is protected by the constitutionallyentrenched right of freedom of  
expression and, as such, it represents a central feature of a liberal  
democracy. As a general rule, the public can attend hearings and consult  
court files and the press -- the eyes and ears of the public -- is left free to  
inquire and comment on the workings of the courts, all of which helps make  
the justice system fair and accountable.  
[2]  
Accordingly, there is a strong presumption in favour of open courts. It  
is understood that this allows for public scrutiny which can be the source of  
inconvenience and even embarrassment to those who feel that their  
engagement in the justice system brings intrusion into their private lives. But  
this discomfort is not, as a general matter, enough to overturn the strong  
presumption that the public can attend hearings and that court files can be  
consulted and reported upon by the free press.  
[3]  
Notwithstanding this presumption, exceptional circumstances do arise  
where competing interests justify a restriction on the open court principle.  
Where a discretionary court order limiting constitutionallyprotected openness  
is sought -- for example, a sealing order, a publication ban, an order  
excluding the public from a hearing, or a redaction order -- the applicant must  
demonstrate, as a threshold requirement, that openness presents a serious  
risk to a competing interest of public importance. That this requirement is  
considered a high bar serves to maintain the strong presumption of open  
courts. Moreover, the protection of open courts does not stop there. The  
applicant must still show that the order is necessary to prevent the risk and  
that, as a matter of proportionality, the benefits of that order restricting  
openness outweigh its negative effects.  
[96] In addition, limits on openness in the service of other interests have been  
recognized, but sparingly, and “with an eye to preserving a strong presumption that  
justice should proceed in public view” (at para. 30).  
[97] In Sherman, the Supreme Court of Canada reviewed the jurisprudence  
discussing the kinds of “important public interests” that might “transcend” or  
outweigh the presumption in favour of openness (at paras. 41-43). Examples of such  
interests include: a risk to trial fairness, a risk affecting the proper administration of  
justice, and a risk to a commercial interest in the context of litigation. At the same  
time, and referring to Sierra Club, the Court noted the “breadth of the category of  
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‘important interest’ transcends the interests of the parties to the dispute and provides  
significant flexibility to address harm to fundamental values in our society that  
unqualified openness could cause” (at para. 43).  
[98] The Court in Sherman also confirmed that the test in Sierra Club continues to  
be an appropriate guide for the exercise of discretion. As set out at paragraph 38 of  
Sherman that test was viewed as resting on three core prerequisites that a person  
seeking to limit court openness must show:  
(1)  
(2)  
court openness poses a serious risk to an important public interest;  
the order sought is necessary to prevent this serious risk to the  
identified interest because reasonably alternative measures will not  
prevent this risk; and  
(3)  
as a matter of proportionality, the benefits of the order outweigh its  
negative effects.  
[99] This test was noted as applying to all discretionary limits on court openness,  
subject only to valid legislative enactments (at para. 38).  
[100] According to the Petitioners, if there is any divergence between s. 41 of the  
ATA and the common law authorities, the latter must prevail. As I understand it, this  
is because the common law test is grounded in s. 2(b) of the Charter and the  
interpretation of legislation (and legislation itself) must be consistent with the  
Charter. In contrast, the Railways agree with the conclusions of the EAB that a  
tribunal under the ATA can use the common law as a guide in applying the ATA. The  
Railways point out that the common law cannot override an express statutory  
provision (K.L.B. v. British Columbia, 2001 BCCA 221, at para. 41).  
[101] In my view, the starting point for the EAB has to be s. 41 of the ATA, not the  
common law. That said, one of the things that s. 41 of the ATA does is codify the  
strong presumption of openness that is reflected in the common law. Therefore,  
when considering the rationale for why hearings are presumed to be open to the  
public, the common law authorities can provide guidance to a tribunal about the  
nature and importance of the open court principle. And a tribunal decision that  
directly or indirectly results in something less than a strong presumption of openness  
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of legal proceedings may be inconsistent with the common law authorities (bearing  
in mind that the presumption can be rebutted).  
[102] I am not sure there is much to be gained by saying the common law approach  
is stronger than the approach under the ATA or vice versa, as the parties have  
sometimes done here. There are differences. One is that s. 41 expressly states that  
“the interests of any person or party” can justify an exception to court openness. At  
common law, the approach appears to be more focused on public interests. For  
example, as above, intrusion into the private lives of individuals may not support the  
issuance of a sealing order, except if it can be shown that the privacy interest has  
the ”requisite important public character” and “transcends the interests of the parties  
to the dispute” (Sherman, at paras. 42-43). It is not necessary to decide in this case  
the threshold between public and private interests.  
[103] The Petitioners also say that the EAB should have applied the test in  
Dagenais/Mentuck. Specifically, it is submitted that the language of s. 41 of the ATA  
suggests that the legislature did not intend for tribunals to depart from the test in  
Dagenais/Mentuck. I am unable to find the language of s. 41 (or s. 42) supports that  
proposition. A plain reading of it demonstrates that it simply sets out the balancing  
test required by a tribunal. I add that it seems to me that there may be different  
applications of the balancing test as between the courts and tribunals and between  
different tribunals, just as there are different applications of the test in different  
subject areas in the courts. At all times the presumption that justice should proceed  
in public view must be considered, as discussed in the authorities (for example,  
Sherman, para. 30). Clear reasons are required to override that presumption.  
[104] It is clear in the decision of September 10, 2019, that the EAB was aware that  
its decision was governed by s. 41(1) and (2) of the ATA and that these provisions  
engaged “fundamental values” including the principle that its appeal hearings are  
presumed to be open to the public (at paras. 52-53). The EAB noted that confidential  
orders are the exception to the general rule (at para. 60) and are only to be granted  
in the exceptional circumstances set out in s. 41(2)(a) and 42. With regard to the  
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applicability of the common law tests dealing with when publication bans and sealing  
orders should be issued, the EAB noted that the considerations set out in cases  
such as Sierra Club “mirrored” and were “similar” to the weighing exercise set out in  
s. 41 of the ATA (at paras. 60, 62).  
[105] In my view, how the EAB used the common law approach as taken from the  
authorities was a reasonable and rational one. In turning to Sierra Club for  
“guidance,” the EAB properly and reasonably recognized that it would need to  
balance the desirability of a confidentiality order against the desirability of upholding  
the open court principle. The courts have taken a similar (though not identical)  
approach. In addition, the EAB was aware and did not overlook that the balancing  
exercise involved consideration of s. 2(b) Charter rights (at paras. 35, 73). The same  
conclusions apply to the EAB decision of September 17, 2019.  
[106] The result is that I conclude that the EAB’s general approach to the issues of  
confidentiality of evidence and in camera hearings was a reasonable and rational  
one. I turn now to specific parts of the EAB’s analysis and whether its reasoning  
process and outcomes were rational and logical. In my view, there are some  
concerns with the EAB decisions.  
3.  
Balancing of interests  
[107] As can be seen from the above discussion of s. 41 of the ATA, Sherman,  
Dagenais and Sierra Club, a balancing test is required when deciding whether the  
presumption in favour of openness should be set aside. In very broad terms, the  
balance is between public interests and private interests although sometimes the  
two cannot be easily separated.  
[108] The heart of the public interest is the idea of open legal proceedings and the  
cases are replete with references to the importance of that interest. In Sherman, the  
open court principle was described as a central feature of a liberal democracy,  
where a justice system is accountable to the public who are free to inquire and  
comment on the system (at para. 1). It is perhaps necessary to point out that a  
public interest cannot be equated with a government interest because government  
 
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may well want to restrict public access to information for reasons that are contrary to  
accepted public values about access.  
[109] In contrast, a private interest may well be served by a closed legal proceeding  
that protects private interests from investigation by the public and the press. As a  
further complication, in Dagenais the Supreme Court of Canada explained that  
privacy itself can be a matter of public concern where, for example, an affront to a  
person’s dignity becomes an important public interest as described in Sierra Club  
(Dagenais, at paras. 31-33).  
[110] In the case of the decision of September 10, 2019, the EAB noted that the  
confidentiality order sought by the Railways would prevent public access and public  
scrutiny of the security-related evidence and thereby deviate from the principle of  
open proceedings (at para. 73). The EAB set out in some detail its idea of the  
balancing of interests. For example, the decision described the interests of the  
Railways as “shared, to a large degree, with public interests” (at para. 69). Similarly:  
[67]  
… the [Railways’] commercial interests in keeping the documents  
included in the Security-related Evidence confidential appear to overlap with  
the public interest in preventing disclosure of this evidence to persons who  
might use it to threaten the safety and security of railways transporting  
dangerous materials, such as crude oil. The risk of damage to the railway  
does not only threaten the Applicants’ commercial interests, but also public  
safety, the environment, and important transportation infrastructure with in  
British Columbia.  
[111] The EAB recognized that the order sought would prevent public access to  
and scrutiny of the security-related evidence and this would “deviate” from the  
principle of open judicial and quasi-judicial hearings and partially impair rights  
contained in s. 2(b) of the Charter (at para. 73). The EAB reasoned that, because  
only certain documents (“a portion”) would be covered by the confidentiality order,  
there would only be a limited effect on the public’s freedom of expression and the  
open court principle (at para. 73). If this is a suggestion that the number of  
documents at issue is somehow relevant to the balancing of interests it is, in my  
view, an unreasonable one. One document may justify overriding the presumption of  
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openness or it may not (and the EAB did not have the actual documents at issue  
before it).  
[112] The EAB went on to note that the Petitioners had not “indicated how the  
public may actually benefit from access to the Security-related Evidence, beyond  
general comments about the public interest in an open hearing process, which I  
have discussed above” (at para. 74, emphasis added). It is unclear what to make of  
this paragraph, but it seems to suggest that the EAB was of the view that the  
Petitioners (who were responding to the Railways’ application to the EAB to appeal  
the orders of the Director and were responding to their application for a  
confidentiality order) had the onus to show that there would be a tangible public  
benefit to upholding the open court principle in this case.  
[113] I conclude that was an unreasonable (and incorrect) approach that amounted  
to reversing the burden that is on the Railways to rebut the presumption that  
hearings shall be open to the public. Neither the ATA nor the common law includes a  
requirement by a party to prove an actual benefit to the public in proceeding in an  
open fashion. The presumption of open hearings is codified in s. 41(1) of the ATA,  
and is only to be set aside if the tribunal is of the view the circumstances set out in  
s. 41(2) or 42 are present. The benefits of open hearings are presumed and have  
long been referred to in the jurisprudence (see, for example, A.G. (Nova Scotia) v.  
MacIntyre, [1982] 1 S.C.R. 175 at 183, Canadian Broadcasting Corp. v. Canada  
(Attorney General), 2011 SCC 2, at para. 28). What is required is for a tribunal to  
accurately and fully define the public interest in the circumstances before it and  
weigh that interest with the competing private interests.  
[114] A related matter is the EAB’s statement that the Railways’ interests in  
preventing disclosure of the information at issue was an interest that “appear[ed] to  
overlap” with or was “shared” with a public interest (at paras. 67, 69). This  
essentially conflated the Railways’ interest in maintaining the confidentiality of  
security-related material with a public interest. That public interest is alternatively  
framed as: fostering inter-governmental and inter-agency cooperation aimed at  
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safeguarding transportation infrastructure where there is an expectation that  
information is shared on a confidential basis (at para. 66); preventing disclosure of  
information to persons who might use it to threaten the safety and security of  
railways (at para. 67); and preventing risk of damage to railways which would  
threaten public safety, the environment, and transportation infrastructure (at  
para. 67). In addition, the EAB noted there was a public interest in achieving a just  
result in administrative proceedings (at para. 68), which in this case would mean  
ensuring that the EAB had all the relevant evidence on which to base its decision.  
[115] For sure the public has an interest in the security (and safety) of railways but,  
in my view, some consideration was due to the public interest in openness. That was  
the public interest before the EAB and it was to be weighed against the interests of  
the Railways. There was a conflict between the attempts by the Railways to have a  
closed process (in part) and the presumption that the process should have been  
open to the public. That conflict cannot be resolved by saying, essentially, there was  
no conflict. Sections 41 and 42 of the ATA and the authorities required a decision  
about whether the security interests of the Railways outweighed the public interest in  
open hearings. And something more than the dismissal of the issue as “general  
comments about the public interest” (at para. 74) was required. There is something  
of a gap in logic in saying the public interest is the same or similar to the Railways’  
but the public cannot be freely informed through public access about this interest.  
[116] Finally, there is no discussion about the value of the presumption of openness  
by the EAB in the circumstances of the case before it -- one dealing with the  
constitutionality of provincial legislation. It was put to the EAB that the issues raised  
in this case were matters of public interest, but no specific reasons were given for  
rejecting that submission. For example, the Province argued before the EAB that the  
Railwaysapplication for a confidentiality order was based on potential and  
speculative risks instead of actual ones (at para. 38); this was not considered  
although it is a valid consideration under the common law and s. 41. This may have  
been because the EAB declined to view the actual documents, relying instead on  
affidavit evidence, declined to make evidentiary rulings on that evidence, and failed  
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to make decisions about security-related matters. In any event there is minimal  
consideration by the EAB of the public interest and the value of openness as it  
applies in this case.  
[117] In my view, something more than what is reflected in paragraphs 73-76 of the  
EAB’s decision was required. There is insufficient analysis to allow the reviewing  
court to follow the chain of reasoning and understand the process the EAB used to  
arrive at its conclusions. While the decision refers to the principle that hearings be  
open to the public, there is scant consideration of why this is important, how it ought  
to be balanced against the other interests at issue and how it is outweighed by the  
interests of the Railways.  
[118] I conclude that it was unreasonable for the EAB to equate the Railways’  
personal interest with a public interest because it resulted in an undervaluing of the  
principle of open hearings. This led the EAB to fall into error in the weighing exercise  
required under s. 41 of the ATA (and at common law).  
4.  
Procedural issues  
[119] The Petitioners have also raised procedural concerns about the EAB’s  
consideration of the Railways’ application for a confidentiality order. In particular, the  
Petitioners query whether the media ought to have been given notice of the  
application, and they also raise concerns regarding the sufficiency of the affidavit  
evidence that was put before the EAB. In my view there is merit to some of these  
concerns.  
[120] By way of some factual background, in late July 2019, the Railways advised  
the Petitioners that they were contemplating an application to the EAB to seal certain  
evidence and to hold parts of the hearing scheduled to commence on September 16,  
2019 in camera. The Railways ultimately filed their application on August 21, 2019,  
and the EAB issued its decision sealing certain documents approximately three  
weeks later (on September 10, 2019) before the hearing commenced, and its  
decision to hold parts of the hearing in camera was made on September 17, 2019 on  
day two of the hearing.  
 
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[121] As I touched on earlier, as part of the September 10, 2019 decision, the EAB  
explained it was going to use affidavit summaries of the information the Railways  
sought to have sealed. The actual documents were not before the EAB (counsel for  
the Petitioners had been given copies on an undertaking). With respect to notice to  
the media, the EAB decided in its decision of September 17, 2019 that the media  
would not be given notice of the Railways’ application for a confidentiality order (at  
paras. 52-54).  
[122] In their petition the Petitioners say the EAB made errors in deciding the  
Railwaysapplication for confidentiality orders. In particular, the Petitioners challenge  
the EAB’s decision not to give notice to the media and its reliance on the summaries  
in the Railways’ affidavits. As above, I am applying a standard of reasonableness to  
the two decisions at issue here.  
[123] The EAB adopted a summary approach to the security-related evidence,  
rather than admitting the specific documents at issue. In my view, as a general  
proposition, this would not be an unreasonable approach in circumstances where  
the parties agree to proceed in this way. However, in this case, that agreement is  
problematic, as will be seen below.  
[124] I can find no absolute requirement in the ATA or the common law that  
requires notice be given to the media of applications for sealing orders. Whether  
notice is given is part of the discretion created by s. 41 of the ATA and the common  
law authorities. Some tribunals in some circumstances have given notice to the  
media (Arsenault v. 3249265 Nova Scotia Limited (Pizzadelic), 2018 CanLII 129531  
(NS HRC); AB v. Ontario (Education), 2018 HRTO 1351 (Ont. HR); James Maurice  
Melnick v. Law Society of Upper Canada, 2011 ONLSHP 214). Obviously, in  
exercising that discretion, the EAB has to recognize that the media has a right to  
know about and report on some issues. But the media cannot always know the  
issues that are before the EAB. As an example of procedure for notifying the media  
this court has developed a practice direction (Practice Direction 56; British Columbia  
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(Securities Commission) v. BridgeMark Financial Corp., 2020 BCSC 527, at  
para. 11).  
[125] In contrast, the Petitioners say that, regardless of the lack of express  
references to notice in the ATA, there is a presumption that media be given notice of  
an application that will have the effect of restricting rights under s. 2(b) of the  
Charter. They say this flows from the duty of procedural fairness the EAB owes to  
those who may be affected by its orders. In my view, that overstates what is  
required. As above, I conclude it is part of the discretion given a tribunal under s. 41  
(and s. 42) and the common law to decide whether the media will be given notice. I  
do not agree that the hard rule proposed by the Petitioners of a presumption in  
favour of notice is appropriate in every case. In any event, the Petitionersview is not  
supported by the language of s. 41 of the ATA.  
[126] What is required is for the EAB to weigh the interests of the party seeking to  
have the information protected from disclosure against the interest in upholding the  
open court principle. This weighing is to be done by the EAB whether or not the  
media has been given notice and whether or not anyone appears on their behalf.  
Again, in certain cases, submissions from the media may be appropriate. In this  
case, the EAB was not lacking in arguments as to why the documents ought not to  
be sealed.  
[127] Other parts of the EAB’s process and decision are more problematic. On the  
use of summary evidence from the Railways instead of the actual documents, the  
Petitioners were described as not opposing the use of summary evidence. For  
example, the EAB described the Petitioners as raising “no concerns about the  
relevance or security-related nature of the Confidential Documents” (at para. 22).  
The EAB also noted that it considered the summary of the documents at issue to be  
sufficient for the purposes of deciding this application (at para. 22). Later on, the  
EAB noted that the Petitioners had been provided with copies of the documents at  
issue, and had “not disputed the descriptions put forward by the Railways as to the  
contents of those documents” (at para. 71). From this the EAB concluded that:  
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[71]  
As such, there is no dispute in the evidence before me as to the  
nature of the information contained in the Confidential Documents and the  
Confidential Paragraphs. Similarly, the Respondents have not challenged the  
relevance of the evidence contained in the Confidential Documents and the  
Confidential Paragraphs.  
[128] The Petitioners take some exception to these statements as not accurately  
reflecting their position. They say that they did in fact object to the evidence  
presented by the Railways that was ultimately referred to and relied on by the EAB.  
Notwithstanding what the EAB concluded at paragraph 71 (as above, that there was  
no dispute as to the nature of the information contained in the confidential  
documents), the EAB at paragraph 38 seems to recognize that the Petitioners made  
certain arguments about the sufficiency of the affidavits and the breadth of the  
orders sought:  
[38]  
The Respondents [Petitioners] argue that the affidavits in support  
of the application describe the Security-related Evidence so generally that it is  
impossible to evaluate the Applicants’ claims about security threats. The  
Respondent argues the evidence does not permit “a finding of potential harm  
or injury to a recognized legal interest”: Mentuck, at para 34. Furthermore, the  
Applicants seek an “all-or nothing” order sealing the Security-related  
Evidence.  
[129] This paragraph and the Petitionersaccount are corroborated by a review of  
the Petitioners’ written submissions to the EAB.  
[130] I conclude that the Petitioners did object to the sufficiency of the information  
contained in the affidavits provided to the EAB and, therefore, to the evidentiary  
basis of the EAB’s decision. The EAB erred in concluding otherwise. Further, it was  
unreasonable for the EAB to proceed on the basis of this error. That error led to  
unfairness since the Petitioners were considered to have taken a position they did  
not take. Moreover, the EAB relied on its misreading of the Petitionersposition as  
part of its reasoning that the media would not be given notice (and other  
conclusions). What was required was for the EAB to make a decision on the issue of  
the scope of the evidence before it instead of stating incorrectly that there was no  
dispute about proceeding with summary information.  
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[131] The EAB went on to consider in greater detail the timing of the Railways’  
application and potential prejudice to the Petitioners caused by this application being  
filed just weeks before the start of the hearing. At paragraph 81 it concluded: “[i]n  
these circumstances, the desirability of having the Security-related Evidence be  
available to the Board outweighs any prejudice arising from the timing of the  
application and disclosure of the documents to the Respondents”. I do not think that  
the desire of the EAB to have the evidence before it is a factor that can offset any  
prejudice to the Petitioners of receiving the information on August 21, 2019. And,  
while s. 41 requires a balancing exercise, the desire or convenience of the EAB is  
not part of that exercise.  
[132] Overall, I conclude that it was unreasonable for the EAB to decide against  
giving notice to the media on the basis of delay that was the responsibility of the  
party benefitting from the delay. It is also a problem when the decision is used to  
deny the application to give notice.  
[133] The primary reason for the EAB not giving notice to the media appears to  
have been the prospect of delay in proceedings if notice was given. As above, the  
Railwaysapplication was filed on August 21, 2019 and the EAB hearing  
commenced less than a month later, on September 16, 2019. There is no discussion  
by the EAB as to why the application was made by the Railways shortly before the  
hearing. Since they had told the Petitioners in late July 2019 that they were  
contemplating an application, the Railways had the information at least on that date.  
[134] The EAB considered the timing of the Railways’ application including the  
information received by the Petitioners on August 21, 2019 (which included both the  
actual documents and summaries of the evidence to be given by Ms. Kennedy and  
Mr. Myers). This was about four weeks before the commencement of the hearing  
and the EAB apparently decided this was sufficient notice. However, the problem  
raised by the Petitioners was not so much the time period they had to prepare and  
respond (although there was no actual application from the Railways until the eve of  
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the hearing). They objected to the form of the evidence and that it was in summary  
fashion rather than the actual documents.  
[135] Finally, there was an issue of third party interests before the EAB. There does  
not seem to be any dispute that some of the security-related information at issue  
before the EAB involved the interests of third parties and one question was whether  
they had to agree with any public examination of the information. As a starting point,  
the EAB appropriately concluded that it was the role of the Railways to ensure they  
honour any third party agreements and to obtain any required permissions (at  
para. 56). As well, it was up to the Railways, not the EAB, to ensure that the  
evidence presented did not violate the terms of any agreements. The Railways bore  
the burden and the risk of doing so and the Railways seemed to be mindful of those  
obligations (at paras. 56-58).  
[136] Having made those findings the EAB concluded that notice did not need to be  
provided to “other potentially interested parties.” This was because the summary of  
the documents was going to be used and not the documents themselves:  
[58]  
… As argued by the Applicants, direct evidence is not needed from  
those other parties, given the affidavit evidence provided in support of the  
application, which described the confidentiality agreements surrounding the  
creation and/or dissemination of the Confidential Documents.  
[137] In my view this is another circumstance where the EAB’s misreading of the  
Petitioners’ position on the issue of summary evidence versus specific evidence led  
it to an unreasonable conclusion. There was no agreement on the use of summary  
evidence and, again, the EAB was required to make a decision on that issue. Using  
the logic of the EAB, if it had concluded that direct evidence and specific documents  
were required then the conclusion on whether direct evidence from third parties was  
required might well have been different.  
5.  
Decision of September 17, 2019  
[138] The EAB decision of September 17, 2019 was made on the basis of s. 42 of  
the ATA and I have set out that provision above.  
 
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[139] The EAB relied on its decision of September 10, 2019 for its brief decision of  
September 17, 2019, made during the hearing. There is nothing remarkable in that  
process.  
[140] However, I have concluded above that the September 10, 2019 decision was  
unreasonable on a number of grounds. On this basis the decision of September 17,  
2019 must also be considered as unreasonable, not on its face but because its  
foundation has been found to be unreasonable.  
(v)  
Summary  
[141] The EAB issued two decisions on the issue of confidentiality. The  
September 10, 2019 decision, applying s. 41 of the ATA, sealed some security-  
related evidence from the public and the media, and the September 17, 2019  
decision, applying s. 42 of the ATA, ruled that an in camera hearing would be used  
for some security-related evidence.  
[142] The standard of review for these two decisions is reasonableness, not  
correctness.  
[143] Under s. 41 of the ATA the EAB was required to weigh the public interest in  
favour of openness of legal proceedings against the private interests of the Railways  
in keeping their security information confidential. The EAB conflated the Railways’  
private interest in keeping their security information confidential with a public  
interest, concluding that there was an overlap between the two. This was because  
the public also has an interest in secure railways. Be that as it may, the balancing  
exercise remained the weighing of the Railways’ interest in not having a public  
hearing with the usual access to documentary evidence against a public interest in  
legal proceedings being open to the public, a situation where the presumption is in  
favour of openness but it is rebuttable.  
[144] In its decision of September 10, 2019 the EAB misstated the position of the  
Petitioners on the relevance and description of the security evidence that would be  
tendered by the Railways. The EAB described the Petitioners as not taking issue  
 
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with the use of generalized information in affidavits when the Petitioners, in fact,  
opposed that approach. There was no decision from the EAB about the scope of the  
evidence before it since it incorrectly concluded the parties had agreed to using  
summaries (although the decision itself is not consistent on this point).  
[145] The EAB erred about the scope of the evidence before it and that led it to  
unreasonable conclusions about notice to the media and third parties.  
[146] As described more fully below, the remedy in this case includes that the EAB  
is directed to reconsider and determine the two confidentiality decisions.  
(b)  
Two-step constitutional analysis  
[147] I turn to the constitutionality of s. 91.11 of the EMA, s. 2 of the Spill  
Regulation and the EAB decision of May 29, 2020. The EAB agreed with the  
Railways that the impugned legislation was ultra vires the Province but disagreed  
with the Railways on the issue of federal paramountcy. It is agreed that the standard  
of review for that decision is correctness.  
[148]  
A review of the jurisprudence is below but, the broad constitutional issue  
here is whether s. 91.11 of the EMA is within the legislative authority of the Province  
or, as the EAB decision decided, it is ultra vires the Province. Further, a two-step  
analysis is required: identify the “matter” (or pith and substance) of the challenged  
legislation and then assign the matter to one of the “classes of subjects” (or heads of  
legislative power) under s. 91 or s. 92 of the Constitution Act.  
[149] It is perhaps useful to point out here that no one is challenging the entire EMA  
(and nor is anyone challenging the federal PD 36 or the TDGA on constitutional  
grounds). The only issue is whether s. 91.11 of the EMA and s. 2 of the Spill  
Regulation are ultra vires the Province of British Columbia taking into account the  
pith and substance of the legislation as well as the related doctrines of  
interjurisdictional immunity, double aspect, ancillary powers, incidental effects and  
federal paramountcy.  
 
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[150] I will proceed by considering the following sub-issues:  
(a)  
(b)  
(c)  
The constitutional context;  
The pith and substance of s. 91.11 of the EMA;  
and whether s. 91.11 of the EMA should be assigned to a class under  
s. 91 or s. 92 of the Constitution Act;  
(d)  
(e)  
(f)  
Interjurisdictional immunity;  
Double aspect, ancillary powers and incidental effects; and  
Federal paramountcy.  
(i)  
Constitutional Context  
[151] The Railways submit that the dominant purpose of the impugned provisions of  
the EMA relate to federal matters under s. 91 of the Constitution Act and, therefore,  
they are ultra vires the Province of British Columbia. On the other hand, the Province  
says the impugned provisions are intra vires the Province because they are valid  
legislation under s. 92 of the Constitution Act.  
[152] The constitutional issues in this appeal arise from ss. 91 and 92 of the  
Constitution Act and I set out the relevant parts of those provisions:  
Legislative Authority of Parliament of Canada  
91.  
It shall be lawful for the Queen, by and with the Advice and Consent  
of the Senate and House of Commons, to make Laws for the Peace, Order,  
and good Government of Canada, in relation to all Matters not coming within  
the Classes of Subjects by this Act assigned exclusively to the Legislatures of  
the Provinces; and for greater Certainty, but not so as to restrict the  
Generality of the foregoing Terms of this Section, it is hereby declared that  
(notwithstanding anything in this Act) the exclusive Legislative Authority of the  
Parliament of Canada extends to all Matters coming within the Classes of  
Subjects next hereinafter enumerated; that is to say,  
(27) The Criminal Law, except the Constitution of Courts of  
Criminal Jurisdiction, but including the Procedure in Criminal Matters.  
 
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(29) Such Classes of Subjects as are expressly excepted in the  
Enumeration of the Classes of Subjects by this Act assigned  
exclusively to the Legislatures of the Provinces.  
Subjects of exclusive Provincial Legislation  
92. In each Province the Legislature may exclusively make Laws in  
relation to Matters coming within the Classes of Subjects next hereinafter  
enumerated; that is to say,  
(8)  
Municipal Institutions in the Province.  
(10) Local Works and Undertakings other than such as are of the  
following Classes:  
(a)  
Lines of Steam or other Ships, Railways, Canals,  
Telegraphs, and other Works and Undertakings  
connecting the Province with any other or others of the  
Provinces, or extending beyond the Limits of the  
Province:  
(13) Property and Civil Rights in the Province.  
(16) Generally all Matters of a merely local or private Nature in the  
Province.  
[Emphasis added].  
[153] As can be seen, there is no specific reference to federal jurisdiction over  
railways in s. 91. However, it is not disputed that the federal Parliament has  
jurisdiction over interprovincial railways under s. 92(10)(a). I discuss jurisdiction over  
the environment below.  
[154] The Court of Appeal has recently discussed the leading cases on division of  
powers under the Constitution Act (Reference re Environmental Management Act  
(British Columbia), 2019 BCCA 181 [EMA Reference], aff’d 2020 SCC 1). Apart from  
the legal discussion in that decision it is also useful because it considers the same  
legislation as in the subject petitions, the EMA. The issue before the court in the  
EMA Reference was the regulation of pipelines by the Province of British Columbia.  
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[155] The Court of Appeal, at para. 4, set out as a “thumbnail guide” the following  
adopted from Professor Peter Hogg to explain the steps normally undertaken when  
the vires of legislation is challenged (Constitutional Law of Canada, 5th edition,  
Supplemented, 2019):  
§15.4 In Canada the distribution of legislative power between the federal  
Parliament and the provincial Legislatures is mainly set out in ss. 91 and 92  
of the Constitution Act, 1867. Section 91 lists the kinds of laws that are  
competent to the federal Parliament; s. 92 lists the kinds of laws that are  
competent to the provincial Legislatures. Both sections use a distinctive  
terminology, giving legislative authority in relation to “matters” coming within  
”classes of subjects”. This terminology emphasizes and helps to describe the  
two steps involved in the process of judicial review: the first step is to identify  
the “matter” (or pith and substance) of the challenged law; the second step is  
to assign the matter to one of the “classes of subjects” (or heads of legislative  
power). Of course, neither of these two steps has any significance by itself.  
The challenged statute is characterized (or classified) as in relation to a  
“matter” (step 1) only to determine whether it is authorized by some head of  
power in the Constitution. The “classes of subjects” are interpreted (step 2)  
only to determine which one will accommodate the matter of a particular  
statute. The process is, in Laskin’s words, “an interlocking one, in which the  
British North America Act and the challenged legislation react on one another  
and fix each other’s meaning”. Nevertheless, for purposes of analysis it is  
necessary to recognize that two steps are involved: the characterization of  
the challenged law (step 1) and the interpretation of the power-distributing  
provisions of the Constitution (step 2).  
[156] I also take the following from the EMA Reference:  
(a)  
(b)  
(c)  
Professor Hogg pointed out that the “matter” of a law has been  
described in many ways but it “basically refers to its dominant  
characteristic or ‘true nature and character’ -- or in legalese, its ‘pith  
and substance’” (at para. 5).  
In some cases the dominant purpose of a law will not correspond  
directly to any of the heads of power in s. 91 or 92 of the Constitution  
Act. A court must nonetheless determine to which of the enumerated  
powers it relates (at para. 5).  
Occasionally a law may fairly relate to two matters, one provincial and  
one federal. Where both aspects are of “roughly equivalent  
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importance, the law may be upheld at either level.” This is the “double  
aspect” doctrine (at para. 5).  
(d)  
(e)  
It has been long accepted in Canada that constitutional law is a “living  
tree.” It reflects society and its changing concerns over time. There has  
developed a “ready acceptance of overlapping and often ‘mutually  
modifying’ jurisdictions”, bearing in mind the normal constraints of  
interpretation (at para. 19).  
Since the heads of power in the Constitution Act are not watertight it is  
in practice impossible for a legislature to exercise its jurisdiction over a  
matter without incidentally affecting matters within the jurisdiction of  
another level of government (at para. 6; citing Canadian Western Bank  
v. Alberta, 2007 SCC 22, at para. 27). The characterization process  
can be difficult because incidental effects can almost always be  
expected and the courts have favoured “co-operative federalism” over  
strict compartmentalization of jurisdiction. Co-operative federalism,  
however, cannot override or modify the separation of powers (at  
para. 6; citing Reference re Securities Act, 2011 SCC 66, at para. 39).  
(f)  
Unlike the constitution of the United States, the Canadian Constitution  
Act does not expressly allocate to either level of government the  
authority to make laws necessary and proper for the execution of the  
allocated powers. Professor Hogg suggests that, since the concept of  
pith and substance enables a valid law to have incidental or ancillary  
effects on matters outside its usual competence, a doctrine of ancillary  
powers is necessary (§15.9(c)). As long as there is a rational and  
function connection between what is valid and what is challenged, the  
head of power at issue should be interpreted not merely in the sense of  
its subject but also in the sense of the purpose or object (Nykorak v.  
Attorney General of Canada, [1962] S.C.R. 331; Papp v. Papp, [1970]  
1 O.R. 331 at 336).  
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(g) However, “[r]egardless of the precise wording of the test, the basic  
purpose of this inquiry is to determine whether the impugned measure  
not only supplements, but complements, the legislative scheme; it is  
not enough that the measure be merely supplemental” (Québec  
(Attorney General) v. Lacombe, 2010 SCC 38, at para. 48).  
[157] When examining the pith and substance of legislation two aspects of the  
legislation must be examined, its purpose and its legal effect (Canadian Western  
Bank, at para. 27):  
27.  
To assess the purpose, the courts may consider both intrinsic  
evidence, such as the legislation’s preamble or purpose clauses, and  
extrinsic evidence, such as Hansard or minutes of parliamentary debates. In  
so doing, they must nevertheless seek to ascertain the true purpose of the  
legislation, as opposed to its mere stated or apparent purpose (Attorney-  
General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.), at p. 337).  
Equally, the courts may take into account the effects of the legislation. For  
example, in Attorney-General for Alberta v. Attorney-General for Canada,  
[1939] A.C. 117 (“Alberta Banks”), the Privy Council held a provincial statute  
levying a tax on banks to be invalid on the basis that its effects on banks  
were so great that its true purpose could not be (as the province argued) the  
raising of money by levying a tax (in which case it would have been intra  
vires), but was rather the regulation of banking (which rendered it ultra vires,  
and thus invalid).  
[158] Purpose and effects can be found in the preamble of legislation, in a purpose  
clause and from extrinsic evidence such as Hansard. Effects can be determined  
from the statute itself as well as practical effects that flow from the application of the  
statute. The process is not technical or formalistic (Reference re Greenhouse Gas  
Pollution Pricing Act, 2021 SCC 11, at para. 51).  
[159] In the EMA Reference the Court of Appeal pointed out that the effects of a  
law can be “a more reliable guide to its constitutional validity than its apparent or  
stated intention” (at para. 14). Other cases have pointed out that there will inevitably  
be overlap between the spheres of authority of the Government of Canada and the  
provinces and this has required the development of a flexible approach to federalism  
(EMA Reference, at paras. 17, 19, 51).  
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[160] Within this context, I will discuss the EAB decision of May 29, 2020 and the  
positions of the parties on the issue of pith and substance. I will also give my  
conclusions on pith and substance including the evidence relied on by the EAB,  
whether interprovincial railways are targeted, whether the operations and  
management of interprovincial railways are affected by the impugned legislation, and  
the security of interprovincial railways.  
(ii)  
EAB decision of May 29, 2020  
[161] The decision of the EAB that discusses the constitutionality of the impugned  
legislation is the one dated May 29, 2020, where the EAB considered the evidence  
of the Director appointed under the EMA and other witnesses on the purpose of  
s. 91.11 of the EMA and found in favour of the Railways about the dominant purpose  
of s. 91.11. Accordingly, it allowed their appeals of the September 2018 orders of the  
Director.  
[162] The EAB decided that the purpose of s. 91.11, coming under s. 2(1)(b)(i) of  
the Spill Regulation, was to require the Railways to undertake spill preparedness  
planning as the Director deemed appropriate (at para. 152). Further, according to  
the EAB, there is already a well-developed federal regulatory regime, administered  
by a single regulator, and for the Director to “impose his own potentially unique  
requirements” on the Railways would be “more than an incidental effect” (at  
para. 154). It would “significantly affect” the management of the business of the  
Railways and the spill response planning for interprovincial railways “should not  
have to be modified and adjusted every time the [Railways] cross provincial borders”  
(at paras. 163, 164).  
[163] In allowing the Railways’ appeals, the EAB concluded:  
[178] … the Panel finds that the dominant purpose and effect of the  
Impugned Legislation is to provide a means for the Director to assess the  
Appellants' spill preparedness resources and plans, and to require the  
Appellants to deploy their resources in a manner acceptable to the Director.  
To do so would amount to the regulation of a federal undertaking no different  
than that which occurred in Alltrans, Courtois, Bell Canada, and the  
Reference Case.  
 
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[179] The Impugned Legislation is, in pith and substance, regulating the  
management and operations of interprovincial railways in terms of their spill  
preparedness and spill response planning, and is outside the power of the  
Legislature. Consequently, for the purposes of deciding these appeals, the  
Panel will treat the Impugned Legislation as being invalid, which means that  
the Director had no statutory authority to issue the Orders.  
(iii) Positions of the parties  
[164] The parties generally accept the two-stage approach to determining the  
constitutionality of legislation as discussed above although they apply that approach  
very differently.  
[165] According to the Petitioners, the pith and substance of s. 91.11(5)(b)(i) and  
the impugned orders is toxic spill planning and response. It authorizes the Director to  
gather information for the purposes of spill planning and response and it requires a  
regulated person” to produce that information. Section 91.11(5)(b)(i) does nothing  
more than that, according to the Petitioners. It does not dictate the terms of any spill  
contingency plan or the measures required for such a plan. Nor does it impose  
permit requirements, restrict the types of substances that can be transported or the  
volumes or routes to be used.  
[166] In addition, according to the Petitioners, s. 91.11 applies to all persons who  
transport specified products in large quantities including pipelines, railways, and  
trucking operations. Both inter and intra-provincial carriers are included. The overall  
objective of the EMA and its regulations is “to protect the quality of the environment  
by controlling, ameliorating and, where possible, eliminating the deleterious effects  
of pollution on the environment.”  
[167] The dominant character of s. 91.11(5)(b)(i) and Division 2.1, according to the  
Petitioners, is spill planning and response; it is not aimed at regulating the  
management and operations of interprovincial railways.The Petitioners also submit  
that the legislative history of the impugned legislation demonstrates that it was not  
enacted to restrict, reduce or impede the transportation of petroleum products  
through British Columbia. This makes it readily distinguishable from the legislation  
struck down in the EMA Reference. And, effects of the EMA (s. 91.11 in particular)  
 
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and the Spill Regulation place no specific limitation on or single out interprovincial  
railways, according to the Petitioners.  
[168] Turning to the position of the Railways, they characterize the conclusion of  
the EAB as being that the pith and substance of the impugned legislation is the  
regulation of interprovincial undertakings. Further, the dominant purpose or matter of  
s. 91.11 and Spill Regulation was the regulation of spill preparedness and planning  
practices of interprovincial railways carrying large quantities of substances such as  
crude oil. This is explained in paragraphs 178-179 of the EAB decision.  
[169] The Railways emphasize the Court of Appeal’s comment in the EMA  
Reference case that the effects of a law are a more reliable indicator of constitutional  
validity than any stated intention. And they submit that the dominant purpose of the  
impugned legislation is the “regulation of virtually all aspects of the spill contingency  
planning practices of interprovincial railways that carry crude oil, diluted bitumen,  
and other petroleum hydrocarbons in quantities of 10,000L or more.” They disagree  
with the Petitionersdescription of the EAB decision that Parliament has exclusive  
authority to regulate environmental protection of federal undertakings and disagree  
with the Petitioners’ suggestion that numerous industries beyond railways are  
subject to the impugned legislation.  
[170] The Railways review a number of the sub-sections in s. 91.11 and they  
conclude that it is clear that few aspects of their spill planning and preparedness are  
left untouched by the Director’s powers. Further, the intention to assign to the  
Director broad powers about planning and preparedness is evident from the remarks  
of the Minister of the Environment. It is clear that specific industries and business  
were to be targeted, in particular, interprovincial railways, according to the Railways.  
[171] The Railways say the actual and intended effects of the impugned legislation  
also demonstrate that its dominant character is the regulation of the Railways. The  
EAB noted this when it concluded the very specific nature of the definition of  
“regulated person” (at para. 143). This was also the evidence of the Director before  
the EAB when he, according to the Railways, “confirmed that the information  
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produced by the Railways pursuant to the Orders would be used by the Director to  
assess and evaluate the Railways’ spill contingency plans.They note he went  
further when he agreed that the information would be used to “more effectively  
regulate the railways.”  
[172] The Railways do not otherwise challenge the constitutionality of the EMA and  
they are entitled to challenge only one provision of it (Canadian Western Bank, at  
para. 25). It is to be considered in isolation from the rest of the statute unless the  
relationship between the impugned provisions is important to the issue of pith and  
substance (Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, at para. 23; Reference re  
Assisted Human Reproduction Act, 2010 SCC 61, at para. 16).  
[173] In their cross-petition, the Railways disagree with the EAB on the issue of  
federal paramountcy. They say that, because the EAB found that the reporting plans  
required under the impugned legislation frustrated the confidentiality provisions of  
PD 36, the only possible outcome was that the legislation (and the orders) were  
inoperative to the extent of the conflict. The Railways say section 91.11 of the EMA  
and the impugned orders conflict with and frustrate the federal regime governing  
interprovincial railways. For their part, the Petitioners agree with the result of the  
EAB’s analysis of federal paramountcy but disagree with its analysis.  
(iv) Discussion of constitutional issues and evidence  
[174] As can be seen above, there is some overlap in the submissions of the  
parties and the conclusion of the EAB with respect to the pith and substance of the  
impugned legislation. All emphasize that s. 91.11 requires regulated personsto  
gather information about toxic spill planning, preparedness and response. The EAB  
emphasizes the role of the Director in gathering and interpreting that information.  
The Railways emphasize the application of the legislation to the operations and  
management of interprovincial railways and the security of their operations. The  
Petitioners emphasize that the impugned legislation does no more than require the  
collection of information on planning, preparedness and response, and does not  
single out the Railways.  
 
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[175] I will consider the following issues:  
1.  
2.  
The evidence relied on by the EAB for its decision;  
The issue of whether interprovincial railways are targeted by the  
impugned legislation;  
3.  
4.  
5.  
The operations and management of federal undertakings;  
The security of interprovincial railways; and  
The pith and substance of the impugned legislation.  
1.  
Evidence relied on by the EAB  
[176] The EAB placed considerable weight on the evidence of the Director, a  
provincial employee delegated authority as a director under the EMA. That evidence  
included answering a question in cross-examination about whether s. 91.11 would  
be used to regulate the resources that the Railways need to have in different  
locations for spill response, the so-called “boots on the ground.” His answer was:  
That -- that would be part of what we would aim to do is to assess that  
contingency plan and, in our view, determine if it's adequate. And based on  
my understanding, exactly as you said, make a request to either amend or  
improve a contingency plan based on our review of their contingency plan in  
contrast to the substances being transported and the -- and the amount of  
volumes being transported.  
[177] The Director agreed that he wanted the information referred to in s. 91.11 to  
regulate the Railways from a response perspective. He also agreed that, if the  
Railwaysresponse plans were not adequate they would have to be amended. He  
said: “... we wanted to use that information to do a better job regulating or a better  
job ensuring adequate spill response and preparedness -- in B.C.(at paras. 127,  
128).  
[178] As can be seen, the Director’s evidence was significant to the EAB’s  
conclusion on the pith and substance of the impugned provisions. The EAB  
compared the regulatory regime in British Columbia with the federal one and stated  
 
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that “permitting a Provincial decision-maker, like the Director, to impose his own  
potentially unique requirements on the Appellants’ spill response planning would  
constitute more than an incidental effect on the [Railways’] operation” (at para. 154).  
Further, the EAB was concerned about s. 91.11 being interpreted and applied so  
that the resources of the Railways would be deployed “in a manner acceptable to the  
Director” (at para. 178).  
[179] The EAB appears to have adapted part of the conclusion of the Court of  
Appeal in the EMA Reference that the legislation at issue in that case would prohibit  
the operation of the expanded Trans Mountain pipeline in the Province until such  
time as a provincially-appointed official decided otherwise” (EMA Reference, at  
para. 103). The EMA Reference also described the legislation at issue as placing  
discretion that was “very broad indeed” in the hands of a director who could impose  
conditions on applicants as well as issue and cancel “hazardous substance permits”  
(EMA Reference, at para. 46). The EAB made similar findings about the role of the  
Director under the EMA and expressed similar concerns about excessive discretion,  
and the ability for the Province to stop inter-provincial works. As discussed below, I  
conclude that the EMA Reference decision arose from different circumstances and  
the impugned legislation here does not target interprovincial railways as the  
legislation in the EMA Reference targeted a specific pipeline. Nor does the Director  
under the impugned legislation here have the authority to stop the operations of  
interprovincial railways.  
[180] The EAB was not impressed with the evidence of the Director and it was  
entitled to reach that conclusion. However, I have some concerns about whether the  
evidence of a lay witness can or should be used to determine the dominant purpose  
of legislation for constitutional purposes. Even the evidence of an expert on  
constitutional issues has to be carefully considered so it does not answer the  
question before the decision maker. Government officials responsible for applying  
legislation may have some views about the legislation, including whether it is  
constitutional. But those personal views are not relevant for a decision maker who is  
actually deciding the constitutionality of the legislation.  
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[181] In this case, the Director was asked for his opinion about an important legal  
issue and that was for the EAB to decide. An analog is that an officer with the federal  
Minster of Transport could not give any useful evidence about the dominant purpose  
Parliament had in mind when it passed the TDGA. In my view, it is for counsel to  
provide argument on that issue, for the decision maker to decide it and it is not  
appropriate for lay witnesses to opine on it. Whether the evidence of such witnesses  
is correct or incorrect cannot be conclusive for a decision maker. This is even more  
the case with complex legal issues such as the constitutionality of legislation.  
[182] In any event, looking at the Director’s evidence in comparison with s. 91.11  
itself, I conclude his testimony is broadly consistent with the purpose of the  
legislation. Section 91.11(1)(a) states that a regulated personhas to have a spill  
contingency plan “that complies with the regulations.” Similarly, s. 91.11(6) states  
that a director may order that a spill contingency plan be amended in accordance  
with the director’s directions and resubmitted if it does not comply with the EMA or  
the regulations.  
[183] The result is that, while it was for the EAB to decide and not the Director,  
there can be little dispute that the purpose and effect of s. 91.11 and the Spill  
Regulation is to regulate those persons referred to in s. 2(1) of the Spill Regulation,  
including railways who transport 10,000 litres or more of crude oil or diluted bitumen.  
They are to collect and provide information about the planning, preparedness and  
response for spills of specified substances. As the Director testified, an affected  
party might have to “amend or improve” its planning for and response to spills.  
[184] This is not “unique” to the Director but is what s. 91.11 says. And the authority  
or “manner” of the Director when making decisions under that legislation is no more  
than what he or she is given by the legislation. Clearly the effects of legislation are  
relevant to its constitutionality and effects can be determined from the practical  
effects such as the application of the statute. Here the Director’s views are broadly  
consistent with the impugned legislation. While the effect of his evidence was that  
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the Railways would be regulated by the provincial government, if the Spill Regulation  
is constitutional, that cannot be objectionable on constitutional grounds.  
[185] It follows that, in my view, the constitutionality of the impugned legislation  
must be determined using the analytical tools of constitutional law, not the EAB’s  
interpretation of the evidence of the Director.  
2.  
Are interprovincial railways targeted?  
[186] The Railways submit that the impugned legislation targets interprovincial  
railways and the EAB agreed. The EAB stated that the dominant character of the  
impugned legislation “is to regulate the spill preparedness of interprovincial railways  
carrying large quantities of listed substances such as Crude Oil” (at para. 152). The  
EAB also stated:  
[143] While section 91.11 may, in other instances, be characterized as an  
environmental law of general application, the very specific nature of the  
definition of “regulated person” in section 2(1)(b)(i) of the Regulation appears  
to target interprovincial railway operations. It captures rail transport of large  
volumes of listed substances including Crude Oil. This, in effect, targets  
interprovincial railways, because all Crude Oil transported by rail through  
British Columbia originates outside of the Province. Although section 2(2)(c)  
of the Regulation exempts railways that transport substances “only within”  
certain federally-regulated lands, this exemption is insufficient to prevent the  
definition (and thus the requirements in section 91.11) from applying to  
interprovincial railways carrying Crude Oil, which must travel through areas in  
British Columbia that are not covered by this exemption before reaching their  
destination.  
[Emphasis added].  
[187] In light of this conclusion it is useful to review s. 2(1) of the Spill Regulation:  
Regulated person  
2(1) For the purposes of the definition of "regulated person" in section 91.1  
of the Act, the following substances in the following quantities are prescribed:  
(a)  
a listed substance in any quantity, in the case of a person who  
transports the substance through a pipeline;  
(b)  
a listed substance in a quantity of 10 000 litres or more, in the  
case of  
(i)  
a person who transports the substance by railway, or  
a person who transports the substance on a highway.  
(ii)  
 
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[188] As can be seen, railways that transport more than 10,000 litres of a listed  
substance are captured by the definition of “regulated person”. I accept the EAB’s  
finding of fact that all crude oil (a listed substance) that is transported by rail  
through British Columbia originates outside the province. It follows that the Railways,  
as interprovincial railways, are regulated personsunder the Spill Regulation.  
However, the scope of s. 2(1) of the Spill Regulation is broader than this since it also  
includes, for example, transportation by pipeline of a listed substance in any  
quantity.  
[189] I am unable to agree that the Spill Regulation targets the Railways in the  
sense of being singled out. The Spill Regulation applies to Railways but they are  
part of a group that also includes pipelines and highway transport and the dominant  
purpose of the Spill Regulation and s. 91.11 of the EMA is not to regulate  
interprovincial railways. A person who transports 10,000 litres of a listed substance  
by highway across provincial boundaries would also be captured by the legislation,  
but not because they are singled out.  
[190] Apart from that interpretative point, contrary to the submission of the  
Railways, there is no evidence that s. 91.11 of the EMA was specifically directed at  
interprovincial railways. When the Minister of Environment introduced amendments  
to the EMA on February 29, 2016 (First Reading, Bill 21), including s. 91.11, she  
said (Official Report of Debates of the Legislative Assembly (Hansard), Fifth  
Session, 40th Parliament, 29 February 2016, Volume 33, Number 9, 10802-10803):  
Hon. M. Polak: This bill contains amendments to the Environmental  
Management Act in order to enable a new spill preparedness response and  
recovery regime in British Columbia. The new authorities will enable  
preparedness requirements to be placed on specific industries or businesses  
before a spill ever happens.  
A comprehensive spill preparedness response and recovery regime is  
dependent on having the right capability and capacity to deal with spills. The  
bill enables the government to certify a preparedness and response  
organization that can provide spill preparedness and responses in British  
Columbia.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 59  
Finally, the bill enables greater transparency, accountability and participation.  
The aim is to have a spill preparedness response and recovery regime that is  
strategic, collaborative and inclusive.  
[Emphasis added].  
[191] The Railways point to the use by the Minister of “specific industries and  
businesses” as support for their argument that they are targeted by the legislation.  
However, that statement is in very broad terms and I can find no targeting or singling  
out of interprovincial railways. We actually do not know what the specific industries  
or businesses are and there is no suggestion the language used by the Minister was  
some kind of code for interprovincial railways. The other highlighted portion may  
reflect an intention by the Minister to do away with a patchwork of planning  
requirements, as discussed by the Minister later.  
[192] On April 11, 2016, Bill 21 was introduced for Second Reading in the  
Legislature. The following are the Minister’s remarks (Official Report of Debates of  
the Legislative Assembly (Hansard), Fifth Session, 40th Parliament, 11 April 2016,  
Volume 36, Number 9, 12028-12043):  
Hon. M. Polak: This bill repeals and replaces certain sections of the  
Environmental Management Act in order to introduce provisions that will  
enable a new spill preparedness, response and recovery regime in British  
Columbia. This new legislation is one step in ensuring that British Columbia  
has world-leading practices in place to deal with environmental emergencies.  
Preparedness helps to prevent spills. Planning for emergencies in advance  
saves time and costs, reduces the risk of poor decision-making due to  
uncertainty or lack of knowledge and can help to limit the impacts of a spill.  
New preparedness requirements will ensure that industries or businesses  
that may present a risk of a spill will have response strategies and  
procedures in place for their operations, including drills and exercises to test  
those strategies.  
The extent of the damage resulting from a spill depends on many factors,  
including the type of substance spilled and where it is spilled. The proposed  
amendments expand and build upon existing spill response provisions in the  
act that emphasize the polluter-pay principle. The new requirements are  
intended to ensure that the right actions are taken at the right time by a  
person who spills and that the person pays for those actions.  
It is critical that in the event of a spill, the right people and equipment are in  
place to respond quickly and effectively. Currently, there is a patchwork of  
contingency planning requirements in place for different industries. The intent  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 60  
is to have a consistent standard for contingency plans across the province  
and across industry sectors.  
[Emphasis added].  
[193] Bill 21 was referred to the Committee of the Whole in April 2016, and Third  
Reading took place May 10, 2016. It received Royal Assent on May 19, 2016.  
[194] Railways, pipelines and highways are the primary means of transporting  
significant quantities of substances such as petroleum products within and in/out of  
British Columbia. At the hearing before the EAB, the Director was asked what kinds  
of entities carry 10,000 litres of petroleum products in British Columbia, and he  
provided the example of fuel trucks on the highway, such as those that fill up the  
storage tanks at gas stations or deliver fuel to work camps. As we know, an  
interprovincial railway can be another example. And a railway that stays within the  
boundaries of British Columbia and carries 10,000 litres of crude oil or more is an  
example of the application of the Spill Regulation, not a targeting of that railway. It is  
true that only interprovincial railways transport diluted bitumen but, again, there is no  
evidence that was a specific target of the impugned legislation.  
[195] Looking at the Spill Regulation more broadly is also useful. As above s. 2(1)  
is part of the Spill Preparedness, Response and Recovery Regulation, B.C. Reg.  
185/2017. Again, it covers the topics in the title so that, for example, Part 4 sets out  
the contents of a recovery plan. Attached to the Spill Regulation as a Schedule is a  
list of substances that are the “listed substances” in s. 2(1) of the Spill Regulation.  
The substances are aviation fuel, bunker fuel, crude oil or diluted bitumen, diesel  
fuel, gasoline, heating fuel, kerosene and petroleum distillates. Under s. 2(1) of the  
Spill Regulation a “regulated person” is a person who transports these substances in  
the prescribed amounts by pipeline, railway or highway. Then s. 91.11 applies to  
“regulated persons.” I am unable to find the Spill Regulation or s. 91.11 single out or  
target crude oil or diluted bitumen, the products transported by the Railways.  
Overall, the broad structure of the Spill Regulation supports the conclusion that  
s. 91.11 is a law of general application.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 61  
[196] The EAB accepted that s. 91.11 was legislation of general application “in  
some instances” but concluded that the Spill Regulation targeted interprovincial  
railways because “all Crude Oil transported by rail through British Columbia  
originates outside the Province” (at para. 143). That may be true but a “regulated  
personincludes other substances (diesel, kerosene), other carriers and other  
industries (pipelines, trucks).  
[197] As a final matter here, it is appropriate to address directly the applicability of  
the Court of Appeal’s decision in the EMA Reference to this case.  
[198] According to the Railways the EMA Reference should be applied as  
essentially determinative of the question of vires in the subject petition. On the other  
hand, the Petitioners say that the EMA Reference is distinguishable.  
[199] The EAB’s reasons indicate that it relied heavily on the EMA Reference for  
direction and that it was essential to their determination of vires. As above, it  
adapted it to conclude that the authority of the Director under the impugned  
legislation was essentially the same as the officials charged with administering the  
legislation at issue in the EMA Reference. The EAB also cites it in support of its  
conclusion that if the Railways were required to comply with a different spill  
preparedness regime each time they crossed a provincial border, they would need to  
have multiple spill response plans. In addition:  
[177] … it is noteworthy, in our view, that the Court of Appeal in the  
Reference Case found that it was not a valid exercise of provincial power to  
regulate the environmental risks posed by transporting crude oil through an  
interprovincial pipeline which, like interprovincial railways, is a federal  
undertaking.  
[200] In my view the proposed provisions at issue in the EMA Reference were not  
only substantively very different from s. 91.11 of the EMA, but also arose in a  
different factual context.  
[201] In 2018, the provincial government proposed amendments to the EMA  
dealing with hazardous substances. The proposed amendments would have had the  
effect of regulating the Trans Mountain pipeline expansion. The government referred  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 62  
those proposed amendments to the Court of Appeal querying, inter alia, whether  
they were within the province’s legislative authority. The legislation targeted a single  
type of “hazardous substance”: “heavy oil”, meaning virtually all types of heavy crude  
oil and all bitumen and blended bitumen products. It also targeted a single type of  
transporter: pipelines. Further, the legislation gave broad discretion to a director  
under the EMA (a different position than the Director under s. 91.11 of the EMA) who  
could impose conditions on applicants, and issue and cancel “hazardous substance  
permits.” The “hazardous substance permits” contemplated were different in kind  
from those already established by the EMA.  
[202] Although the Court of Appeal found that the legislation at issue before them  
was not “colourable,” its practical impacts were not lost on them (at para. 97). As the  
Court stated:  
[97]  
...The ‘default’ position of the law is to prohibit the possession of all  
heavy oil in the Province above the Substance Threshold -- an immediate  
and existential threat to a federal undertaking that is being expanded  
specifically to increase the amount of oil being transported through British  
Columbia ...  
[103] [the legislation at issue] would prohibit the operation of the  
expanded Trans Mountain pipeline in the Province until such time as a  
provincially-appointed official decided otherwise. This alone threatens to  
usurp the role of the NEB [National Energy Board], which has made many  
rulings and imposed many conditions to be complied with by Trans Mountain  
for the protection of the environment.  
[203] As discussed above, s. 91.11 was borne of different circumstances and I  
have concluded that its history does not demonstrate that it was targeted at  
interprovincial railways. Nor does s. 91.11 or the Spill Regulation specifically target  
any particular substance or any particular type of transporter. Further, s. 91.11 does  
not give the Director any discretion to issue or cancel permits, the effect of which  
would be to pose “... an immediate and existential threat to a federal undertaking ...”  
(EMA Reference, para. 97). As the Petitioners point out, even with s. 91.11 in place  
the Railways are free, subject to federal regulation, to transport any substance of  
any volume on any route at any time through the Province.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 63  
[204] Unlike in the EMA Reference case, I can find nothing in this legislative history  
to support the allegation of the Railways that Bill 21 and then s. 91.11 of the EMA  
were targeted at interprovincial railways. Instead the entire focus of the legislation is  
on environmental protection, specifically spill planning, preparedness and response  
in British Columbia. When the legislation was introduced the objective was to get  
away from patch-work planning requirements and have consistent standards across  
the Province and across industry sectors. That intention or purpose is entirely  
consistent with the language of s. 91.11 of the EMA.  
3.  
Operations and management of federal undertakings  
[205] There is also an issue about whether a province can regulate the operations  
and management of a federal undertaking. The Railways say that the Province  
cannot regulate the operations or the management of an interprovincial railway and  
that is what the impugned legislation does. This was also a concern of the EAB as  
demonstrated by their conclusion that the impugned legislation, in pith and  
substance, was “regulating the management and operations of interprovincial  
railways in terms of their spill preparedness and spill response planning.For this  
reason, the EAB found the impugned legislation to be invalid meaning the Director  
had no authority to issue the September 2018 orders (at para. 179).  
[206] There are, however, previous cases where provincial environmental laws that  
apply to federal operations, including interprovincial railways, have been found to be  
valid. Some of these cases were cited to the EAB but not all of them are mentioned  
in its decision.  
[207] In an early case, a ditch on the side of an interprovincial railway line had  
become blocked and it caused flooding on a neighbouring farm (Canadian Pacific  
Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C.  
367 (J.C.P.C.). The local municipality served notice to clean up the ditch but the  
railway refused to clean it up on the ground that it was a federal undertaking.  
[208] The Privy Council in Bonsecours accepted that any attempt by a province (or  
municipality) to regulate the structure of a ditch forming part of the railway’s works  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 64  
would be ultra vires the province. However, the impugned legislation made no  
reference to the structure of the ditch. Instead, it required that, if the ditch became  
choked with silt or rubbish so as to cause an overflow, it was to be thoroughly  
cleaned by the railway and this was an issue competent to the provincial legislature  
(at pp. 372-3):  
The British North America Act, whilst it gives the legislative control of the  
appellants’ railway qua railway to the Parliament of the Dominion, does not  
declare that the railway shall cease to be part of the provinces in which it is  
situated, or that it shall, in other respects, be exempted from the jurisdiction of  
the provincial legislatures.  
[209] In another case, a federally regulated railway was held to be subject to the  
Ontario Environmental Protection Act with respect to the smoke it caused by burning  
dead grass along its right-of-way (Ontario v. Canadian Pacific Ltd., [1993] O.J. No.  
1082 (Ont. C.A.). This was despite the fact that the fires were set by the railway  
company to comply with the federal Railway Act. The Supreme Court of Canada  
upheld the Ontario Court of Appeal’s conclusion that the provincial regulation of  
airborne discharges was not “essential” to the operation of an interprovincial railway  
and was not “in relation” to their management ([1995] 2 S.C.R. 1028). The Court  
also concluded that the decision in Bonsecours governed.  
[210] Similarly, the Ontario Court of Appeal held that an interprovincial trucking  
company was governed by provincial regulations with respect to the carriage of PCB  
waste (R. v. TNT Canada Inc. (1986), 37 D.L.R. (4th) 297 (Ont. C.A.). Provincial  
regulation required a certificate of approval to manage PCB waste and the  
application for the certificate had to include the exact composition of the waste, a  
certificate of insurance in the amount of $1 million, an undertaking that the waste  
would only be taken to a specific site and that the equipment used was inspected  
and approved by the provincial Ministry of Environment (at p. 300). The provincial  
legislation was found not to regulate federal or interprovincial undertakings but to  
regulate provincial highways for the protection of the environment for the safety of  
the residents of Ontario. In TNT the Chief Justice of Ontario observed (at pp. 302-3):  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 65  
The provincial legislation in issue does not “sterilize” the federal  
undertaking nor does it interfere with its “essential functions” to  
“substantial degree: Winner, supra [A.G. Ont. Et al. v. Winner et al.,  
[1954] A.C. 541 (P.C.)]. Indeed, in my view, it does not impair the  
respondent’s basic functions in any degree. …  
In the same way that the province can regulate speed limits and the  
mechanical conditions of vehicles on the roads of the province for the  
protection and safety of other highway users, it can set conditions for  
the carriage of particular toxic substances within the province,  
provided that the conditions do not interfere in any substantial way  
with the carrier’s general or particular carriage of goods, and are not  
in conflict either directly or indirectly with federal legislation in the field.  
[211] The Railways rely on Bonsecours, Canadian Pacific and TNT to say they  
demonstrate that it is beyond the competence of provincial legislatures to regulate  
how federal railways manage and conduct their operations. It is true that, for  
example, in Bonsecours, there is a reference to the “exclusive right” of the federal  
Parliament “to prescribe regulations for the construction, repair, and alternation of  
the railway, and for its management, and to dictate the constitution and powers of  
the company (at p. 372). However, as discussed above, the same decisions  
expressly decided that provinces have jurisdiction over cleaning up a ditch on the  
property of a federal railway and a provincial requirement for a certificate to transport  
PCB waste between provinces is a valid exercise of provincial authority. These are  
surely the kind of intrusions in the management of interprovincial undertakings that  
the Railways object to.  
[212] In a recent case the Québec Court of Appeal applied some of the above  
decisions (Attorney General of Québec v. IMTT-Québec inc., 2019 QCCA 1598,  
leave to appeal ref’d [2020] S.C.C.A. No. 38929. The facts involved the construction  
by IMTT-Québec inc. of installations at a port on federal property but in the territory  
of a municipality. The Province of Québec sought an injunction requiring IMTT-  
Québec inc. to undertake an environmental assessment. The trial judge concluded  
that the activities at issue were on federal land and closely linked to federal  
jurisdiction over navigation and shipping.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 66  
[213] The Québec Court of Appeal concluded that the Province of Québec could  
not approve projects on federal land used for a purpose under a federal head of  
power (at para. 263). However, provincial regulation of the release of contaminants  
into the environment from that site were found to be intra vires the province: “[i]n  
principle, until proven otherwise, provincial laws and regulations of general  
application aimed at controlling contaminants apply within the Port of Québec” (at  
para. 278). Further, “[c]itizens of Québec have just as much of a right to an  
environment free of contaminants within the port of Québec as they do elsewhere in  
Québec” (at para. 278). The court also described Bonsecours as confirming the  
application of provincial environmental protection legislation to a federal railway  
undertaking (at para. 240).  
[214] In my view, the cases do not draw the hard line between federal and  
provincial jurisdiction described by the Railways with respect to the operations and  
management of federal undertakings. It is of course recognized (including by the  
Railways) that incidental effects can always be expected between federal and  
provincial legislation (EMA Reference, at para. 6). More significantly, in my view,  
Bonsecours, Canadian Pacific, TNT and IMTT-Québec inc., go further than  
incidental effects and describe a provincial interest in the subject matters in those  
cases such, as in the case of TNT, the protection of the environment for the safety of  
the general public in Ontario and the general public in Québec in the case of IMTT-  
Québec inc.  
[215] As a final matter I note that the Court of Appeal in the EMA Reference  
described the use of “management” and “operation” as “not ... the most helpful test’”  
since “almost any decision required to be made by a corporate entity charged with  
running an interprovincial trucking line, railway or pipeline may be seen as affecting  
its management or operation” (at para. 99). I agree with that statement.  
[216] Turning to what might be called non-environmental cases, banks offering  
insurance services have been found not to be immune from provincial insurance  
regulations (Canadian Western Bank, at para. 20). The Supreme Court of Canada  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 67  
pointed out that, previously, it has not included as part of the federal jurisdiction over  
banking “every transaction coming within the legitimate business of a banker”  
because banks are not immune from provincial laws of general application (at  
para. 65).  
[217] The Court in Canadian Western Bank then considered the application of  
provincial environmental regulation in the federal transportation cases. The  
decisions in Canadian Pacific and TNT were adopted (and considered to be of  
“greater relevance” than the cases about banking and insurance (at para. 66)). It  
was accepted that a provincial law that required a license to be obtained before a  
bus company could operate an interprovincial bus service would “destroy the  
efficacy” of the federal undertaking (citing Attorney-General for Ontario v. Winner,  
[1954] 4 D.L.R. 657 (P.C.), at 668, 675). However:  
[o]n the other hand, courts have consistently held that there is no vital or  
essential federal interest that would justify holding transportation  
undertakings immune from the rules of the road or legislation dealing with  
safety in the transportation industry. See, e.g., R. v. Greening (1992), 43  
M.V.R. (2d) 53 (Ont. Ct. (Prov. Div.)); National Battlefields Commission, at  
p. 860; R. v. TNT Canada Inc. (1986), 37 D.L.R. (4th) 297 (Ont. C.A.), at  
p. 303. …  
[218] Similarly, regulating wages and working conditions of employees of an  
independent contractor constructing an airport building it is not vital or essential to  
the federal interest (Construction Montcalm Inc. v. Quebec (Minimum Wage  
Commission), [1979] 1 S.C.R. 754). And provincial liquor laws are applicable to  
airlines because the sale of alcohol was a benefit to the airline undertaking but it is  
not essential (Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581).  
[219] As above the EAB concluded that the intrusion by s. 91.11 into the operations  
and management of the Railways was reason to declare it invalid (at para. 179). It  
adopted the part of Bonsecours described above that referred to the management of  
an interprovincial undertaking (at para. 198). However, it did not recognize that the  
same decision approved provincial intrusion in the management and operation of the  
environmental affairs of the subject railway.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 68  
[220] The EAB also concluded that judicial precedent recognizes that  
“interprovincial railway safety and associated operational management as a core of  
federal power” (at para. 208). For this statement it relied on the decisions in  
Courtois, Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du  
Travail), [1988] 1 S.C.R. 749; Alltrans Express Ltd. v. British Columbia (Workers’  
Compensation Board), [1988] 1 S.C.R. 897 and the EMA Reference.  
[221] With respect to Bell Canada (1988), the decision in Canadian Western Bank  
is again significant. The issue there was whether a pregnant employee of a federal  
undertaking, Bell Canada, could receive protective re-assignment under Québec  
occupational health and safety legislation. The Supreme Court of Canada concluded  
that the applicable provisions of the provincial legislation were not constitutionally  
applicable to Bell Canada. Among other things, the Court considered the level of the  
intrusion on the “core” of the power of the other level of government which would  
trigger the application of interjurisdictional immunity. The conclusion was (at  
pp. 859-60):  
In order for the inapplicability of provincial legislation rule to be given effect, it  
is sufficient that the provincial statute which purports to apply to the federal  
undertaking affects a vital or essential part of that undertaking, without  
necessarily going as far as impairing or paralyzing it.  
[222] Another view was that (British Columbia (Attorney General) v. Lafarge  
Canada Inc., 2007 SCC 23, at para. 139):  
the meaning of the word “affects” should be interpreted as a kind of middle  
ground between the perhaps overly vague or broad standard of “touches on”  
and the older and overly restrictive standard of “sterilizes” or “impairs”.  
Without requiring complete paralysis of the core of the federal power or the  
operations of the undertaking, the impact of the application of the by-law must  
be sufficiently severe and serious to trigger immunity.  
[223] Then Canadian Western Bank concluded that the approach in Bell Canada  
(1988) should not continue:  
We believe that the law as it stood prior to Bell Canada (1988) better  
reflected our federal scheme. In our opinion, it is not enough for the provincial  
legislation simply to “affect” that which makes a federal subject or object of  
rights specifically of federal jurisdiction. The difference between “affects” and  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 69  
“impairs” is that the former does not imply any adverse consequence  
whereas the latter does. The shift in Bell Canada (1988) from “impairs” to  
“affects” is not consistent with the view subsequently adopted in Mangat that  
“[t]he existence of a double aspect to the subject matter ... favours the  
application of the paramountcy doctrine rather than the doctrine of  
interjurisdictional immunity” (para. 52). Nor is the shift consistent with the  
earlier application by Beetz J. himself of the “impairment” test in Dick v. The  
Queen, [1985] 2 S.C.R. 309, at pp. 323-24. It is when the adverse impact of a  
law adopted by one level of government increases in severity from “affecting”  
to “impairing” (without necessarily “sterilizing” or “paralyzing”) that the “core”  
competence of the other level of government (or the vital or essential part of  
an undertaking it duly constitutes) is placed in jeopardy, and not before.  
[224] The decisions in Courtois and Alltrans were companion decisions to Bell  
Canada (1988) and the three decisions have been described as a trilogy. In Courtois  
the common issue between the three cases was described as: “is a provincial  
statute regulating health and safety conditions in the workplace ... constitutionally  
applicable to a federal undertaking?” (at p. 872). The decision in Courtois was that  
provisions of provincial health and safety legislation that were the basis of a  
subpoena to investigate the fatal injuries of employees of an interprovincial railway  
were unenforceable against the railway (at p. 891). In Alltrans the Court found that  
provisions of British Columbia occupational legislation requiring things like wearing  
safety equipment and establishing a safety committee were inapplicable to an  
interprovincial trucking service (at p. 911).  
[225] Returning to the EAB decision at issue here, I agree that the trilogy of cases  
mean that interprovincial railway safety and associated operational management is  
part of the core of the railways’ federal undertaking. However, that is a different  
matter than the provincial jurisdiction confirmed in the Bonsecours line of cases.  
Provincial legislation can regulate environmental issues arising from federal  
undertakings as they affect the general public beyond the actual operations of, for  
example, interprovincial railways (flooding beyond a rail right of way (Bonsecours),  
contaminants beyond operations on federal property (IMTT Québec inc.) etc.).  
Legislation related to contingency planning as reflected in the impugned legislation  
for those risks is similarly valid.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 70  
4.  
Security of interprovincial railways  
[226] The Railways say they are uniquely vulnerable to mischief and sabotage and  
that their vulnerability to security threats is relevant to the constitutionality of the  
impugned provisions of the EMA. In constitutional terms, they say the impugned  
provisions impair vital aspects of the Railways’ federal mandate such as security and  
safety (as well as spill preparedness and planning).  
[227] The Petitioners submit that the Railways did not prove before the EAB, and  
have not proven on this judicial review, the existence of a specific terrorist threat  
against railways in Canada or in British Columbia.  
[228] This issue arose originally from the August-September 2018 orders of the  
Director and a significant part of the submission of the Railways is a concern over  
the Ministry’s proposed publication of the information collected under s. 91.11 of the  
EMA pursuant to those orders.  
[229] As described in the orders, the following was to have been provided to the  
Ministry on a quarterly basis through 2020. The following is one order from August  
2018:  
Volume of crude oil transported by rail  
a)  
Identify and provide:  
The volume of heavy oil transported by railway in B.C. per week.  
Volumes to be provided as a total volume (m3) and by carload. The  
following definition of heavy oil is provided for reference:  
Heavy oil:  
a crude petroleum product that has an American Petroleum  
Institute gravity of 22 or less, or  
a crude petroleum product blend containing at least one  
component that constitutes 30% or more of the volume of the  
blend and that has either or both of the following:  
i.  
an American Petroleum Institute gravity of 10 or less,  
ii.  
a dynamic viscosity at reservoir conditions of at least  
10 000 centipoise  
The volume of all other crude oil transported by railway in B.C. per  
week. Volumes to be provided as a total volume (m3) and by carload.  
b)  
Identify and provide:  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 71  
The volume of heavy oil transported by railway in B.C. per route per  
week. Volumes to be provided as a total volume (m3) and by carload.  
The volume of all other crude oil transported by railway in B.C. per  
route per week. Volumes to be provided as a total volume (m3) and  
by carload.  
Route  
c)  
Provide an electronic map displaying the locations of all railways  
currently transporting crude oil in B.C.  
For shipments that originate outside of B.C., include the location  
where the shipment enters the province.  
For shipments that are transported out of B.C., include the location  
where the shipment exits the province.  
For shipments that originate from or are received at facilities within  
B.C., indicate the location and name of the facility, including loading  
and offloading volumes for each crude oil type expressed as a total  
volume (m3) and by carload.  
Substance type and region of origin  
d)  
For (a), (b) and (c) above provide:  
The gravity (or expected gravity) by American Petroleum Institute  
methodology.  
The formation and region by province/state.  
Estimated number of railcars per route delivering crude oil  
e)  
Identify and provide:  
The maximum number of railcars per train and per route being used to  
transport crude oil per week.  
The average number of railcars per train and per route being used to  
transport crude oil per week.  
[Emphasis added].  
[230] The Railways say that publication of the information required by the impugned  
legislation would trammel the core of their federal undertaking as interprovincial  
railways. The Petitioners say that any disclosure of information under the impugned  
legislation would be subject to the Freedom of Information and Protection of Privacy  
Act, R.S.B.C. 1996, c. 165 (“FOIPPA”). Section 15 specifically excludes information  
from disclosure that is related to espionage, sabotage or terrorism.  
[231] A “Duty to Comply” was described in the orders and it referenced s. 120(10)  
of the EMA and s. 12(4) of the Administrative Penalties (Environmental Management  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 72  
Act) Regulation, B.C. Reg. 133/2014. The former can result in a fine up to $300,000  
or imprisonment for not more than six months for anyone who contravenes an order.  
The latter provides for an administrative penalty not exceeding $40,000. A “Right to  
Appeal” under Part 8 of the EMA was described.  
[232] With respect to publication the orders at issue also included the following:  
NOTIFICATION OF PUBLICATION  
The Ministry of Environment and Climate Change Strategy (Ministry) plans to  
publish, at regular intervals, reports on crude oil transportation in British  
Columbia, similar to the Washington State Department of Ecology’s Crude  
Oil Movement by Rail and Pipeline Quarterly Report. The party [Canadian  
Pacific Railway] is notified that:  
a)  
The Province will provide written notice to the Party of its intent to  
publish the Regulatory Documents at least 14 days prior to  
publication, and  
b)  
The Province will not publish any information that could not be  
disclosed if it were subject to a request under Section 5 of the  
Freedom of Information and Protection of Privacy Act (RSBC 1996  
c. 165 as amended from time to time.  
[Emphasis in original].  
[233] In his evidence before the EAB, as summarized by the EAB (at paras. 82-86),  
the Director stated that the purpose of collecting the information in the orders was to  
assess the Railways’ spill contingency plans. He understood that PD 36 was for  
local municipal governments to receive information and s. 91.11 of the EMA was to  
obtain information for the whole province. He explained further that he did not think  
there would be a security risk because, under s. 91.11 of the EMA, the information  
sought would not be for future routes and volumes, only quarterly information about  
past shipments. He also relied on the current publication by Washington State of  
similar information to say there should be no harm. The Director testified that the  
Ministry would prepare regular reports describing the route and volume information  
but any decision to publish it would be made at the Assistant Deputy Minister level,  
not at his level.  
[234] The general context for this issue can be taken from a review conducted by  
the federal Ministry of Transport (Regulatory Impact Analysis Statement, Canada  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 73  
Gazette, Part I, Volume 151, Number 25: Transportation of Dangerous Goods by  
Rail Security Regulations, June 24, 2017):  
Dangerous goods are an important aspect of the Canadian economy, with an  
estimated 30 million shipments transported within Canada each year,  
approximately 24% of which are transported by rail. Dangerous goods are  
used in almost every facet of Canadians' lives, from fuelling vehicles and  
providing home comfort, to manufacturing and industrial processes. Though  
dangerous goods are important to the Canadian economy and essential to  
modern life, they can, by their nature, be harmful to people, property and the  
environment, if misused.  
To mitigate harm during transport, the Government has historically focused  
on implementing safety requirements to reduce the likelihood and  
consequences of an accidental release of dangerous goods. However,  
dangerous goods are also vulnerable to deliberate misuse or sabotage in the  
rail supply chain. Though there have been no successful attacks in Canada,  
terrorist groups have committed numerous deadly attacks using dangerous  
goods in other parts of the world, which have highlighted the vulnerability of  
the system.  
In addition, recent events have highlighted the devastating impact that rail  
incidents involving dangerous goods can have on public safety, the  
environment and the economy. Most notably, on July 6, 2013, a Montreal,  
Maine & Atlantic Railway (MMA) train carrying light crude oil derailed in  
downtown Lac-Mégantic, Quebec: the ensuing explosions and fire killed 47  
people, destroyed 40 buildings, and caused serious environmental damage to  
the downtown area and adjacent river and lake.  
[235] The report also noted that, although there is no specific threat to the  
transportation of dangerous goods in Canada at this time, there are heightened  
concerns about the potential threat posed by individuals who subscribe to extremist  
ideologies.”  
[236] I note there is a distinction to be made between the security and the safety of  
railways. The former are the risks of deliberate attacks on railway operations such as  
by terrorists. On the other hand, safety involves the risks of accidents in railway  
operations that can cause injury to employees, to property and to the general public.  
There was evidence from the Railways on this issue which the EAB ruled as being  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 74  
lay opinion evidence and inadmissible but I take this distinction to follow the plain  
meaning of the words safetyand security.  
[237] Presumably there can be some overlap between security and safety when a  
specific good such as diluted bitumen is a risk to the environment (if there is an  
accidental spill) and the same good may be a security risk (if a train is attacked).  
But, in light of the submission of the Railways, a distinction is to be made between  
security and safety and, for the purposes of this judicial review, I am treating them as  
distinct issues. As an example of this distinction the federal government’s Regulatory  
Impact Analysis Statement noted the “devastating impact” of the Lac-Mégantic  
accident in 2013 but “[t]hough this incident was safety-related, it underscores the  
devastation that could occur if trains transporting dangerous goods were specifically  
targeted by terrorists.”  
[238] In its decision of May 29, 2020 the EAB decided that, given its findings on the  
constitutional issues, it was “unnecessary to consider the expert evidence of the  
existence of security issues related to public disclosure of the Route and Volume  
information” (at para. 232). Notwithstanding this, the EAB included “security” in a  
number of its conclusions. For example, it stated that “in terms of safety and  
security” there was a volume of evidence that disclosing the information required by  
the September 2018 orders would have a serious impact on a vital and essential  
element of the Railwaysfederal undertakings (at para. 205). Another example is the  
EAB’s description of the key elements of an interprovincial railway including the  
federal regulation of “all of its operations including safety, security, and  
environmental protection” (at para. 165).  
[239] There is no explanation or reasoning for including security in these  
statements. In light of the EAB’s specific decision that it was not deciding the  
security issues before it, I am unable to give any weight to the references to  
“security” throughout its decision.  
[240] The Railways point to a number of legislative provisions to emphasize the  
importance of the security of their operations. These include the Railway Safety Act,  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 75  
R.S.C. 1985, c. 32 [RSA], the Rules Respecting Key Trains and Key Routes under  
the RSA. And there are the TDGA and PD 36 and the federal Transportation of  
Dangerous Goods by Rail Security Regulations, SOR/2019-113 [Rail Security  
Regulations], pursuant to s. 27(a) and s. 27.1(b) of the TDGA.  
[241] The Railways also rely on security-related documents that remain sealed in  
this proceeding. The information and assertions in the documents and the source of  
the documents were challenged by the Petitioners and there is at least one level of  
hearsay in them. The EAB did not rule on these evidentiary issues.  
[242] The EAB heard evidence from seven witnesses on the Railways’ security  
issue, including an expert for each party. During the hearing the Petitioners objected  
to the evidence of an expert witness for the Railways because he had limited  
qualifications (the person was not trained as a security analyst), his opinions were  
based on excessive generalities with no empirical/factual foundation, no real  
methodology was used (he stated he was using a “weight of the evidence  
methodology” or a “cost benefit analysis”) and he could not identify the methodology  
he used. In addition, the Petitioners’ expert testified that the opinion of the Railways’  
expert had significant methodological deficiencies. These included not using a risk  
assessment approach accepted by spill response scientists, a lack of statistical  
analysis or historical analysis to assess risk and an inadequate foundation to predict  
a spill from a terrorist attack. Again, the EAB declined to rule on these issues.  
[243] All of this creates obvious problems in this judicial review of the EAB decision  
of May 29, 2020. The Railways maintain that security is an important issue that  
supports their assertion that the impugned legislation is unconstitutional. However,  
there is no decision from the EAB on the issue of railway security to review or even  
decisions about the admissibility and reliability of the relevant evidence. It is not my  
role on a judicial review to analyze and assess evidence in the first instance without  
hearing that evidence directly. And, while the review here is on the basis of  
correctness, it is not a hearing de novo.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 76  
[244] For the above reasons I conclude that, pursuant to s. 5 of the JRPA, the  
security issues raised by the Railways and the related evidentiary issues must be  
referred back to the EAB for reconsideration and determination. I provide more  
details in the summary below.  
(v)  
Pith and substance of s. 91.11 of the EMA  
[245] With the above in mind I turn to my decision on the pith and substance of the  
impugned legislation, s. 91.11 of the EMA, bearing in mind I have no evidentiary  
record on the issue of security of interprovincial railways.  
[246] Section 91.11 of the EMA can be considered as having three parts,  
summarized by me as follows:  
(a)  
Section 91.11(1) requires a regulated personto ensure that it has a  
spill contingency plan. The plan is to be reviewed, updated and tested  
in the prescribed manner, it is to be made available to employees of  
the regulated person,it is to demonstrate that the regulated person”  
has the capability to effectively respond to a spill and it is to be  
published pursuant to the regulations.  
(b)  
(c)  
Section 91.11(2) requires that, before a spill contingency plan is  
prepared, a regulated person must ensure that investigations, tests  
and surveys are undertaken in accordance with the regulations. They  
are to determine the magnitude of the risk to the environment, human  
health and infrastructure.  
Section 91.11(3) requires that a regulated personensure that it  
prepares and keeps records of investigations, test and surveys, that  
prescribed reports are prepared and submitted to a director and that  
employees have the prescribed training (manner and frequency). Per  
s. 91.11(4), a regulated personmust ensure that a spill contingency  
plan is implemented if a spill occurs and, per s. 91.11(5), if ordered by  
the director, provide a copy of the spill contingency plan and  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 77  
information relating to it (operations and substances used). The  
director may order changes to a spill contingency plan and may order  
that is be tested.  
[247] As noted earlier, s. 91.11 applies to a regulated personand s. 2(1) of the  
Spill Regulation prescribes substances being transported and their quantities. It  
includes a person who transports 10,000 litres or more by railway and the Railways  
come under this definition. As discussed above, a regulated personis also a  
person who transports a substance in any quantity through a pipeline and a person  
who transports 10,000 litres or more by highway. I note that the EMA Reference did  
not strike out this regulation. There is no head of power under s. 91 or s. 92 of the  
Constitution Act that specifically refers to spill contingency planning of regulated  
personsand listed substances.  
[248] The very broad subject matter of the EMA and s. 91.11 is the environment.  
There is no purpose clause in the statute but s. 5 sets out the scope of the Minister’s  
authority and is instructive:  
Minister's authority  
5 The duties, powers and functions of the minister extend to any matter  
relating to the management, protection and enhancement of the environment  
including, but not limited to, the following matters:  
(a)  
(b)  
(c)  
(d)  
(e)  
(f)  
planning, design, planning, research and investigation in relation to  
the environment;  
development of policies for the management, protection and use of  
the environment;  
construction, operation and maintenance of works and undertakings  
for the management, protection or enhancement of the environment;  
providing information to the public about the quality and use of the  
environment;  
preparing and publishing policies, strategies, objectives, guidelines  
and standards for the protection and management of the environment;  
preparing and publishing environmental management plans for  
specific areas of British Columbia which may include, but need not be  
limited to, measures with respect to the following:  
(i)  
flood control, flood hazard management and development of  
land that is subject to flooding; drainage;  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 78  
(ii)  
soil conservation;  
(iii)  
(iv)  
(v)  
water resource management;  
fisheries and aquatic life management;  
wildlife management;  
(vi)  
(vii)  
waste management;  
air management.  
[249] I am not bound by what a statute says about its purpose but, in this case,  
considering s. 5 and the statute as a whole, the broad purpose of the EMA can be  
described as the management, protection and enhancement of the environment.  
Regulation related to toxic spills under s. 91.11 of the EMA and s. 2 of the Spill  
Regulation is part of this general purpose of the EMA.  
[250] Overall, I agree with the positions of the parties and the EAB that the specific  
pith and substance or dominant purpose of the impugned legislation is spill planning,  
preparedness and response. As above, I do not agree with the Railways that they  
are targeted or singled out. And to the extent there is any intrusion by s. 91.11 into  
the operations and management of the Railways it is consistent with previous  
authorities.  
[251] I next turn to what head of power under s. 91 or s. 92 this dominant purpose  
falls.  
(c)  
Assignment to a class in s. 91 or s. 92  
[252] I have determined above that the pith and substance or dominant purpose of  
the impugned provincial legislation (s. 91.11 of the EMA and s. 2(1) of the Spill  
Regulation) is to regulate the spill planning, preparedness and response of  
regulated persons(including the Railways) and the listed substances in the  
Regulation. I now turn to the second part of the pith and substance analysis, the  
assignment to a head of power under s. 91 or s. 92 of the Constitution Act. If the  
appropriate head of power is a federal one then the impugned legislation may be  
unconstitutional.  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
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[253] According to the Petitioners, there are multiple heads of power under s. 92,  
including property and civil rights, where toxic spill planning and response can be  
assigned. The Railways submit that legislation in relation to spill planning and  
preparedness for interprovincial railways is a matter of exclusive federal jurisdiction  
under s. 91(10) (navigation and shipping) and s. 91(29) (subjects that are expressly  
excepted in in the subjects assigned to the provinces) of the Constitution Act.  
[254] I have identified above that the broad subject of the EMA, s. 91.11 and the  
Spill Regulation is the management, protection and enhancement of the  
environment and it is also necessary to consider the constitutional authority over that  
subject.  
[255] Neither s. 91 nor s. 92 of the Constitution Act include the environment as a  
class of subject or head of legislative power and there is no specific reference in the  
Constitution Act to which level of government has jurisdiction over that issue. The  
explanation for this is an historical one: the environment as we know it today was not  
a major legislative concern when the Constitution Act (or the British North America  
Act) was drafted in 1867.  
[256] Professor Hogg has described the environment “comprising as it does ‘all that  
is around us’” as “too diffuse a topic to be assigned by the Constitution exclusively to  
one level of government.” It is an “aggregate of matters” under federal and provincial  
jurisdiction (Constitutional Law of Canada, §30.7).  
[257] Over time it has been recognized that both levels of government have  
jurisdiction over the environment. The EMA Reference discussed the constitutional  
issues related to the environment, including railways, as follows:  
[12] … “environmental protection” is not a head of power allocated to either  
level of government. Valid environmental protection legislation is on the  
books of all provinces and of Canada. In British Columbia, the Environmental  
Management Act (“EMA”) purports to regulate across a number of subject  
areas including air, water and ground pollution and imposes various  
conditions, and in many cases requires permits, to which conditions may be  
attached, for activities that may be harmful to the environment. Mr. Arvay  
[counsel for the Attorney General of British Columbia] told us he was not  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 80  
aware of any constitutional challenge that has been made to the EMA, which  
is usually regarded as falling under “Property and Civil Rights in the  
Province.” He drew our attention to Friends of the Oldman River Society v.  
Canada (Minister of Transport) (1992), in which the [Supreme Court of  
Canada] observed that “the environment” was a “constitutionally abstruse  
matter” that does not “comfortably fit within the existing division of powers  
without considerable overlap and uncertainty”. (At 64.) In the words of  
La Forest J. for the majority:  
In my view the solution to this case can more readily be found by  
looking first at the catalogue of powers in the Constitution Act, 1867  
and considering how they may be employed to meet or avoid  
environmental concerns. When viewed in this manner it will be seen  
that in exercising their respective legislative powers, both levels of  
government may affect the environment, either by acting or not acting.  
This can best be understood by looking at specific powers. A  
revealing example is the federal Parliament’s exclusive legislative  
power over interprovincial railways under ss. 92(10)(a) and 91(29) of  
the Constitution Act, 1867. ...  
This gives some insight into the scope of Parliament’s legislative  
jurisdiction over railways and the manner in which it is charged with  
the responsibility of weighing both the national and local socio-  
economic ramifications of its decisions. Moreover, it cannot be  
seriously questioned that Parliament may deal with biophysical  
environmental concerns touching upon the operation of railways so  
long as it is legislation relating to railways. This could involve issues  
such as emission standards or noise abatement provisions. ...  
The provinces may similarly act in relation to the environment under  
any legislative power in s. 92. Legislation in relation to local works or  
undertakings, for example, will often take into account environmental  
concerns. What is not particularly helpful in sorting out the respective  
levels of constitutional authority over a work such as the Oldman  
River dam, however, is the characterization of it as a "provincial  
project" or an undertaking "primarily subject to provincial regulation"  
as the appellant Alberta sought to do. That begs the question and  
posits an erroneous principle that seems to hold that there exists a  
general doctrine of interjurisdictional immunity to shield provincial  
works or undertakings from otherwise valid federal legislation.  
[At 65-6, 68; emphasis added.]  
[258] The Supreme Court of Canada has also recognized the “superordinate”  
importance of the environment and concluded that the constitution “should be so  
interpreted as to afford both levels of government ample means to protect the  
environment while maintaining the general structure of the Constitution” R. v. Hydro-  
Québec, [1997] 3 S.C.R. 213, at para. 116. The Court recognized federal authority to  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 81  
address harmful substances as grounded in the criminal law power, but specifically  
noted that “the use of the federal criminal law power in no way precludes the  
provinces from exercising their extensive powers under s. 92 to regulate and control  
the pollution of the environment either independently or to supplement federal  
action(Hydro-Québec, at para. 131).  
[259] Professor Hogg has identified as the most obvious sources of federal  
jurisdiction over the environment the criminal law power (s. 91(27)), the power over  
fisheries (s. 91(12)) and the power over navigation and shipping (s. 91(10)). The  
federal authority under s. 91 over peace, order and good government may also be a  
source. The obvious sources of provincial jurisdiction over the environment are  
property and civil rights (s. 92(13)) and the power over municipal institutions  
(s. 92(8)). Other sources can be control of provincial lands (s. 92(5)) and power to  
tax (s. 92(2)). (Constitutional Law of Canada, §30.7).  
[260] The Railways emphasize that, historically, legislative authority over  
interprovincial undertakings was assigned to the federal government to ensure that  
local laws did not interfere with the development of a strong and unified  
interprovincial transportation system. It is accepted by the Railways that provinces  
may enact laws that incidentally touch interprovincial railways but they point out that  
this may not be done directly or, as described in Courtois, “massively” (at p. 890).  
[261] I have provided a short description of the EMA above and a reading of the  
entire statute demonstrates that it is a significant piece of legislation about an  
important subject area aimed at a myriad of issues related to the environment.  
Again, the Railways challenge only s. 91.11 and take no issue with other parts of the  
statute.  
[262] In the circumstances of this judicial review, the legislative authority of the  
federal government over the environment is expressed through PD 36 which is a  
protective direction issued by the federal Minister of Transport, pursuant to s. 32 of  
the TDGA. (As above, no one is challenging the constitutionality of PD 36 or the  
TDGA).  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 82  
[263] The British Columbia Court of Appeal has concluded that the TDGA was  
validly enacted by the federal government pursuant to its criminal law power under  
s. 91(27) of the Constitution Act (R. v. Cariboo Pulp & Paper Company Limited, 2008  
BCCA 423, at para. 50). As well, in the EMA Reference decision the Court of Appeal  
adopted a previous Supreme Court of Canada decision that ... it cannot be seriously  
questioned that Parliament may deal with biophysical environmental concerns  
touching upon the operation of railways so long as it is legislation relating to  
railways.” This was in the context of issues such as emission standards or noise  
abatement provisions. Also, “provinces may similarly act in relation to the  
environment under any legislative power in s. 92.” (EMA Reference, at para. 12;  
citing Friends of the Oldman River Society v. Canada (Minister of Transport), [1992]  
1 S.C.R. 3, at 65-6, 68).  
[264] The federal Minister of Transport, when introducing the draft federal  
legislation (Bill C-18) that became the TDGA, explained in a written brief to  
Parliament’s Standing Committee on Transport that the legislation developed from  
negotiations between the federal and provincial governments. He described the  
“broad constitutional base” of the TDGA that resulted from those negotiations in the  
following terms (Canada, Parliament, Senate, Standing Committee on Transport,  
Proceedings, 32nd, 1st Sess, No 1 (29 May 1980), Appendix 1A [Written Brief], 3):  
... The legislation must be federal in order to cover all parts of the country and  
must be founded on the broadest of federal powers in order to assure the  
universality of its application. Bill C-18, The Transportation of Dangerous  
Goods Act, is founded jointly on the constitutional heads of peace, order and  
good government and the criminal law. Only on this basis can the intricate  
inter-relationships between the manufacturers of packagings [sic], containers  
and means of transport, the manufacturers, importers and shippers of  
dangerous goods, the carriers and the operators of in-transit storage facilities  
and terminals and the consignees, be dealt with in one statute.  
[265] This may be further demonstration that the constitutional authority over the  
environment is a complex matter (perhaps even a “constitutionally abstruse matter”  
as described in Oldman River Society at p. 64) that has considerable overlap and  
sometimes generates uncertainty between the federal and provincial governments.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 83  
As can be seen above, in the case of the federal TDGA, it was actually developed as  
part of negotiations or at least discussions with the provinces.  
[266] Looking at PD 36 itself, as it says in its preamble, it was issued “to deal with  
an emergency that involves a danger to public safety” and, for the purposes here, it  
applies to Canadian Class I Rail Carriers, such as the Railways.  
[267] PD 36 requires the Railways to publish on their websites various information.  
For example, a report under s. 6 is required that includes:  
a)  
The percentage of railway car operated by the Canadian Class I Rail  
Carrier through the Province in the last calendar year that was loaded  
with Dangerous Goods;  
b)  
The breakdown of all Dangerous Goods transported by the Canadian  
Class I Rail Carrier through the province in the last calendar year,  
which must identify:  
i.  
the top ten (10) Dangerous Goods, sorted by volume,  
presented by proper shipping name;  
ii.  
the percentage that each top ten (10) Dangerous Goods  
represent on the total Dangerous Goods transported in that  
province; and  
iii.  
the percentage that all residual Dangerous Goods represent  
on the total Dangerous Goods transported in that province.  
[268] “Dangerous Goods” are defined in the TDGA and they include diluted  
bitumen.  
[269] Section 8 of PD 36 requires further disclosure to the designated Emergency  
Planning Officials of a jurisdiction (i.e., municipality or other form of local government  
that has primary emergency planning responsibilities over a geographical area):  
8.  
A Canadian Class I Rail Carrier that transports Dangerous Goods in a  
Jurisdiction during any calendar year must, by March15 of the subsequent  
year, provide the designated Emergency Planning Official of that Jurisdiction  
with a report, in the official language(s) chosen by the designated Emergency  
Planning Official, that includes information to be made public at the discretion  
of the designated Emergency Planning Official or other officials within a  
Jurisdiction. Such report must include the following information:  
a)  
The percentage of railway cars operated by the Canadian Class I Rail  
Carrier through the Jurisdiction in the last calendar year that was  
loaded with Dangerous Goods;  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 84  
b) The breakdown of all Dangerous Goods transported by the Canadian  
Class I Rail Carrier through the Jurisdiction in the last calendar year  
which must identify:  
i.  
the top ten (10) Dangerous Goods, sorted by volume  
presented by proper shipping name;  
ii.  
the percentage that each top ten (10) Dangerous Goods  
represent on the total Dangerous Goods transported in the  
Jurisdiction; and  
iii.  
the percentage that all residual Dangerous Goods represent  
on the total Dangerous Goods transported in the Jurisdiction.  
[270] However, a Class I railway is not required to provide a municipality’s  
designated Emergency Planning Official with the information provided under s. 8 if  
there is no undertaking to keep the information confidential. Section 15 of PD 36  
states:  
15.  
A Canadian Class I Rail Carrier that transports Dangerous Goods by  
railway car and a person who Transports Dangerous goods by railway car  
who is not a Canadian Class I Rail Carrier are not required to provide a  
designated Emergency Planning Official with the information prescribed in  
Items 1, 2, 3, 10 or 11 of this Protective Direction if:  
a.  
The designated Emergency Planning Official has not undertaken or  
agreed to:  
i.  
use the information only for emergency planning or response;  
ii.  
disclose the information only to those persons who need to  
know for the purposes referred to in (i). For greater certainty,  
the information can be disclosed to any emergency planner or  
emergency service provider within the Jurisdiction or to  
emergency planner or emergency service provider of another  
Jurisdiction if there is a joint emergency planning or response  
agreement in place with that other Jurisdiction; and  
iii.  
keep the information confidential and ensure any person to  
whom the designated Emergency Planning Official has  
disclosed the information keeps it confidential, to the maximum  
extent permitted by law.  
[271] I discuss elsewhere the differences in the publication of information under  
PD 36 and under s. 91.11 of the EMA.  
[272] The Railways describe the TDGA and PD 36 (along with other associated  
statutes and regulations) as “a mature and comprehensive regulatory framework  
governing all aspects” of the operations of the Railways including rail safety,  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 85  
security, liability and insurance, dangerous goods requirements, and emergency  
response planning and preparedness. The EAB described it as a “well-developed  
federal regulatory regime in place, administered by a single regulator” (at para. 154).  
It concluded that it was “readily apparent” that “permitting a Provincial decision-  
maker, like the Director, to impose his own potentially unique requirements” on the  
Railways’ spill response planning “would constitute more than an incidental effect”  
on their operation (at para. 154). I have commented above on the use of the  
Director’s evidence by the EAB. Whether the impugned provincial legislation impairs  
the federal authority over interprovincial railways is discussed below as a matter of  
interjurisdictional immunity.  
[273] The significant point here is that both levels of government have broad  
jurisdictions over the environment including planning, preparedness and response  
for toxic spills and under a number of heads of power. I note that, while s. 91 and  
s. 92 are replete with references to the exclusive nature of the authority of each  
government (Canadian Western Bank, at para. 34), the same cannot be said of the  
authority over the environment. It developed through common law and is not  
mentioned in the Constitution Act.  
[274] It follows that I do not agree with the Railways that jurisdiction over spill  
planning, preparedness and response as they relate to interprovincial railways is  
exclusively a matter of federal jurisdiction because of the operation of s. 91(29) and  
s. 92(10) of the Constitution Act. As above the primary sources of jurisdiction for the  
federal government over the environment (and the TDGA specifically) is its power  
over criminal law and peace order and good government. I do not view the potential  
classes of federal authority over the environment as closed but there is no previous  
authority attributing it to s. 91(29) or s. 92(10). In addition, it is not at all clear that  
either level of government has exclusive jurisdiction over the environment generally  
or over specific issues about planning, preparedness and response for  
environmental risks. As Professor Hogg points out, the environment is too diffuse a  
topic to be assigned by the Constitution Act exclusively to one level of government.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 86  
[275] As cases like Bonsecours, Canadian Pacific, TNT, and Cariboo Pulp & Paper  
demonstrate, the provinces also have constitutional authority over toxic spill  
planning, preparedness and response for the transportation of dangerous goods by  
interprovincial railways when the effect of a toxic spill might affect provincial matters  
such as property (beyond a federal undertaking) and municipalities. In addition,  
cases like Hydro-Québec and Cariboo Pulp & Paper are to the effect that  
Parliament’s jurisdiction over the environment in general, and toxic spill response  
specifically, is not grounded in its authority over interprovincial undertakings. As long  
as the relevant provincial enactment does not “single out” interprovincial  
undertakings or regulate a “primary federal aspect” of such entities, then the  
provincial legislature is entitled to enact environmental laws of general application.  
[276] I conclude that s. 91.11 of the EMA and s. 2 of the Spill Regulation can be  
comfortably assigned to the province’s established authority over property and civil  
rights (s. 92(13)) or its authority over municipal institutions in the province (s. 92(8)).  
[277] It is valid legislation under either or both of those heads of provincial power.  
Provincial authority over “[g]enerally all Matters of a merely local or private Nature in  
the Province” (s. 92(16)) may also be applicable. It follows that I conclude the EAB  
was not correct when it concluded the impugned legislation was ultra vires the  
Province of British Columbia.  
(d)  
Interjurisdictional immunity  
[278] A recent decision from the Supreme Court of Canada described the doctrine  
of interjurisdictional immunity in the following terms (Desgagnés Transport Inc. v.  
Wärtsila Canada Inc., 2019 SCC 58):  
[90]  
According to the doctrine of interjurisdictional immunity, the core of  
exclusive heads of power under the Constitution Act, 1867, can be protected  
from the effects of a law validly enacted by the other order of government  
(Canadian Western Bank, at paras. 33-34; Rogers, at para. 59 [Rogers  
Communications Inc. v. Châteauguay (City), 2016 SCC 23]); COPA, at  
para. 26 [Québec (Attorney General) v. Canadian Owners and Pilots  
Association, 2010 SCC 39]). If the doctrine is found to apply, the impugned  
provisions remain valid but are declared inapplicable to matters that would fall  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company Page 87  
under the core of the exclusive head of power of the other order of  
government.  
[91]  
In Canadian Western Bank, the Court sought to limit the application of  
interjurisdictional immunity, inter alia because it ran contrary to the notion of  
flexible federalism that had become central to the division of powers analysis  
(para. 42; Rogers, at para. 60). It did not, however, eliminate this doctrine,  
which remains part of Canadian law (Canadian Western Bank, at paras. 48  
and 50; COPA, at para. 58; Rogers, at para. 119, per Gascon J., concurring  
in the result).  
[92]  
Two conditions must be met for the doctrine to apply. First, the  
impugned provision must trench on the core of an exclusive head of power  
under the Constitution Act, 1867. Second, the effect of this overlap must  
impair the exercise of the core of the head of power (Canadian Western  
Bank, at paras. 48 and 50; COPA, at paras. 27 and 42-43; Rogers, at  
para. 59).  
[93]  
At the first step of the analysis, we begin by determining what is  
included in the core of the head of power. This notion corresponds to the  
“basic, minimum and unassailable content” of the legislative power in  
question (Bell Canada, at p. 839), which is “necessary to make the power  
effective for the purpose for which it was conferred” (Canadian Western  
Bank, at para. 50). In Canadian Western Bank, the Court stated that  
interjurisdictional immunity should generally be limited to situations already  
covered by precedents, which means in practice that we will usually not  
expand the doctrine to protect the core of legislative powers that have not  
already been so defined in our jurisprudence (paras. 77-78; COPA, at  
para. 36; Rogers, at para. 61).  
[279] In Desgagnés the facts were that a maritime shipping company in Québec  
purchased an engine part. The contract for the part provided for a six month  
warranty, the supplier’s liability was limited to $50,000 and the contract was to be  
governed by the laws in force at the office of the supplier. The Supreme Court of  
Canada concluded that the Civil Code of Québec applied, maritime law did not apply  
and the supplier could not rely on the limitation of liability in the contract (at para. 2).  
[280] With respect to interjurisdictional immunity, the Court accepted that maritime  
law was part of federal competence over navigation and shipping under s. 91(10) of  
the Constitution Act (at para. 9). However, it concluded that there was no precedent  
suggesting that contractual issues raised by the claim at issue engaged the core of  
federal competence over navigation and shipping. For this reason the Court declined  
to apply the doctrine of interjurisdictional immunity in favour of the federal jurisdiction  
(at para. 94).  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 88  
[281] In Canadian Western Bank the Court emphasized the importance of the use  
of “exclusivity” throughout s. 91 and s. 92 of the Constitution Act to the doctrine of  
interjurisdictional immunity (at para. 34).They also noted that, in theory, the doctrine  
has usually been invoked in favour of federal immunity at the expense of provincial  
legislation (at para. 35). As well, as noted in Desgagnés, some previous authorities  
have described the “dominant tide” of the jurisprudence as not favouring the doctrine  
of interjurisdictional immunity. This is because the courts should favour, where  
possible, the ordinary operation of statutes enacted by both levels of government (at  
paras. 35-37 citing O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at  
17).  
[282] The facts in Canadian Western Bank involved federally regulated banks  
offering some types of insurance. The banks sought immunity from provincial  
regulation of their insurance activities under the doctrine of interjurisdictional  
immunity but the Supreme Court of Canada found this approach to be “not  
acceptable in the Canadian federal structure.” This was because the position of the  
banks “exposes the dangers of allowing the doctrine of interjurisdictional immunity to  
exceed its proper (and very restricted) limit and to frustrate the application of the pith  
and substance analysis and of the double aspect doctrine” (at para. 38). In addition,  
the contemporary view of Canadian federalism is that “overlapping powers are  
unavoidable. Canadian federalism is not simply a matter of legalisms” (at para. 42).  
[283] In Canadian Western Bank, the Court sought to limit the application of  
interjurisdictional immunity, inter alia because it ran contrary to the notion of flexible  
federalism that had become central to the division of powers analysis (at para. 42;  
Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, at para. 60). It  
did not, however, eliminate this doctrine, which remains part of Canadian law  
(Canadian Western Bank, at paras. 48, 50; Québec (Attorney General) v. Canadian  
Owners and Pilots Association, 2010 SCC 39 [COPA], at para. 58; Rogers, at  
para. 119, per Gascon J., concurring in the result).  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 89  
[284] As discussed in Desgagnés (at para. 91) in Canadian Western Bank the  
Supreme Court of Canada sought to limit the application of interjurisdictional  
immunity.” The significant change was a different view of the level of intrusion on the  
core power of the other level of government required to trigger the doctrine than was  
described in Bell Canada (1988). The law as it stood prior to that decision was  
adopted so that it is not enough for the provincial legislation simply to ‘affect’ that  
which makes a federal subject of jurisdiction as described in Bell Canada (1988)  
(859-60). What is now required is an impairment of the federal subject matter. “The  
difference between ‘affects’ and ‘impairs’ is that the former does not imply any  
adverse consequence whereas the latter does” (Canadian Western Bank, at  
para. 48). In the absence of impairment, interjurisdictional immunity does not apply”  
(at para. 49).  
[285] I will discuss the EAB decision on interjurisdictional immunity, the positions of  
the parties and then consider whether the EAB decision was correct.  
(i)  
Decision of the EAB  
[286] The EAB concluded that the impugned legislation was ultra vires the Province  
of British Columbia based on the pith and substance analysis. It nonetheless  
proceeded to determine the issue of interjurisdictional immunity “in case we are  
wrong on the pith and substance analysis” (at para. 180).  
[287] The EAB described the doctrine of interjurisdictional immunity as being when  
an otherwise valid provincial law is inapplicable to a federal undertaking if the effect  
of the provincial law is to impair a core of federal power or a vital part of a federal  
undertaking” (at para. 180). I note that, as described in Canadian Western Bank, the  
doctrine can apply reciprocally to both federal and provincial laws although the trend  
is to apply it in favour of federal laws over provincial laws (at para. 35).  
[288] The EAB concluded that the impugned legislation and the Director’s orders  
had a serious impact on the spill response of the Railways “which is a ‘vital and  
essential element’ of these federal undertakings” (at para. 204). Similarly, the EAB  
concluded that “spill response planning, and allocating resources to address spills is  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 90  
a core power and intrinsically part of a federal undertaking that transports products  
by rail on a nationwide basis and across provincial boundaries” (at para. 206). Since  
a comprehensive federal regulatory regime already exists, permitting a provincial  
regime could lead to different spill response plans and “have a massive impact” on  
the Railwaysoperations (at para. 204). And previous court decisions have  
recognized that interprovincial railway safety and associated operational  
management is a core federal power. The decisions in Madden v. Nelson & Fort  
Sheppard Railway, [1899] A.C. 626 (J.C.P.C.), Courtois, Toronto (City) v. Grand  
Trunk Railway, [1906] 37 S.C.R. 232 and Bonsecours were cited (at paras. 204,  
206, 208).  
(ii)  
Positions of the parties  
[289] According to the Petitioners, the doctrine of interjurisdictional immunity cannot  
apply in this case because any impact on the operations of the Railways is far too  
remote (at para. 219). The Petitioners also say that it is impossible to reconcile, as  
the EAB attempted, alternative findings on the pith and substance analysis and  
interjurisdictional immunity (at para. 248).  
[290] The Petitioners submit that the core of Parliament’s jurisdiction over  
interprovincial railways does not include toxic spill planning, preparedness and  
response. Contrary to the conclusion of the EAB, there are no precedents that have  
found this federal jurisdiction. The Petitioners cite Bonsecours, Canadian Pacific and  
TNT as authorities that have reached the opposite conclusion. Likewise, security is  
not a recognized aspect of a federal power and s. 91.11 does not engage the  
management and operation of the Railways. For the EAB to reach its conclusion on  
interjurisdictional immunity required it to find a new jurisdiction over spill response for  
the federal government. This is a problem because the Supreme Court of Canada  
has recently recognized that reliance on interjurisdictional immunity must be rooted  
in existing jurisprudence and limited to situations already covered by precedent  
(Desgagnés, at para. 95).  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 91  
[291] The Petitioners say there is good reason for there being no jurisprudence that  
supports the EAB’s conclusion that spill response is at the core of the federal  
authority over federal undertakings under s. 92(10)(a) of the Constitution Act. This is  
because the constitutional authority for the federal government’s jurisdiction over the  
environment is under its criminal power in s. 91(27). As well, previous authorities  
recognize the vital role of provinces in legislating for the environment. It refers to the  
Québec Court of Appeal’s decision in IMTT-Québec inc. where the Court found that  
the Province of Québec did not have the authority to approve projects on federal  
property used for activities related to an exclusive head of power, but did uphold  
provincial regulatory controls over the release of contaminants.  
[292] The Petitioners also say that, assuming that spill preparedness is part of the  
core of federal jurisdiction over interprovincial railways, the Railways have not  
demonstrated that the impugned legislation impairs the core of the federal power.  
Further, the Railways’ operational practices may be relevant but they cannot be  
determinative of the scope of Parliament’s jurisdiction. Provinces can enact  
legislation that affects federal undertakings. And the fact that Washington State,  
USA, produces quarterly reports virtually identical to the information sought in the  
Director’s orders belies the submission of the Railways that their operations in British  
Columbia would be impaired by releasing the information in this jurisdiction.  
[293] For their part, the Railways submit that the EAB was correct when it  
concluded that s. 91.11 of the EMA is inapplicable to the Railways by virtue of  
interjurisdictional immunity.  
[294] The Railways note that, under the doctrine of interjurisdictional immunity,  
otherwise valid provincial legislation will be inapplicable to a federal undertaking if  
the provincial law impairs a core part of federal power or a vital part of a federal  
undertaking. The protection available by interjurisdictional immunity is to the federal  
undertaking and to all other matters necessary to fulfill that undertaking.  
[295] In this case, according to the Railways, the impugned legislation impairs the  
management and operation of the Railways in relation to spill planning and  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 92  
preparedness as well as security and safety. Preventative laws, such as s. 91.11 of  
the EMA, are a particular concern because the Supreme Court of Canada has said  
that the principal regulation of the working conditions, labour relations and  
management of federal undertakings would be a direct and massive intrusion into  
the federal undertaking (citing Courtois, at para. 59; also Bonsecours, and Madden).  
As an example, the conditions arising from rapidly increasing traffic at a railway  
crossing must necessarily be dealt with by a paramount authority and there is no  
room for dual legislation (citing Grand Trunk Railway, at paras. 15-17).  
[296] The Railways also say that spill planning and preparedness are vital aspects  
of their federal mandate. Under s. 18 of the TDGA, they are required to report the  
release of dangerous goods and to take all reasonable measures to reduce or  
eliminate the release of dangerous goods and take reasonable measures to reduce  
the dangers caused by the release of those goods. The Railways have a  
comprehensive and integrated plan related to particular contingencies, they have  
caches of spill response equipment in British Columbia and they maintain contracts  
with private emergency response providers.  
[297] The Railways submit that all of this applies seamlessly across Canada. To  
make spill preparedness and response subject to provincial regulation would create  
a patchwork of rules and regulations across Canada. It would also increase the risk  
of a malicious attack on the Railways.  
(iii) Discussion  
[298] As set out in Desgagnés, two conditions must be met for the doctrine of  
interjurisdictional immunity to apply. First, the impugned provision must trench on the  
core of an exclusive head of power under the Constitution Act and, second, the  
effect of this overlap must impair the exercise of the core of the head of power.  
[299] With respect to the first part of the test, the specific issue here is whether  
s. 91.11 of the EMA and s. 2 of the Spill Regulation trench on the core of an  
exclusive federal power. That is, does the requirement in the impugned provincial  
legislation for interprovincial railways to plan, provide information and prepare for a  
 
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 93  
toxic spill trench on an exclusive federal power. The core of a federal power is the  
authority that is absolutely necessary to enable Parliament ‘to achieve the purpose  
for which exclusive legislative jurisdiction was conferred’” (COPA, at para. 35; citing  
Western Canadian Bank, at para. 77). Other cases describe the test as being  
whether provincial legislation “sterilizes” the core of a federal undertaking (for  
example, Lafarge, at para. 139).  
[300] The Railways submit that federal legislation and regulation through PD 36  
and the TDGA make spill planning and preparedness an important part of the  
operations of the Railways. That may be so but it does not address the constitutional  
basis of the impugned legislation here. The Railways also say that s. 91(29) and  
s. 92(10) read together mean that the federal government has exclusive authority  
over toxic spill planning, preparedness and response. The federal government  
obviously has exclusive jurisdiction over interprovincial railways but I am unable to  
see where in those provisions of the Constitution Act the specific authority over toxic  
spill matters is described. And, again, the environment is not referenced in the  
Constitution Act, both levels of government have jurisdiction and neither has  
exclusive authority.  
[301] The Railways rely on the Bonsecours line of cases for authority for this point  
but, as above, I read those cases as permitting provincial intrusion into the operation  
of interprovincial railways for the purposes of protecting the environment for the  
general public beyond the specific operations of federal railways. This is a problem  
for the Railways because it is clear from Canadian Western Bank and Desgagnés  
that the doctrine of interjurisdictional immunity will not be expanded to protect the  
core of legislative powers that have not already been so defined in our  
jurisprudence.  
[302] It follows that I am unable to conclude that the impugned legislation trenches  
on the core of a federal undertaking.  
[303] The second step in the analysis required by Desgagnés is to consider  
whether the overlap between the impugned legislation impairs the core of the federal  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 94  
head of power. As discussed above, the decision in Canadian Western Bank  
changed the test previously set out in Bell Canada (1988) from affects to impairs.  
Again, the reasoning for that change was that “it is not enough for the provincial  
legislation simply to ‘affect’ that which makes a federal subject or object of rights  
specifically of federal jurisdiction. The difference between ‘affects’ and ‘impairs’ is  
that the former does not imply any adverse consequence whereas the latter does”  
(at para. 48). Impairs is obviously a higher standard than affects and it “suggests an  
impact that not only affects the core federal power, but does so in a way that  
seriously or significantly trammels the federal power” (COPA, at para. 45).  
[304] The decision in Desgagnés also cautioned against using interjurisdictional  
immunity in a way that would expand it and return constitutional law in Canada to the  
watertight compartment approach to the division of powers in previous cases (for  
example, Canada v. Attorney-General for Ontario, [1937] A.C. 326 (P.C.), at 354). In  
Desgagnés the Court put it this way:  
[95]  
… In order to apply interjurisdictional immunity, we must identify the  
essential, vital elements of the head of power in question by reference to our  
jurisprudence. This is necessarily narrower than the scope of the power, here  
reflected in the integral connection test.  
[305] Looking at the core of the federal jurisdiction in the subject petition, it is the  
authority over interprovincial railways in Canada under s. 91(29) and s. 92(10) of the  
Constitution Act. Its jurisdiction over the environment, for at least the TDGA, is under  
s. 91(27) (criminal law) or to make laws for the peace order and good government  
under the preamble to s. 91 (Cariboo Pulp & Paper, at para. 20).  
[306] With respect to s. 91(29) and s. 92(10) I have concluded above that toxic spill  
planning, preparedness and response are not specifically referenced there and nor  
is there precedent for those matters coming under exclusive federal authority. Both  
levels of government have important constitutional jurisdictions over the environment  
and, in the circumstances of this case, the federal jurisdiction is given effect through  
the TDGA (and PD 36). This is significant because the Court of Appeal has said that  
what constitutes an offence under that statute may or may not be an offence under  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 95  
provincial legislation (Cariboo Pulp & Paper, at para. 34). I take from this that the  
core of federal jurisdiction over the environment as reflected in the TDGA is not  
necessarily trammeled by provincial legislation in the same area. That is also  
consistent with the shared jurisdiction between the two governments.  
[307] Returning to the submissions of the Railways, they acknowledge the lack of  
specific precedent as required by Canadian Western Bank by relying on a previous  
decision which stated that interjurisdictional immunity is generally limitedto the  
cores of every legislative head of power” (COPA, at para. 26). They also point out  
that new areas of exclusive jurisdiction “could in theory be identified in the future”  
(Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, at  
para. 67). Those comments are accurate descriptions of those cases. However,  
again, the Bonsecours line of cases has permitted provincial intrusion into federal  
undertakings for the purpose of protecting the public’s interest in the environment  
beyond a specific federal undertaking. I decline to create an exclusive head of  
federal power over spill planning, preparedness and response in the shared  
jurisdiction over the environment.  
[308] There is also the issue raised by the Railways that permitting provincial  
intrusion into the operations and management of interprovincial railways would have  
a “massive” impact on the Railways. This was accepted by the EAB (at para. 204).  
[309] This phrase originated in the Supreme Court of Canada decision in Courtois.  
It may be recalled that Courtois was part of the so-called trilogy of cases with Bell  
Canada (1988) and Alltrans. They shared a common issue as to whether provincial  
laws which attempted to regulate employment issues of federal undertakings were  
validly enacted by provincial governments. In Courtois it was the general regulation  
of occupational health and safety (including issuing summons) involving a federal  
railway when some employees of the railway died at work. In Alltrans it was the  
provincial regulation of the safety conditions of an interprovincial and international  
trucking company. And in Bell Canada (1988) it was whether protective  
reassignment for pregnant mothers in Québec legislation was available to an  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 96  
employee in a federal undertaking. The provincial laws were all held to be  
inapplicable to the federal undertakings.  
[310] The Railways and the EAB rely on the following from Courtois where Chief  
Justice Dickson said:  
[59]  
In Bell Canada, the third case in this trilogy, I endeavour to show  
that because of its preventative nature the Act inevitably regulates, directly  
and massively, the working conditions, labour relations and management of  
the undertakings to which it applies, and for these reasons it is inapplicable to  
federal undertakings. …  
[Emphasis added].  
[311] The Railways say that s. 91.11 of the EMA and s. 2 of the Spill Regulation,  
because of their preventative nature, directly and massively regulate the  
management of interprovincial railways. Therefore, just as in the trilogy of cases,  
they are inapplicable to federal undertakings such as interprovincial railways. I  
disagree.  
[312] In my view, the authorities distinguish between the safety issues affecting  
railways and those that affect the general public. The former line of cases is  
reflected in the trilogy of cases where provincial workplace safety regulations were  
held not to apply to federal undertakings. In Bell Canada (1988), for example,  
provincial health and safety regulations could not apply to the operations of a federal  
undertaking. The other line of cases are about the environment and exposure by the  
public to contaminants beyond the specific operations of federal undertakings. For  
example, in TNT provincial regulation of PCB waste was held to be applicable to a  
federal activity. Similarly, in IMTT-Québec inc. the Québec Court of Appeal  
concluded that the provincial regulation of contaminants on a federal property was  
for the benefit of all of the citizens of Québec.  
[313] Looked at in this way, I conclude that all of the cases can be read together as  
being consistent; the environmental regulation of individual federal undertakings is of  
a different constitutional character than the regulation of the environment for the  
benefit of the public.  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 97  
[314] Turning to the impugned legislation in this judicial review, it seems to me that  
the Province has a distinct interest in the matters covered by s. 91.11 of the EMA. I  
have concluded above that it is of general application and it does not target the  
Railways. Instead, the excerpts from Hansard set out above demonstrate that the  
original purpose of the impugned legislation was aimed at all of British Columbia  
including specific (but unnamed) industries and businesses that pose risks of toxic  
spills. I do not consider it controversial that an interprovincial railway carrying  
substantial amounts of listed substances such as diluted bitumen constitutes an  
environmental risk not just for the railways but for the population living and working  
around those railways.  
[315] As described in the federal 2017 Regulatory Impact Analysis Statement,  
discussed above, the impact of the Lac-Mégantic accident was not limited to the  
railway itself; it had tragic consequences for the town and its people beyond the  
federal undertaking. The 47 people who died were not employees of the railway and  
their location beyond the right of way was not regulated by federal environmental  
legislation. Put another way, under our constitution, I am unable to see that the  
Province would be precluded from legislating to protect the broad public interest  
where there are environmental risks from a federal undertaking affecting the public  
beyond a specific federal undertaking. PD 36 regulates the federal interest but the  
EMA regulates the broader public interest beyond that.  
[316] As discussed in Bell Canada (1988) and other authorities, the regulation of  
the actual operations of the federal undertaking is a matter of exclusive federal  
jurisdiction. Railway crossings are an example where dual legislation is simply not  
workable (Grand Trunk Railway, at para. 16). But I conclude that the other  
authorities discussed above (such as TNT and IMTT-Québec inc.) support provincial  
jurisdiction over the environment to the extent of authorizing the collection of  
information to prepare for a risk becoming an accident that affects the general  
public. This is not regulating the core of a federal undertaking (or sterilizing it) but  
regulating the response to environmental issues that may arise beyond the federal  
undertaking. In short, federal undertakings may have environmental impacts beyond  
British Columbia (Environmental Management Act) v. Canadian National  
Railway Company  
Page 98  
that undertaking and a province has the constitutional authority to prepare and plan  
for the response to those impacts.  
[317] Overall, I am unable to find that the impugned legislation seriously or  
significantly trammels the federal power over interprovincial railways. Indeed, there  
is good reason to conclude that there are separate interests with respect to the  
environmental risks of an interprovincial railway and how those risks might affect the  
public separate from the federal undertaking. The Railways say that will complicate  
their operations and management but I conclude that the authorities support a  
provincial jurisdiction. Without that jurisdiction there is the risk that impacts on  
provincial interests by federal undertakings will not be planned for.  
[318] For the above reasons I conclude that the doctrine of interjurisdictional  
immunity is not applicable to the impugned legislation so as to render it inapplicable  
to interprovincial railways.  
(e)  
Double aspect, ancillary powers and incidental effects  
[319] I move now to consider the EAB’s analysis (or lack of analysis) of other  
constitutional doctrines raised by the parties including: double aspect, ancillary  
powers, and incidental effects. These concepts may assist in determining the pith  
and substance of a matter. They can be related, and Canadian courts have not  
always clearly distinguished between them (EMA Reference, at para. 10).  
[320] The double aspect doctrine recognizes that some matters may have both  
provincial and federal aspects, and cannot therefore be categorized under a single  
head of power (Canadian Western Bank, at para. 30). The doctrine traces its roots to  
Hodge v. The Queen, (1883), 9 A.C. 117, where the Privy Council reasoned that  
“subjects which in one aspect and for one purpose fall within s. 92, may in another  
aspect and for another purpose fall within s. 91” (at p. 130).  
[321] Before the EAB, the Petitioners argued that the doctrine of interjurisdictional  
immunity should not be applied where there is a double aspect to the subject matter  
 
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(EAB, at para 194). The Railways replied that such a proposition was rejected in  
COPA (EAB, at para. 201).  
[322] The only specific references to the double aspect doctrine in the EAB  
decision are included in the summaries of the partiessubmissions (at paras. 194,  
201). It did not explicitly deal with the double aspect doctrine as part of its pith and  
substance analysis although paragraph 177 touches on similar concepts. Instead, as  
noted earlier, the EAB concluded that the impugned legislation was, in pith and  
substance, regulating the management and operations of interprovincial railways in  
terms of spill preparedness and response. Therefore it was ultra vires the provincial  
legislature.  
[323] The Railways have not addressed the double aspect doctrine in their written  
submissions on this judicial review. In their submissions, the Petitioners include a  
short comparison between double aspect and incidental effects and a quote that  
includes a reference to double aspect (Canadian Western Bank, at para. 48). In  
summary, the parties argued the doctrine of double aspect before the EAB and its  
decision did no more than summarize the partiessubmissions. Then, in their  
submissions in this judicial review the parties provided brief references or no  
references.  
[324] With respect to the ancillary powers doctrine, it recognizes that a degree of  
jurisdictional overlap is inevitable in our constitutional system. It permits the  
acceptance of measures that lie outside a legislature’s competence, if these  
measures constitute an integral part of a legislative scheme that comes within  
provincial jurisdiction (Lacombe, at para. 32, citing General Motors of Canada Ltd. v.  
City National Leasing Ltd., [1989] 1 S.C.R. 641, at 668-70).  
[325] The parties disagree on the applicability of the ancillary powers doctrine and  
the extent to which the EAB considered it. The Petitioners say the EAB did not  
consider the doctrine at all and that was an error. They say it should apply so that, in  
the event the impugned legislation is found to be outside the authority of the  
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Province, it should nonetheless be upheld as being rationally and functionally related  
to the EMA as a whole in order to further the purpose of that statute.  
[326] For their part the Railways say the EAB did consider the doctrine of ancillary  
powers. The Railways rely on the part of the EAB decision that discussed the EMA  
Reference decision that canvassed the ancillary powers doctrine at length. However,  
I do not agree that a simple reference in a decision by the EAB to another decision  
that references “ancillary effect” (at para. 151) amounts to an adequate analysis or  
conclusion.  
[327] Finally, with respect to the doctrine of incidental effects, it recognizes that  
heads of power are not watertight. This is because, in practice, it is impossible for a  
legislature to exercise its jurisdiction over a matter effectively without incidentally  
affecting matters within the jurisdiction of the other level of government (EMA  
Reference, at para. 6, citing Canadian Western Bank, at para. 29). The Railways  
accept this concept applies in some circumstances but not here.  
[328] The EAB decision provided a brief summary of the law on incidental effects  
(at para. 16) and then summarized the partiessubmissions on the issue (at  
paras. 132, 177). It made no conclusions or comments about the doctrine generally  
or how it might apply or not apply in this case. In their submissions the parties  
discuss incidental effects very briefly and only by way of a comparison with ancillary  
powers.  
[329] While noting the difficulties in how the parties and the EAB have considered  
the issues of double aspect, ancillary powers and incidental powers, it remains the  
case that I have decided above that the EAB was incorrect in its determination of the  
pith and substance of the impugned legislation. I have decided that the legislation at  
issue is valid provincial legislation under s. 92 of the Constitution Act. In light of that  
conclusion it is not necessary to decide whether or how the doctrines of double  
aspect, ancillary powers or incidental effects apply.  
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(f)  
Paramountcy  
[330] As part of their constitutional challenges to s. 91.11 of the EMA before the  
EAB, the Railways relied on the doctrine of federal paramountcy to challenge the  
Director’s orders. While the Railways were successful, overall, in challenging the  
constitutionality of s. 91.11 of the EMA, the EAB did not accept their arguments  
based on federal paramountcy.  
[331] In their cross-petition, the Railways now challenge the EAB’s decision on  
federal paramountcy.  
(i)  
Legal Context  
[332] The doctrine of federal paramountcy in Canada means that, when a validly  
enacted federal law conflicts with an equally valid provincial law, the federal law  
prevails and the provincial law is rendered inoperative to the extent of the conflict.  
The Railways say such a conflict exists here. The Petitioners disagree and the EAB  
agreed with the Petitioners.  
[333] A two-stage analysis for paramountcy has been set out in previous cases. In  
general terms, “[f]ederal paramountcy may ... arise from either the impossibility of  
dual compliance or the frustration of a federal purpose” (COPA, at para. 64; citing  
Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13 at para. 14). In  
Alberta (Attorney General) v. Moloney, 2015 SCC 51, Gascon J. wrote:  
[18]  
A conflict is said to arise in one of two situations, which form the two  
branches of the paramountcy test: (1) there is an operational conflict because  
it is impossible to comply with both laws, or (2) although it is possible to  
comply with both laws, the operation of the provincial law frustrates the  
purpose of the federal enactment.  
[19]  
What is considered to be the first branch of the test was described as  
follows in Multiple Access, the seminal decision of the Court on this issue:  
In principle, there would seem to be no good reasons to speak of  
paramountcy and preclusion except where there is actual conflict in  
operation as where one enactment says “yes” and the other says “no”;  
“the same citizens are being told to do inconsistent things”;  
compliance with one is defiance of the other. [Emphasis added;  
p. 191.]  
...  
   
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[25]  
If there is no conflict under the first branch of the test, one may still be  
found under the second branch. In Bank of Montreal v. Hall, 1990 CanLII 157  
(SCC), [1990] 1 S.C.R. 121, the Court formulated what is now considered to  
be the second branch of the test. It framed the question as being “whether  
operation of the provincial Act is compatible with the federal legislative  
purpose” (p. 155). In other words, the effect of the provincial law may  
frustrate the purpose of the federal law, even though it does “not entail a  
direct violation of the federal law’s provisions”: Western Bank, at para. 73.  
[334] See also: Canadian Western Bank, at para. 73; Saskatchewan (Attorney  
General) v. Lemare Lake Logging Ltd., 2015 SCC 53, at paras. 15-27; Law Society  
of British Columbia v. Mangat, 2001 SCC 67, at para. 72; Bank of Montreal v.  
Marcotte, 2014 SCC 55, at para. 80; and Canadian Constitutional Law, §16.4, 16.5.  
[335] The burden of proof to establish federal paramountcy rests on the party  
alleging a conflict or frustration of the federal purpose (Moloney, para. 27). A party  
seeking to establish frustration of purpose “must first establish the purpose of the  
relevant federal statute, and then prove that the provincial legislation is incompatible  
with this purpose” (COPA, at para. 66). In the subject petition the party with the  
burden of proof is the Railways.  
[336] As a matter of interpretation, it is preferable that federal legislation be  
interpreted so that it does not result in a conflict with a provincial law (Marine  
Services International Ltd. v. Ryan Estate, 2013 SCC 44, at para. 69). Similarly, the  
guiding principle of cooperative federalism requires a narrow construction of federal  
paramountcy and harmonious interpretations of federal and provincial legislation are  
preferred to interpretations resulting in incompatibility (Lemare Lake, at para. 22;  
Canadian Western Bank at paras. 37, 75).  
(ii)  
EAB decision of May 29, 2020  
[337] As above, in its pith and substance analysis, the EAB concluded the  
impugned legislation was ultra vires the Province of British Columbia (I found above  
that this conclusion was not correct). Notwithstanding this conclusion, the EAB  
considered the doctrine of paramountcy “out of an abundance of caution” (at  
 
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para. 210) and decided that the doctrine did not apply. The Railways now seek a  
review of that decision.  
[338] On the first branch of the test (from Moloney, as above), the EAB found no  
operational conflict between federal and provincial laws (at para. 222). The  
reasoning for that conclusion was that the Railways could comply with the disclosure  
requirements of PD 36 and the provincial orders of September 2018 without conflict  
because their obligation to disclose information was the same in both situations. The  
difference between the two legislative regimes was how the recipient of the  
information must treat the information (at paras. 220, 221). The EAB took into  
account the Ministry’s “intention to publish” the information (at para. 218), but also  
observed that the source of the Director’s powers to require the publication of the  
information were “unclear” (at para. 221). The EAB concluded that the orders did not  
request or require the spill contingency plans of the Railways to be published.  
[339] With respect to the second branch of the test, frustration of purpose, the EAB  
concluded that PD 36 has the force of law and its content was evidence of some  
recognition that specific route and volume information should be protected from  
public disclosure. The EAB also noted that the Railways consider the disclosure of  
the information at issue to be a serious security issue. However, that did not mean  
that disclosure of the information would, in fact, result in an increased security risk.  
[340] The EAB agreed with the Railways that the intention to publish reflected in the  
orders frustrates the confidentiality provisions of PD 36. But it concluded that  
because the orders were “statutory decisions made under provincial laws” (at  
para. 229), and not provincial laws themselves, the second branch of the  
paramountcy test was not made out.  
(iii) Positions of the parties  
[341] In their cross-petition, the Railways (petitioners here, respondents in the other  
petition) submit that the EAB erred in its application of the paramountcy doctrine.  
They say that the impugned legislation and related orders conflict with and frustrate  
the purpose of federal regulation of interprovincial railways. They say that the  
 
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impugned provisions and orders conflict directly with PD 36 because they compel  
the Railways to disclose information to the Ministry on a non-confidential basis.  
[342] The Railways also submit that the impugned legislation and orders frustrate  
the purpose of PD 36. That purpose, according to the Railways, is to strike a  
balance between disclosing information that can assist first responders in  
emergency planning and preparation, without impacting the security of the Railways  
(at para. 204). I take the assumption underlying this submission to be that  
publication of the requested information will have a negative impact on the security  
of the Railways. Finally, the Railways submit that the impugned provisions and  
orders frustrate the purpose of the Rail Security Regulations, enacted pursuant to  
the TDGA. The purpose of those regulations, according to the Railways, is to detect  
and prevent malicious actions along rail lines.  
[343] In their response submissions the Petitioners agree with the Railways that the  
EAB erred in its paramountcy analysis, but argue that the doctrine still does not  
properly apply in the circumstances here. They submit that the Railways have  
established neither an operational conflict between PD 36 and the impugned  
legislation (and orders) or any frustration of a federal purpose. They say that a  
temporary directive like PD 36 is not intended to regulate all aspects of the duties of  
Class I Rail Carriers to disclose route and volume information, and that the Railways  
misunderstand or misconstrue PD 36. In the Petitioners’ submission, the purpose of  
both the impugned legislation (and orders) and PD 36 is to increase the safety of  
transportation of dangerous goods through the increase of spill preparedness,  
response and recovery, including through increased transparency of information.  
[344] The Petitioners point out that PD 36 imposes an obligation on the Railways to  
disclose information upon request and does not prohibit the disclosure or publication  
of information pursuant to other enactments. They also note that PD 36 does not  
apply to provinces or territories, as provinces are not included in the definition of  
“jurisdictions” set out in the directive.  
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[345] The Petitioners emphasize that the party alleging frustration of purpose must  
establish clear proof of a purpose and submit that the Railways have failed to do so.  
Here, they argue, the EAB made no findings of fact regarding the purpose of the Rail  
Security Regulations or the effect of the orders and/or a future publication of a  
quarterly report by the Ministry on rail security. Further, they point out that neither  
the orders nor legislation require production of the Railways’ security plans. The  
Petitioners say that it is not the role of this Court to make original findings of fact on  
judicial review. In any event, the record does not support the conclusion that the  
orders will increase the security risks faced by the Railways or that PD 36 was  
enacted as a national security measure.  
(iv) Discussion  
[346] As above, constitutional questions are generally reviewed on a standard of  
correctness (Vavilov, at para. 55). I take determining legislative purpose is properly  
characterized as part of the legal analysis and it is a central step of the paramountcy  
analysis. Here, determining legislative purpose is in the context of constitutional law  
and there is no dispute that the standard of review is correctness.  
1.  
Error in the reasoning of the EAB  
[347] For the following reasons, I agree with the parties that the EAB erred in the  
analysis it used on the paramountcy analysis (although I conclude below that it  
reached the correct result).  
[348] As an initial comment, as above, the first step in determining if the doctrine of  
federal paramountcy applies is to determine the constitutional validity of the laws in  
question (Moloney, at para. 31). The EAB did that in its pith and substance analysis  
by finding that the impugned legislation was ultra vires the Province of British  
Columbia. On a strict analysis that could have been the end of the matter. However,  
the EAB proceeded to consider the issue of paramountcy, apparently assuming the  
impugned provisions were valid. I accept there is some value in having the views of  
the original decision maker on this issue. The EAB, after all, heard all of the  
evidence first hand.  
   
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[349] Nonetheless, this approach complicates the first branch of the paramountcy  
analysis in deciding whether it is possible for the Railways to comply with both the  
federal and provincial schemes.  
[350] The EAB appeared to consider the issue of publication of information  
obtained under s. 91.11 of the EMA as a matter under the first stage of the  
paramountcy test. This is reflected in the following:  
[219] The Orders say that the “Province will not publish any information that  
could not be disclosed if it were subject to a request under section 5 of” the  
Freedom of Information and Protection of Privacy Act (“FOIPA”). However, in  
his testimony, the Director was unable to say what circumstances might  
prevent publication. Also, the Respondents provided no submissions on how  
such information, once obtained, and which could be subject to a public  
request for disclosure under the FOIPPA, might be protected from disclosure.  
It is also noteworthy that the genesis for the Orders was a question asked in  
the Legislature, and we were not referred to any reason why the information  
obtained would not be publicly disclosed in the Legislature.  
[351] It is not clear how the Director would know the details of how FOIPPA  
operates or what circumstances would prevent publication. In any event, it was not  
relevant whether the Director knew the details of FOIPPA and the circumstances  
that would prevent publication. It could perhaps be said that he might have informed  
himself of how FOIPPA applies. But public access to information held by  
government is also a highly specialized area administered by a different agency than  
the Director’s.  
[352] I also note that a plain reading of FOIPPA demonstrates that where  
disclosure might “prejudice the defence of Canada or of any foreign state allied to or  
associated with Canada or harm the detection, prevention or suppression of  
espionage, sabotage or terrorism” is an exception to disclosure (FOIPPA, s. 15(b)). I  
do not agree with the Railways that either s. 91.11 of the EMA or the orders reflect a  
“stated intention” by the Petitioners simply to publish the information at issue. I also  
do not agree with the statement in the Railways’ Notice of Constitutional Question  
that the orders would result in disclosure of information “without any confidentiality  
protections” (emphasis in original). Protection of information held by government is  
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much more complicated than described by the Railways and genuine security-  
sensitive information may not be subject to disclosure at all.  
[353] In addition, the suggestion that security-sensitive information could be  
disclosed in the legislature without any restrictions is, at best, speculative. There is  
no authority given to support the proposition that elected officials can compromise  
national or commercial security with impunity when speaking in the legislature (or  
evidence that they would want to). As above, the general point is that, contrary to the  
impression given by the EAB and as submitted by the Railways, virtually all  
government disclosure of information is regulated, including vetting for security  
reasons.  
[354] Finally, and in any event, speculation about the potential for publication was  
irrelevant given that the EAB declined to make any findings as to whether or not the  
publication of information would in fact result in an increased security risk. The  
question before the EAB on the first stage of the paramountcy analysis was simply  
whether the Railways could comply simultaneously with both schemes. Put another  
way, was there an operational conflict between the impugned legislation (including  
the orders) and PD 36?  
[355] With respect to the second branch of the paramountcy analysis (whether the  
impugned legislation frustrates the purpose of the federal regulatory regime), the  
EAB stated:  
[227] During the appeal hearing, the Panel heard a significant amount of  
evidence from the Appellants concerning their view that disclosure of specific  
route and volume information to the public would present safety and security  
challenges to their operations. The Appellants’ witnesses also testified that  
they were part of the discussions with the federal Minister of Transport which  
ultimately gave rise to the terms and conditions in PD 36.  
[228] The Panel finds that the very content of PD 36 is evidence of some  
recognition that specific route and volume information should be protected  
from public disclosure; otherwise, provisions requiring confidentiality would  
not be found in PD 36. The Panel also finds that there is sufficient evidence  
from the Appellants that they consider the disclosure of the specific route and  
volume information to be a serious security issue. To be clear, the Panel is  
not determining that the publication of this information will in fact result in an  
increased security risk, since it is unnecessary for the Panel to do so in its  
British Columbia (Environmental Management Act) v. Canadian National  
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analysis of the paramountcy issue. There is evidence before us that the  
Appellants considered the need for confidentiality when PD 36 was drafted.  
Given the confidentiality provisions in PD 36, the federal Minister must have  
determined that confidentially should be part of PD 36.  
[Emphasis added].  
[356] In passing I note there is a suggestion here that it is a subjective test whether  
the Railways believe there is a security risk and, because of that belief, evidence  
before a legal proceeding can be restricted. If so, that is not the correct test.  
[357] With regards to the federal regime at issue here, as discussed above, it  
developed from a consultation process between the federal Minister of Transport  
and the Railways which ultimately gave rise to the terms and conditions in PD 32  
and then PD 36 (at para. 227). The EAB made the following comments and findings  
about the federal regime:  
[228] The Panel finds that the very content of PD36 is evidence of some  
recognition that specific route and volume information should be protected  
from public disclosure; otherwise, provisions requiring confidentiality would  
not be found in PD36. The Panel also finds that there is sufficient evidence  
from the Appellants that they consider the disclosure of the specific route and  
volume information to be a serious security issue. To be clear, the Panel is  
not determining that the publication of this information will in fact result in an  
increased security risk, since it is unnecessary for the Panel to do so in its  
analysis of the paramountcy issue. There is evidence before us that the  
Appellants considered the need for confidentiality when PD36 was drafted.  
Given the confidentiality provisions in PD36, the federal Minister must have  
determined that confidentially should be part of PD36.  
[229] We agree with the Appellants that the reporting plans stated in the  
Orders frustrate the confidentiality provisions of PD36. However, unlike  
PD36, the Orders are not provincial laws; rather, they are statutory decisions  
made under provincial laws. Therefore, the Orders do not constitute  
provincial laws that frustrate the purpose of a federal law. Therefore, the  
Panel concludes that even if the Impugned Legislation did not fail the pith and  
substance test, the second branch of the paramountcy doctrine is not met in  
this case.  
[358] There are problems in this analysis. The EAB’s conclusion that the Director’s  
exercise of statutory authority, as a matter of law, differed from the Minister’s  
exercise of statutory authority in issuing PD 36 is incorrect. I agree with the Railways  
that governmental acts and the exercise of delegated authority by government  
officials must comply with the constitution just as legislation itself has to comply  
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(Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto:  
Thompson Reuters Canada, 2019), 13:3100). Both have the force of law.  
[359] In the circumstances here, the orders at issue were made pursuant to  
s. 91.11(5)(b) of the EMA and the Director sought information from the Railways as  
“regulated persons” regarding substances transported by them. The orders had the  
force of law.  
[360] It is difficult to conceive of how, if the orders were not effective provincial  
laws, the matter made it before the EAB at all. Absent the force of law the Railways  
could have simply refused to comply with the orders from the outset. Further, the  
Railways’ challenged the constitutionality of s. 91.11 in its entirety, not just the  
specific subsection under which the orders were granted, an approach the EAB  
accepted earlier in its decision. Yet, the EAB focused on the orders alone, as if they  
could be divorced from the legislation pursuant to which they were made. I find that  
the orders are exercises of governmental authority that must comply with the  
constitution and that could, in theory at least, frustrate a federal purpose. The EAB  
erred in finding otherwise.  
[361] It is also significant that the EAB failed to determine the purpose of PD 36.  
Clear proof of purpose is required where a party invokes federal paramountcy on the  
basis of frustration of purpose (COPA, at para. 68). Without making such a finding, it  
was impossible for the EAB to determine whether the impugned legislation and  
orders frustrated the federal legislation.  
[362] While it is true that the presence of confidentiality provisions within PD 36  
indicates that the Minister determined that confidentiality should be part of PD 36  
when it was issued, this does not assist in determining the purpose of the directive.  
A directive (or statute) may contain many different provisions and the existence of  
one provision does not necessarily define the purpose of the directive as a whole.  
The Railways submitted to the EAB that the purpose of PD 36 was to strike a  
balance between two objectives: disclosing information to assist first responders in  
emergency planning and preparation (without impacting railway security). Assuming  
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that was an accurate description of the purpose it would then be considered with the  
orders under s. 91.11 of the EMA. That was not done by the EAB and nor was any  
other purpose of PD 36 identified.  
[363] In the result I agree with the Petitioners and the Railways that the EAB’s  
reasoning for finding that paramountcy did not apply was not correct.  
2.  
Federal paramountcy does not apply  
[364] As above, I agree with the result of the EAB decision but I have different  
reasoning. I will consider whether there is an operational conflict between s. 91.11 of  
the EMA and the federal regime represented by PD 36. I will then consider whether  
the provincial legislation at issue frustrates the purpose of the federal regime.  
Operational conflict  
[365] Again, the first step of the paramountcy analysis is to ensure the legislation at  
issue is independently valid under the constitution (Moloney, at para. 31). In this  
case, I have found above that s. 91.11 is validly enacted provincial legislation  
pursuant to the provincial authority over s. 92(13) (property and civil rights) and s.  
92(8) (municipal institutions in the province). And there is the dual nature of  
jurisdiction over the environment.  
[366] The constitutionality of the relevant federal legislation is not at issue in these  
proceedings. However, I note that the TDGA has been found by the Court of Appeal  
to be valid legislation enacted pursuant to the federal government’s criminal law  
power under s. 91(27) of the Constitution Act (Cariboo Pulp & Paper, at paras. 21,  
34).  
[367] The concern of the Railways is the release of information that might  
compromise their security including the threat of terrorists’ attacks. They view that  
information as confidential, they rely on PD 36 as a model that protects its  
confidentiality and they submit that because there are no confidentiality protections  
in the impugned legislation an operational conflict arises. There is no reference in  
   
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the TDGA or the Rail Security Regulations to the confidentiality of the information of  
concern to the Railways.  
[368] I discuss PD 36 in more detail below. However, for the purposes of this first  
stage of the paramountcy analysis I note that it imposes confidentiality obligations on  
local officials, not the Railways. The Railways have the option of not disclosing  
information if there is no confidentiality undertaking from a local officer. They could  
even voluntarily provide information without an undertaking. But the important point  
is that it would not be a violation of PD 36 (or the TDGA or the Rail Security  
Regulations) or create any operational conflict to release information under s. 91.11  
of the EMA.  
[369] I conclude that the Railways can comply with both s. 91.11 and the Director’s  
orders, and PD 36, the Rail Security Regulations, and the TDGA. Compliance with  
one clearly would not be defiance of any of the others. To the extent there may be  
duplication I do not consider that a conflict because the fact that federal legislation  
“occupies” the same or similar field as provincial legislation is not a basis for  
invoking paramountcy. And, “[t]he fact that Parliament has legislated in respect of a  
matter does not lead to the presumption that in so doing it intended to rule out any  
possible provincial action in respect of that subject.” (Canadian Western Bank, at  
para 74).  
[370] On this first branch of the paramountcy test, I conclude there is no direct  
operational conflict.  
Frustration of purpose  
[371] Turning to the second branch of the paramountcy analysis, I must consider if  
the effect of s. 91.11 of the EMA frustrates the purpose of the TDGA, the Rail  
Security Regulations and PD 36.  
[372] I have discussed above the difference between safety and security, the  
former being the result of accidental causes and the latter being the result of an  
intentional act such as terrorism. I have also identified that there can be overlap  
 
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between the two terms since, for example, a deliberate attack on a train may well be  
intended to create a safety issue.  
[373] I have also concluded above that duplication does not create a direct conflict  
and I do not consider that any duplication required by the impugned legislation  
frustrates the purpose of the federal regime. In fact, as also discussed above, in  
constitutional terms there are separate interests between the two levels of  
government in the case of environmental risk from trains carrying dangerous  
substances. The federal government is concerned with spill planning and  
preparedness with respect to the operations and management of interprovincial  
railways. In contrast, the Province is concerned with planning and preparedness for  
spills from interprovincial railways that impact beyond the operations and  
management of those railways. This is consistent with protecting the broader public  
interest as reflected in the Province’s jurisdiction over property and civil rights as well  
as municipalities. As in IMTT-Québec inc., the Province can regulate contamination  
from a property within federal jurisdiction (but cannot regulate ownership of the  
property).  
[374] Turning to more specific concerns, it is imperative to consider, first of all, the  
purpose of the TDGA since it is the authority for issuing both PD 36 and the Rail  
Security Regulations. In Cariboo Pulp & Paper, the Court of Appeal usefully  
identified the purpose of the TDGA as “to ensure the safety of the public in the  
transportation of dangerous goods throughout the country (and, to some extent,  
beyond Canada’s borders)” (at para. 34). I conclude that, consistent with the dual  
nature of constitutional jurisdiction over the environment, the broad purpose of  
s. 91.11 of the EMA is similar. I am unable to find it frustrates the federal legislation.  
[375] The Rail Security Regulations came into force over the course of a year after  
their registration on May 6, 2019 (s. 34). They were intended to mitigate risks posed  
by transportation of dangerous goods by freight train, which are vulnerable to  
“deliberate misuse or sabotage”, and to “better align Canadian standards with  
international standards” in this regard (Regulatory Impact Analysis Statement). The  
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Regulations impose requirements to implement security plans, security training,  
security reporting, and designation of a rail security coordinator. Essentially, the Rail  
Security Regulations seek to increase the security of railway carriers who transport  
dangerous goods.  
[376] In contrast, s. 91.11 of the EMA is directed at safety risks although  
information obtained for safety reasons may be useful when assessing security  
risks. I can find no frustration of the purpose of the federal Rail Security Regulations  
by the content or operation of s. 91.11 of the EMA.  
[377] With respect to PD 36 itself, as I have set out above, PD 36 was borne of  
PD 32. The latter was a directive issued by the Minister in 2013 pursuant to s. 32 of  
the TDGA in the wake of the serious accident at Lac-Mégantic (EAB, at  
paras. 26-32). PD 32 established a mechanism through which emergency planning  
officials in municipalities could obtain information from Class I Rail Carriers about  
dangerous goods transported through their jurisdictions. PD 36 replaced PD 32 on  
April 28, 2016 to address requests from municipalities and first responders for more  
information from the rail carriers. PD 36, as per the statutory language of s. 32 of the  
TDGA, states that it was necessary to deal with an emergency that involves a  
danger to public safety. “Public safety” is defined in the TDGA as “the safety of  
human life and health and of property and the environment” (s. 2). Clearly, the  
purpose of PD 36 is no different than the TDGA itself: to ensure the safety of the  
public in the transportation of dangerous goods throughout the country.  
[378] Under PD 36, the Railways are required to provide “[a]ggregate information  
on the Nature and volume of Dangerous Goods” (as defined in the TDGA) to the  
Emergency Planning Official of each Jurisdiction through which the Canadian Class  
I Rail Carrier transports dangerous goods by railway car.” However, under s. 15 (set  
out above), the information is not required to be disclosed unless the receiving  
agency has undertaken or agreed to use the information only for emergency  
planning or response and to disclose the information only to those persons who  
need to know for specified purposes. Also, to keep the information confidential and  
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ensure any person to whom the information is disclosed keeps it confidential, to the  
maximum extent permitted by law.  
[379] The Railways accept this regime and, in fact, they proposed to the Director  
that they provide information on the same confidential basis as in PD 36.  
Presumably that proposal would have required a detailed examination of the  
application of FOIPPA among other complications but, in any event, it was declined.  
[380] As can be seen, PD 36 includes reference to an “Emergency Planning  
Official.” This is defined as someone who “coordinates emergency response  
planning for a Jurisdiction.” As noted earlier, a “Jurisdiction” is defined to mean “a  
municipality and other similar form of local government that have primary emergency  
planning responsibilities over a geographical area and includes Parks Canada.” The  
evidence before the EAB from the Railways confirmed (in cross-examination) what is  
self-evident in the directive, that PD 36 does not apply to provinces. There is nothing  
in PD 36 that prevents the Railways from providing information to the provinces (and  
nor could it, if s. 91.11 of the EMA is constitutionally valid) so there is no frustration  
of the federal regime on that admittedly narrow basis.  
[381] The question is whether disclosing the same or similar information under  
s. 91.11 of the EMA frustrates the purpose of the federal regime as reflected in  
PD 36.  
[382] According to the Railways, the purpose of PD 36 and the related federal  
regime is rail safety and security and that by failing to protect confidentiality of the  
information requested, s. 91.11 frustrates this purpose by putting rail safety and  
security at risk. I note that the Court of Appeal’s characterization of the purpose of  
the TDGA in Cariboo Pulp & Paper included no reference to confidentiality. Nor is  
there any reference in the statute itself. As discussed above, the EAB declined to  
determine whether the lack of confidentiality/potential publication would in fact  
decrease rail security and safety.  
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[383] Under PD 36, there are provisions about the release of information and an  
undertaking is required from a local official not to disclose the information before the  
Railways release it. The protection of the confidentiality of information is not absolute  
but only to the “to the maximum extent permitted by law.” From this it appears that  
federal “law” may require some disclosure. However, the scope of PD 36 is broader  
than confidentiality and it would operate even if there was no undertaking by an  
Emergency Planning Official and no disclosure by the Railways. Confidentiality is an  
element of the federal regime as demonstrated in PD 36, but it falls short of being its  
purpose.  
[384] Even recognizing that confidentiality may be part of the overall purpose of the  
federal regime, I am not persuaded that there is a frustration of that purpose by the  
operation of s. 91.11 of the EMA. As above, FOIPPA provides exceptions to the right  
of disclosure of information by the Province of British Columbia in situations  
involving sabotage, espionage and terrorism. This is precisely the concern of the  
Railways.  
[385] I conclude that both regimes provide protection for the confidentiality of the  
information that the Railways are concerned about. For sure they are different  
regimes with the Railways having more control over the process under PD 36 than  
they would have under the EMA. But, in my view, different procedures towards the  
same end does not mean that one process frustrates the other. The Railways can  
comply with s. 91.11 and the orders without frustrating the public safety and security  
purposes of the federal enactments.  
[386] I conclude the result of the EAB decision on the issue of federal paramountcy  
is correct (but its analysis is not correct) and the doctrine of federal paramountcy  
does not apply in the circumstances of this case.  
F.  
SUMMARY  
[387] This is a review of three decisions of the EAB. Two were on the subject of  
confidentiality of evidence (September 10, 2019 and September 17, 2019) and they  
are subject to a review on the basis of reasonableness. The third decision (May 29,  
 
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2020) decided constitutional issues and it is subject to review on the basis of  
correctness.  
[388] The EAB decision of September 10, 2019 on the confidentiality of evidence  
the proceedings was unreasonable. The EAB conflated the Railways’ private interest  
in keeping their security information confidential with a public interest, concluding  
that there was an overlap between the two. The balancing exercise (under s. 41 of  
the ATA and in common law) required the weighing of the public’s interest in a  
strong presumption of openness for legal proceedings with the private interests of  
the Railways in closed proceedings. There is minimal discussion by the EAB of the  
public interest in openness. The EAB also misstated the position of the Petitioners  
on the issue of the scope of the security-related evidence that would be tendered by  
the Railways.  
[389] The EAB decision of September 17, 2019 was also unreasonable because it  
was based on the reasoning of the September 10, 2019 decision (although it was  
pursuant to s. 42 of the ATA).  
[390] Accordingly, pursuant to s. 5 of the JRPA, the issues of whether there should  
be a hearing without the presence of the public or the media and whether there  
should be an in camera hearing are referred back to the EAB for reconsideration and  
determination based on the legal conclusions in this judgment. The scope of the  
evidence that is to be before the EAB, and whether any of that evidence ought to be  
received in confidence must, necessarily, be decided before the EAB’s  
determination of the constitutional issues. This evidence relates to the security issue  
raised by the Railways, as below.  
[391] The EAB’s May 29, 2020 decision on the pith and substance of s. 91.11 of the  
EMA was not correct. There are problems in how the EAB characterized the  
“unique” interpretation of the impugned legislation by the Director and how it used  
the Director’s evidence to determine pith and substance. In addition, contrary to the  
conclusion of the EAB and the submission of the Railways, the impugned legislation  
does not target the Railways as was the case in the EMA Reference decision.  
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Section 91.11 of the EMA is directed at mitigating the impact of toxic spills on the  
public beyond the specific operation and management of the Railways themselves. It  
is not a “massive” constitutional intrusion into the affairs of the Railways.  
[392] I have found above that the specific purpose of s. 91.11 of the EMA is the  
planning, preparedness and response to toxic spills when transporters such as  
railways, trucks and others carry dangerous substances in large quantities. Further,  
the specific pith and substance or dominant purpose of the impugned legislation is  
spill planning, preparedness and response. It can be comfortably assigned to British  
Columbia’s jurisdiction over property and civil rights or its authority over municipal  
institutions. It is valid legislation under those heads of provincial power. As well, the  
broad purpose of the EMA is the environment and both levels of government have  
constitutional jurisdiction over that subject.  
[393] In its analysis of the pith and substance of the impugned legislation, and as  
part of its analysis of interjurisdictional immunity, the EAB declined to consider  
evidence, or make evidentiary rulings, on the issue of the security of the Railways.  
The Railways relied on that issue as part of its submissions. However, there is no  
decision from the EAB that can be judicially reviewed on the security-related  
evidence and this Court cannot make a decision of first instance.  
[394] Pursuant to s. 5 of the JRPA, the issue of whether the security concerns of  
the Railways supports their view of the constitutionality of the impugned legislation  
and their view of interjurisdictional immunity is referred back to the EAB for  
reconsideration and determination. This will include adjudication of the disputes over  
the evidence on the issue of the security of the Railways. I have otherwise decided  
the issues of pith and substance and interjurisdictional immunity.  
[395] The EAB’s decision on interjurisdictional immunity was incorrect. It concluded  
that the impugned legislation was inapplicable to the Railways because it had a  
serious impact on vital elements of the Railways. However, there is long standing  
authority that permits provincial regulation of interprovincial railways and federal  
undertakings for the purposes of protecting the environment for the general public,  
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beyond the specific operations of federal undertakings such as interprovincial  
railroads. As stated in Bonsecours, the Railways do not cease to be part of the  
provinces in which they are situated. In my view, the impugned legislation does not  
trench on a core of the federal undertaking of interprovincial railways.  
[396] I agree with the parties that the reasoning of the EAB’s May 29, 2020 decision  
on federal paramountcy was not correct. The EAB erred by concluding that the  
Director’s exercise of statutory authority, as a matter of law, differed from the  
Minister’s exercise of statutory authority in issuing PD 36. I agree with the Railways  
that governmental acts and the exercise of delegated authority by government  
officials must comply with the constitution just as legislation itself has to comply.  
[397] The conclusion of the EAB on federal paramountcy, that it did not apply in this  
case, was correct. There is no operational conflict between s. 91.11 of the EMA and  
federal legislation and policy (for example, TDGA and PD 36) since the Railways  
can comply with both. There is also no frustration of purpose between the two  
regimes because both levels of government have jurisdiction over the environment  
and they can operate without conflict. A similar purpose or duplication between  
provincial and federal legislation does not mean that one frustrates the purpose of  
the other. In addition, both regimes provide protection for the confidentiality of  
security sensitive information.  
[398] With respect to double aspect, ancillary powers and incidental effects, they  
were argued before the EAB and, except for ancillary powers, there is minimal  
discussion of them in the parties’ submissions on judicial review. In addition, there is  
minimal consideration of these concepts in the EAB’s May 29, 2020 decision, and  
nothing that constitutes a decision on their applicability in this case. In any event, in  
light of my conclusion that the impugned legislation is valid provincial legislation, it is  
not necessary to decide whether or how these doctrines apply.  
[399] The petition dated July 27, 2020 challenging the EAB decisions of  
September 10, 2019, September 17, 2019 and May 29, 2020 is allowed in part. The  
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cross-petition dated September 14, 2020 challenging the EAB decision that federal  
paramountcy does not apply is dismissed.  
[400] Costs will be determined upon completion by the EAB of the matters referred  
back to them (or after any further reviews).  
“J. J. Steeves, J.”  
The Honourable Mr. Justice Steeves  


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