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.