Decision Date: September 10, 2019

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – s. 91.11(5); Administrative Tribunals Act – s. 41(2)(a); preliminary application; spill response information order; confidentiality order

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

The Orders were issued under Division 2.1 of the Environmental Management Act (the “Act“), which sets out requirements regarding spill preparedness, response and recovery that apply to certain federally regulated railways operating in BC. In particular, section 91.11(5) of the Act authorizes a director to request information relating to the substances transported by regulated persons. The dissemination of information regarding the shipment of dangerous goods by rail, including crude oil and bitumen, is also regulated under Protective Direction No. 36 (“PD 36”), issued by the federal Minister of Transport under the federal Transportation of Dangerous Goods Act, 1992.

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

The appeals were set to be heard at an oral hearing. Oral hearings are presumed to be open to the public, but section 41(2)(a) of the Administrative Tribunals Act (“ATA”) provides the Board with the discretion to order that evidence be received to the exclusion of the public in certain circumstances. Before the oral hearing commenced, the Applicants applied for an order that some of their document evidence and the testimony of two of their four witnesses be received to the exclusion of the public. They submitted that without a confidentiality order for this evidence, they could not rely on the evidence because producing it in a public hearing would risk harm to railway security, and this would prejudice their ability to argue their appeals.

The Director and the Attorney General of British Columbia opposed the application. Among other things, they argued that the media and other third parties who may be affected by the confidentiality order should be given an opportunity to provide submissions before the application was decided. They also submitted that the Applicants are commercial enterprises pursuing economic self-interest rather than public safety and railway security, and there were no actual risks to railway infrastructure if the evidence was publicly available at the hearing.

The Board found that it must determine whether “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”, as stated in section 41(2)(a) of the ATA. Although there are fundamental values at stake in an application under section 41(2)(a), such as the right to freedom of expression guaranteed in section 2(b) of the Charter of Rights and Freedoms, there is no requirement in the ATA to provide advance notice to the media or other potentially interested parties before deciding such an application. The Board can take their interests into account when it weighs the factors set out in section 41(2)(a). The Board also found that the weighing of interests required under section 41(2)(a) is similar to the test described in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, particularly in cases such as this that involve constitutional questions.

The Board found that the facts in this application were similar to those in Sierra Club, in that preventing public disclosure of the document evidence would further the commercial interests of the Applicants, but some of their interests engage important public interests. This included the public interest in cooperation between regulatory, law enforcement, and intelligence agencies aimed at safeguarding railway infrastructure from threats, and where this cooperation is provided, at least in part, with an expectation that the shared information would remain confidential. Additionally, as in Sierra Club, the Applicants would be unable to present this evidence without a confidentiality order from the Board. This would impact their rights to procedural fairness, and the public interest in ensuring that the Board decides appeals based on all relevant evidence.

Conversely, the Board also found that granting the confidentiality order would prevent public access to some of the Applicants’ evidence, which would be contrary to the ‘open court’ principle. However, any resulting infringement of the public’s freedom of expression would be partial, because the Applicants did not seek to restrict public access to 63 non-confidential documents or the testimony of their other two witnesses. In addition, the Board noted that the public already had access to sufficient information to understand “what substances are being moved where in the province” by rail. Thus, the confidentiality order would have a limited effect on the public’s freedom of expression and the open court principle.

For those reasons, the Board concluded that important interests of the Applicants and the public would be protected by preventing public access to the document evidence, and these interests outweighed the public interest in access to that evidence. However, regarding the oral testimony of the two witnesses that the Applicants sought to have excluded from the public, the Board concluded that the Panel conducting the appeal hearing was in the best position to make a determination, as they would have the benefit of reviewing the available evidence including the confidential documents, and should be free to make that determination.

Accordingly, the application for a confidentiality order was granted, in part.