Intermodal

Back-to-back decisions on CN's $250 million project. Plus bidding farewell to Justice Doherty, virtual client verification, and Alberta's electricity changes.

Dylan Gibbs
March 12, 2024

What have we learned so far this week? If conspiracy theorists are concerned about your whereabouts, don’t post a doctored photo to convince them everything is okay. If there’s a secondary lesson, it’s that all it takes to spot a doctored image is an army of internet sleuths.

Maybe courts concerned about altered digital evidence should consider crowdsourcing on Twitter.

Meme of man pointing to his head with a sly grin on his face

— Dylan Gibbs

TODAY'S DOCKET

5 min read

Back-to-back decisions on CN’s massive transportation hub
Bidding farewell to Justice Doherty
BC’s virtual verification rules
Ontario’s online gambling reference
Alberta’s electricity changes

FEDERAL UNDERTAKINGS

The rollercoaster stretch for CN’s shiny new transportation hub

Rail yard filled with shipping containers

A $250 million project, federalism, judicial review, and advice on how not to prepare an evidentiary record — CN’s intermodal transportation hub has it all. After two recent decisions from different courts, no one came out unscathed.

Driving the litigation: CN is building an intermodal hub in Milton, Ontario to transfer shipping containers between trains and trucks. It includes a railway yard, massive cranes, and some not-so-great effects on the environment. Local municipalities hate it.

Bad news for CN at the Federal Court: The federal government approved the project after an environmental assessment in 2021. But according to Justice Henry Brown, the people responsible for that approval “inexplicably” failed to mention one of the project’s harmful effects. And of all the harmful effects to gloss over, this one had to do with human health.

Of the six significant adverse effects likely caused by the Project, only five are addressed by the Minister. Missing is the [expert review panel’s] finding the Project will likely cause significant direct adverse environmental effects on human health…

[I]t is obvious to me, was not disputed by any party, and is self-evident as a matter of common sense that significant direct adverse environmental effects related to [humans] are of very considerable importance…

2024 FC 348 at paras 6-9

Given the oversight, Justice Brown said the federal government’s approval decision was unreasonable. That means the government needs to reconsider the intermodal hub’s adverse effects, which is bad news for CN.

Save some bad news for everyone else: Separate from the regulatory approval process, the municipalities sued CN. They wanted a declaration that CN needs to comply with over 65 local laws — some of which would halt the project. But both the Superior Court of Justice and the Ontario Court of Appeal sided with CN.

Three of the local laws would have forced CN to get zoning approvals — effectively allowing the municipalities to dictate the intermodal hub’s location. Both courts said the doctrine of interjurisdictional immunity prohibits that outcome.

As for the rest of the 65 local laws, the courts wouldn’t order CN to comply with a laundry list of laws it hadn’t broken yet. Even though the municipalities argued their application wasn’t hypothetical or premature, the Court of Appeal said it’s not enough to just file a stack of documents:

[W]hen the arguments presented leave an application judge in a position where they must dig randomly through mounds of filed material with little or no guidance, in order to eliminate or confirm the speculative possibility that the material required to resolve complex constitutional issues could be buried inside, a discretionary decision by the application judge to deny the application is not only reasonable, but it should be expected. A litigant who brings a complex application on a large record such as this without providing the application judge with a roadmap does so at their peril.

2024 ONCA 174, para 123

The net result? The municipalities can’t block the intermodal hub with local laws — and they need to pay over $2 million in costs for trying.

HEARSAY ROUNDUP

Canadiana

🫡 Justice Doherty was sworn out of the Ontario Court of Appeal on Friday. His 33-year tenure was the longest in the Court’s history.

👩‍💻 BC’s new client verification rules let lawyers verify a client’s identity virtually. Don’t get too excited — it’s not as simple as a Zoom call. Lawyers need to verify the client’s ID using authentication software.

🔒 There’s now a proposed class action over Nova Scotia’s jail lockdowns. In January, the Nova Scotia Supreme Court said that correctional facilities have been acting unlawfully by imposing lockdowns due to staffing shortages. Inmates who were affected by the confinements are seeking compensation.

🎲 Ontario’s Attorney General filed a reference case asking whether people living outside of Canada can lawfully participate in online gaming and sports betting. The Ontario Court of Appeal will hear the case in November. Anyone interested in intervening needs to file a motion by April 8.

🚔 Following Doug Ford’s recent statements about stacking the courts with tough-on-crime judges, Democracy Watch is filing a constitutional challenge against Ontario’s judicial appointment process.

🤰 BC’s Supreme Court certified a privacy class action against Flo Health. The suit alleges Flo Health shared deeply personal information collected by its fertility and menstrual tracking app with third parties like Google and Facebook.

🔌 Alberta is cracking down on a popular practice used by provincial power generators. New rules will limit power generators’ ability to withhold power supply from the market to sell at a higher price.

CHRISTMAS CAME EARLY

📢 It’s here! 📢
We’re happy to share the official photo of the Supreme Court of Canada bench.
This photo was taken in the Judges’ Conference Room during the welcome ceremony for Justice Moreau on February 19, 2024.
— Supreme Court of Canada (@SCC_eng)
1:30 PM • Mar 6, 2024