Executive Summary: Key Legal and Evidentiary Issues

• Appeal concerned whether an associate judge erred in compelling production of additional regulatory rule-making materials (the DRPR Materials) under Rules 317–318 of the Federal Courts Rules.

• Core issue was whether the associate judge made a “palpable and overriding error” of fact in suggesting the Duty and Rest Period Rules materials may have been among the “other factors” considered by the rail safety decision maker.

• The court held that the associate judge did not in fact make any finding of fact about what was before the Director General, Rail Safety, but instead applied the correct “arguable relevance” test for production.

• In the context of an ongoing regulatory project, the court confirmed that the tribunal record can extend beyond documents physically before the decision maker, to include related materials that might have informed or underpinned the decision.

• The Rule 317 certificate and supporting affidavit were found not to be conclusive of the full evidentiary record, given the decision maker’s express reliance on broad “other factors” and “current railway practice”.

• The appeal was dismissed and costs of $4,000 all-inclusive were awarded in favour of Canadian National Railway Company, leaving in place the order requiring production of the DRPR Materials.

Facts of the case

Canadian National Railway Company (CNR) operates within a federal rail safety framework governed by the Railway Safety Act and related ministerial rules. As part of that framework, a Ministerial Order issued in 2018 required railways to revise work and rest rules for safety-critical operating employees, taking account of fatigue science and cumulative duty limits. This process led to the “Duty and Rest Period Rules for Railway Operating Employees” (the DRPR), which set out maximum lengths of duty periods and cumulative on-duty time over weekly, four-weekly and annual periods. CNR later sought an exemption from the application of sections 9.1 and 9.2 of the DRPR, arguing that its proposal would maintain at least equivalent safety, relying in part on fatigue science and expert evidence to show the exemption was in the public interest and would not threaten safe railway operations. The Director General, Rail Safety, acting under authority delegated by the Minister of Transport, refused the exemption. In a letter and a Notice of Refusal, the Director General concluded that granting CNR’s requested exemption was not in the public interest and was likely to threaten safe railway operations, expressly referring to “current railway practice”, “the views of each relevant association or organization” and unspecified “other factors” considered relevant. CNR brought an application for judicial review, alleging procedural fairness breaches (including reliance on undisclosed analyses and consultations) and unreasonableness (including use of the wrong legal test and reliance on extraneous, unexplained considerations).

Procedural history and production dispute

In its Notice of Application, CNR invoked Rule 317 of the Federal Courts Rules to request certified copies of all materials that were before or considered by the Minister of Transport and the Director General, Rail Safety in respect of the exemption decision. Among the items sought were “documents, material and information” that had been before those officials in connection with the development and making of the DRPR—referred to in this dispute as the DRPR Materials. The Minister of Transport and the Director General, Rail Safety (the MT Respondents) produced a certified tribunal record and a Rule 317 certificate, and served an affidavit from the Director, Regulatory Affairs, attesting that the record contained all material before the Director General at the time of the decision. They also lodged a formal objection under Rule 318(2), refusing to produce the DRPR Materials on the ground that their relevance had not been established. CNR responded with a motion under Rule 318(3) to compel production of the DRPR Materials, arguing that the Director General’s references to “other factors”, “current railway practice” and internal risk analyses made those materials at least arguably relevant to its procedural fairness and unreasonableness grounds.

Decision of the associate judge on production

The associate judge dealing with case management considered the jurisprudence on Rules 317 and 318, including the principle that a document is relevant if it may have affected the administrative decision or may affect the reviewing court’s decision. The judge emphasised that the Director General’s reasons expressly referred to broad “other factors” and “current railway practice”, and that the DRPR formed the central comparator against which CNR’s exemption request had to be measured. In that context, the judge accepted that there was an arguable case that the DRPR Materials “might well” fall within the “other factors” the Director General considered relevant, or otherwise bear on the legal and factual issues raised in CNR’s application. The associate judge concluded that CNR was not on a fishing expedition, that the scope of relevance had been broadened by the decision maker’s own language, and that, given the ongoing regulatory project around rail fatigue and duty rules, the DRPR Materials might properly form part of the evidentiary record. The motion was granted and the MT Respondents were ordered to produce the DRPR Materials as part of the certified tribunal record.

Issues and arguments on appeal

The MT Respondents appealed the production order under Rule 51. They framed the core issue as whether the associate judge made a palpable and overriding error of fact in allegedly finding that the DRPR Materials were, or may have been, before the Director General when he made the exemption decision. They relied heavily on the Rule 317 certificate and the affidavit from the Director, Regulatory Affairs as conclusive proof that the certified tribunal record already contained all material considered by the Director General. On that basis, they argued it was not open to the associate judge to infer that DRPR-related rule-making materials might have been part of the decision-making context; they also characterised CNR’s request as an impermissible fishing expedition and contended that Rule 317 should be confined to the materials strictly before the decision maker, not to documents from earlier rule-making. CNR, in response, submitted that Rule 317 is not limited to documents physically placed before the decision maker, particularly in an ongoing regulatory scheme where previous proceedings and rule-making experience can inform current decisions. It argued that the Director General’s own reasons, which invoked “current railway practice”, the views of various associations, and other unspecified factors, created a reasonable basis to seek the DRPR Materials as potentially part of the broader informational and regulatory context that underpinned the refusal decision.

Appellate analysis of standard of review and tribunal record

On appeal, the court first addressed the applicable standard, confirming that an associate judge’s discretionary case-management orders are reviewed using the Housen v. Nikolaisen framework: correctness for pure questions of law, and palpable and overriding error for questions of fact or mixed fact and law. The court stressed the high level of deference owed to case-management decisions, particularly on fact-intensive matters such as the scope of the tribunal record. Turning to the MT Respondents’ central complaint, the court examined the associate judge’s reasons and held that he had not made any factual finding that the DRPR Materials were, or may have been, before the Director General when the exemption was decided. Instead, the associate judge had reasoned that, given the Director General’s own reference to “current railway practice” and “other factors” and the role of the DRPR as the baseline for comparing CNR’s proposal, it was arguable that the DRPR Materials might be relevant and should therefore be disclosed. In line with appellate guidance on Rule 317 in the context of ongoing regulatory projects, the court held that the certified tribunal record is not necessarily confined to documents physically reviewed at the moment of decision, but can encompass related materials and prior regulatory experience that may have informed the decision maker’s approach. The Rule 317 certificate and the affidavit were found to be limited in their probative value because they spoke only to what was before the Director General, without excluding reliance on prior DRPR rule-making materials as part of the broader regulatory context.

Ruling and outcome

The court ultimately concluded that there was no palpable and overriding error in the associate judge’s treatment of the DRPR Materials or in his rejection of the MT Respondents’ Rule 318(2) objection. The associate judge correctly applied the “arguable case” threshold for relevance, appropriately considered the ongoing regulatory context and the language of the Director General’s reasons, and did not transform CNR’s request into a fishing expedition. As a result, the appeal was dismissed and the order requiring production of the DRPR Materials remained in force, a result that favoured Canadian National Railway Company. The court fixed costs of the appeal and the related motion in the all-inclusive amount of $4,000 payable by the Minister of Transport and the Director General, Rail Safety to CNR, with no separate award of damages.