Canadian National Railway Co v Canada (AG)
Background. Appeals to the Governor in Council. Under various statutes passed by the Parliament of Canada since 1888, the Governor in Council has been authorized to vary or rescind decisions taken by certain administrative tribunals of the Government of Canada. Current authority to do so is conferred under the following Acts: Similar authority has been granted by provincial statutes to the Lieutenant-Governor in Council (i.e., the provincial cabinet). Such power has been described as "legislative in nature and ... no hearing is required in such cases." The procedure is seen to be a  significant barrier to participation in regulatory decision-making. Although there have been calls to abolish such routes of appeal as they constitute policy appeals subject to lobbying efforts, subsequent federal Acts have retained them. The case at hand. At the beginning of 2008, Peace River Coal Inc. (a subsidiary of Anglo American plc) entered into a 30-month contract with CN to ship coal from its facilities at Trend, British Columbia Within the contract, it was stated that "CN fuel surcharge tariff 7402 will apply for the duration of this contract." In February 2008, CN introduced a reduced fuel surcharge  through tariff 7403 effective that April, but advised present contractholders that "Contractual agreements currently subject to fuel surcharge 7402 will remain in effect until those agreements expire, at which time we expect 7403 to be applied." Peace River Coal applied to the Canadian Transportation Agency for an order establishing a reasonable surcharge with respect to its shipments by substitution of the newer tariff. The Agency declined, stating that the contract fell within an exemption for "rates for the movement of traffic." While PRC did not appeal, the Canadian Industrial Transportation Association (of which PRC was a member) petitioned the Governor  in Council to rescind the CTA decision. In June 2010, an order in council was issued rescinding the decision. In so doing, the order declared: CN applied to the Federal Court for an order in the nature of "certiorari", quashing the order in council and restoring the CTA decision. The courts below. Federal Court. The order was granted. In his decision, Hughes J declared: Federal Court of Appeal. On appeal, the order was set aside. In a unanimous ruling, Dawson JA stated: At the Supreme Court. The appeal was dismissed, with costs to the Attorney General of Canada and one  set of costs to PRC and CITA. In a unanimous decision, Rothstein J declared: Impact. "CN" has been welcomed as a clarification of the extent to which the "Dunsmuir" framework applies to all administrative decision-makers, thus building on its decision in "Catalyst Paper", and distinguishing it from "Katz Group", which focused on the "vires" of regulation. It is an open question as to whether the "legislative capacity" review test originating in "Inuit Taparisat" may be overruled or confined to its own special facts as a result.