Interpretation Note on Section 32 of the Canada Transportation Act

The Agency’s Power to Review its Decisions and Orders

1. INTRODUCTION

There is a basic legal principle in favour of the finality of court and tribunal decisions.  This principle is in the interests of parties to a proceeding who have legitimate expectations that a decision, once rendered, is final. Accordingly, there are very limited circumstances where the Agency can reopen its final decisions and orders.  For more information on these circumstances, please refer to the Practice Regarding the Re-Opening of Agency Decisions or Orders.

This interpretation note examines the circumstances under which the Agency will undertake a review of a decision pursuant to section 32 of the Canada Transportation Act (CTA), including what does and does not constitute new facts and circumstances; the considerations it will take into account when determining whether or not to grant a request for review; and the burden of proof in establishing new facts and circumstances.  The Agency is fully empowered to interpret the provisions of the CTA, its enabling legislation.

Section 32 is not an appeal process or a means of contesting an unfavourable decision.  Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal pursuant to section 41 of the CTA or may submit a petition to Governor in Council pursuant to section 40 of the CTA. 

2.  THE AGENCY’S STATUTORY POWER TO REVIEW A DECISION OR ORDER

Pursuant to section 32 of the CTA, the Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.  

3.  THE TEST APPLIED BY THE AGENCY

The Agency has adopted a comprehensive statement of the test to be applied in section 32 applications.  It is as follows:

In dealing with an application for review, the Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

What follows is guidance on the Agency’s interpretation of two critical concepts to this test:  new facts or circumstances and the impact of the new facts or circumstances.

a) New facts or circumstances

The review process contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if, in its opinion, there has been a change in the facts or circumstances pertaining to a particular decision since its issuance. 

Section 32 is available only where facts or circumstances were not in existence at the time of the original hearing or were undiscoverable by the applicant for review at that time. If a fact was known to the applicant or discoverable through exercise of due diligence at the time of the initial complaint, it cannot constitute a change in facts or circumstances.

A section 32 application is not the appropriate vehicle to introduce evidence that was known to or knowable by the applicant during the original application. It is not meant to provide the losing party an opportunity to complete the record or to re-argue a case.  A distinction must be drawn between, on the one hand, new evidence that is simply "more evidence on the same issues" which would be rejected as new facts or circumstances and, on the other hand, unexpected evidence that is of basic importance to the case which may be accepted as new facts or circumstances.

In addition, the facts must arise in respect of the subject matter involved in the original decision or order.  They must be distinguished from facts giving rise to an entirely new application or complaint. 

The following are some examples of cases where the Agency has considered whether new facts or circumstances existed:

• in Agency Decision No. 42-C-A-2009, the Agency found that a different outcome in a subsequent case does not constitute new facts or circumstances; and, 
• in Agency Decision No. 488-C-A-2010, the Agency found that obtaining counsel or changing counsel for the purposes of filing a section 32 application cannot, in itself, qualify as a change in circumstances.

b) Impact of the new facts or circumstances

If the Agency determines that there has, in fact, been a change in the facts or circumstances since the issuance of the decision, the Agency must then determine whether the change is of sufficient magnitude to warrant a review, rescission or variance of the decision.  This means that the change in facts or circumstances must be expected to result in a variance of the original decision.

The following are some examples of cases where the Agency has considered whether the new facts or circumstances were sufficient to warrant a review, rescission or variance of the decision:

• in Agency Decision No. 378-C-A-2010, the Agency found that the absence of pleadings relating to the matter and the value of having such pleadings represented sufficient reasons to warrant a review, rescission or variance of the decision; and,
• in Agency Decision No. 158-A-2007, although the Agency found that the information and documentation presented did constitute new facts which are contemplated by section 32, the Agency was not satisfied that the change in facts was sufficient to warrant a rescission or variance of its decision.

4.  BURDEN OF PROOF

The burden of proof rests on the party requesting the review of the decision or order to demonstrate that there has been a change in facts or circumstances which are sufficient to warrant the review of the decision or order at issue and to explain how the alleged change affects the outcome of the matter.

5. THE AGENCY’S DISCRETION TO CONDUCT PLEADINGS

The Agency has the discretion to determine that the application does or does not raise new facts or circumstances without conducting pleadings with any other party involved in the original proceeding.  The Agency may, however, conduct pleadings on the impact of the new facts or circumstances on and the variance of the decision or order where it determines it to be appropriate to give any other party to the original proceeding an opportunity to be heard.