THE CANADIAN TRANSIT COMPANY Appellant v. MINISTER OF TRANSPORT, MINISTER OF FISHERIES AND OCEANS,, 2012 FCA 70

Federal Court of Appeal Cour d'appel fédérale Date: 20120301 Dockets: A-214-11 A-216-11 Citation: 2012 FCA 70 CORAM: SHARLOW J.A. DAWSON J.A. TRUDEL J.A. BETWEEN: THE CANADIAN TRANSIT COMPANY Appellant and MINISTER OF TRANSPORT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF THE ENVIRONMENT, WINDSOR PORT AUTHORITY AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents Heard at Toronto, Ontario , on March 1, 2012. Judgment delivered from the Bench orally at Toronto, Ontario , on March 1, 2012. REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.

Federal Court of Appeal Cour d'appel fédérale Date: 20120301 Dockets: A-214-11 A-216-11 Citation: 2012 FCA 70 CORAM: SHARLOW J.A. DAWSON J.A. TRUDEL J.A.

BETWEEN: THE CANADIAN TRANSIT COMPANY Appellant and MINISTER OF TRANSPORT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF THE ENVIRONMENT, WINDSOR PORT AUTHORITY AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench orally at Toronto , Ontario on March 1, 2012) SHARLOW J.A. [ 1 ] Despite the forceful and most able submissions of counsel for the appellant, we have not been persuaded that the record discloses any error on the part of Justice Kelen that warrants the intervention of this Court. [ 2 ] In substance, most of the challenges to Justice Kelen’s decision turn on his findings of fact.

We have been unable to discern any palpable and overriding error in those findings. In our view, they were all reasonably open to him on the record. Further, we cannot conclude that Justice Kelen erred in law in any respect.

[ 3 ] These appeals will be dismissed with costs. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKETS: A-214-11 and A-216-11 APPEAL FROM THE JUDGMENT OF THE HONOURABLE MR. JUSTICE KELEN OF THE FEDERAL COURT, DATED MAY 4, 2011 IN DOCKET NO. T-2189-09. STYLE OF CAUSE: THE CANADIAN TRANSIT COMPANY v. MINISTER OF TRANSPORT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF THE ENVIRONMENT, WINDSOR PORT AUTHORITY AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: March 1, 2012 REASONS FOR JUDGMENT OF THE COURT BY: (SHARLOW, DAWSON & TRUDEL JJ.A.) DELIVERED FROM THE BENCH BY: SHARLOW J.A. APPEARANCES :

Kevin O’Brien Lindsay Rauccio FOR THE APPELLANT William MacLarkey Peter Southey Andrea Bourke Jon Bricker FOR THE RESPONDENT (Her Majesty the Queen in right of Ontario ) FOR THE RESPONDENT (Minister of Transport, Minister of Fisheries and Oceans, Minister of the Environment, Windsor Port Authority) SOLICITORS OF RECORD : OSLER, HOSKIN & HARCOURT LLP Toronto , Ontario FOR THE APPELLANT ATTORNEY GENERAL FOR ONTARIO Crown Law Office – Civil Toronto, Ontario Myles J.

Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT (Her Majesty the Queen in right of Ontario ) FOR THE RESPONDENT (Minister of Transport, Minister of Fisheries and Oceans, Minister of the Environment, Windsor Port Authority)