Canadian National Railway Co. v. Handyside
A-540-91
Hugessen J.A.
3/6/94
9 pp.
Application to review and set aside arbitrator's decision rendered under final offer arbitration provisions (National Transportation Act, 1987, ss. 47 to 57) -- S. 48 providing where shipper dissatisfied with rates for carriage of goods, may submit matter to Agency for final offer arbitration -- Agency to refer matter to arbitrator -- S. 112(2) providing every rate shall be compensatory -- Applicant contending in selecting rate arbitrator bound to have regard to s. 112(2) -- Submitting arbitrator erred in not giving effect to "uncontradicted" evidence rate proposed by shipper non-compensatory -- Application allowed -- Assuming s. 112(2) applicable to rate fixed by final offer arbitration, applicant not meeting onus on it as party invoking it to prove proposed rate non-compensatory -- Throughout arbitration proceedings CN refusing to reveal to shipper or to arbitrator information relating to its costs and to alleged non-compensatory nature of rate, maintaining confidential information, and invoking Railway Act, s. 350 -- CN's position directly contrary to s. 54, outlining procedure where any party to final offer arbitration desiring to keep matters relating to arbitration confidential -- Legislation specifically contemplating arbitrator dealing with confidential information and sharing of such information between parties -- CN could not take refuge behind alleged confidentiality, while at same time basing itself on confidential information to assert and invoke non-compensatory character of proposed rate -- Parliament intending final offer arbitration process to be workable and expeditious, which it could not be if carrier could so easily frustrate it -- Party may withhold information, but at own peril, according to s. 50(5) -- Arbitrator breached rules he himself had established and principles of procedural fairness in communicating with shipper's counsel to obtain additional information prior to giving his decision and without advising carrier of information sought and obtained -- As subject of communication relatively unimportant, matter remitted to arbitrator for him to give opportunity to carrier to respond to information obtained from shipper and to vary decision, rather than vitiating whole process -- National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28, ss. 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 112 -- Railway Act, R.S.C., 1985, c. R-3, s. 350 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 342).