BrewerSEA

The initial stay (on request of Swiss) of 416/417 was justified by the Agency as an issue of efficiency, pending the outcome of the petition to the GiC and the application for leave to to appeal (13-A-35). Neither Swiss nor the Agency mentions A-402-13, which is an application for judicial review pursuant to the Federal Courts Act. 13-A-35 was dismissed on February 5th.

On February 11th Swiss wrote a letter requesting the Agency extend the stay of 416/417 while the petition to the GiC remains pending. The Agency denied this after applying a three-prong test, ultimately determining the balance of inconvenience favored the public.

A-402-13 was also stayed by the Court pending a decision by the GiC. In its motion the Agency claims that staying the judicial review process is not prejudicial to Swiss, as paragraph 28 of 417 was stayed until February 12th. But we have passed February 12th, the GiC has not issued any decision on that petition, and the Agency has refused to extend the stay. Considering this, perhaps the Court would order a stay if Swiss so requests.

I believe that the true reason the Agency is ordering this now is that there no longer exists any venue for Swiss to argue the case. 13-A-35 was dismissed, and the Agency has some reason to believe the petition to the GiC will fail (the executive branch must talk to itself, right?). It is confident that it will win A-402-13 because Swiss has no statutory authority for judicial review. Swiss claims that the Agency made errors of fact reviewable by the Court, but the Canada Transportation Act states "The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive."