Simon's Legal Resources

Federal Court - Redetermination

. Milne v. Canada

In Milne v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed a landowner's appeal, here concerning compensation under the federal Expropriation Act.

The court considers the law of reconsidering stare decisis precedent, here in an unusual 'sent back down and back again' ('redetermination') appeal context:

[2] The appellant appealed from the Federal Court’s assessment. This Court allowed the appeal. It sent only a single issue back to the Federal Court for decision: Milne v. Canada, 2023 FCA 137.

[3] Now the Federal Court has decided that single issue: 2025 FC 893. The appellant appeals to this Court.

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[7] Third, this Court’s earlier judgment confined what the Federal Court could decide in the redetermination. This Court directed the Federal Court to determine the monetary award to which the appellant is entitled, given the Court’s conclusion that "“the noise impact on [the appellant’s] residence following the expansion was severe and mitigation is recommended under the Health Canada Guidelines”", and costs. Those are narrow issues. The Federal Court could not reopen other issues it had already decided, nor on appeal can we reopen issues previously decided. Absent manifest error—which has not been argued, nor could it be on these facts—the wording of this Court’s judgment sending the limited issues back to the Federal Court bound that Court and, on appeal, binds this Court. See R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460 and Miller v. Canada (Attorney General), 2002 FCA 370.

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[9] On an appeal from the Federal Court’s redetermination, the appellate standard of review applies: correctness on pure questions of law and extricable questions of law, and palpable and overriding error on factually suffused findings of mixed fact and law and findings of fact. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.