Date: 20061012
Citation: 2006
FC 1216
Ottawa, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Phelan
Docket: T-2241-95
BETWEEN:
MARGARET
HORN
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS
REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Defendant
and
Docket: T-2242-95
BETWEEN:
SANDRA WILLIAMS
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS
REPRESENTED BY THE MINISTER OF
NATIONAL REVENUE
Defendant
REASONS FOR ORDER AND ORDER
[1]
These
reasons relate to a motion by the proposed intervener, Aboriginal Legal
Services of Toronto (ALST), to intervene in this litigation.
[2]
The motion
to intervene was filed October 4, 2006 in respect of a case which is almost
10 years old and which is scheduled for trial commencing October 16, 2006.
The reply submissions were filed October 10, 2006. It is therefore urgent to
decide this motion.
[3]
It should
be noted that this action was originally set for trial on March 27, 2006,
which, for various reasons, was adjourned March 16, 2006. The trial was then
set for April 3, 2006 and later adjourned to a date to be fixed which is the
current trial date. At no time prior to or during these earlier proceedings
including the March and April trial dates, did ALST indicate an intention to
intervene. This delay has not been satisfactorily explained.
[4]
The ALST
is a multi-service legal agency that provides services to the aboriginal
community in the Toronto area. It claims to have
expertise in respect of aboriginal legal issues and has been granted intervener
status in a number of court proceedings. In the context of the current
litigation, it has 23 out of 28 staff members who are leased employees from
Native Leasing Services, an organization referred to in the current litigation.
Some of these staff members are registered under the Indian Act, others
are non-registered First Nations persons.
[5]
The
Respondent opposes this motion for a number of reasons, some of which include
the justiciability of the issue raised by ALST, the imprecision of its interest
and the materials which it wishes to introduce (legislative and sociological
facts) and the effect that such intervention would have on the Respondent’s
conduct of the trial. All are valid concerns.
[6]
On the
other hand, there is an issue of s. 87 of the Indian Act, its
application and operation and the relationship with s. 15 of the Charter.
ALST seems particularly concerned with the use of the residency test as a
“connecting factor” in respect of s. 87 and the issue of on-reserve and
off-reserve aboriginal people. The plaintiffs both are on-reserve.
[7]
The
Respondent refers to the potential that there are a number of persons who may
be affected by the legal findings on s. 87 of the Indian Act and s. 15
of the Charter. There are 2,000 Notices of Objection, 496 Notices of
Appeal to the Tax Court and the possibility of 4,000 Notices of Confirmation
which may be issued, all related to employees of Native Leasing Services.
[8]
The test
for intervener status has been variously described. In Canadian Union of
Public Employees (Airline Division) v. Canadian Airlines International Ltd.,
[2000] F.C.J. No. 220 (C.A.)(QL), paragraph 8, the Federal Court of Appeal laid
out six issues to consider:
1) Is the proposed intervener
directly affected by the outcome?
2) Does there exist a
justiciable issue and a veritable public interest?
3) Is there an
apparent lack of any other reasonable or efficient means to submit the question
of the Court?
4) Is the position of
the proposed intervener adequately defended by one of the parties to the case?
5) Are the interests
of justice better served by the intervention of the proposed third party?
6) Can the Court hear
and decide the cause on its merits without the proposed intervener?
The Federal Court of Appeal in Feeroequus Railway Co. v.
Canadian National Railway, 2003 FCA 408 cited with approval the three prong
test in Abbott v. Canada, [2000] 3 F.C. 482 (T.D.) (which is similar to
that in Maurice v. Canada (Minister of Indian Affairs and Northern
Development), [2000] F.C.J. No. 208 (QL)):
1. The Applicant for
intervention must have an interest in the outcome;
2. The rights of the
Applicant will be seriously affected by the outcome of the litigation; and
3. The Applicant, as Intervener,
will bring a different perspective to the proceedings.
[9]
Given the
nature of the ALST’s mandate to represent aboriginal interests, while it, as an
organization does not have an interest in the outcome nor would be affected,
some of the people whom it seeks to assist may well be affected.
[10]
In the
current circumstances, the most important test for intervener status is whether
the ALST will bring a different perspective – in other words, will its
intervention assist the Court in its conclusion.
[11]
In that
regard, the Plaintiffs are represented by excellent and experienced counsel.
The Plaintiffs have not explained why they support this motion. However, the
Plaintiffs are on-reserve aboriginal people and therefore the ALST might bring
a slightly different emphasis to the legal argument on the interpretation of s.
87, the residency test and the possible impact of this case in the context of
s. 15 of the Charter.
[12]
It is for
this reason that the motion will be granted subject to strict terms. The Court
is concerned that an intervener, no doubt inadvertently, would “hijack” the proceedings,
interfere with the real dispute between the parties and place an unfair burden
on the Respondent to respond to new issues and upon the eve of trial.
[13]
Therefore,
the ALST shall be restricted as follows:
(a) to
presenting legal argument only to be set out in a Memorandum of Law which
complies with the Federal Courts Rules. No attempt to adduce new facts
under the guise of a Memorandum will be permitted;
(b) the Memorandum will
be restricted to 10 pages not including Appendices;
(c) the Memorandum
shall be served and filed no later than October 20, 2006;
(d) ALST’s
oral argument shall follow that of the Plaintiffs; the time allotted for ALST’s
oral argument shall be determined having regard to the time required by the
parties to fairly make their case;
(e) ALST may be
responsible for costs as circumstances dictate; and
(f) ALST shall have no
right of appeal.
ORDER
IT IS ORDERED THAT the motion is granted, without
costs, on the following terms:
1. The
intervener may present legal argument only to be set out in a Memorandum of Law
which complies with the Federal Courts Rules. No attempt to adduce new
facts under the guise of a Memorandum will be permitted.
2. The Memorandum will
be restricted to 10 pages not including Appendices.
3. The Memorandum
shall be served and filed no later than October 20, 2006.
4. ALST’s
oral argument shall follow that of the Plaintiffs; the time allotted for ALST’s
oral argument shall be determined having regard to the time required by the
parties to fairly make their case.
4. ALST may be
responsible for costs as circumstances dictate.
5. ALST shall have no
right of appeal.
“Michael
L. Phelan”
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