[1] The Canadian Human Rights Commission (Commission) seeks to intervene neither to defend its decision nor to address the issue of standard of review, but rather to address the jurisprudence, statutory scheme and underlying administrative law considerations relating to two issues raised by the Applicant:

(i) whether the Commission has a duty to provide reasons for its decisions; and

(ii) the Commission's rights and obligations when it obtains legal advice.

This is akin to or part and parcel of defending the Commission's jurisdiction.

[2] I have reached the conclusion that the Commission ought to be added as intervenor because it is able to come within the test or criteria for intervention set out in Canadian Broadcasting Corp. v. Graham (1998), 155 F.T.R. 257 (F.C.T.D.). Those criteria, which originated in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (F.C.T.D.), affirmed [1990] 1 F.C. 90 (F.C.A.) were referred to by Mr Justice Dubé in Lee v. Canadian Human Rights Commission (1996), 108 F.T.R. 75, where he made use of some of them. Indeed, Mr Justice Rouleau made it clear in the Rothmans case that not all of the criteria must be met in order to succeed in becoming an intervenor: see the Rothmans case, in the Trial Division, at page 82. The factors or criteria are as follows:

(1) Is the proposed intervenor 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 to the Court?

(4) Is the position of the proposed intervenor 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 intervenor?

[3] I considered all of these criteria in the context of the present application. Certainly the Commission is directly affected by this matter and will be affected by the outcome. There is a justiciable issue and there ought to be a public interest. The criteria that there be apparent lack of any reasonable alternative means to submit the question to the court requires some comment. There are two potential cases which may take the issues, with which the Commission wishes to deal, before a court some time in the future. However, there is no certainty as to either when those cases will be heard or, indeed, whether they will ever reach a judge or the Court of Appeal for a decision. I do not see that the position of the proposed intervenor would be adequately brought forward or defended by either of the parties to this proceeding and indeed the Attorney General of Canada, the Respondent, consents to the adding of the Commission. The interest of the justice would certainly be better served by the intervention of the Commission. The Court would probably be presented with no on-point material, by way of argument, upon which to decide the Commission's questions without the assistance of the Commission.

[4] To elaborate further on some of this, I believe that the tribunal may well, in this instance, bring a unique contribution to the proceedings by drawing to the attention of the Court considerations which are based in the specialized jurisdiction and expertise of the Commission, considerations which "may rendered reasonable what otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.", an observation of Mr Justice Appeal Taggart in B.C.G.E.U. v. British Columbia (Industrial Relations Council) (1988), 26 B.C.L.R. (2d) 145 at 153:

The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them.

Mr Justice Appeal Taggart's views in the B.C.G.E.U. case were approved by Mr Justice La Forest in CAIMAW Loc 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at 1016. As I say, this is not a situation in which a tribunal wishes to defend the correctness of its decision, an unseemly and inappropriate position, but rather a situation in which the Commission, as the involved tribunal, could assist the Court in hearing and deciding the two narrow issues and thus better serving the interest of justice.

[5] The Applicant, Mr Mielke, does make a valid point and that is whether the addition of the Commission would delay or complicate the proceedings. Here I note that there has already been an application for a hearing date, however that has not been acted on by the Court at this point. Any delay and I believe it would be minimal, is not something which overly concerns me, for Mr Mielke, perhaps by reason of lack of familiarity with the Rules, has not pursued his judicial review application with diligence and thus received a Notice of Status Review, the result of which was that this case is now specially managed.

[6] Nor does it particularly concerns me that by adding the Commission I have added to the burden of the Court, for the issues raised by the Commission are issues which must at some point be resolved. Further, should they be resolved more quickly in other parallel proceeding, I do not doubt that the Commission will do the proper thing and get off the record.

[7] The remaining issue is that of the terms upon which the Commission should be allowed to participate. In this instance the terms ought to be broad. I am in agreement with counsel for the Commission that, on the two issues set out above, the duty to provide reasons for decisions and the rights and obligations on obtaining legal advice, the Commission, as an intervenor, may file a memorandum of fact and law, attend the hearing and present oral argument, be served with documents by the parties and have a right to appeal the two issues in which it is interested.

[8] Neither the Commission nor the Applicant having raised the issue of costs, none are awarded.

(Sgd.) "John A. Hargrave"

Prothonotary

Vancouver, British Columbia

23 July 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET: T-1119-02

STYLE OF CAUSE: Gunther Max Willi Mielke v. Attorney General of Canada

REASONS FOR ORDER: Hargrave P.

DATED: 23 July 2003

WRITTEN REPRESENTATIONS BY:

Gunther M W Mielke

Andrea Wright

APPLICANT on his own behalf

FOR PROPOSED INTERVENOR Canadian Human Rights Commission

SOLICITORS OF RECORD:

Gunther M W Mielke

Vancouver, British Columbia

Andrea Wright

Canadian Human Rights Commission

Ottawa, Ontario

APPLICANT on his own behalf

FOR PROPOSED INTERVENOR Canadian Human Rights Commission

You are here

Mielke v. Canada (Attorney General), 2003 FC 914

Citations2003 FC 914

Case tabs

Citations
2003 FC 914