Date: 20110328
Docket: A-78-11
Citation: 2011 FCA 119
Present: STRATAS
J.A.
BETWEEN:
GLOBALIVE WIRELESS MANAGEMENT
CORP.
Appellant
and
PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA,
AND TELUS
COMMUNICATIONS COMPANY
Respondents
REASONS FOR ORDER
STRATAS J.A.
[1]
The moving
parties, Alliance of Canadian Cinema, Television and Radio Artists,
Communications, Energy and Paperworkers Union of Canada, and Friends of
Canadian Broadcasting (the “moving parties”), move under rule 109 for leave to intervene
in this appeal.
[2]
The
Attorney General of Canada, supported by Globalive Wireless Management Corp.,
opposes the motion. TELUS Communications Company consents to the motion,
provided that no change will be made to the deadline for filing the
respondents’ memoranda of fact and law.
[3]
The issue
in this appeal is whether the Governor in Council, in its decision (P.C.
2009-2008 dated December 10, 2009), acted within its statutory mandate under
the Telecommunications Act, S.C. 1993, c. 38. The Federal Court found
(at 2011 FC 130) that the Governor in Council acted outside of its statutory
mandate. It quashed the Governor in Council’s decision.
[4]
In the
Federal Court, the moving parties were permitted to intervene: see the order of
Prothonotary Tabib and the order of Prothonotary Aronovitch, dated April 13,
2010 and June 8, 2010, respectively. The moving parties’ intervention was
restricted to the issue whether the Governor in Council, in applying subsection
16(3) of the Telecommunications Act, failed to consider, failed to give
effect, or acted inconsistently with the non-commercial objectives of the Act
set out in the opening words of section 7 and subsections 7(a), (h) and (i).
The thrust of the moving parties’ submission in the Federal Court was that the
Governor in Council improperly accorded paramount importance to increasing
competition in the telecommunications sector to the prejudice of the Act’s
non-commercial objectives.
[5]
I grant
the motion for leave to intervene in the appeal in this Court for the following
reasons:
a. In my view, absent fundamental
error in the decision in the Federal Court to grant the moving parties leave to
intervene, some material change in the issues on appeal, or important new facts
bearing on the issue, this Court has no reason to exercise its discretion
differently from the Federal Court. No one has submitted that there is
fundamental error, material change or important new facts.
b. It is evident from the reasons
of the Federal Court that the moving parties’ submissions were relevant to the
issues and useful to the Court in its determination.
c. It is not necessary for the
moving parties to establish that they meet all of the relevant factors in Rothmans
Benson and Hedges Inc. v. Canada, [1990] 1 F.C. 84 (T.D.), affirmed [1990]
1 F.C. 90 (C.A.), including whether the moving parties will be directly
affected by the outcome: Boutique Jacob Inc. v. Paintainer Ltd., 2006
FCA 426 at paragraph 21, 357 N.R. 384. I am satisfied that the moving parties
in this public law case possess a genuine interest – namely, a demonstrated
commitment to the strict interpretation of the foreign ownership restrictions
in the Telecommunications Act. This interest is beyond a mere
“jurisprudential” interest, such as a concern that this Court’s decision will
have repercussions for other areas of law: see, e.g., Canadian Union of Public Employees (Airline Division) v.
Canadian Airlines International Ltd., a 2000 decision of this Court,
belatedly reported at [2010] 1 F.C.R. 226. Further, the moving parties will be
able to assist the Court in a useful way in this public law case, bringing to
bear a distinct perspective and expertise concerning the issues on which they
seek to intervene: Rothmans Benson and Hedges Inc. (F.C.A.), supra
at page 92. It is in the interests of justice that the moving parties be permitted
to intervene in this public law case.
[6]
This
Court, acting under rules 53(1) and 109(3), will attach terms to the order
granting the moving parties leave to intervene.
[7]
The moving
parties’ written and oral submissions shall be limited to the subject-matters
set out in paragraph 4, above. Those submissions shall not duplicate the
submissions of the other parties and shall not add to the factual record in any
way.
[8]
This
appeal has been expedited and a schedule has been set. That schedule shall not
be disrupted.
[9]
The moving
parties support the result reached by the Federal Court. Accordingly, the
deadline for their memorandum of fact and law should be set around the time set
for the memoranda of fact and law of the parties who also are supporting the result
reached by the Federal Court, namely TELUS Communications Company and Public
Mobile Inc. So that the moving parties can be sure that their submissions do
not duplicate those of any of the other parties, the deadline for their memorandum
of fact and law should be just after TELUS Communications Company and Public
Mobile Inc. have filed their memoranda of fact and law (May 2, 2011). Therefore,
the deadline for the service and filing of the moving parties’ memorandum shall
be May 5, 2011.
[10]
The moving
parties’ memorandum shall be limited to 12 pages in length. The moving parties
shall be permitted to make oral submissions at the hearing of the appeal for a
total of no more than 20 minutes. No costs will be awarded for or against any
of the interveners.
[11]
The style
of cause shall be amended to reflect the fact that the moving parties are now
interveners.
"David
Stratas"
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