Date: 20120416
Docket: A-470-11
A-471-11
Citation: 2012 FCA
114
Present: MAINVILLE J.A.
A-470-11
BETWEEN:
ATTORNEY GENERAL OF CANADA,
THE MINISTER OF AGRICULTURE AND
AGRI-FOOD IN HIS CAPACITY AS MINISTER
RESPONSIBLE
FOR THE
CANADIAN WHEAT BOARD
Appellants
and
FRIENDS OF THE CANADIAN WHEAT
BOARD,
HAROLD BELL, DANIEL GAUTHIER, KEN
ESHPETER,
TERRY BOEHM, LYLE SIMONSON, LYNN
JACOBSON,
ROBERT HORNE, WILF HARDER, LAURENCE
NICHOLSON,
LARRY BOHDANOVICH, KEITH RYAN, ANDY
BAKER,
NORBERT VAN DEYNZE, WILLIAM ACHESON,
LUC LABOSSIERE, WILLIAM NICHOLSON, RENE
SAQUET, and
THE CANADIAN
WHEAT BOARD
Respondents
A-471-11
BETWEEN:
MINISTER OF AGRICULTURE AND AGRI-FOOD
IN HIS CAPACITY AS MINISTER RESPONSIBLE
FOR THE
CANADIAN WHEAT BOARD
Appellant
and
THE CANADIAN WHEAT BOARD,
ALLEN OBERG, ROD FLAMAN, CAM GOFF,
KYLE KORNEYCHUK, JOHN SANDBORN,
BILL TOEWS,
STEWART WELLS and BILL WOODS
Respondents
Dealt with in writing without appearance
of parties.
Order delivered at Montreal,
Quebec, on April 16, 2012.
REASONS
FOR ORDER BY: MAINVILLE
J.A.
Date: 20120416
Docket: A-470-11
A-471-11
Citation: 2012 FCA 114
Present: MAINVILLE
J.A.
A-470-11
BETWEEN:
ATTORNEY GENERAL OF CANADA,
THE MINISTER OF AGRICULTURE AND
AGRI-FOOD IN HIS CAPACITY AS MINISTER
RESPONSIBLE
FOR THE
CANADIAN WHEAT BOARD
Appellants
and
FRIENDS OF THE CANADIAN WHEAT BOARD,
HAROLD BELL, DANIEL GAUTHIER, KEN
ESHPETER,
TERRY BOEHM, LYLE SIMONSON, LYNN
JACOBSON,
ROBERT HORNE, WILF HARDER, LAURENCE
NICHOLSON,
LARRY BOHDANOVICH, KEITH RYAN, ANDY
BAKER,
NORBERT VAN DEYNZE, WILLIAM ACHESON,
LUC LABOSSIERE, WILLIAM NICHOLSON, RENE
SAQUET, and
THE CANADIAN
WHEAT BOARD
Respondents
A-471-11
BETWEEN:
MINISTER OF AGRICULTURE AND AGRI-FOOD
IN HIS CAPACITY AS MINISTER RESPONSIBLE
FOR THE
CANADIAN WHEAT BOARD
Appellant
and
THE CANADIAN WHEAT BOARD,
ALLEN OBERG, ROD FLAMAN, CAM GOFF,
KYLE KORNEYCHUK, JOHN SANDBORN,
BILL TOEWS,
STEWART WELLS and BILL WOODS
Respondents
REASONS FOR ORDER
MAINVILLE J.A.
[1]
I have
before me a motion by the Council of Canadians, ETC Group (Action Group on
Erosion, Technology and Concentration), the Public Service Alliance of Canada,
and Food Secure Canada (the “moving parties”) seeking the Court’s leave to
intervene in this consolidated appeal. The appellants oppose the motion.
[2]
This
consolidated appeal concerns the orders of Campbell J. of the Federal Court
declaring that the Minister of Agriculture and Agri-Food breached his statutory
duties under section 47.1 of the Canadian Wheat Board Act, R.S.C. 1985,
c. C-24 by failing to consult with the Canadian Wheat Board and to conduct a
vote of wheat and barley producers as to whether they agree with the
elimination of the Canadian Wheat Board’s exclusive statutory marketing mandate
resulting from Bill C-18, now the Marketing Freedom for Grain Farmers Act,
S.C. 2012, c. 25.
[3]
The moving
parties actively participated as interveners in the Federal Court proceedings
before Campbell J. pursuant to an order of the Federal Court dated November 21,
2011. In that order, Prothonotary Lafrenière found that the moving parties had
a genuine interest in the effect of Bill C-18. He also found that none of the
other parties to the Federal Court proceedings intended to address two issues
of interest to the interveners, namely (a) how section 47.1 of the Canadian
Wheat Board Act is to be interpreted in a manner that accords with the
North American Free Trade Agreement (“NAFTA”), and (b) the need to, and effect
of, interpreting that section in a manner that is consistent with fundamental
constitutional values such as the rule of law and the Canadian Charter of
Rights and Freedoms.
[4]
No party
appealed the order of Prothonotary Lafrenière allowing the intervention.
[5]
Campbell
J. relied on the submissions of the moving parties in his reasons cited as 2011
FC 1432, particularly at paragraphs 23, 24, 27 and 28. He extensively and
approvingly quoted from the moving parties’ submissions concerning the impact
of the rule of law on the interpretation of section 47.1 of the Canadian
Wheat Board Act (at para. 27 of his reasons), and gave weight to their
argument that this section is important to Canada’s international trade
obligations under NAFTA (at para. 28 of his reasons).
[6]
The
appellants submit that the moving parties ought not to be granted leave to
intervene in this Court simply because they were permitted to intervene in the
Federal Court. They add that the moving parties should be required to
demonstrate anew in this Court why they satisfy the test for intervention.
[7]
The moving
parties do not assert that they should have been made parties to this appeal as
of right. They do however submit that the decision of Prothonotary Lafrenière
authorizing their intervention before the Federal Court and the reliance placed
on their submissions by Campbell J. are both relevant factors to consider in
deciding whether to grant leave to intervene in this appeal.
[8]
The
factors that are to be considered in deciding to grant leave to intervene have
been discussed in numerous decisions and need not be repeated here. Reference
may notably be made to the decisions of this Court in Canadian Airlines
International Ltd. v. Canada (Human Rights Commission), [2010] 1 F.C.R. 226 at
paras. 8-9, Canadian Pacific Railway Company v. Boutique Jacob Inc.,
2006 FCA 426 at paras. 19 to 21; and Canadian Taxpayers Federation v. Benoit,
2001 FCA 71 at para. 18.
[9]
These
factors have already been analysed by Prothonotary Lafrenière, and his findings
have not been appealed. Where leave to intervene has already been granted in
the Federal Court, barring a fundamental error in the decision granting leave,
some material change in the issues on appeal, or important new facts bearing on
the intervention, I do not see why this Court should not rely on the findings
of the Federal Court with respect to the intervention or exercise its
discretion to grant leave differently from the Federal Court. I rely for this
proposition on the considered opinion of my colleague Stratas J. A. in Global
Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119.
[10]
In this
case, I see no fundamental error in the decision of Prothonotary Lafrenière,
the issues in this appeal appear to be similar to those raised before the
Federal Court, and no important new facts bearing on the intervention have been
identified. In such circumstances, leave to intervene in this Court shall be
granted.
[11]
Both the
moving parties and the appellants have proposed terms to the order granting
leave to intervene, and, pursuant to subsections 53(1) and 109(3) of the Federal
Court Rules, the following conditions will apply to the
intervention:
a. The interveners’ written and
oral submissions shall be limited to the following two issues: (i) whether, and
if so how, section 47.1 of the Canadian Wheat Board Act is to be
interpreted in a manner that accords with the North American Free Trade
Agreement, and (i) whether, and if so how, that section is to be interpreted in
a manner that is consistent with fundamental constitutional values such as the
rule of law and the Canadian Charter of Rights and Freedoms.
b. The interveners shall not
duplicate any issues or arguments contained in the memorandum of fact and law
filed by the respondents.
c. The interveners shall not add
to the factual record in any way.
d. The appellants shall serve the
interveners with a copy of the appeal book within 3 business days of the order.
e. The appellants and respondents
shall serve the interveners with a copy of their respective memorandum of fact
and law at the same time they serve any other party.
f.
The
interveners shall serve on the appellants and the respondents and file a
memorandum of fact and law of a maximum length of 10 pages within 3 business
days of service of the respondents’ memorandum of fact and law.
g. The appellants may serve and
file, within 10 days of the service of the interveners’ memorandum of fact and
law, a supplementary memorandum of fact and law of a maximum length of 10 pages
to respond to the arguments raised by the interveners.
h. Unless otherwise directed by
the panel hearing the merits of the appeal, the interveners shall be permitted
to make oral submissions of no more than 15 minutes in length.
i.
No costs
shall be awarded either to or against the interveners in respect of this motion
and in respect of the consolidated appeal.
j.
The style
of cause shall be amended to reflect that the moving parties are now
interveners.
"Robert
M. Mainville"
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