Date: 20080910
Docket: A-149-08
Citation: 2008 FCA 257
Present: RYER
J.A.
BETWEEN:
AMNESTY INTERNATIONAL CANADA and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Appellants
and
CHIEF OF THE DEFENCE STAFF FOR THE
CANADIAN FORCES,
MINISTER OF NATIONAL DEFENCE, and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
[1]
This is an
application by the University
of Toronto, Faculty of Law –
International Human Rights Clinic (the “Applicant”) for an order, pursuant to
Rule 109(1) of the Federal Courts Rules for leave to intervene in the
appeal by Amnesty International Canada and British Columbia Civil Liberties
Association of a decision of Mactavish J. of the Federal Court (Order, dated
March 12, 2008, Court file T-324-07).
[2]
The
essential question is whether the Applicant can demonstrate that its participation
in the appeal will assist in the determination of a factual or legal issue
related to the outcome of the appeal. In making its decision, the Court
considers a number of factors, including:
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 to the Court?
4) Is
the position of the proposed intervener adequately defended by on 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?
(See DBC Marine Safety Systems Ltd. v. Canada (Commissioner of Patents), 2008 FCA 148, [2008] F.C.J.
No. 852 (QL) at paragraph 12.)
[3]
I accept
that the Applicant has expertise in the area of international human rights law
and that it may be in a position to make useful submissions in the appeal that
may be different from those that will be made by the appellants. However, in my
view, the Applicant fails to demonstrate that it has a sufficient interest in
the outcome of the appeal to justify its intervention.
[4]
The
Applicant is described as a “specialized law practice of the University of Toronto, Faculty of Law”
that “operates in the tradition of the Downtown Legal Services”. In that
capacity, it “engages in a select number of cases” (see paragraphs 15 and 16 of
the affidavit of Renu Mandhane).
[5]
In my
view, the Applicant has described itself, in effect, as a law firm. However, it
is significant that the Applicant does no purport to intervene in this appeal
on behalf of any organization, society or entity that could be said to be its
client.
[6]
This demonstrates
that the Applicant is not directly affected by the outcome of the appeal any
more than any other law practice that specializes in the area of international
human rights law or any individual who is interested in that area of law. In my
view, the Applicant’s circumstances are analogous to those of the putative
intervener, Mr. Kenneth M. Narvey, in R. v. Finta, [1993] 1 S.C.R. 1183.
In that case, McLachlin J., as she then was, granted intervener status to the
three public interest groups that demonstrated a sufficient interest in the
appeal but denied Mr. Narvey’s application. At paragraphs 6 and 7 of that
decision, she stated:
6 The
three public interest groups have all established an interest in the outcome of
this appeal. The Canadian Jewish Congress, League for Human Rights of B'Nai
Brith Canada and
InterAmicus have an interest in ensuring that the interpretation of the
Criminal Code provisions on appeal is consistent with the preservation of
issues within its mandate. Through either the people they represent or the
mandate which they seek to uphold, these applicants have a direct stake in Canada's fulfilling
its international legal obligations under customary and conventional
international law. While the Court is often reluctant to grant intervener
status to public interest groups in criminal appeals, exceptions can be made
under its broad discretion where important public law issues are considered, as
in this appeal. All three parties demonstrated in their submissions to the
Court that they satisfy the interest requirement under Rule 18.
7 The
same cannot be said of Mr. Narvey. There is no question that Mr. Narvey is a
qualified expert in the subject matter before this Court. But his
interest in the outcome of the litigation cannot be established merely by his
status as researcher and advocate on public law issues. He must establish a
direct stake in the outcome of the appeal. Mr. Narvey does not argue that
his status as a Jewish Canadian or occasional association with Jewish
organizations forms any basis for his application. He is not currently engaged
in litigation which is implicated by the outcome in this case, nor does he
purport to represent an interest which is directly affected by the appeal. In
short, Mr. Narvey's interest in this appeal is not in the manner of having a
stake in the result, but solely of having a serious preoccupation with the
subject matter. This type of interest is not the kind referred to in Rule
18(3)(a) of the Rules of the Supreme Court of Canada. Thus, Mr. Narvey does not
meet the first test under Rule 18. I would deny leave to the application of Mr.
Narvey. [Emphasis added.]
[7]
An
interest in the outcome of litigation has also been said to be insufficient to
justify intervention where that interest is “jurisprudential in nature” as that
phrase was used by Noël J.A. in Canadian Union of Public Employees (Airline
Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220.
The “jurisprudential” interest of the Applicant in the appeal is illustrated by
the contents of paragraph 25 of the affidavit of Renu Mandhane, which states:
25. The
IHRC has a particular and pressing interest in this Appeal because of the
IHRC’s interest in ensuring that the Canadian government complies with its
obligation under international human rights law and that Charter
jurisprudence develops in a manner that maximizes respect for international
human rights. The IHRC has a particular and pressing interest in ensuring that
government authorities do not lose sight of their obligations in respect of
such rights once they step outside of their borders, but rather that
international human rights are truly given international scope.
[8]
In
conclusion, I analogize the interest of the Applicant in the appeal to that of
the interest of a boutique income tax law firm, specializing in international
income tax cases, in a tax appeal dealing with an international income tax
issue that is being argued by a different law firm. Clearly, the income tax
boutique will be interested in the outcome of the appeal as that outcome may affect
its chosen area of international income tax law. Moreover, because of its
specialized experience in that area of law, no doubt the income tax boutique
would be able to bring useful and potentially unique submissions to the hearing
of the appeal. However, in my view, the interest of the income tax boutique law
firm is insufficient to warrant its intervention in the appeal.
[9]
For the
foregoing reasons, the application for leave to intervene will be dismissed.
“C.
Michael Ryer”
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