Date:
20070111
Docket: A-645-05
Citation: 2007 FCA 18
CORAM: NADON J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
THE
CHINESE CANADIAN NATIONAL COUNCIL
Appellant
and
HER
MAJESTY THE QUEEN and
FRANKLIN D.
TALL
Respondents
Heard at Toronto,
Ontario, on January 11,
2007.
Judgment delivered from the Bench at Toronto, Ontario, on January 11, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date:
20070111
Docket: A-645-05
Citation: 2007
FCA 18
CORAM: NADON
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
THE CHINESE
CANADIAN NATIONAL COUNCIL
Appellant
and
HER MAJESTY
THE QUEEN and
FRANKLIN D.
TALL
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on January 11, 2007)
SHARLOW J.A.
[1]
The
Chinese Canadian National Council (CCNC) is appealing the order of a Judge of
the Tax Court of Canada (Tall v. Canada, 2005 TCC 765) dismissing its
motion for leave to intervene in the income tax appeal of the respondent
Franklin D. Tall. The intervener proposes to present evidence and submit
written and oral arguments.
[2]
The
test for obtaining intervener status in the Tax Court is set out in section 28
of the Tax Court of Canada Rules (General Procedure), which reads as
follows:
|
28. (1) Where it is claimed
by a person who is not a party to a proceeding
(a) that such person has an interest in the
subject matter of the proceeding,
(b) that such person may be adversely affected by
a judgment in the proceeding, or
(c) that there exists between such person and any
one or more parties to the proceeding a question of law or fact or mixed law
and fact in common with one or more of the questions in issue in the
proceeding,
such person may move for
leave to intervene.
|
28.
(1) Quiconque n'est pas partie à l'instance et prétend :
a)
qu'il a un intérêt dans l'objet de cette instance;
b)
qu'il peut subir un préjudice par suite du jugement;
c)
que lui-même et l'une ou plusieurs des parties à l'instance sont liés par la
même question de droit, la même question de fait ou la même question de droit
et de fait,
peut
demander, par voie de requête, l'autorisation d'intervenir dans l'instance.
|
|
(2)
On the motion, the Court shall consider whether the intervention will unduly
delay or prejudice the determination of the rights of the parties to the proceeding,
and the Court may,
(a) allow the person to intervene as a friend of
the Court and without being a party to the proceeding, for the purpose of
rendering assistance to the Court by way of evidence or argument, and
(b) give such direction for pleadings, discovery
or costs as is just.
|
(2)
Saisie de la requête, la Cour, après avoir examiné si l'intervention risque
de retarder indûment ou de compromettre la décision sur les droits des
parties à l'instance, peut :
a)
autoriser le requérant à intervenir à titre d'intervenant bénévole et sans
être partie à l'instance, afin d'éclairer la Cour par son témoignage ou son
argumentation;
b)
rendre toute directive qu'elle estime appropriée en matière d'actes de
procédure, d'interrogatoire préalable ou de frais.
|
[3]
The
CCNC is a non-profit organization. One of its objects is the promotion of equal
rights for Chinese Canadians. The CCNC argued in the Tax Court, and in this
Court, that the issues raised in Mr. Tall’s income tax appeal affect some of
the individuals it represents.
[4]
The
Judge was satisfied that CCNC is an organization that is genuinely interested
in the issues raised by Mr. Tall. For that reason, it is arguable that the Judge
was persuaded that the test in paragraph 28(1)(a) was met. However, the Judge also
concluded that if the intervention were permitted, the trial would be unduly
delayed and the rights of the parties could be prejudiced.
[5]
An
order granting or denying leave to intervene is a discretionary one. This Court
will not reverse such a decision in the absence of an error of law or a misapprehension
of the facts: Eli Lilly Canada Inc. v. Canada (Minister of
Health),
2001 FCA 108, C.U.P.E. v. Canadian Airlines
International Limited, [2000] F.C.J. No. 220 (QL)
(F.C.A.).
[6]
According
to section 28 of the Tax Court Rules, a Judge who is considering a
motion for leave to intervene in an income tax appeal must weigh and balance a
number of potentially competing factors. We will not attempt to list all of the
factors that might be relevant in a particular case but, based on the words and
context of section 28, the relevant factors in most cases would include the
issues raised in the income tax appeal, the nature of the proposed intervener’s
interest in the case, the argument that the intervener proposes to make, and
the likelihood of undue delay and prejudice if this intervention is permitted.
[7]
As
we understand the reasons the Judge gave for his decision in this case, he took
all of those considerations into account. We can discern no error of law in the
Judge’s decision, and his factual conclusions were reasonably open to him. The
material submitted by CCNC in support of its motion discloses the likelihood
that the intervention would impose on the Crown the burden of dealing with
evidence and submissions of CCNC that may be of genuine concern to CCNC, but
are not relevant to Mr. Tall’s income tax appeal.
[8]
For
these reasons, and despite the able submissions of counsel for CCNC, this appeal
will be dismissed.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
Names of Counsel and Solicitors of Record
DOCKET: A-645-05
STYLE OF CAUSE: the chinese canadian national council
Appellant
and
HER MAJESTY THE
QUEEN and
FRANKLIN D.
TALL
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF
HEARING: JANUARY 11, 2007
REASONS FOR JUDGMENT
BY: SHARLOW, J.A.
DATED: January 11, 2007
APPEARANCES
BY:
avvy
yao-yao go
t.
constance nakatsu For the
Appellant
catherine
letellier de st. just
bret cuddy
For the Respondent
SOLICITORS OF RECORD:
metro toronto chinese &
southeast
asian legal clinic
toronto, on
t.
constance nakatsu
Toronto, on for
the appellant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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