Docket:
A-158-13
Citation: 2014 FCA 21
Present: STRATAS
J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Appellant
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and
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PICTOU LANDING BAND COUNCIL AND MAURINA
BEADLE
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
Two motions to intervene in
this appeal have been brought: one by the First Nations Child and Family Caring
Society and another by Amnesty International.
[2]
The appellant Attorney
General opposes the motions, arguing that the moving parties have not satisfied
the test for intervention under Rule 109 of the Federal Courts Rules,
SOR/98-106. The respondents consent to the motions.
[3]
Rule 109 provides as follows:
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109. (1) The Court may, on motion, grant leave to any person
to intervene in a proceeding.
(2) Notice of a motion under subsection (1) shall
(a) set out the full name and address of
the proposed intervener and of any solicitor acting for the proposed
intervener; and
(b) describe how the proposed intervener
wishes to participate in the proceeding and how that participation will
assist the determination of a factual or legal issue related to the
proceeding.
(3) In granting a motion under subsection (1), the Court
shall give directions regarding
(a) the service of documents; and
(b) the
role of the intervener, including costs, rights of appeal and any other
matters relating to the procedure to be followed by the intervener.
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109. (1) La Cour peut, sur requête, autoriser toute personne
à intervenir dans une instance.
(2) L’avis d’une requête présentée pour
obtenir l’autorisation d’intervenir :
a) précise les nom et adresse de la personne qui
désire intervenir et ceux de son avocat, le cas échéant;
b) explique de quelle manière la personne désire
participer à l’instance et en quoi sa participation aidera à la prise d’une
décision sur toute question de fait et de droit se rapportant à l’instance.
(3) La Cour assortit l’autorisation
d’intervenir de directives concernant :
a) la signification de documents;
b) le rôle de l’intervenant, notamment en
ce qui concerne les dépens, les droits d’appel et toute autre question
relative à la procédure à suivre.
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[4]
Below, I describe the nature
of this appeal and the moving parties’ proposed interventions in this appeal.
At the outset, however, I wish to address the test for intervention to be
applied in these motions.
[5]
The Attorney General
submits, as do the moving parties, that in deciding the motions for
intervention I should have regard to Rothmans, Benson & Hedges Inc. v.
Canada (Attorney General), [1990] 1 F.C. 74 at paragraph 12 (T.D.), aff’d
[1990] 1 F.C. 90 (C.A.), an oft-applied authority: see, e.g., CCH
Canadian Ltd. v. Law Society of Upper Canada (2000), 189 D.L.R. (4th) 125 (F.C.A.). Rothmans, Benson
& Hedges instructs me that on these motions a list of six factors
should guide my discretion. All of the factors need not be present in order to
grant the motions.
[6]
In my view, this common law
list of factors, developed over two decades ago in Rothmans, Benson &
Hedges, requires modification in light of today’s litigation environment: R.
v. Salituro, [1991] 3 S.C.R. 654. For the reasons developed below, a number
of the Rothmans, Benson & Hedges factors seem divorced from the real
issues at stake in intervention motions that are brought today. Rothmans,
Benson & Hedges also leaves out other considerations that, over time,
have assumed greater prominence in the Federal Courts’ decisions on practice
and procedure. Indeed, a case can be made that the Rothmans, Benson &
Hedges factors, when devised, failed to recognize the then-existing
understandings of the value of certain interventions: Philip L. Bryden, “Public
Intervention in the Courts” (1987) 66 Can. Bar Rev. 490; John Koch, “Making Room: New Directions in Third Party Intervention” (1990) 48 U. T.
Fac. L. Rev. 151. Now is the time
to tweak the Rothmans, Benson & Hedges list of factors.
[7]
In these reasons, I could
purport to apply the Rothmans, Benson & Hedges factors, ascribing little
or no weight to individual factors that make no sense to me, and ascribing more
weight to others. That would be intellectually dishonest. I prefer to deal
directly and openly with the Rothmans, Benson & Hedges factors
themselves.
[8]
In doing this, I observe
that I am a single motions judge and my reasons do not bind my colleagues on
this Court. It will be for them to assess the merit of these reasons.
[9]
The Rothmans, Benson
& Hedges factors, and my observations concerning each, are as follows:
•
Is the proposed
intervener directly affected by the outcome? “Directly affected” is a requirement for full party status
in an application for judicial review – i.e., standing as an applicant
or a respondent in an application for judicial review: Forest Ethics Advocacy
Association v. Canada (National Energy Board), 2013 FCA 236. All other
jurisdictions in Canada set the requirements for intervener status at a lower
but still meaningful level. In my view, a proposed intervener need only have a
genuine interest in the precise issue(s) upon which the case is likely to turn.
This is sufficient to give the Court an assurance that the proposed intervener
will apply sufficient skills and resources to make a meaningful contribution to
the proceeding.
•
Does there exist a justiciable
issue and a veritable public interest? Whether there is a justiciable issue is irrelevant to
whether intervention should be granted. Rather, it is relevant to whether the
application for judicial review should survive in the first place. If there is
no justiciable issue in the application for judicial review, the issue is not
whether a party should be permitted to intervene but whether the application
should be struck because there is no viable administrative law cause of action:
Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc.,
2013 FCA 250.
•
Is there an apparent lack
of any other reasonable or efficient means to submit the question to the Court? This is irrelevant. If an intervener can help
and improve the Court’s consideration of the issues in a judicial review or an
appeal therefrom, why would the Court turn the intervener aside just because
the intervener can go elsewhere? If the concern underlying this factor is that
the intervener is raising a new question that could be raised elsewhere,
generally interveners – and others – are not allowed to raise new questions on
judicial review: Alberta (Information and Privacy Commissioner) v. Alberta
Teachers' Association, 2011 SCC 61 at paragraphs 22-29.
•
Is the position of the
proposed intervener adequately defended by one of the parties to the case? This is relevant and important. It raises the
key question under Rule 109(2), namely whether the intervener will bring
further, different and valuable insights and perspectives to the Court that will
assist it in determining the matter. Among other things, this can acquaint the
Court with the implications of approaches it might take in its reasons.
•
Are the interests of
justice better served by the intervention of the proposed third party? Again, this is relevant and important.
Sometimes the issues before the Court assume such a public and important
dimension that the Court needs to be exposed to perspectives beyond the
particular parties who happen to be before the Court. Sometimes that broader
exposure is necessary to appear to be doing – and to do – justice in the case.
•
Can the Court hear and
decide the case on its merits without the proposed intervener? Almost always, the Court can hear and decide a
case without the proposed intervener. The more salient question is whether the
intervener will bring further, different and valuable insights and perspectives
that will assist the Court in determining the matter.
[10]
To this, I would add two
other considerations, not mentioned in the list of factors in Rothmans,
Benson & Hedges:
•
Is the proposed
intervention inconsistent with the imperatives in Rule 3, namely securing “the
just, most expeditious and least expensive determination of every proceeding on
its merits”? For example, some
motions to intervene will be too late and will disrupt the orderly progress of
a matter. Others, even if not too late, by their nature may unduly complicate
or protract the proceedings. Considerations such as these should now pervade
the interpretation and application of procedural rules: Hryniak v. Mauldin,
2014 SCC 7.
•
Have the specific
procedural requirements of Rules 109(2) and 359-369 been met? Rule 109(2) requires the moving party to list
its name, address and solicitor, describe how it intends to participate in the
proceeding, and explain how its participation “will assist the determination of
a factual or legal issue related to the proceeding.” Further, in a motion such
as this, brought under Rules 359-369, moving
parties should file detailed and well-particularized supporting affidavits to
satisfy the Court that intervention is warranted. Compliance with the Rules is
mandatory and must form part of the test on intervention motions.
[11]
To summarize, in my view, the
following considerations should guide whether intervener status should be
granted:
I.
Has the proposed intervener
complied with the specific procedural requirements in Rule 109(2)? Is the
evidence offered in support detailed and well-particularized? If the answer to
either of these questions is no, the Court cannot adequately assess the
remaining considerations and so it must deny intervener status. If the answer
to both of these questions is yes, the Court can adequately assess the
remaining considerations and assess whether, on balance, intervener status should
be granted.
II.
Does the proposed intervener
have a genuine interest in the matter before the Court such that the Court can
be assured that the proposed intervener has the necessary knowledge, skills and
resources and will dedicate them to the matter before the Court?
III.
In participating in this
appeal in the way it proposes, will the proposed intervener advance different
and valuable insights and perspectives that will actually further the Court’s
determination of the matter?
IV.
Is it in the interests of justice
that intervention be permitted? For example, has the matter assumed such a
public, important and complex dimension that the Court needs to be exposed to
perspectives beyond those offered by the particular parties before the Court?
Has the proposed intervener been involved in earlier proceedings in the matter?
V.
Is the proposed intervention
inconsistent with the imperatives in Rule 3, namely securing “the just, most
expeditious and least expensive determination of every proceeding on its
merits”? Are there terms that should be attached to the intervention that would
advance the imperatives in Rule 3?
[12]
In my view, these
considerations faithfully implement some of the more central concerns that the Rothmans,
Benson & Hedges factors were meant to address, while dealing with the
challenges that regularly present themselves today in litigation, particularly
public law litigation, in the Federal Courts.
[13]
I shall now apply these
considerations to the motions before me.
– I –
[14]
The moving parties have
complied with the specific procedural requirements in Rule 109(2). This is not
a case where the party seeking to intervene has failed to describe with
sufficient particularity the nature of its participation and how its
participation will assist the Court: for an example where a party failed this
requirement, see Forest Ethics Advocacy Association, supra at
paragraphs 34-39. The evidence offered is particular and detailed, not vague
and general. The evidence satisfactorily addresses the considerations relevant
to the Court’s exercise of discretion.
– II –
[15]
The moving parties have
persuaded me that they have a genuine interest in the matter before the Court.
In this regard, the moving parties’ activities and previous interventions in
legal and policy matters have persuaded me that they have considerable
knowledge, skills and resources relevant to the questions before the Court and
will deploy them to assist the Court.
– III –
[16]
Both moving parties assert
that they bring different and valuable insights and perspectives to the Court
that will further the Court’s determination of the appeal.
[17]
To evaluate this assertion,
it is first necessary to examine the nature of this appeal. Since this Court’s
hearing on the merits of the appeal will soon take place, I shall offer only a
very brief, top-level summary.
[18]
This appeal arises from the
Federal Court’s decision to quash Aboriginal Affairs and Northern Development
Canada’s refusal to grant a funding request made by the respondent Band
Council: Pictou Landing Band Council v. Canada (Attorney General), 2013
FC 342. The Band Council requested funding to cover the expenses for services
rendered to Jeremy Meawasige and his mother, the respondent Maurina Beadle.
[19]
Jeremy is a 17-year-old
disabled teenager. His condition requires assistance and care 24 hours a day.
His mother served as his sole caregiver. But in May 2010 she suffered a stroke.
After that, she could not care for Jeremy without assistance. To this end, the
Band provided funding for Jeremy’s care.
[20]
Later, the Band requested
that Canada cover Jeremy’s expenses. Its request was based upon Jordan’s
Principle, a resolution passed by the House of Commons. In this resolution,
Canada announced that it would provide funding for First Nations children in
certain circumstances. Exactly what circumstances is very much an issue in this
case.
[21]
Aboriginal Affairs and
Northern Development Canada considered this funding principle, applied it to
the facts of this case, and rejected the Band Council’s request for funding.
The respondents successfully quashed this rejection in the Federal Court. The
appellant has appealed to this Court.
[22]
The memoranda of fact and
law of the appellant and the respondents have been filed. The parties raise a
number of issues. But the two key issues are whether the Federal Court selected
the correct standard of review and, if so, whether the Federal Court applied
that standard of review correctly.
[23]
The moving parties both
intend to situate the funding principle against the backdrop of section 15
Charter jurisprudence, international instruments, wider human rights
understandings and jurisprudence, and other contextual matters. Although the
appellant and the respondents do touch on some of this context, in my view the
Court will be assisted by further exploration of it.
[24]
This further exploration of
contextual matters may inform the Court’s determination whether the standard of
review is correctness or reasonableness. It will be for the Court to decide
whether, in law, that is so and, if so, how it bears upon the selection of the
standard of review.
[25]
The further exploration of
contextual matters may also assist the Court in its task of assessing the
funding principle and whether Aboriginal Affairs was correct in finding it
inapplicable or was reasonable in finding it inapplicable.
[26]
If reasonableness is the
standard of review, the contextual matters may have a bearing upon the range of
acceptable and defensible options available to Aboriginal Affairs. The range of
acceptable and defensible options takes its colour from the context, widening
or narrowing depending on the nature of the question and other circumstances:
see McLean v. British Columbia (Securities Commission), 2013 SCC 67 at
paragraphs 37-41 and see also Mills v. Ontario (Workplace Safety and
Insurance Appeals Tribunal), 2008 ONCA 436 at paragraph 22, Canada
(Attorney General) v. Abraham, 2012 FCA 266 at paragraphs 37-50, and Canada
(Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 at
paragraphs 13-14. In what precise circumstances the range broadens or narrows
is unclear – at this time it cannot be ruled out that the contextual matters the
interveners propose to raise have a bearing on this.
[27]
In making these
observations, I am not offering conclusions on the relevance of the contextual
matters to the issues in the appeal. In the end, the panel determining this
appeal may find the contextual matters irrelevant to the appeal. At present, it
is enough to say that the proposed interveners’ submissions on the contextual
matters they propose to raise – informed by their different and valuable
insights and perspectives – will actually further the Court’s determination of
the appeal one way or the other.
– IV –
[28]
Having reviewed some of the
jurisprudence offered by the moving parties, in my view the issues in this
appeal – the responsibility for the welfare of aboriginal children and the
proper interpretation and scope of the relevant funding principle – have
assumed a sufficient dimension of public interest, importance and complexity
such that intervention should be permitted. In the circumstances of this case,
it is in the interests of justice that the Court should expose itself to
perspectives beyond those advanced by the existing parties before the Court.
[29]
These observations should
not be taken in any way to be prejudging the merits of the matter before the
Court.
– V –
[30]
The proposed interventions
are not inconsistent with the imperatives in Rule 3. Indeed, as explained
above, by assisting the Court in determining the issues before it, the
interventions may well further the “just…determination of [this] proceeding on
its merits.”
[31]
The matters the moving parties intend
to raise do not duplicate the matters already raised in the parties’ memoranda
of fact and law.
[32]
Although the motions to
intervene were brought well after the filing of the notice of appeal in this
Court, the interventions will, at best, delay the hearing of the appeal by only
the three weeks required to file memoranda of fact and law. Further, in these
circumstances, and bearing in mind the fact that the issues the interveners
will address are closely related to those already in issue, the existing
parties will not suffer any significant prejudice. Consistent with the
imperatives of Rule 3, I shall impose strict terms on the moving parties’
intervention.
[33]
In summary, I conclude that
the relevant considerations, taken together, suggest that the moving parties’
motions to intervene should be granted.
[34]
Therefore, for the foregoing
reasons, I shall grant the motions to intervene. By February 20, 2014, the
interveners shall file their memoranda of fact and law on the contextual
matters described in these reasons (at paragraph 23, above) as they relate to
the two main issues before the Court (see paragraph 22, above). The interveners’
memoranda shall not duplicate the submissions of the appellant and the
respondents in their memoranda. The interveners’ memoranda shall comply with
Rules 65-68 and 70, and shall be no more than ten pages in length (exclusive of
the front cover, any table of contents, the list of authorities in Part V of
the memorandum, appendices A and B, and the back cover). The interveners shall
not add to the evidentiary record before the Court. Each intervener may address
the Court for no more than fifteen minutes at the hearing of the appeal. The
interveners are not permitted to seek costs, nor shall they be liable for costs
absent any abuse of process on their part. There shall be no costs of this
motion.
"David Stratas"
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