Canada (Attorney General) v. Sasvari, 2004 FC 1650

                                                                                                                                 Date: 20041124

                                                                                                                               Docket: T-940-04

                                                                                                                      Citation: 2004 FC 1650

Ottawa, Ontario, Wednesday, this 24^th day of November 2004

PRESENT:    MADAM PROTHONOTARY MIREILLE TABIB

BETWEEN:

                                            ATTORNEY GENERAL OF CANADA

                                                                                                                                          Applicant

                                                                        - and -

                                                          GEORGINA SASVARI

                                                                                                                                     Respondent

REASONS FOR ORDER

TABIB P.

[1]          I am seized, in two separate matters (T-932-04 and T-940-04) of motions by the Canadian Human Rights Commission (the "Commission") for leave to intervene in applications for the judicial review of its decisions. While the applications in both matters are not joined or consolidated and involve distinct decisions of the Commission and different Applicants, the issues upon which the Commission wishes to intervene are the same, and I have concluded, after considering the material before me on both motions, that both must fail for the same reasons. These reasons are therefore written to apply in both matters.

[2]          These judicial review applications arise out of the decisions by the Commission to deal with complaints made by the Respondent, Georgina Sasvari, (the same in both instances) against Transport Canada (in file T-940-04) and against the Canadian Transportation Agency (the "CTA")

(in file T-932-04).

[3]          In preliminary objections filed before the Commission, the CTA and Transport Canada had argued that they were not proper respondents to Ms. Sasvari's complaint, and that Ms. Sasvari's complaints were an abuse of process, or were barred under the principles of res judicata or issue estoppel, as a complaint had already been made to and heard by the Commission against Air Transat in relation to the same incident. The Commission, in both cases and in identically worded decisions, decided that the matters were within its jurisdiction and that the CTA and Transport Canada were proper respondents to the complaints. It is these decisions that are the subject of the judicial review applications before the Court.

[4]          While each notice application states the grounds for review in different words, the Commission presents the issues that are raised by the applications and on which it wishes to intervene as follows in both of its motions.

"     i)       the Commission's jurisdiction to deal with the complaint filed against [the Applicant] as a proper respondent to the human rights complaint;

ii)      the Commission's jurisdiction to determine that there is no issue of estoppel or abuse of process as alleged by the Applicant;

iii)     the Commission's jurisdiction to accept the complaint under section 41 of the Canadian Human Rights Act, R.S., 1985, c. H-6 (the "Act")

The within application for judicial review also raises the issue of prematurity of the application for judicial review of the Commission's decision made pursuant to subsection 41(1) of the CHRA by the respondent to the complaint."

[5]          In support of its motions, the Commission submits the affidavits of Maria Stokes, which merely introduce as exhibits the records of the proceedings before the Commission, without further comments or explanations. It is appropriate to note here that the exhibits to Ms. Stokes' affidavits are already part of the Court's record, having been introduced by the parties themselves. In each of its motions the Commission then baldly argues that:

"      The within application raises jurisdictional issues [as outlined].

This Honourable Court has recognized that the Commission can intervene to argue points of law, inter alia when the purpose thereof is to defend its jurisdiction.

The Commission is not seeking leave to intervene in order to defend its decision.

The Commission will bring a unique perspective which will be different from that of the parties.

In C.A.I.M.A.W. v. Paccar of Canada Ltd, [1989] 2 S.C.R. 983 at 1016, the Supreme Court of Canada has recognized that an administrative tribunal could bring a unique contribution to the proceedings by drawing on its specialized expertise in order to "[...] render reasonable what would otherwise appear unreasonable.""

[6]          Nowhere does the Commission articulate the question or questions of law that arise in each "jurisdictional" issue, whether and how these questions of law truly go to its jurisdiction rather than to the correctness of its decision, the substance of the arguments it proposes to make and how these arguments differ from those made or which can be expected to be made by the parties, such that the Commission's intervention would indeed bring a unique perspective or draw on its specialized jurisdiction or expertise in a way that the parties are unable or unwilling to adequately place before the Court.

[7]          In truth, the Commission appears to proceed under the mistaken assumption that if an application for judicial review of its decision can be construed as raising a jurisdictional issue, then it is appropriate for it to intervene, and that, as the tribunal whose jurisdiction is "under attack", it must necessarily bring a unique perspective to the issues and be in a better position to explain its record (supposing, as the Commission appears to do, that its record is in need of explanation). The Commission's positioning of the existence of "jurisdictional issues" as the cornerstone of its motion for leave to intervene creates an erroneous perception that the test for a tribunal's intervention in judicial reviews of its decision is somehow distinct from the test applicable to other would-be interveners. Unless the right to intervene in a proceeding is granted and defined by statute, the intervention of any person, including a tribunal, is conditional upon leave being granted in accordance with Rule 109 of the Federal Court Rules, 1998 (see Canada (Attorney General) v. Georgian College of Applied Arts and Technology, [2003] F.C.J. No. 394 (C.A.) and Li v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1264 (C.A.)).

[8]          Rule 109 specifically requires a motion for leave to intervene to "describe [...] how that participation will assist the determination of a factual or legal issue related to the proceedings".

[9]          Judicial interpretation of the requirements of Rule 109 has resulted in identifying a series of factors that may be considered in deciding whether leave should be granted. There factors include:

·      whether the proposed intervener is directly affected by the outcome;

·      whether a justiciable issue and a veritable public interest exist;

·      whether there is an apparent lack of any other reasonable or efficient means to submit the question to the Court;

·      whether the position of the proposed intervener is adequately defended by one of the parties to the case;

·      whether the interests of justice are better served by the intervention of the proposed third party; and

·      whether the Court can hear and decide the case on its merits without the proposed intervener.             

(See Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. 220 (C.A.).

[10]      Because of the particular status of tribunals whose orders are the subject of judicial review proceedings and the public policy imperative of preserving the tribunal's image of impartiality and avoiding the unseemly spectacle of an impartial tribunal defending the correctness of its decisions (see C.A.I.M.A.W. v. Paccar (supra), Canada (Attorney General) v. Canada (Human Rights Tribunal), [1994] F.C.J. No. 300), an additional layer of scrutiny was imposed on requests for leave to intervene by tribunals, ensuring that the scope of interventions be limited to matters of jurisdiction "in a restricted sense" and the explanation of their records. These jurisprudential developments did not create a special "right" of intervention for tribunals; they simply added to and refined the list of factors to be considered under Rule 109 as it applies to tribunals. And thus, the central issue to be determined by the Court upon a motion for leave to intervene by a tribunal remains: has it been shown "how [the intervention] will assist in the determination of a factual or legal issue related to the proceeding?" [My emphasis].

[11]      This overriding consideration requires, in every case, that the proposed intervener demonstrate that its intervention will assist the determination of an issue. This cannot be achieved without demonstrating that the proposed intervention will add to the debate an element which is absent from what the parties before the Court will bring (see Canada Union of Public Employees (Airline Division v. Canadian Airlines International Inc. (supra). In turn, I find it difficult to conceive how such a demonstration can be made without giving an indication of the facts and arguments the Commission intends to present, and contrasting those with the positions taken by the parties.

[12]      Here, the Commission has failed to present any evidence or material demonstrating how its intervention will assist the Court, and the record before the Court provides no further support for the Commission's motions. The Commission's motions must accordingly fail.

[13]      Nor is it an answer for the Commission to argue, as it has done in its reply material in file T-940-04, that as it has "consistently" been granted leave to intervene in respect of the same jurisdictional issue in other applications, intervener status ought automatically to be granted to it in this case.

[14]      Requests for leave to intervene are considered on a case by case basis, and in each case, the proposed intervener must satisfy the Court that its intervention in that particular case will be of assistance. The decisions and orders cited by the Commission do not discuss the material which was before the Court in each case to support the Court's ruling on the motion for leave to intervene and there is no basis upon which the Court can conclude that the circumstances which justified the intervention of the Commission in these cases similarly prevail in the matters before it now.

[15]      I find that the Commission's motions, in failing to even address the issue of how the proposed intervention would add to the argument and facts presented to the Court by the parties, were ill conceived and bound to fail. They should not have been made, and costs on the contested motion in file T-940-04 will therefore be payable by the Commission to the Applicant forthwith, in any event of the cause. As the Commission's motion was not opposed by the Applicant in file T-932-04, no costs are awarded.

                                                                                                                                    "Mireille Tabib"         

                                                                                                                                        Prothonotary            

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-940-04

STYLE OF CAUSE:                          ATTORNEY GENERAL OF CANADA

v.

GEORGINA SASVARI

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:         Mireille Tabib, Prothonotary

DATED:                                             November 24, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: