Date:
20090212
Docket:
T-1621-08
Citation:
2009 FC 156
Ottawa, Ontario,
February 12, 2009
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
SAPUTO INC.
KRAFT CANADA INC.
PARMALAT CANADA INC.
Applicants
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
and
ST. ALBERT CHEESE COOPERATIVE
INC. AND
INTERNATIONAL CHEESE COMPANY LTD.
Interveners
REASONS FOR ORDER
[1]
By
application filed 20 October 2008, Saputo, Kraft and Parmalat, large cheese
producers all, challenged the validity of the Regulations Amending the Food
and Drug Regulations and the Dairy Products Regulations S.O.R./2007-302
scheduled to come into force on 14 December 2008.
[2]
St-Albert
Cheese Cooperative Inc. and International Cheese Company Ltd. sought to
intervene. Although they side with the Attorney General, they represented that
they had a somewhat different perspective to offer. By order issued 5 January
2009, Prothonotary Tabib granted them intervener status, limited to the filing
of certain affidavits. They were denied the right to file a record or to make
written or oral submissions as to the merits of the application.
[3]
St-Albert
and International Cheese have appealed that decision. I dismissed their appeal
from the Bench earlier today, adding that I would issue written reasons.
[4]
The
thrust of the new Regulations is to regulate the make-up of certain cheeses.
These Regulations will have a considerable adverse effect on the applicants.
They submit, among many other things, that some of the requirements of the Regulations
are impossible in fact to fulfil.
[5]
The
Regulatory Impact Analysis Statement indicates that these Regulations
are a compromise between the interest of large producers who may tend to use
powder in their cheese products and other producers who do not. International
Cheese uses no powder, while only 5% of St-Albert’s business would be affected.
The perspective they offer to the Court includes the practical point of view
that there is no reason why the Regulations could not be observed.
[6]
When
the motion to intervene was heard on 18 December 2008, Chief Justice Lutfy had
already appointed Prothonotary Tabib as Case Manager and dates for the hearing
on the merits, 31st March and 1st April 2009, were
already set notwithstanding that records had not been filed.
[7]
In
her speaking order (9 pages), Prothonotary Tabib concluded that: 1) the
proposed interveners were not “directly affected” as that factor is generally
understood for the purposes of motions for leave to intervene; 2) all that the
interveners could bring to the application, that might not otherwise be made
available, is the evidence of Réjean Ouimet, Yvan Wathier and Dominique
Salvadore. She was of the view that that evidence was, for the most part,
relevant and would be useful to the Court in determining the issues on the
merits; and 3) while it was possible that, given time and if it did not already
have equivalent evidence, the Attorney General could arrive at some
understanding with St-Albert and International Cheese to file their proposed
evidence as its own, “Time is one commodity that the parties can ill-afford to
waste.” Indeed, this is not far from Rule 313 which permits the Court to
augment the records on the application with other material.
[8]
The
standard of review in an appeal of a discretionary order of a Prothonotary has
been well settled. If the order was vital to the case, the judge on appeal must
exercise discretion de novo. That is not the situation here. Therefore,
the order should only be set aside and reviewed de novo on appeal if
clearly wrong in the sense that the exercise of discretion was based upon a
wrong principle or upon a misapprehension of the facts (Merck & Co.,
Inc. v. Apotex Inc., 2003 FCA 488, [2004] 2 F.C.R. 459).
[9]
St-Albert
and International Cheese argue that the very purpose of intervention is to
permit the intervener to address the Court. Certainly, at higher levels there
is not even a question of allowing a proposed intervener to file evidence. It
is unprecedented to grant intervener status for the purposes of filing evidence
and then denying the interveners the right to address the Court on the merits
of the case.
[10]
Prothonotary
Tabib recognized that the interveners did have a perspective somewhat different
from the Attorney General, but that that perspective derived from what the
affiants had to say, not from legal argument. This different perspective may be
a relevant factor. I suggested that if I had heard this matter in first
instance, I might well have granted the interveners the right to a greater
participation in the proceedings (Canadian Generic Pharmaceutical Assn. v. Canada (Governor in Council), 2007 FC 154, aff’d 2007 FCA 375, 371 N.R. 46). However, before
I could so do, I would have to be satisfied that the order was clearly wrong as
per the Merck decision. In my opinion it is not clearly wrong. Rule 109
of the Federal Courts Rules gives the Court discretion to grant leave to
any person to intervene and to give directions as to the role of the
intervener.
[11]
Although
in most cases it logically follows that an intervener should be able to address
the Court on the merits of the matter, i.e. the validity of the impugned Regulations,
Prothonotary Tabib was satisfied that the Attorney General did not need any
help.
[12]
The
Attorney General supports the appeal, pointing out that its own evidence was
shaped to a considerable extent by the fact that the affidavit evidence of the
interveners, who have now been cross-examined, is currently in the record. On
the other hand, the Attorney General does not intend to rely upon, and may even
dislike, some of that evidence, so that there will be no one to assist the
Court in making representations as to the legal significance of parts of the
evidence in the record. Obviously the Prothonotary did not consider a legal
gloss on this evidence to be necessary.
[13]
Although
unusual, given the timeline Prothonotary Tabib had before her, I do not
consider that she misdirected herself in general or with respect to Rule 109 in
particular. It does not automatically follow that the right of audience is
inherent in an order granting intervention. To so order would be a victory of
form over substance. Although spoken in a different context, I think the
following words of Lord Denning and Lord Atkin are a source of comfort. In Letang
v. Cooper, [1964] 2 All E.R. 929 at page 932 Lord Denning said:
I
must decline, therefore, to go back to the old forms of action in order to
construe this statute. I know that in the last century MAITLAND said “the forms
of action we have buried but they still rule us from their graves.” But we
have in this Century shaken off their trammels. These forms of action have
served their day. They did at one time form a guide to substantive rights; but
they do so no longer. Lord Atkin told us what to do about them:
“When
these ghosts of the past stand in the path of justice, clanking their medieval
chains, the proper course for the judge is to pass through them undeterred”
see United Australia, Ltd. v.
Barclays Bank, Ltd. [1940] 4 All E.R. 20 at p. 37.
“Sean Harrington”
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