Docket: T-1722-14
Citation:
2015 FC 976
Ottawa, Ontario, August 17, 2015
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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GARY CURTIS
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Applicant
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and
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BANK OF NOVA
SCOTIA
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Respondent
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ORDER
AND REASONS
[1]
Andrew Pinto, the Applicant’s former solicitor,
moves for an order granting him leave to intervene in this application as an
added party and permitting him to cross-examine the Applicant and make oral and
written submissions.
[2]
The nature of this application is described in
an order of Madam Prothonotary Milczynski dated March 6, 2015, 2015 FC 283, as
follows:
[2] The within application for
judicial review was commenced on August 7, 2014 in respect of an adjudicator’s
decision dated July 11, 2014 that found the Applicant had resigned his employment
rather than having been constructively or otherwise dismissed, and that
consequently there was no jurisdiction for the adjudicator to proceed further
under the Canada Labour Code. The adjudicator also denied the
Applicant’s request to reopen the hearing, concluding that, contrary to the
Applicant’s post-hearing submissions, there was no evidence of the Applicant’s
counsel having been incompetent or acting contrary to the Applicant’s interests
or instructions.
[3] The grounds for the application
for judicial review relies upon various errors the Applicant submits were made
by the adjudicator, including:
- that
the adjudicator misstated critical facts, such as whether the Applicant had
been suspended with pay;
- whether
the Applicant had been the victim of discrimination and whether, having regard
to the facts and surrounding circumstances of the case, his resignation could
be seen as voluntary; and
- whether
the evidence of the Respondent’s investigation of the Applicant was reliable.
[4] The Applicant also submits that
the adjudicator’s ruling that the Applicant’s Counsel was not ineffective or
incompetent was fundamentally flawed and constituted an error of law and that
in the circumstances, the refusal to reopen the hearing constituted a
reviewable error.
[3]
Andrew Pinto is the Applicant’s former counsel
who it is alleged was ineffective or incompetent. His request to be granted
intervenor status is opposed by the Applicant.
[4]
Andrew Pinto submits that he ought to be added
as a party to this application because:
A. He has an
interest in the outcome of the application;
B. His former client is alleging that he was
ineffective or incompetent and he ought to be allowed to address those
allegations;
C. The Federal Court protocol in immigration
matters contemplates the right of an alleged incompetent former counsel to
intervene; and
D. He will be able to assist the Court in the
determination of the factual and legal issues raised in the application.
[5]
Andrew Pinto submits that the test to be
used is that set out by Justice Stratas in Canada v Pictou Landing Band
Council, 2014 FCA 21. Justice Stratas acknowledged therein that "I am a single motions judge and my reasons do not bind
my colleagues on this Court."
[6]
Until a full panel of the Federal Court of
Appeal adopts this new slightly revised approach, I prefer to rely on the test
previously enunciated by a full panel of the Federal Court of Appeal in Canadian
Union of Public Employees v Canadian Airlines International Ltd, [2000] FCJ
No 220, at para 8:
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 of the Court?
4) Is the position of the proposed
intervener adequately defended by one 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?
[7]
In my view, Andrew Pinto, even if he meets the
first three criteria (which I need not decide), fails to meet criteria 4, 5 and
6.
[8]
The Respondent, the Bank of Nova Scotia, takes
the position that the Adjudicator’s decision was reasonable, and that includes
his decision that Andrew Pinto was neither ineffective nor incompetent in his
representation of the Applicant. The Applicant has agreed that the Bank may
file an affidavit from Andrew Pinto regarding the facts relating to his
representation of the Applicant. As such, all of the information that the
proposed intervenor may offer to the Court will already be before it. In fact,
the Court notes that he does not seek to file any information if he is granted
intervenor status.
[9]
Andrew Pinto submits that he cannot rely on the
Bank of Nova Scotia to defend his interest and his reputation, as he would do
as a party to the litigation. I am not convinced. If the Respondent to the
application fails to so do, then it is quite likely that the application will
succeed. Accordingly, it is in the best interest of the Respondent to do
exactly what Andrew Pinto says he would do if granted status.
[10]
Moreover, I am unconvinced that Andrew Pinto has
any submission to advance or any questions to ask the Applicant on cross-examination,
that cannot be advanced or asked by the Bank of Nova Scotia. Clearly these two
are co-operating as the Bank of Nova Scotia will be filing Mr. Pinto’s
affidavit in support of its position in the litigation.
[11]
Aside from these observations, I am not
persuaded that the judge hearing this application will be unable to decide the
merits of the application without the direct involvement of Andrew Pinto. His
agreed involvement through tendering an affidavit and offering himself to be
cross-examined thereon puts all of the information before the Court. It is not
clear what submissions he could possibly make that would not be redundant and
duplicative of those to be made by the Bank of Nova Scotia.
[12]
For these reasons the motion is dismissed.
[13]
When each party to the motion was asked what
costs they were seeking, counsel for Andrew Pinto responded that he was seeking
$7000, and the Applicant responded that he was seeking $5000. Both are
excessive in my view. The Applicant, even though self-represented is entitled
to recover a reasonable amount for costs which, in my discretion, I fix at
$750, inclusive of disbursements and taxes, to be paid forthwith by Andrew
Pinto.
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