[1] In this action, the Plaintiffs, who are Indians as defined in the Indian Act, claim that by virtue of a treaty (Treaty #8), Her Majesty the Queen in right of Canada ("The Queen") cannot impose tax of any kind upon them. The Queen in her defence, denies that the treaty prevents her from imposing tax upon the Plaintiffs and says alternatively if there ever was an exemption from taxation it was extinguished. The Queen, further says that "a limitation of the Plaintiffs' alleged exemption is justified by the valid legislative objective of providing public funding to finance the many and diverse needs of people in Canada, who include the Plaintiffs, and by public objectives including economic fairness and regional fairness".

[2] The Appellant was incorporated federally in 1991 as a vehicle for people throughout Canada concerned about all types of taxation in the Country. It has offices in Ottawa, B.C., Alberta, Saskatchewan and Manitoba and has approximately 40,000 paying supporters in Canada. The Appellant is not affiliated with any political party and does not accept government grants or financial concessions.

[3] The Applicant, has a fundamental objective in its public activities and in this action, to seek to uphold the principle that all Canadian taxpayers should be treated equally in taxation matters before and under the law with the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour or religion.

[4] The Appellant and its members are concerned that if the Federal Court upholds the Plaintiffs' claim that, as Indians they are exempt from imposition of any tax on them by Canada and the Province of Alberta, the effect of a judgment affirming such claim would be to amend by necessary implication every federal and Alberta statute dealing with taxes or tax-like charges so as to exempt on racial grounds a particular class of people and impose, on racial grounds, such taxes and charges on the remaining classes of people.

[5] The Appellant wishes to intervene in this action so as to raise this issue because The Queen has not raised it. The Appellant says that its membership will be affected by the outcome in this case, and that there therefore, it has a genuine public interest. It says that this issue will not be raised unless the Appellant is allowed to intervene and that there is an important public issue involved.

[6] Before the Motions Judge, the Appellant sought to be added as a defendant or alternatively to be allowed to intervene. The Motions Judge dismissed the Appellant's motion in its entirety. He said that in order for the Appellant to be added as an Defendant, it must be shown that a cause of action exists between the Plaintiffs and the Appellant over which this Court has jurisdiction. He found that no such cause of action exists.

[7] With respect to the request to intervene pursuant to Rule 109, he found that the Appellant had failed to show that The Queen was constrained in her defence of the present action. The Appellant had argued before him that the Queen is bound by many constitutional, statutory and other legal responsibilities and fiduciary obligations to Indians and must necessarily be constrained from making submissions or arguments perceived to be against the interests of the Plaintiffs. The Appellant further argued that it was not so constrained.

[8] The Respondents Athabaska Tribal Corporation and the Northwest Territories Treaty 8 Tribal Council were earlier in the proceeding granted leave to intervene and were subsequently added as plaintiffs in the action. On the return of the Appellant's Motion, before the Motions Judge Her Majesty the Queen and the Attorney General of Alberta did not oppose the Appellant's application to intervene nor have they taken any position on this appeal.

[9] The Appellant has appealed only the decision of the Motions Judge relating to its motion for leave to intervene.

[10] The Federal Court Rules provide for intervention in Rule 109:

109.(1) The Court may, on motion, grant leave to any person to intervene in a proceeding.

(2) Notice of 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 interverner; and

(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist in 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;

(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.

[11] On this appeal, the Appellant argues that the issue of equality before and under the law sought to be raised by the Appellant is not encompassed within the Queen's Amended Defence and is of such constitutional and statutory importance that it ought to be dealt with by the Court in this action and that the failure of the Crown to raise the issue warrants an order granting the Appellant leave to intervene.

[12] In support of its position the Appellant wishes to rely on the Constitution Act, 1867, the Charter of the United Nations to which Canada is a party, the Universal Declaration of Human Rights to which Canada is a party, the United Nations Declaration on the Elimination of all Forms of Racial Discrimination which Canada has joined in, the International Convention on the Elimination of All forms of Racial Discrimination 1965 which Canada has joined in, the International Covenant on Civil and Political Rights - December 1966 which Canada became a party to, the Citizenship Act, the Charter and the Canadian Multicultural Act.

[13] The Order of the Motions Judge is discretionary and the test for review of this exercise of discretion is whether the judge in first instance has given sufficient weight to all relevant considerations.^[1]

[14] The only reason given by the Motions Judge for refusing the Appellants request to intervene was that he found no evidence to support the Appellant's assertion that the Queen was constrained in her defence and therefore he concluded that the Appellant's participation would not assist in the determination of a factual or legal issue in the action.

[15] This Court, in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd.^[2] set out the factors which might be considered on a motion to intervene. They are:

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?

[16] The Motions Judge in his Reasons did not refer to any of these factors nor did he apparently consider that without the intervention of the Appellant, the issue of whether all Canadians should be treated equally in taxation matters would be addressed. We therefore believe he erred in not giving weight to all relevant considerations. The Appellant has established:

1) that its members will be affected by the outcome of the litigation;

2) there is a justiciable public interest issue raised;

3) if the Appellant is not allowed to intervene, this issue will not be raised;

4) the interests of justice would be better served by permitting the Appellant to intervene.

[17] The Supreme Court of Canada in R. v. Finta [1993] 150 N.R. 370 said one criteria for allowing intervention is if the intervenor has submissions which will be useful and different from those of the other parties. That would seem to be the case here.

[18] We are of the view that if in a case where important public interest issues are raised, an intervenor wishes to raise a related public interest question which naturally arises out of the existing lis between the parties, and which none of the other parties has raised, it is appropriate to permit the intervention.

[19] We would therefore allow the appeal, set aside the Order of the Motions Judge, and grant the Appellant leave to intervene in the action on the following basis:

1) The Appellant shall be served with all materials of the other parties.

2) The Appellant will not itself lead evidence but will rely on the evidence adduced by the parties and on the documents referred to in these reasons as well as any other documents of which the Court may take judicial notice.

3) The Appellant will be allowed to be present at trial and to make such written and oral argument as the Trial Judge permits.

4) The Appellant will not seek costs.

5) The Appellant will not itself seek to appeal any judgment, but will be allowed to participate in any appeal.

(Sgd.) "J.E. Sexton"

J.A.

March 16, 2001

Vancouver, British Columbia

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-464-00

STYLE OF CAUSE: Canadian Taxpayers Federation v. Charles John

Gordon Benoit et al.

PLACE OF HEARING: Vancouver, BC

DATE OF HEARING: March 15, 2001

REASONS FOR JUDGMENT OF Sexton, J.A.

DATED: March 16, 2001

APPEARANCES:

Norman Mullins FOR APPELANT

Elizabeth Johnson FOR RESPONDENT BENOIT

ET AL.

Everett Bunnell FOR RESPONDENT

ATTORNEY GENERAL OF AB

SOLICITORS OF RECORD:

Norman Mullins FOR APPELANT

Vancouver, BC

Ackroyd, Piasta, Roth & Day FOR RESPONDENT BENOIT

Vancouver, BC ET AL.

Parlee McLaws RESPONDENT BENOIT

Calgary, AB ET AL.

^[1] See Reza v. Canada, [1994] S.C.J. No 49 at paragraph 20

^[2] [2000] F.C.J. No. 220, Court File A-346-99 (F.C.A.)

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Canadian Taxpayers Federation v. Benoit, 2001 FCA 71

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2001 FCA 71