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Intervention - Federal (2). Canada (Attorney General) v. Pekuakamiulnuatsh First Nation
In Canada (Attorney General) v. Pekuakamiulnuatsh First Nation (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR against a CHRT ruling that "Canada’s funding of the First Nation’s police service discriminated against the First Nation on the basis of race, national or ethnic origin pursuant to paragraph 5(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA)". These quotes deal with an intervenor's application:[5] The recent decision in Chelsea (Municipalité) c. Canada (Procureur général), 2023 CAF 179 [Chelsea], provides a concise yet comprehensive statement of the law governing intervention in this Court. The following relies on Chelsea, applying it to the case at bar.
[6] As noted in Chelsea, this Court’s recent jurisprudence focusses on three factors to determine whether an intervention is warranted: 1) the usefulness of the intervention in relation to the issues to be decided by the Court, 2) the applicant’s interest in the case, and 3) the interests of justice. Applying these factors leads me to conclude that the Caring Society’s intervention is not warranted.
I. Usefulness
[7] With respect to usefulness, the Caring Society proposes to make submissions on two grounds raised in Canada’s memorandum of fact and law.
[8] First, the Caring Society intends to challenge Canada’s suggested approach to assessing the concept of discrimination under the CHRA, which imports jurisprudence under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). The Caring Society recognizes that the respondents challenge Canada’s approach, but says that they do so in an ancillary manner. Therefore, the Caring Society proposes to “go further” with a thorough assessment of the CHRA and the Charter, their differences and the overarching purpose of human rights legislation.
[9] I have reviewed the respondents’ memoranda of fact and law and consider that they substantially embody the arguments that the Caring Society proposes to advance regarding Canada’s suggested approach. Indeed, a whole section of Mr. Dominique’s memorandum is dedicated to this issue. Moreover, one objective of having an intervener is to provide the Court with a perspective that will “cast a different light on the matter” (Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151 at para. 28), not a perspective that “go[es] further” by elaborating arguments raised by the parties. For these reasons, I am not persuaded that the Caring Society’s submissions on Canada’s suggested approach meet the usefulness threshold.
[10] The Caring Society’s second ground for intervention relates to Canada’s argument that the Tribunal erred by failing to consider the province of Quebec’s role with respect to the First Nation’s police service. In response to Canada’s argument, the Caring Society proposes to argue that the Tribunal was not precluded from considering Canada’s positive obligations. Yet not only is the question of Canada’s positive obligations addressed in Mr. Dominique’s memorandum of fact and law (paragraphs 69 to 71), but Mr. Dominique alleges that the Federal Court skillfully concluded that the existence of Canada’s positive obligations is not an issue in this case. Since in determining usefulness “the focus is on what the intervener can usefully do to help the Court determine the issues already before it, not other issues” (Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67 [Right to Life] at para. 17), I am concerned that allowing the Caring Society to make submissions regarding Canada’s positive obligations would not assist the Court in deciding the issues in this appeal. In any event, the respondents’ memoranda of fact and law discuss Quebec’s role with respect to the First Nation’s police service, and Mr. Dominique’s memorandum, as mentioned, addresses Canada’s positive obligations. Accordingly, the Caring Society’s submissions on this point do not meet the threshold of usefulness.
II. The Caring Society’s Interest
[11] In addition to being involved in a discrimination litigation involving section 5 of the CHRA, the Caring Society has intervened in numerous matters to promote First Nations children’s rights and to try to assist courts in the determination of whether these rights are affected. In this context, I have no doubt that if granted to leave to intervene, the Caring Society would dedicate the necessary knowledge, experience, skills, and resources to assist the Court to the best of its abilities.
[12] That said, I am not convinced that the Caring Society has the required interest to be granted leave to intervene in this appeal. The Caring Society will not be directly affected by the decision of this Court in this appeal. This decision will merely address whether it was reasonable for the Tribunal to consider that Canada discriminated against the First Nation in funding its policy service. The Caring Society is correct that this Court’s decision could impact how the Tribunal interprets the CHRA and the latter’s interaction with the Charter. But this means that the Caring Society, like many protected groups who receive government services through government funding, has a jurisprudential interest in this Court’s decision. This is not sufficient to consider that the Caring Society has an interest in this Court’s decision: Right to Life at para. 24; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34 at para. 30.
III. Interests of Justice
[13] Granting the Caring Society leave to intervene would not be in the interests of justice. First, the respondents are well represented such that there is no reality or appearance of an “inequality of arms” or “imbalance on one side”: Le-Vel Brands LLC v. Canada (Attorney General), 2023 FCA 66 [Le-Vel Brands] at para. 19; Right to Life at para. 10. Second, the fact that the Caring Society will not provide useful submissions distinct from those of the respondents entails that the intervention would not be conducive to the “just, most expeditious and least expensive” resolution of this appeal: Le-Vel Brands at para. 19; Right to Life at para. 10; Federal Courts Rules, S.O.R./98-106, Rule 3. . Macciacchera v. Bell Media Inc.
In Macciacchera v. Bell Media Inc. (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an intervention motion, here in a copyright infringement appeal:IV. The Test for Intervention
[10] The test for intervention in this case is well established: Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44.
[11] There are three elements that should be considered in determining whether leave should be granted in a given case. They are:(1) the usefulness of the intervener's participation with respect to the issues that the Court has to decide;
(2) whether the proposed intervener has a genuine interest in the issues raised by the appeal; and
(3) whether the intervention is consistent with the interests of justice.
[12] The criteria for allowing or not allowing an intervention must, however, remain flexible because every intervention application is different, involving different facts, different legal issues and different contexts: Sport Maska, above at para. 42. V. The Issues Raised by the Appellants
[13] In order to determine whether the Clinic’s submissions will be useful to the Court, it is first necessary to identify what the real issues are in this appeal: Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66 at para. 16.
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VI. Analysis
[18] I accept that the Clinic is a credible organization with recognized expertise in matters of copyright infringement. However, I am not persuaded that the arguments that the Clinic proposes to make with respect to the issues that it has identified in its intervention application would be of assistance to the Court in deciding the issues that have been raised by the appellants in this appeal.
[19] As this Court has observed, interveners are not given “an open microphone” to discuss whatever may be on their mind about a given case: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, at para. 17. An outsider seeking admission to a proceeding as an intervener has to take the issues identified by the parties as it finds them, and cannot transform them or add to them: Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FCA 34 at para. 19.
[20] The role of an intervener is thus not to introduce new issues, but rather to provide a different perspective that will “assist the determination of a factual or legal issue related to the proceeding”: Federal Courts Rules, SOR/98-106, Rules 3 and 109; Tsleil-Waututh, above at para. 54; Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, paras. 7-10. As the Court stated in Tsleil-Waututh, “interveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way”: at para. 55.
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[26] While I have chosen to focus my analysis on the lack of usefulness that the Clinic’s submissions would provide to the Court as a basis for dismissing its intervention application, I also have grave doubts as to the Court’s power to grant the remedies sought by the Clinic. As this Court has previously observed, Courts are not to engage in freestanding policy-making: Le‑Vel Brands, above at para. 41.
[27] That is not to say that the issues identified by the Clinic are not important – they may well be – but rather that they are not suitable for resolution through this appeal. Indeed, I agree with the respondents that the issues are more appropriately raised before bodies such as the Intellectual Property Bar Liaison Committee of the Federal Court, the Intellectual Property Institute of Canada or the legislative branch of government. . Njoroge v. Canada (Attorney General)
In Njoroge v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the 'intervention' standing of the ruling tribunal, here in a federal case:[12] I turn to the motion by the CJC to be added as a party under Rule 338 or as an intervener under Rule 109. The appellant objects to the motion on the basis that a decision maker should not be a party in a proceeding where its own decision is at issue.
[13] Rule 338 and its associated jurisprudence are not as unequivocal as the appellant contends. The opening words of the Rule are "“[u]nless the Court orders otherwise”". The appropriate role for a decision maker whose decision is in issue in a proceeding is, therefore, a discretionary decision for the Court. The factors that need to be taken into account include the stage of proceedings (whether the proceeding is on the merits or at an interlocutory stage on a procedural issue as here), the substance of the issues on appeal and whether the tribunal appreciates and clearly respects the limitations on its role. A court will also be mindful of the importance of public perception of a tribunal’s impartiality and want to ensure that, whatever the label assigned to a tribunal’s role in the proceedings, neither the perception or reality of its impartiality is compromised (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 at para. 57).
[14] Consistent with these considerations, tribunals ought, presumptively, to be added as interveners (Air Passenger Rights v. Canada (Attorney General), 2022 FCA 64; Lukács v. Canada (Transportation Agency), 2014 FCA 292 at para. 17; Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3 at para. 3). As interveners, tribunals often provide contextual evidence, describe their legislative framework and operating procedures and no more. The role of tribunals as interveners is not, however, invariable (Girouard v. Canadian Judicial Council, 2019 FCA 252; Lukács v. Canada (Transportation Agency), 2016 FCA 103).
[15] The objective is to assign to the party/intervener the status that most closely aligns with the principles constraining the role of tribunals on applications for judicial review of their own decisions, and the substance of the issue to be determined by the Court. In this case, the substance of the role that the CJC will be permitted to play on the appeal is the same, regardless of how it is described or labelled—whether as an intervener or respondent.
[16] In this case, several factors point to adding the CJC as a respondent. Its memorandum of fact and law makes clear that it understands and respects the limitations on its role and that it will play no part in defending the decision on the merits (although this appeal, on an interlocutory point, does not address the merits of the judicial review application in any event). Moreover, the central issue on appeal—the question of deliberative privilege—shows the CJC to be, in substance, a true respondent. Finally, there are procedural advantages and added efficiencies if the CJC is joined as a respondent; the filing dates are co-ordinated with those of the other respondent, which will hasten the perfection of the appeal.
[17] The CJC will therefore be added as a respondent to this appeal. . Le-Vel Brands, LLC v. Canada (Attorney General)
In Le-Vel Brands, LLC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Stratas JA), after reviewing the current federal law on intervention [at paras 6-18], sets out a freshly-summarized test for intervention:[19] Overall, what is the test for intervention in this Court? As mentioned above, it consists of three elements, usefulness, genuine interest, and consistency with the interests of justice:I. Will the proposed intervener will make different and useful submissions, insights and perspectives that will further the Court's determination of the legal issues raised by the parties to the proceeding, not new issues? To determine usefulness, four questions need to be asked:. What issues have the parties raised?
. What does the proposed intervener intend to submit concerning those issues?
. Are the proposed intervener's submissions doomed to fail?
. Will the proposed intervener's arguable submissions assist the determination of the actual, real issues in the proceeding? 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. Is it in the interests of justice that intervention be permitted? A flexible approach is called for. The list of considerations is not closed but includes at least the following questions:. Is the intervention consistent with the imperative in Rule 3 that the proceeding be conducted "“so as to secure the just, most expeditious and least expensive outcome”"? For example, will the orderly progression or the schedule for the proceedings be unduly disrupted?
. 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 first-instance court in this matter admitted the party as an intervener?
. Will the addition of multiple interveners create the reality or an appearance of an "“inequality of arms”" or imbalance on one side? (Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67 at para. 10; see also Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13, 481 C.R.R. (2d) 234, Alliance for Equality of Blind Canadians v. Canada (Attorney General), 2022 FCA 131 and Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 36.)
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