Date: 20000217
Docket: T-1057-96
BETWEEN:
AMBROSE MAURICE, MERVIN MAURICE, and
THE MÉTIS SOCIETY OF SASKATCHEWAN
SAPWAGAMIC LOCAL 176 INC.
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
and THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to a motion by the Métis National Council, ("the applicant") seeking to be added as an intervenor to this action.
[2] The action is one in which the plaintiffs seek declarations that constitutional and other obligations owed to the plaintiffs were breached by the defendants. The focus of the claim is the lesser amount of compensation paid to the plaintiffs (being métis) from that paid to other aboriginal persons (status indians). Compensation was paid to both as a result of their displacement from hunting, fishing, and trapping in an area of northern Saskatchewan to allow for the creation of a weapons range in the area.
[3] The applicant seeks intervenor status, first, because the decision rendered in this case will likely affect other métis who were also displaced from hunting, fishing and trapping on the lands in question. The applicant considers this to be a test case. The applicant's second reason for seeking intervenor status is that it has special knowledge and expertise with respect to métis claims that it considers will assist the Court in this litigation. The decision will also likely have significant jurisprudential importance because it raises issues such as whether a fiduciary duty is owed to the métis, analogous to that owed to other aboriginal persons.
[4] The plaintiffs support the applicant's motion to intervene.
[5] Counsel for the defendants argues that the applicant should not be granted intervenor status, because it cannot meet the tests set out in Canada Council of Professional Engineers v. Memorial University of Newfoundland (1997), 135 F.T.R. 211 at 212:
| (1) Does the proposed intervenor have an interest in the outcome of the litigation? |
| (2) Will the rights of the proposed intervenor be seriously affected by the litigation? |
| (3) Would the proposed intervenor bring to the court a point of view different from that of the defendant? |
[6] I do not think there is much difference between (1) and (2) above, except that they establish that a proposed intervenor's interest must be a significant one.
[7] Counsel for the defendants argues that the applicant's interest in this case is similar to that said to be insufficient to justify intervenor status in cases such as Tioxide Canada Inc. v. Ministre du Revenue national (1994), 174 N.R. 212 (F.C.A.) and The Queen v. Bolton, [1976] 1 F.C. 252 (F.C.A.). In those cases individuals sought to intervene in the litigation because they had claims pending of a similar nature and the legal rules established in the plaintiffs' cases would set precedents that would affect the litigation that was being pursued by the prospective intervenors. In the Tioxide case, Mr. Justice Hugessen referred to this as a "jurisprudential" interest.
[8] While the applicant does not itself have a direct interest, in the outcome of the present litigation, the individuals that it represents do, and those interests are likely to be substantial. The applicant's interest is stronger than a mere jurisprudential interest, although that exists as well. The interests of the individuals that the applicant seeks to protect are grounded in the same fact situation as those of the plaintiffs. This alone, in my view, meets the first two parts of the Professional Engineers test.
[9] Counsel for the defendants argues that the applicant will not offer a different perspective to the litigation, or alternatively, that the applicant as an intervenor will broaden the scope of the litigation so that it becomes an unwieldy and massive aboriginal rights claim.
[10] With respect to the second proposition, there are statements in some of the affidavit materials that I can understand lead counsel to that view. For example, Gerald Morin's affidavit states that "we can assist this court in understanding ... the ongoing problems Métis have suffered from over a hundred years of government recalcitrance in recognition of their rights". I consider this to be a rhetorical statement, rather than a statement of intention to expand the claim in issue.
[11] It is common ground that an intervenor takes the pleadings and record as it finds them. While an intervenor may bring new viewpoints and special knowledge to a proceeding, the intervenor may not litigate new issues (Yale Indian Band v. Aitchelitz Indian Band (1998), 151 F.T.R. 36 (Proth.). I am confident that counsel for the applicant is well aware of the role that intervenors are allowed to play, and that the applicant will not seek to expand the parameters of the claim, which indeed, in any event, it may not do.
[12] I turn then to the argument that the applicant will not bring a different perspective to the litigation, or add something new to the point of view that will be presented by the plaintiffs. Because an intervenor is limited to the issues that have already been raised by a plaintiff, the involvement of the intervenor will necessarily be limited in the evidence he or she can adduce. (One can of course be an intervenor without having the right to adduce any evidence). Thus an argument that the intervenor may not contribute evidence different from that the plaintiff intends to adduce may be correct. That does not mean, however, that the intervenor's perspective on that evidence is not different.
[13] In Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90 at 92, the Court of Appeal, when dealing with a public interest litigant, articulated an approach that I think is relevant to the present situation:
| ... in a case such as this [a Charter case] where the principal and perhaps the only serious issue is a section 1 defence to an attack on a public statute, there are no good reasons to unduly restrict interventions at the trial level in the way the courts have traditionally and properly done for other sorts of litigation ... we think that ... Rouleau J. was right when he said [at page 79] "the interest required to intervene in public interest litigation has been recognized by the courts in an organization which is genuinely interested in the issues raised by the action and which possesses special knowledge and expertise related to the issues raised. [Underlining added.] |
[14] In Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 2 S.C.R. 335, the right to intervene in an appeal to the Supreme Court was in issue. The Court stated, at page 340, that the criterion of being able to make useful and different submissions was:
| easily satisfied by an applicant who has a history of involvement in the issue giving the applicant an expertise which can shed fresh light or provide new information on the matter. |
| an intervention is welcomed if the intervenor will provide the Court with fresh information or a fresh perspective on an important constitutional or public issue. [Underlining added.] |
[15] Among other relevant decisions are: Tsartlip Indian Band v. Pacific Salmon Foundation, [1990] 1 F.C. 609 (T.D.); Canada (Minister of Citizenship & Immigration) v. Katriuk (1998), 150 F.T.R. 137; and Alberta Wilderness Association et al. v. Canada (Minister of Fisheries and Oceans) et al. (1998), 146 F.T.R. 257 (Proth.).
[16] This applicant is not a public interest group. It represents individuals who have a more direct interest in the litigation than such groups, or the members of such groups. There are Charter issues raised in the present litigation. I cannot accept that the applicant stands in a less favourable position as a prospective intervenor than the public interest groups that were granted standing in the Rothmans and Workers' Compensation cases.
[17] Thus, I was persuaded that the applicant brings a sufficiently different perspective to the litigation from that of the plaintiffs to entitle it to intervenor status, and, most importantly, its involvement in the litigation would assist the Court in the determination of the dispute between the parties. Intervenor status was therefore granted.
Judge
OTTAWA, ONTARIO
February 17, 2000