Ottawa, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY THE MINISTER OF NATIONAL REVENUE
and
Docket: T-2242-95
BETWEEN:
SANDRA WILLIAMS
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER AND ORDER
[1] These reasons relate to a motion by the proposed intervener, Aboriginal Legal Services of Toronto (ALST), to intervene in this litigation.
[2] The motion to intervene was filed October 4, 2006 in respect of a case which is almost 10 years old and which is scheduled for trial commencing October 16, 2006. The reply submissions were filed October 10, 2006. It is therefore urgent to decide this motion.
[3] It should be noted that this action was originally set for trial on March 27, 2006, which, for various reasons, was adjourned March 16, 2006. The trial was then set for April 3, 2006 and later adjourned to a date to be fixed which is the current trial date. At no time prior to or during these earlier proceedings including the March and April trial dates, did ALST indicate an intention to intervene. This delay has not been satisfactorily explained.
[4] The ALST is a multi-service legal agency that provides services to the aboriginal community in the Toronto area. It claims to have expertise in respect of aboriginal legal issues and has been granted intervener status in a number of court proceedings. In the context of the current litigation, it has 23 out of 28 staff members who are leased employees from Native Leasing Services, an organization referred to in the current litigation. Some of these staff members are registered under the Indian Act, others are non-registered First Nations persons.
[5] The Respondent opposes this motion for a number of reasons, some of which include the justiciability of the issue raised by ALST, the imprecision of its interest and the materials which it wishes to introduce (legislative and sociological facts) and the effect that such intervention would have on the Respondent’s conduct of the trial. All are valid concerns.
[6] On the other hand, there is an issue of s. 87 of the Indian Act, its application and operation and the relationship with s. 15 of the Charter. ALST seems particularly concerned with the use of the residency test as a “connecting factor” in respect of s. 87 and the issue of on-reserve and off-reserve aboriginal people. The plaintiffs both are on-reserve.
[7] The Respondent refers to the potential that there are a number of persons who may be affected by the legal findings on s. 87 of the Indian Act and s. 15 of the Charter. There are 2,000 Notices of Objection, 496 Notices of Appeal to the Tax Court and the possibility of 4,000 Notices of Confirmation which may be issued, all related to employees of Native Leasing Services.
[8] The test for intervener status has been variously described. In Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (C.A.)(QL), paragraph 8, the Federal Court of Appeal laid out six issues to consider:
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?
The Federal Court of Appeal in Feeroequus Railway Co. v. Canadian National Railway, 2003 FCA 408 cited with approval the three prong test in Abbott v. Canada, [2000] 3 F.C. 482 (T.D.) (which is similar to that in Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2000] F.C.J. No. 208 (QL)):
1. The Applicant for intervention must have an interest in the outcome;
2. The rights of the Applicant will be seriously affected by the outcome of the litigation; and
3. The Applicant, as Intervener, will bring a different perspective to the proceedings.
[9] Given the nature of the ALST’s mandate to represent aboriginal interests, while it, as an organization does not have an interest in the outcome nor would be affected, some of the people whom it seeks to assist may well be affected.
[10] In the current circumstances, the most important test for intervener status is whether the ALST will bring a different perspective – in other words, will its intervention assist the Court in its conclusion.
[11] In that regard, the Plaintiffs are represented by excellent and experienced counsel. The Plaintiffs have not explained why they support this motion. However, the Plaintiffs are on-reserve aboriginal people and therefore the ALST might bring a slightly different emphasis to the legal argument on the interpretation of s. 87, the residency test and the possible impact of this case in the context of s. 15 of the Charter.
[12] It is for this reason that the motion will be granted subject to strict terms. The Court is concerned that an intervener, no doubt inadvertently, would “hijack” the proceedings, interfere with the real dispute between the parties and place an unfair burden on the Respondent to respond to new issues and upon the eve of trial.
[13] Therefore, the ALST shall be restricted as follows:
(a) to presenting legal argument only to be set out in a Memorandum of Law which complies with the Federal Courts Rules. No attempt to adduce new facts under the guise of a Memorandum will be permitted;
(b) the Memorandum will be restricted to 10 pages not including Appendices;
(c) the Memorandum shall be served and filed no later than October 20, 2006;
(d) ALST’s oral argument shall follow that of the Plaintiffs; the time allotted for ALST’s oral argument shall be determined having regard to the time required by the parties to fairly make their case;
(e) ALST may be responsible for costs as circumstances dictate; and
(f) ALST shall have no right of appeal.
ORDER
IT IS ORDERED THAT the motion is granted, without costs, on the following terms:
1. The intervener may present legal argument only to be set out in a Memorandum of Law which complies with the Federal Courts Rules. No attempt to adduce new facts under the guise of a Memorandum will be permitted.
2. The Memorandum will be restricted to 10 pages not including Appendices.
3. The Memorandum shall be served and filed no later than October 20, 2006.
4. ALST’s oral argument shall follow that of the Plaintiffs; the time allotted for ALST’s oral argument shall be determined having regard to the time required by the parties to fairly make their case.
4. ALST may be responsible for costs as circumstances dictate.
5. ALST shall have no right of appeal.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2241-95 and T-2242-95
STYLE OF CAUSE: MARGARET HORN
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE
and
SANDRA WILLIAMS
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE
PLACE AND
DATE OF HEARING: Motion made in writing under Rule 369
APPEARANCES:
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Mr. Brian A. Crane
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Mr. John Shipley
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Ms. Kimberly R. Murray Ms. Amy Britton-Cox |
FOR THE PROPOSED INTERVENER, ABORIGINAL LEGAL SERVICES OF TORONTO |
SOLICITORS OF RECORD:
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GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Ottawa, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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ABORIGINAL LEGAL SERVICES OF TORONTO Toronto, Ontario |
FOR THE PROPOSED INTERVENER, ABORIGINAL LEGAL SERVICES OF TORONTO |