McIver v Alberta (Ethics Commissioner), 2017 ABQB 695

Court of Queen’s Bench of Alberta Citation: McIver v Alberta (Ethics Commissioner), 2017 ABQB 695 Date: 20171115 Docket: 1701 02666 Registry: Calgary Between: Ric McIver, Member of the Legislative Assembly, Calgary-Hays Applicant - and - The Office of the Ethics Commissioner – Province of Alberta and The Speaker of the Legislative Assembly of Alberta Respondent - and - The Speaker of the Legislative Assembly of Alberta Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.T. Eamon _______________________________________________________ I. Introduction and Background

[1] The Speaker of the Alberta Legislative Assembly applied in morning judge’s chambers on October 19, 2017 for an orderunder Rule 3.75(2)(

b) of the Rules of Court adding it as a respondent to this judicial review proceeding. The issue is whether arespondent should be added against the applicant’s wishes. [2] Mr. McIver is an elected member of the Assembly. He has applied for judicial review of a Report of the EthicsCommissioner which found he breached

section 3 of the Conflicts of Interest Act, RSA 2000, c. C-23 by asking a question in theAssembly about energy policies. The Report further recommended he apologize to the Assembly, pay a small fine, and recuse himselffrom question period, debate or vote activity relating to the electrical utility industry in Alberta as long as his spouse continues to have abusiness in competitive rate retailing of electricity. [3] The judicial review originally challenged the Report based on the meaning of

section 3 in the context of question period inthe Assembly. The grounds included: opposition questions of the governing party during question period are not “influencing” undersection 3; Mr. McIver was remarking on a decision already made and there was no decision to be influenced; the governing party in theAssembly is not the “Crown” in the meaning of

section 3;

section 3 only applies if there is a finding of intention to further a privateinterest, and such intention was rejected in the Report; and, the interest said to create a conflict was not a private interest as defined in theAct. [4] The Speaker was originally a party to the proceeding. Mr. McIver’s application sought to prevent the Speaker from tablingthe report in the Assembly. However, the Speaker had tabled the Report before the proceeding was started. So, the parties agreed to aConsent Order discontinuing the application as against the Speaker. [5] After the discontinuance, counsel for Mr.

McIver filed a Notice of Constitutional Questions. This changed the basis for theapplication by adding constitutional arguments that previously were not included in the proceedings. [6] The Notice claims the Report infringes Mr. McIver’s constitutionally protected parliamentary freedom of speech, asreferenced in The Bill of Rights, 1689, 1 Wm. & Mar. sess. 2, c. 2, under the heading of 'Freedom of Speech', as follows: “9.

That theFreedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out ofParliament." [7] The Notice claims the Report breaches that freedom by impugning or questioning a question posed during question period.It claims

section 3 of the Act should be interpreted or read down to exclude questions asked by opposition parties (of which Mr. McIveris a member) during question period. It claims the report violates rights of constituents in Mr. McIver’s riding under the CanadianCharter of Rights and Freedoms. [8] The Speaker claims that it is the guardian of the rights and privileges of the Assembly and should have the opportunity toaddress the issues as a respondent. Mr. McIver opposes the application. The Ethics Commissioner does not. II. The test to add a person as a respondent to a proceedingagainst the applicant’s wishes [9] R 3.75(2)(

b) of the Alberta Rules of Court (the Rules) provides that the Court may add a person as a respondent to anoriginating application "if the Court is satisfied the order should be made." R 3.15(3)(

c) provides that an application for judicial reviewmust be served on "every person or body directly affected by the application." [10] There are few reported cases interpreting R 3.75 where a stranger to the application applies to be joined against the wishes ofthe applicant. [11] In applying R 3.75 I should consider the context and background of the rule. The Rules arose from the reform projectconcerning the 1968 rules of court overseen by the Alberta Law Reform Institute.

The version of the rules ultimately accepted andenacted by the government reflects the draft rules for intervention and adding parties word for word as recommended by the Institute inRules of Court Project, Final Report No. 95, October 2008, Appendix “H”. [12] R 3.75 is a successor to R 38 of the old rules of 1968 (the other successor is R 3.74, dealing with actions started by statementof claim). Consultation in the project identified a gap in the power to substitute a party under old R 38. The general rules rewritecommittee described R 38(3) as the “necessary party rule”.

It described R 38(6) as the “private interest intervention”. It suggested bothwere quite narrow. It recommended a general discretion to add parties where necessary, whether the situation was a “classic necessaryparties situation or otherwise”. It gave no examples of when it is necessary to add a party beyond the case law applying R 38. It did notsuggest that the recommendations for joinder rules were intended to drastically change the fundamental underpinnings of when a personshould be permitted, against the claimant’s wishes, to be added as a party to an existing proceeding.

Consultation Memorandum 12.9, p31 (joinder). See also Consultation Memorandum 21.4, pp 23-24 (intervenors) and Consultation Memorandum 12.13, pp 15 - 16 (judicialreview). [13] Old R 38 provided for adding a party in two cases. [14] First, under old R 38(3), the applicant was required to demonstrate that the order for which the Plaintiff was asking woulddirectly affect the intervenor, not in its interests, but in the enjoyment of its legal rights; and, the question to be settled could not beeffectually and completely settled unless it is a party.

Amoco Canada Petroleum Co. v Alberta & Southern Gas Co. (1993), (AB KB), 10 Alta. L.R. (3d) 325 (Q.B.), and approved by the Court of Appeal in CPCS Ltd. v Western Industrial ClayProducts Ltd. (1995), 1995 ABCA 224 , 31 Alta. L.R. (3d) 257 (C.A.). [15] Second, under old R 38(6):

The test for permitting joinder under Rule 38(6) is stated in Fullwood v. Master Excavators Ltd. (1981), 34 A.R. 541 (Q.B.) and Grey v.Royal Bank (1989), (sub nom. Royal Bank v. Page Petroleum Ltd.) 1989 ABCA 307 , 102 A.R. 347 (C.A.). The initial test iswhether the applicant has an interest, that is, a legal interest, in the outcome of the proceedings. The second branch of the test differsdepending on which case is followed. In Fullwood the test is expressed as a question of whether it is just and convenient to add theperson. In Royal Bank v.

Page Petroleum the concern is that the interest of the applicant will not be adequately protected unless it isallowed to participate in the proceedings. CPCS Ltd. v Western Industrial Clay Products Ltd., at para 4. [16] Both Fullwood and Royal Bank accepted that a direct financial or legal interest in the outcome was sufficient to meet the firstbranch of the test. Fullwood describes the numerous authorities to the effect that a direct financial interest is a narrow class (someonebound to pay based on the result of the litigation such as a surety or indemnitor).

A mere commercial or indirect interest is not sufficient.A mere interest in the correct solution of some question involved or a fear that the parties will not advance the arguments adequately isnot sufficient. [17] As to the second branch of the test under old R 38(6), some cases said it was sufficient to meet either sub-test. Orman vCanadian Mountain Minerals Ltd. (2000), (AB KB), 86 Alta. L.R. (3d) 307, 268 A.R. 338 (Q.B.), para 19; CarbonDevelopment Partnership v Alberta (Energy and Utilities Board), 2007 ABCA 231, para. 11. Other cases suggest there is a three parttest.

Saskatchewan Power Corporation v Morgan Stanley Capital Group Inc., 2013 ABCA 341, para 7. In most cases, both sub-tests ofthe second branch would be met. I prefer the view that the Court considers what the ends of justice require in exercising its discretion,and that meeting either sub-test would be sufficient. [18] In applying the test under old R 38(6), it was relevant whether the existing respondent was a commission or tribunal which isnot a traditional party and is limited in the scope of its representations to the Court. TransCanada Pipeline Ventures Ltd. v Alberta(Utilities Commission), 2009 ABCA 255.

It was also relevant whether it would be unjust if an affected party did not have a right ofappeal. Saskatchewan Power Corp. v NaturEner USA LLC, 2014 ABCA 318. [19] Turning to judicial review, R 3.75 is also the successor to old R 753.1. That was the joinder rule in the specific part of the1968 rules for judicial review. R 753.1(1) provided that the court may direct any person to be added or struck out as a party toproceedings for judicial review.

R 753.1(3) provided that any person not served with the application for judicial review “may show thathe is affected by the proceedings and thereon may, in the discretion of the court, take

part in the proceedings as though served.” R753.09(1)(

c) required service on every person directly affected by the proceedings. [20] As with R 38, not any affect on interests was sufficient. Otherwise, the number of parties would be excessive and substantiallyincrease the cost, complexity and delay of litigation. [21] Proof of substantive rights that would be directly affected and that the person seeking to join was adverse in interest to one ofthe parties was found sufficient in Goudreau v Falher Consolidated School District No. 69, (1993) 1993 ABCA 72 , 8 Alta.L.R. (3d) 205 (C.A.).

A subsequent case applied that test and, after concluding it was not met, applied the test under old R 38(3). Smythv Edmonton (City) Police Service, [2005] A.J. No. 1099 (Q.B.). [22] Appeals in the Alberta Court of Appeal from administrative tribunals are functionally similar to this Court’s power of judicialreview. The test under old R 38(6) has been applied in the Alberta Court of Appeal in deciding whether to add parties to appeals fromregulatory agencies.

In Carbon Development Partnership, Madam Justice Hunt stated: 9 This Court has inherent power to add parties to an appeal, especially if an applicant's interests are not represented: Hayes v. Mayhood(1958), (AB KB), 24 W.W.R. 332 (Alta. C.A.), aff'd (SCC), [1959] S.C.R. 568, 1959 CarswellAlta 85.The test developed for Rule 38 (Alberta Rules of Court, Alta. Reg 390/68, the joinder rule) is useful. The joinder test is whether or notthe applicant has a legal interest in the outcome of the proceeding. If so, there are two different sub-tests. The first is whether it is justand convenient to add the applicant.

The second is whether or not the applicant's interest would only be adequately protected if it weregranted party status: CPCS Ltd. v. Western Industrial Clay Products Ltd. (1995), 1995 ABCA 224 , 31 Alta. L.R. (3d) 257 atpara. 4, 56 A.C.W.S. (3d) 479. [23] In that case, the fact the applicants had similar rights in other properties which would be subject to the same regulatoryprinciples applied by the Board was not sufficient. They were instead granted intervenor status.

See also Donnelly v Bighorn (MunicipalDistrict No. 8), 2009 ABCA 137, para 6. [24] There is some flexibility in ascertaining who has a legal interest in the outcome in judicial review cases. Someone with asufficient private interest to itself challenge the decision (the aggrieved person category) in appropriate cases may have a sufficient legalinterest to appear as a party to defend its interests should another aggrieved person commence a challenge.

The aggrieved personcategory of persons having standing to challenge an administrative decision in judicial review “is undefined and deliberately so” as muchdepends on context. Real Estate Council of Alberta v Henderson, 2007 ABCA 303, para 16. In applying that test, an important factor is"the relationship between the applicant and the challenged decision", or “how directly the challenged administrative act will affect thelegally-recognized interests of the applicant”.

Alberta Liquor Store Assn. v Alberta (Gaming and Liquor Commission), 2006 ABQB904, para 9 - 15. [25] Saskatchewan Power Corp. v NaturEner USA LLC, 2014 ABCA 318 appears to reflect a willingness to entertain a moreflexible approach to joining parties to a judicial review where necessary in the interests of justice. Madam Justice Paperny stated: 12. … Unlike the decision at issue in Carbon, the Commission decision under appeal here does not apply to specific lands in whichparties may have a proprietary interest.

The effect of this decision is primarily economic but it is direct and affects contractual rights.While often it is an interest such as ownership rights that will lead to party status, each case must be evaluated on its own facts toascertain whether the kind of interest at stake warrants an applicant being added as a respondent. [underlining added]

[ 26 ] In considering the context of R 3.74 and R 3.75 it is also notable that the Rules expanded the right of a defendant in an action brought by statement of claim to add third parties. R 3.42(

b) added the right of a defendant to add as a third party a person against whom it advanced independent claims arising out of the same or related occurrences. R 3.42(

c) added the right of a defendant to join a third party where it “should be bound by a decision about an issue between the plaintiff and the defendant”. Such proceedings can be severed where there is prejudice to the plaintiff. [ 27 ] Finally, it is notable that R 3.74 is slightly narrower than R 3.75. R 3.74 requires that the application to join a party other than a plaintiff, plaintiff-by-counterclaim or third party plaintiff, must be made by a party to the action rather than the intervenor.

That limitation does not appear in R 3.75. [ 28 ] The context and history of the Rules indicate they were intended to widen the scope of parties that the Court may require be joined against the wishes of the claimant in some respects. Nevertheless, the joinder rules are still based on the underlying concepts that the claimant is entitled to choose the persons that the claimant will sue, and others should be added against the claimant’s wishes only in cases of necessity.

The underlying concerns over joining others as full parties to advance their indirect or merely commercial interests or to pursue advocacy of their positions, as discussed in cases such as Fullwood and Turner v Turner , 2009 ABQB 164 , para 16 , remain valid. Unnecessary joinder of parties unnecessarily increases cost, complexity and delay. The Court must also be mindful that Rule 2.10 provides for intervenors.

Those who are specially affected by the decision facing the court or have some special expertise or insight to bring to bear on the issues facing the court might qualify in appropriate cases to intervene under R 2.10. It is not necessary to join such entities as parties. [ 29 ] Consequently, the principles developed in case law for joinder of parties when the Rules came into force remain a useful guide to exercising discretion under R 3.74 or R 3.75. In keeping with the foundational purposes of the Rules expressed in

Part 1 of the Rules including economy and efficiency, the Court has discretion to add a person against the plaintiff’s or applicant’s wishes in other, exceptional cases where it is both necessary and in the interests of justice. [ 30 ] In my view, the requirement to serve directly affected persons under R 3.15(3)(

c) does not restrict the Court’s discretion to joining only those directly affected. The service obligation is to ensure that the group of directly affected persons is aware of the proceedings. Other persons, in appropriate cases, may have a sufficient interest to join. [ 31 ] Finally, R 3.75(3) provides that the Court may not make an order under the rule if prejudice would result for a party that could not be remedied by a costs award, an adjournment or the imposition of terms. [ 32 ] I summarize the principles for adding a respondent to a judicial review application against the applicant’s wishes as follows: a.

The party seeking to be added must demonstrate that joinder is both necessary and appropriate, in the context of the foundational principles expressed in

Part 1 of the Rules . Typically it must demonstrate it has a sufficiently recognized legal interest in the outcome of the proceeding or is directly affected in its substantive rights, and it is just and convenient to add the person, the question cannot be effectually or completely settled without that person, or the interest of the person will not be adequately protected unless it is allowed to participate in the proceedings. b. The assessment of a sufficient interest must take into account the contextual differences between a private action and a judicial review that sometimes arise.

As Madam Justice Paperny stated “… each case must be evaluated on its own facts to ascertain whether the kind of interest at stake warrants an applicant being added as a respondent”. c. The Court has a residual discretion where necessary in the interests of justice to add a respondent where the usual test is not strictly met. This may apply, for example, where it is necessary that another party be bound by the result between Applicant and Respondent. d. The Court should be careful not to exercise its residual discretion other than in exceptional cases, to avoid unnecessary cost, complexity and delay. e.

The Court must be mindful that Rule 2.10 provides for intervenors. Those who are specially affected by the decision facing the court or have some special expertise or insight to bring to bear on the issues facing the court might qualify to intervene under R 2.10. It is not necessary to join such entities as parties f. The Court may not make an order under the rule if prejudice would result for a party that could not be remedied by a costs award, an adjournment or the imposition of terms.

For example, the expiry of limitation periods may impact whether the Court can make an order where a party seeks to add another person against their will. III. The Speaker’s interest in the issues [ 33 ] Ordinarily, a person applying to be joined as a respondent requires affidavit evidence to establish the impact on the party seeking to be added as a party. Here the Speaker’s interest is defined by his or her constitutional and legal role in the Assembly.

That role is partly the subject of judicial notice ( Legislative Assembly Act , s. 9(2) ), and partly governed by statute ( Legislative Assembly Act , s. 16 ) and common law. The Court does not require affidavit evidence in the present application. [ 34 ] The jurisdiction of the Assembly includes the determination of the lawfulness of its proceedings, the regulation of its proceedings, and the conduct of its business and affairs.

The Assembly and its members have the same privileges, immunities and powers as those held respectively by the House of Commons of the Parliament of the United Kingdom and the members of that House at the time of the passing of the Constitution Act, 1867 . Legislative Assembly Act , R.S.A. 2000, c L-9, ss. 8 - 9 . [ 35 ] The Speaker is a member of the Assembly, is elected by his or her peers in the Assembly, and presides at its sittings. Legislative Assembly Act , s. 16. The Speaker is traditionally considered a guardian of the rights and privileges of the Assembly. The

precise limits of that role are not engaged in deciding if it has the necessary interest in the judicial review. It is sufficient to consider theSpeaker has power to maintain order and decorum in the Assembly (New Brunswick Broadcasting Co. v Nova Scotia (Speaker of theHouse of Assembly), (SCC), [1993] 1 S.C.R. 319 per McLachlin J (now CJC), para 111) and a role in dealing withquestions of order and privilege in the Assembly as the presiding officer. [36] A Speaker’s interest in law suits concerning the privileges and immunities of the Assembly has been recognized in previouscase law.

New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly), (1990), (NS SC),71 D.L.R. (4th) 23, 97 N.S.R. (2d) 365 (N.S.S.C. T.D.) per Nathanson J, var. on other grounds (1991), (NS CA), 102N.S.R. (2d) 271 (N.S.S.C. A.D.), rev. on other grounds (SCC), [1993] 1 S.C.R. 319; Roberts v Commissioner of theNWT et al, 2002 NWTSC 68, at para 6. A Speaker has participated in other law suits as a party without an issue over its standing beingraised.

See, for example, Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission) (2001), (ON CA), 54 O.R. (3d) 595 (C.A.). [37] The Speaker’s legal interests and obligations are not significantly affected by the decision whether to quash (set aside) theReport. The Speaker’s obligation is to preside over the mandatory debate and vote on the Report pursuant to subsection 28(3) of theConflicts of Interest Act.

The Speaker’s obligation is triggered by a valid Report, and that does not give the Speaker an interest inwhether or not the Court quashes the Report. [38] However, the Speaker’s legal rights and obligations pertaining to the jurisdiction and privileges of the Assembly aresignificantly affected by issues that could arise in the judicial review. [39] The precise scope of the exclusive jurisdiction of the Assembly, and whether the Assembly may regulate the speech ofopposition members, affect the Speaker’s legal interests because he is entitled to work within that jurisdiction and obliged to maintainorder and preside over the sittings within that jurisdiction. [40] Also, the review application may well impact the Speaker’s legal interests because some of the matters in the Notice ofConstitutional Questions could encroach on the Assembly’s jurisdiction: whether the Court is exercising its jurisdiction to define thescope of a parliamentary privilege or whether some of the review encroaches the jurisdiction of the Assembly to govern and discipline itsmembers.

Examples of the boundary between the jurisdiction of the Court and the Assembly’s jurisdiction are described in Canada(House of Commons) v Vaid, 2005 SCC 30, para 29 and 34, and Northwest Territories (Attorney General) v Fédération Franco-Ténoise, 2008 NWTCA 6 , 2008 NWTCA 06. [41] As to the second branch of the test, it is just and convenient that the Speaker be permitted to participate and his interests willnot be adequately protected if he is not allowed to participate. [42] There is presently no respondent other than the Ethics Commissioner.

As in most judicial reviews, there will be an issue overthe scope of the participation in this proceeding of the Ethics Commissioner because she made the decision under review. Over the yearscase law has clarified that the limits on participation by the decision maker under review are dependent on the circumstances, but thatmatter will be in the discretion of the judge hearing the application. Leon's Furniture Limited v Alberta (Information and PrivacyCommissioner), 2011 ABCA 94, para 16 - 30), leave denied [2011] SCCA No 260.

Also, the Speaker’s interest in taking any appealfrom the judicial review may be different than the Ethics Commissioner’s interest. See TransCanada Pipeline Ventures Ltd. at para 9 -11. [43] If I were incorrect that the Speaker’s legal interests are engaged, I would consider this a necessary case to exercise my residualdiscretion to join the Speaker. As noted, the only existing respondent may be somewhat constrained in her submissions as the decisionmaker under review, and her interests in an appeal may be different than the interest of a member of the Assembly.

It is in the publicinterest that a willing party with a substantial interest and the necessary expertise be joined to help ensure there is an appropriate contextin which the adjudication of these important issues can be carried out. The Speaker has a serious and genuine interest in the issue as thestatutes governing his function are under consideration, and the appropriate qualifications to participate. Those qualifications exist byvirtue of the Speaker’s office:

section 16 of the Legislative Assembly Act provides the Speaker must be elected by his or her peers andacts as the presiding officer over the sittings. Joining the Speaker will not delay the matter and probably will not make it appreciablymore complex or less efficient. [44] The Consent Order has no bearing on my decision. Discontinuances are not substantive determinations of issues. If there wassome indication that the Consent Order reflected an agreement that the Speaker was not a proper party, I might decline to exercise mydiscretion.

I was informed during argument that the Consent Order merely reflected the conclusion that the relief sought against theSpeaker was moot. Also, the Speaker’s interest in the proceedings changed substantially when the issues in the judicial review changedor were converted to constitutional matters. [45] I have no concerns over prejudice. The Speaker has represented through counsel that he will not seek any change to theexisting timetable in the judicial review. It may be supposed that if Mr. McIver is unsuccessful in his judicial review, adding the Speakermay increase his costs exposure.

It will be up to the judicial review judge, after hearing all the arguments and coming to a decision, todecide what is fair for costs. IV. Decision [46] The application is granted, in the form of Order presented by Mr. Jones, Q.C. in Chambers.

Heard on th e 19 th day of October, 2017. Dated at Calgary, Alberta this 15 th day of November, 2017. J.T. Eamon J.C.Q.B.A. Appearances: B.M. Miller for the Applicant, Ric McIver, Member of the Legislative Assembly, Calgary-Hays W.W. Shores, Q.C. for the Respondent, The Office of the Ethics Commissioner – Province of Alberta D.P. Jones, Q.C. for the Applicant, The Speaker of the Legislative Assembly of Alberta