2017 NLCA 1, 2017 NLCA 1

Weir’s Construction Limited, Bill Weir and James Weir (Jr.) (applicants/appellants) v. Roland Warford, Workplace Health, Safety and Compensation Commission (respondents) The Attorney General of Newfoundland and Labrador (intended intervenor) (16/92) Indexed As: Weir’s Construction Limited v. Warford 2017 NLCA 1 1 C.A.N.L.R. 388 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. January 17, 2017

Summary: Pursuant to rule 38 of the Court of Appeal Rules , NLR 38/16, the Attorney General of Newfoundland and Labrador applied for intervenor status in an appeal concerning the ability of an employee injured at work to file suit against his employer despite having elected to receive benefits under the Workplace Health, Safety and Compensation Commission Act , RSNL 1990, c. W-11 . Held: Application dismissed. Green C.J.N.L.: Rule 38 replaced the previous rule 7.05 of the Rules of the Supreme Court, 1986 . And, unlike the former rule, applies only to interventions on appeal.

It can be interpreted and applied in a manner that is suitable solely to appellate proceedings. The key to a successful intervention application is to show some legitimate connection to or “interest” in the appeal that would justify the involvement of another party who is not central to the original litigation. Rule 38(2) speaks in terms of the applicant’s “interest in the appeal”. Intervention will not necessarily be refused solely because the intervenor-applicant’s legal rights will not be directly affected by the outcome of the appeal.

Broadly speaking, there are two types of cases where intervention may be appropriate on the basis of the applicant’s “interest” in the appeal. The first involves a situation where the applicant’s specific legal interests will or may be affected by the decision on appeal. The second involves a broader public interest consideration. The Court ought to be chary in granting intervention as of course where the only claim to interest in the appeal is a desire to influence a decision with which the applicant is not otherwise concerned solely to advance its argument on the law in another case.

The fact that a precedent is in the process of being made, as opposed to already having been decided, should in principle not, without more, give a party who may subsequently be bound by that precedent once made, any special claim to interfere in the process of that precedent-creation. There may be additional considerations, over and above the mere desire to influence relevant precedent-making so as to advance one’s financial and other legal interests in subsequent litigation which may nevertheless justify according an applicant intervenor status in such circumstances.

The second category includes cases where the Court’s analysis of an issue of public importance will benefit from additional perspectives that can be given by persons other than the initial parties to the appeal. The emphasis here is on the contribution which the proposed

intervenor may be able to make. One case of this type is one where an important constitutional issue may be engaged, but the category can also cover public law issues where the applicant has a genuine interest in the administration of a legislative or executive scheme and where that person or body has a special expertise and knowledge about the implications of interpreting and applying it that would be useful to the Court.

These “public law issue” cases warrant a less rigid approach in the exercise of discretion to permit interventions, but this does not, however, give a proposed intervenor carte blanche to intervene in every appeal just because there is a public law aspect to it. The justification for intervention in a case with “public” aspects, therefore, will usually be the significance of the particular issue and the special contribution which the intervenor can make to assist the court in deciding the issue.

Assuming an applicant establishes an “interest” in the appeal, within one or the other – or perhaps both – of the categories, that does not mean that intervention will automatically be granted. Rules 38(2) and (3) require the Court to consider a number of other factors in deciding whether to exercise its discretion to grant or deny intervention. These and any other factors deemed relevant by the Court must be balanced to arrive at a fair, efficient, orderly and proportional disposition of the ultimate appeal .

Even if intervention is granted, rule 38(4) allows the Court to define or limit the scope of participation by an intervenor in the appeal. Under the first category, the Attorney General’s only “interest” is the precedential value of the decision and its impact on the financial interests of the Province arising from that other litigation. The Province is a defendant or third party in three other pieces of litigation that appear to involve the operation of the provisions of the Act at issue in the appeal. That, in itself, is not a sufficient reason for intervention.

The Attorney General secondarily relies on the “public law aspect” of the case. This engages the second category mentioned above. Counsel for the Attorney General did not suggest any particular degree of knowledge or expertise with respect to the workers compensation legislative scheme that would be of assistance to the Court, nor did he define any other special role that he could play. The Commission is best placed to present specialized information touching on the interpretive exercise to ensure that there will be a fully informed adjudication.

The Court was not satisfied, therefore, that there will be a void in the range of argument that it is necessary or desirable for the Attorney General to fill. With respect to the balancing of other factors, that balancing also favours denying intervention. The Attorney General’s explanation for not seeking to intervene in the Court appealed from is wanting. Counsel for the Attorney General offered no other explanation – such as inadvertence, mistake or reasonable misapprehension of the issue - for not seeking to intervene previously. This lack of explanation weighs against allowing participation now.

The position which the Attorney General wishes to take on the appeal was dealt with in considerable detail in the court below and carefully analyzed and addressed by the applications judge in his judgment. The correctness of the applications judge’s conclusion on this point is a ground of appeal in this Court. The Attorney General does not bring a different perspective. The Attorney General asserted that his intervention will not delay the appeal, but the Court was not as sure.

There was a real risk that the Court would be faced with requests by other parties in the other litigation to which the province is a party to also be allowed to intervene to oppose the Province’s position. Taking all factors together and balancing them against each other, the better exercise of discretion is to deny the application for intervention. Cases cited: Workplace Health, Safety and Compensation Commission v. Weir’s Construction Ltd. , 2003 NLCA 36 Warford v. Weir’s Construction Limited , 2012 NLCA 37 Geophysical Services Inc. v. Martin , 2015 NLCA 36 Penney v.

Newfoundland and Labrador (Service NL) , 2016 01H 0096 (unreported; order made December 6, 2016) Elton Estate v. Elton , 2009 NLCA 34 Eastern Regional Integrated Health Authority v. Association of Registered Nurses of Newfoundland and Labrador , 2014 NLCA 52 Equustek Solutions Inc. v. Jack, 2014 BCCA 448

Northwestern Utilities Limited v. City of Edmonton, (SCC), [1979] 1 S.C.R. 684 Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147 R. v. Penunsi, 2016 NLCA 50 Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), (ON CA), 74 O.R. (2d) 164(C.A.) Counsel: Jorge Segovia, for the applicants/appellants; John Sinnott Q.C., for the first respondent; Blair Pritchett, for the second respondent; Peter Ralph Q.C., for the intended intervenor. This application was heard on December 6, 2016 before Green C.J.N.L.

The following judgment was delivered on January 17, 2017 by Green C.J.N.L. ______________________________________________________________ Green C.J.N.L.: [1] The Attorney General of Newfoundland and Labrador applied for intervenor status in an appeal respecting the right of an injured(and previously compensated) worker to maintain an action in the Supreme Court in the face of Sections 44 and 44.1 of the WorkplaceHealth, Safety and Compensation Commission Act, RSNL 1990, c.

W-11 which addresses when an action arising from a workplaceaccident is prohibited from being taken in the courts in situations if the accident involved the “use” of a motor vehicle. Context [2] Roland Warford, an employee of Weir’s Construction Limited, was seriously injured while working as a mechanic repairing alarge truck owned and used by Weir’s in its construction business. Mr. Warford claimed and was awarded benefits under the Act. TheCommission exercised its rights of subrogation under the Act and sued Weir’s to recover damages in Mr. Warford’s name.

Later, theCommission decided not to proceed with the action but allowed Mr. Warford to continue it for his own benefit on condition that if hewas successful he would repay the benefits he received under the legislation. [3] Weir’s sought a decision from the Commission as to whether the action was prohibited under s. 44 or whether the exception in s.44.1 applied, which allowed suit where the accident involved the “use” of a motor vehicle. [4] The Commission’s initial decision was that the exception applied and that the action was not prohibited.

That decision wassubsequently set aside on judicial review by the Trial Division. An appeal to this Court was dismissed. [5] On reconsideration pursuant to the judicial review, the Commission determined that the action was prohibited and that s. 44.1did not apply. That decision was also challenged on judicial review in the Trial Division and was ultimately quashed.

That decision wasalso upheld on appeal. [6] A third determination by the Commission again held that the action was prohibited because the accident was not one involving“the use of a motor vehicle by the worker … in the course of the worker’s employment” within in s. 44.1(b). Mr. Warford soughtjudicial review and, once again, the Commission decision was quashed. The Court, however, went on and, citing the delay in resolutionof the issue, ordered that the action could proceed, rather than referring it back to the Commission for yet a further adjudication. Weir’shave now appealed those determinations to this Court.

It is this appeal in respect of which the Attorney General now seeks to intervene. [7] It is worth recording that over twenty years have elapsed since Mr. Warford suffered his injury and the issue of his entitlement tocompensation in a tort action has not yet been resolved. Regrettably, he has recently passed away. The matter is being continued by hisestate. [8] It also should be noted that the potential application of and the interrelation between s. 44 and 44.1 has been engaged in all of thelegal wrangling that has occurred ever since the first ruling by the Commission in 1999.

The Attorney General did not seek intervenorstatus in any proceeding until now. The Intervention Application [9] The Attorney General’s application is made under rule 38 of the Court of Appeal Rules, NLR 38/16, which reads as follows:

(1) A person who did not participate in the court appealed from may apply to be added as an intervenor for purposes of the appeal.

(2) The application shall state the intervenor’s interest in the appeal, explain the failure to apply to intervene in the court appealed from, and indicate the position the intervenor intends to take on the appeal.

(3) In addition to the factors set out in subsection (2), the Court may consider any relevant factors, including whether intervention would delay or prejudice adjudication of the rights of the parties and whether the record of the court appealed from is sufficient for purposes of the intervention.

(4) The Court may define or limit the scope of participation by an intervenor in an appeal. [ 10 ] This rule, which came into force on October 17, 2016, replaces the previous rule 7.05 of the Rules of the Supreme Court, 1986 . Rule 7.05 did double duty by regulating interventions not only in this Court but also in the Trial Division. Considerations relating to interventions in the Court of Appeal are not necessarily congruent with those relevant to a proposed intervention at the trial level.

One obvious difference is that, as rule 38(2) recognizes, the Court has to grapple with the complicating fact that the proposed intervenor was not a participant in the hearing below and therefore had no role in creating the record or shaping the argument that is the basis of the appeal. [ 11 ] The new rule 38, which applies only in the Court of Appeal, can now be interpreted and applied in a manner that is suitable solely to appellate proceedings. [ 12 ] The primary basis for the Attorney General’s application to intervene is that the Province is a defendant or third party in three other pieces of litigation that appear to involve the question of the potential application of sections 44 and 44.1.

The province has applied to the Commission for determinations as to whether the claims in question are statutorily prohibited. [ 13 ] The Attorney General accordingly asserts that “[t]he outcome of the within appeal is highly likely to impact the determination of the claims involving the Province.” On this basis, he wishes to be heard on the

interpretation of sections 44 and 44.1 and to argue that the exception in s. 44.1 to the statutory bar in s. 44 is only engaged “where an alternate insurance scheme applying to motor vehicle accidents is engaged.” He says that a more purposive approach than that applied by the application judge with respect to

interpretation of Sections 44 and 44.1, along the lines suggested by Cameron J.A. in another of the cases decided by this Court relating to this matter ( Workplace Health, Safety and Compensation Commission v. Weir’s Construction Ltd. , 2003 NLCA 36 at paragraph 44 ) is what is warranted. [ 14 ] A ruling on this issue, counsel submits, will likely determine, by the operation of stare decisis , the results in the cases in which the Province is a party.

If not permitted an opportunity to argue the point on the current appeal, therefore, the issue will be decided for the other cases without any ability of the province to be heard. He relies on statements of Barry J.A. in a previous decision involving an intervention application by the Commission relating to the same litigation, Warford v. Weir’s Construction Limited , 2012 NLCA 37 , which was decided under the former rule 7.05: [8] An ‘interest” within Rule 7.05(1)(

a) extends to an interest in the outcome of an appeal when the legal issue to be determined on the appeal will be binding on future similar litigation to which the applicant will be a party; [ 15 ] The Attorney General also submits, citing Geophysical Services Inc. v. Martin , 2015 NLCA 36 , which itself relied on Warford , that the “public law” nature of the issue that is involved should permit a less rigid approach to intervention because the

interpretation of the workers’ compensation legislation “is an important part of the fabric of worklife in the Province.” In Geophysical Services , which dealt with an application by the Information and Privacy Commissioner pursuant to former rule 7.05 to intervene in an application for leave to appeal a stay of an appeal under access to information legislation, Barry JA allowed a limited intervention by the Commissioner. One of the reasons given was the public law aspect of the issue.

He quoted from his previous decision in Warford as follows: [8] … [I]t is a public law issue warranting a less rigid approach in the exercise of the Court’s discretion to permit interventions … The Court and society will benefit by receiving different points of view on such an issue. [ 16 ] Counsel for Weir’s indicated his consent to the Attorney General’s application. Counsel for the Commission took no position except to point out that the Commission, as the body whose decision is being reviewed, may have a limited role to play on the actual appeal. [ 17 ] Counsel for Mr.

Warford, however, strongly opposed the application. He points out that the Attorney General was given notice of the judicial review application in the Trial Division and expressly declined to participate. If the issue is of such a burning public nature, it was surely equally of such a nature then as it is now, but by his conscious decision not to act earlier the Attorney General apparently did not regard it as such. [ 18 ] Counsel for Mr.

Warford also points out that with respect to the three other legal actions in which the Province is named as a party, there are at least eleven other parties, including motor vehicle insurers, who also may be interested in any decision as to the scope and effect of sections 44 and 44.1. If the Attorney General were given intervenor status, some or all of those parties could equally, it is argued, make a case for intervening in the current appeal to make their positions heard.

This would be especially so because there would be a perceived unfairness if the government were to be given the opportunity to influence the result in the other cases but the other parties affected by those cases were not. Counsel then argues, however, that if for fairness or other reasons, all other interested persons were also given the right to intervene, it would considerably complicate and delay the appeal in a case that has been too long delayed already. That could only be prejudicial to Mr. Warford’s interests. Considerations (

a) Principles

[ 19 ] The adoption of the new rule 38 and the severing of it from any considerations affecting trial procedure gives the Court an opportunity to re-examine the principles that should henceforth be applicable in this Court on intervention questions. [ 20 ] The key to a successful intervention application is to show some legitimate connection to or “interest” in the appeal that would justify the involvement of another party who is not central to the original litigation. [ 21 ] The first thing to note is that rule 38(2) speaks simply in terms of the applicant’s “interest in the appeal.” This is in contrast to the former rule 7.05 which required a showing of “an interest in the subject matter of the proceeding ” or a common question of law or fact (or – which is not relevant here – a statutory right to intervene).

Rule 38 makes it clearer that an intervention will not necessarily be refused solely because the intervenor-applicant’s legal rights will not be directly affected by the outcome of the appeal. [ 22 ] Broadly speaking, there are two types of cases where intervention may be appropriate on the basis of the applicant’s “interest” in the appeal. The first involves a situation where the applicant’s specific legal interests will or may be affected by the decision on appeal. The second involves a broader public interest consideration.

There may be situations where the legal issues in an appeal may involve broader questions which may have to be considered from differing points of view and which have significant public implications. The Court may be persuaded that the contribution from persons other than the actual parties may being important and differing perspectives to bear on an issue of public importance and that the Court would benefit from hearing those other perspectives. [ 23 ] The paradigm case in the first category is where the applicant’s legal position will be directly affected by the specific appeal outcome.

For example, in Penney v. Newfoundland and Labrador (Service NL) , 2016 01H 0096 (unreported; order made December 6, 2016)) an adjoining landowner whose use of his property would be affected if an appeal by his neighbour against a regional appeal board decision were to be granted - and perhaps would in any event have had a right to be heard as an interested party at the original hearing if he had been (but was not) given notice – was allowed to intervene and make submissions as his interests may appear. A little bit further removed from that situation are the facts in Elton Estate v.

Elton , 2009 NLCA 34 where a lawyer who was being sued for negligence in the drafting of a will was granted intervenor status in another appeal involving the

interpretation of the allegedly negligently drafted clause in the will, because the outcome of that appeal was determined to “very probably have an effect” on the negligence action. [ 24 ] Further removed again from the paradigm situation is the case where the decision on appeal will likely have a precedential effect on another pending case in which the applicant is involved and effectively foreclose further argument on the issue in the other case.

As noted, the Warford and Geophysical Services cases, decided under the former rule which arguably involved a more restrictive concept of “interest”, recognized this category. [ 25 ] In acknowledging this category of case as potentially falling within rule 38 , however, it is worth stating that the Court ought to be chary in granting intervention as of course where the only claim to interest in the appeal is a desire to influence a decision with which the applicant is not otherwise concerned solely to advance its argument on the law in another case.

We must not lose sight of the fact that individual cases are, all the time, argued and determined on the basis of precedents in which parties have had no involvement and over which they have had no influence. That is the nature of our judicial system. The fact that a precedent is in the process of being made, as opposed to already having been decided, should in principle not, without more, give a party who may subsequently be bound by that precedent once made any special claim to interfere in the process of that precedent-creation.

In both situations, the financial and other legal interests of parties in the subsequent litigation will be affected in the same manner. The fortuitous fact that one case is listed for decision prior to the other is simply the luck of the draw.

It should not normally, in itself, justify intervention in another case in which that person is not otherwise interested. [ 26 ] That said, there may be additional considerations, over and above the mere desire to influence relevant precedent-making so as to advance one’s financial and other legal interests in subsequent litigation which may nevertheless justify according an applicant intervenor status in such circumstances.

In both Warford and Geophysical Services those other considerations were present. [ 27 ] In Geophysical Services Barry J.A. emphasized the role which the Information and Privacy Commissioner played in conducting investigations and administering the access to information legislation and concluded that how the legislation was interpreted would impact on how the Commissioner would have to perform his statutory mandate, thus giving the issue “ a public law aspect.” That factor, together with the fact that the Commissioner could “provide a unique and enhanced perspective regarding the access to information law” (paragraph 23) justified the granting of intervenor status. [ 28 ] In like manner, in Warford Barry J.A. concluded that the issue of the

interpretation of the workers’ compensation legislation and the role the Commission played in the application of that legislation was a “public law issue” to which the Commission could “make a useful contribution considering its particular expertise in administering the Act ” (paragraph 9). [ 29 ] In both of these cases, the proposed intervenors’ concerns about the creation of a precedent were not based on any private pecuniary interest.

It was the broader public law issue and the fact that the proposed intervenor’s direct interest in administering and applying the legislation in a manner that was workable and effective that elevated the situation from merely a financial or legal interest in the outcome of a subsequent case and justified the intervention. [ 30 ] It is the presence of these additional factors that actually cuts across the second category of an applicant’s “interest” in an appeal.

This category includes cases where the Court’s analysis of an issue of public importance will benefit from additional perspectives that can be given by persons other than the initial parties to the appeal. Applicants in this category undoubtedly have an “interest” (in a broad sense) in the issue being considered by the Court (or otherwise they would not have sought intervention).

But the emphasis here is not on the significance or nature of the interest but on the contribution which the proposed intervenor may be able to make to determination of the issue of public importance. [ 31 ] An obvious case of this type is one where an important constitutional issue may be engaged. But the category is not limited to that.

As Warford and Geophysical Services demonstrate, it can cover situations where the applicant has a genuine interest in ensuring that legislation or legal rules relating to a legislative or executive scheme it is administering are interpreted and applied in a manner that advances the purpose and intent of the scheme in a proper and efficient way and where that person or body has a special expertise and knowledge about the implications of interpreting and applying it in different ways that would be useful to the Court.

[ 32 ] I agree with Barry J.A. in Warford and Geophysical Services these “public law issue” cases, warrant “a less rigid approach” in the exercise of discretion to permit interventions. See also Eastern Regional Integrated Health Authority v.

Association of Registered Nurses of Newfoundland and Labrador , 2014 NLCA 52 where, in an appeal involving professional nurses and a health board relating to maintenance and enforcement of professional standards for the purpose of protecting the public, other bodies of health professionals whose standards might also be affected by the determination in the appeal were granted intervenor status because of the useful contribution they could make to the determination of the issues which were of general public importance. [ 33 ] Such a “less rigid approach” does not, however, give a proposed intervenor carte blanche to intervene in every appeal just because there is a public law aspect to it.

I generally subscribe to the view expressed by Groberman J.A. in Equustek Solutions Inc. v. Jack , 2014 BCCA 448 : [12] Prospective intervenors must demonstrate more than that the Court’s decision will have broad ramifications. There is a real danger that intervenors that do not propose to do more than point out the importance of the Court’s decision will simply be a burden to the parties and to the Court. Esson J.A, put it this way in Hobbs v.

Robertson , 2002 BCCA 168 : [9] In most cases, it is my impression that the efforts of intervenors make no significant contribution other than to add to the length of hearing, and the weight of paper. Underlying the submissions of the applicants seems to be an assumption that courts are incapable, without the assistance of intervenors, of understanding that decisions have consequences far beyond the immediate parties. That assumption, with respect, is unjustified.

Judges are conscious of the considerations often expressed on one side as the fear that to fail to recognize a right will unjustly affect others and, on the other that recognition of a right will “open the floodgates.” [ 34 ] The justification for intervention in a case with “public” aspects, therefore, will usually be the significance of the particular issue and the special contribution which the intervenor can make to assisting the court in deciding the issue.

In cases like Geophysical Services and Warford, that was found in the knowledge, expertise and experience held by the persons (the Privacy Commissioner in Geophysical Services and the Commission in Warford ) charged with responsibility for applying and administering the statutory scheme created by the legislation in question. They could speak to the implications of the various

interpretations being advanced and assist the Court in understanding the operation of the scheme. [ 35 ] Assuming an applicant establishes an “interest” in the appeal, within one or the other – or perhaps both – of the categories discussed above, that does not mean that intervention will automatically be granted. Rules 38(2) and (3) require the Court to consider a number of other factors in deciding whether to exercise its discretion to grant or deny intervention. They include: (

i) The applicant’s explanation for failure to apply to intervene in the Court appealed from. A failure to give a reasonable explanation may be an indication that the applicant’s “interest” may not be that important. (ii) The position the applicant intends to take on the appeal. A statement of this matter will enable the Court to consider whether the point can be adequately be dealt with by others without the intervention or whether the proposed intervenor can make a different or useful contribution. (iii) Whether intervention would delay or prejudice adjudication of the rights of the parties to the appeal.

It is to be noted that delay, without corresponding prejudice, may be enough in itself to prevent intervention. There is a value in timely adjudication for its own sake. Of course, the possibility of prejudice, flowing from delay or for some other reason, enhances the significance of this factor. (iv) Whether the record of the court appealed from is sufficient for the purposes of the intervention.

Without a suitable record, the Court would have to address whether there would have to be reception of additional evidence to augment the record, either by way of legislative or adjudicative facts, to accommodate the submission of the proposed intervenor. That is a factor that would have the potential of complicating and delaying the appeal. [ 36 ] Presence or absence of each of these factors is not crucial.

They and any other factors deemed relevant by the Court must be balanced to arrive at a fair, efficient, orderly and proportional disposition of the ultimate appeal, as contemplated by rules 2 and 3 of the Court of Appeal Rules . [ 37 ] Finally, I would note that even if intervention is granted, rule 38(4) allows the Court to define or limit the scope of participation by an intervenor in the appeal.

That could include limiting the subject-matter to be addressed, determined by reference to the position the applicant intends to take on the appeal and by reference to the assessment by the Court as to the usefulness of the contribution that the intervenor can make. As well, limits could be placed on the manner of the participation, including all or only some of the filing of materials and written briefs and making oral submissions. (

b) Application to this Case [ 38 ] The submissions by the Attorney General that he has an interest in participating in the appeal because a decision may impact, by way of the doctrine of precedent, the other cases in which the Province is directly involved, falls within the first category mentioned above. [ 39 ] The Attorney General has no direct interest in the outcome of this appeal. It is clear from the approach taken on this application that his main concern is with the possible impact of a decision on this appeal on the other cases in which the Province is involved.

His only “interest” in that regard is the precedent value of the decision and its impact on the financial interests of the Province arising from that other litigation. For the reasons given earlier, I do not consider that that, in itself, is a sufficient reason for intervention.

[40] The question becomes whether there are additional considerations, beyond the desire to influence relevant precedent-making soas to advance one’s financial or other legal interests in subsequent litigation which make it appropriate to allow for intervention. TheAttorney General secondarily relies on the “public law aspect” of the case for this purpose.

This engages the second category mentionedabove. [41] Without foreclosing the possibility that an issue having a potential significant impact on the social or political life of the Provincemight in itself justify a claim by the Attorney General to become involved in a precedent-setting case, I am of the view that generally, aclaim for intervention will not reach this level just because it can be said that there is some aspect to the case that can be characterized asof a “public” nature.

It would have to be something more than a desire to ensure that every piece of legislation is interpreted and appliedin a manner originally envisaged by government. Such a broad proposition could justify intervention in almost every case where s pieceof social legislation is involved. [42] In this case, aside from having access to government documents (many of which are already in the record or may otherwise beavailable in any event under access to information legislation) that purport to explain government’s motivation for amending thelegislation (the relevancy of which to the

interpretation question may in any event be questionable), counsel for the Attorney General didnot suggest any particular degree of knowledge or expertise with respect to the workers compensation legislative scheme that would beof assistance to the Court, nor did he define any other special role that he could play.

The Attorney General’s position is unlike that ofthe intervenors in the Geophysical Services and Warford cases. [43] It was suggested in argument that because the Commission, the body whose decision is under review, would necessarily have alimited role to play on any judicial review application and hence on any appeal, the Court would not necessarily get a full and expansiveargument as to an

interpretation which ties the exception in s. 44.1 to the existence of an alternative insurance scheme. This would be avoid that the Attorney General could fill. [44] I am not persuaded by this argument. While traditionally, the role of a tribunal whose decision is under review has generally beenlimited to speaking to jurisdiction or explaining the record (Northwestern Utilities Limited v. City of Edmonton, (SCC),[1979] 1 S.C.R. 684), in more recent times the justification for hearing from the tribunal has not been limited to defined categories:Ontario (Energy Board) v.

Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; R. v. Penunsi, 2016 NLCA 50. The keyconsideration in each case is the need for “fully informed adjudication” balanced against the need to maintain tribunal impartiality(Ontario (Energy Board), paragraph 57). Where the issue is the

interpretation of the tribunal’s home statute, which is usually within thejurisdiction of the tribunal to construe, and its decision on that issue is usually judged on a deferential reasonableness standard, thesubmissions of the tribunal as to how it views the legislation might well be something on which it would be appropriate for the Court tohear the tribunal. [45] In the current case, given the Commission’s experience and expertise in administering the workers compensation scheme theCommission is best placed to present specialized information touching on the interpretive exercise to ensure that there will be a “fullyinformed adjudication.” It must not be forgotten that in a previous judicial review application in this very case, the Commission wasgranted intervenor status precisely because “it can make a useful contribution considering its particular expertise in administering theAct” (Warford, paragraph 9).

I am not satisfied, therefore, that there will be a void in the range of argument that it is necessary ordesirable for the Attorney General to fill. [46] In addition, with respect to the balancing of other factors, that balancing also favours denying intervention. [47] The Attorney General’s explanation for not seeking to intervene in the Court appealed from is wanting.

In his written submission,it was asserted that he had not been served with the application for judicial review in the Trial Division, as required by rule 54.03(3) ofthe Rules of the Supreme Court, 1986 and that had he been properly served he “may have participated.” Those assertions were debunkedby counsel for Mr.

Warford by the submission of clear and convincing evidence that not only was the office of the Attorney Generalgiven notice of and served with the judicial review application but counsel for the Attorney General specifically addressed the matterand expressly declined in writing to participate. [48] Counsel for the Attorney General offered no other explanation – such as inadvertence, mistake or reasonable misapprehension ofthe issue - for not seeking to intervene previously.

This lack of explanation weighs against allowing participation now because itundercuts the Attorney General’s assertions that the issue is an important one having a potentially serious impact on the interests of theProvince. [49] The position which the Attorney General wishes to take on the appeal is that the exception in s. 44.1 to the statutory bar in s. 44is only engaged where an alternate insurance scheme applying to motor vehicle accidents is in existence.

The issue of whether s. 44.1,properly interpreted, only applies where another insurance scheme is in place was dealt with in considerable detail in the court belowand carefully analyzed and addressed by the applications judge in his judgment. It is not a new or novel issue; in fact it is central to aproper application of the statutory provisions. The correctness of the applications judge’s conclusions on this point is a ground of appealin this Court. It will clearly have to be dealt with on the appeal.

I am not satisfied that the Attorney General can bring any differentperspective to bear on the resolution of this interpretive issue. [50] It is true that one possible position the Attorney General might take on the appeal is that the Court does not need to, and thereforeought not to, express a view on the issue because the case could be decided on other grounds. However, that is something another partymight also take and in any event the Court itself is generally alert to those types of considerations and must in all cases be mindful ofmaking unnecessary obiter statements.

I do not consider this to be a sufficient reason for according standing. [51] It is true the Attorney General, in support of his position, wishes to refer to and rely on materials including ministerial andcabinet directives and memoranda outlining the motivation for introducing the amending legislation that brought s. 44.1 into effect. Thepoint appears to be that the Commission was experiencing financial difficulties and the government wished to download compensationresponsibilities for workers’ injuries unto private insurers wherever that was possible.

However, it is not at all clear that memorandaindicating specific motivation for introducing a Bill in the House would necessarily be admissible on the

interpretation of the resulting

legislation; the key question is whether the wording ultimately chosen by the legislature, properly interpreted, was effective to achievethat result. In any event, the motivation for acting was clearly recognized and dealt with by the applications judge on the basis ofmaterials that had been placed before him following one of the parties’ obtaining them under access to information legislation. Aspointed out by counsel for Mr.

Warford, the type of (if not the actual) documents the Attorney General wishes to rely on are in any eventalready part of the record. [52] The Attorney General asserts that his intervention will not delay the appeal. I am not so sure. It is not as simple as the AttorneyGeneral preparing and filing a written submission and agreeing to comply with existing date schedules. If, as he asserts, there areadditional documents that he wishes to form part of the record, that will involve a preliminary determination as to (

i) the appropriatenessof their use in the interpretive exercise and (ii) whether the rules for reception of fresh evidence would permit their reception. That woulddelay the matter. [53] Furthermore, there is in my view a real risk that the Court would be faced with requests by other parties in the other litigation towhich the province is a party to also be allowed to intervene to oppose the Province’s position. At the very least, such applications wouldfurther delay the matter, regardless of whether they were successful.

If they were successful, the appeal would clearly be expanded andprolonged by additional submissions either in writing or orally. [54] Given the length of time that Mr. Warford’s claims have spent in the court and tribunal systems without final resolution – alength of time rivalling Dickens’ fictional Jarndyce v. Jarndyce (as described in Bleak House) – if there was ever a case where delayalone should prevent an intervention this must be it.

Conclusion and Disposition [55] Taking all factors together and balancing them against each other, I am satisfied that the better exercise of discretion is to denythe application for intervention. [56] In reaching this conclusion, I am mindful of the special position which the Attorney General holds in the system ofadministration of justice and the overarching responsibilities he has to ensure that the system works effectively, properly and fairly.

Assuch, he deserves a degree of latitude whenever he seeks to appear in the Courts of this province. (Indeed in this case, given the serviceupon him of the judicial review application in the Trial Division pursuant to rule 54.03(3), he may well have had a right, by virtue of thatservice, to be treated as a party and to participate. However, on the advice of counsel, he chose not to exercise that right or to seek orassert a right of standing.) [57] All that said, I can see no good reason in this case why he should now be allowed to intervene.

His interest in the appeal is a mixof private interest and issues of public importance. He is not in the position of someone applying to be let into the litigation as anindependent amicus acting solely in a public-spirited way. While he has no direct interest in the outcome of the appeal, his primaryinterest is in trying to influence the outcome of the appeal so as to advance the Province’s pecuniary interests in other litigation. To theextent that he also, secondarily, wishes to address issues of “public” importance those public issues he is concerned about will be dealtwith on the appeal in any event.

Nothing has been shown to me that he can bring a special perspective to the proceedings. The impact ofparticular

interpretations on the operation of the workers compensation system in the province can be adequately be explained by theCommission. I am not satisfied that allowing the Attorney General to intervene at this stage will, in the words of Dubin C.J.O. in Peel(Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), (ON CA), 74 O.R. (2d) 164 (C.A.)“make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.” [58] Accordingly, I dismiss the application for intervention. [59] Mr.

Warford shall have his costs on a party and party basis against the Attorney General calculated, considering the experienceand seniority of counsel, on column 5 of the scale of costs. Other parties shall bear their own costs. Application dismissed.