2016 NLCA 72, 2016 NLCA 72

Atlantic Lottery Corporation Inc. – Societé de Loteries de l’Atlantique (intended appellant) v.

Douglas Babstock and Fred Small (intended first respondents), VLC, Inc. (intended second respondent), IGT-Canada Inc. (intended third respondent), International Game Technology (intended fourth respondent), Spielo International Canada ULC (intended fifth respondent), GTECH Corporation (intended sixth respondent), Tech Link International Entertainment Limited (intended seventh respondent), Hi-Tech Gaming.Com Ltd. (intended eighth respondent), and Bally Gaming Canada, Ltd. and Bally Gaming, Inc. (applicant/intended intervenors) (16/116) Indexed As: Atlantic Lottery Corporation Inc. – Societé de Loteries de l’Atlantique v.

Babstock 2016 NLCA 72 1 C.A.N.L.R. 340 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 20, 2016

Summary: A party joined as a third party in the Trial Division proceeding applied for leave to intervene as a third party in the appeal. The respondents filed an application for certification of a class action against the appellant. The appellants applied to strike the notice of claim, which application was dismissed. That dismissal was the subject of the appeal. The third party was not a party to the application to strike, but was subsequently joined as a party to the remainder of the proceedings.

The third party sought to intervene in the matter that is now before this Court to ensure that it has the right to participate fully as a party in any leave to appeal proceedings, and if leave is granted, in the appeal in this Court. Held: Application allowed. Welsh J.A.: Applications to intervene are governed by rule 38 of the Court of Appeal Rules , NLR 38/16 . The third party has an interest in the proceedings among the parties. Some of the parties consented to the application and no party opposed the application.

Finally, the third party assured the Court that the record was sufficient for purposes of their inclusion in the issue regarding the dismissal of the application to strike the statement of claim. There is no reason to limit the scope of participation given the third party. The application was allowed. Counsel: No appearance, for the intended appellant; No appearances, for the intended first, second, third, fourth, fifth, sixth, seventh and eight respondents; Megan Sheppard, for the applicant/intended intervenors.

This application was heard on December 19, 2016 before Welsh J.A.

The following judgment was delivered on December 20, 2016 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an application by Bally Gaming Canada, Ltd. and Bally Gaming, Inc. (“Bally Gaming”) seeking leave to intervene in an application for leave to appeal brought by Atlantic Lottery Corporation. [ 2 ] By way of background, Douglas Babstock and Fred Small filed a statement of claim and applied in the Supreme Court, Trial Division for certification of a class action against Atlantic Lottery Corporation.

On September 19, 2012, Atlantic Lottery issued third party notices to the parties that are listed as the second to eighth respondents in the style of cause in this Court. [ 3 ] An application in the Trial Division by Atlantic Lottery to have the statement of claim stuck under rule 14.24 of the Rules of the Supreme Court, 1986 was dismissed by order dated October 1, 2014. By application dated October 17, 2014, Atlantic Lottery sought leave to appeal that decision.

That application has not yet been heard by this Court because the parties wish to await a decision from a judge of the Trial Division on whether the action will be certified as a class action ( 2016 NLCA 64 ). (I note, in passing, that there has been no consideration of whether rule 57.02 of the Rules of the Supreme Court, 1986 will apply to require leave to appeal, or whether the Court of Appeal Rules , NLR 38/16 will be engaged should the question regarding striking the statement of claim proceed ( rules 35 and 60 of the Court of Appeal Rules ).) [ 4 ] Bally Gaming was not a party for purposes of the application to strike the statement of claim.

It was, however, joined as a third party in the Trial Division for purposes of the application for certification as a class action, and participated in that proceeding. If an application for leave to appeal is brought on that question, Bally Gaming will be included as a party. [ 5 ] Nonetheless, Bally Gaming seeks to intervene in the matter that is now before this Court regarding the dismissal of the application to strike the statement of claim.

The purpose is to ensure that Bally Gaming has the right to participate fully as a party in any leave to appeal proceedings, and if leave is granted, in the appeal in this Court. [ 6 ] The application is made under rule 38 of the Court of Appeal Rules , NLR 38/16 , which provides:

(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. Rule 56(5) sets out when the intervenor’s factum is to be filed and is governed, if applicable, by the party the intervenor supports. [ 7 ] Regarding the criteria set out in subsections (2) and (3) of rule 38, as a result of the third party notice issued to Bally Gaming by Atlantic Lottery on December 3, 2014, it is clear that Bally Gaming has an interest in the proceedings among the parties.

Bally Gaming was, however, joined as a third party approximately two months after the application to strike the statement of claim was dismissed. As a result of the late issuance of the third party notice Bally Gaming was excluded from the initial proceedings. For purposes of the application to intervene, Bally Gaming filed the consents of Mr. Babstock, Mr. Small and five of the seven other third party respondents. No party opposed the application.

Finally, Bally Gaming assured the Court that the record is sufficient for purposes of their inclusion in the issue regarding the dismissal of the application to strike the statement of claim. There is no reason to limit the scope of participation given Bally Gaming’s addition as a third party for purposes of the substantive proceedings among the parties. [ 8 ] In the result, I am satisfied that Bally Gaming’s application for intervention should be allowed.

Bally Gaming shall be joined as an intervenor in the issue regarding the dismissal of the application to strike the statement of claim, with the right to participate fully as a party and to take all actions necessary to protect Bally Gaming’s interests. Application allowed.