R. v. Salituro, 2014 FCA 21

A-158-13 2014 FCA 21 Attorney General of Canada (Appellant) v. Pictou Landing Band Council and Maurina Beadle (Respondents) Indexed as: Pictou Landing First Nation v. Canada (Attorney General) Federal Court of Appeal, Stratas J.A.—Ottawa, January 29, 2014.

Practice — Parties — Intervention — Motions seeking leave to intervene in appeal arising from Federal Court’s decision to quashAboriginal Affairs and Northern Development Canada’s refusal to grant respondent Pictou Landing Band Council’s funding request —Appellant arguing moving parties not satisfying test for intervention under Federal Courts Rules, r. 109, regard to be had to Rothmans,Benson & Hedges Inc. v.

Canada (Attorney General) (Rothmans) — Factors in Rothmans requiring modification in light of today’slitigation environment — New considerations implementing central concerns Rothmans factors meant to address, while dealing withchallenges regularly presenting themselves today in litigation — Moving parties complying with procedural requirements of FederalCourts Rules, r. 109(2); having genuine interest in matter before Court; bringing different insights, perspectives — Issues in appealassuming sufficient dimension of public interest, importance, complexity — Proposed interventions not inconsistent with Federal CourtsRules, r. 3 — Motions granted.

These were motions by the First Nations Child & Family Caring Society of Canada and by Amnesty International seeking leave tointervene in the appeal arising from the Federal Court’s decision to quash Aboriginal Affairs and Northern Development Canada’srefusal to grant the respondent Pictou Landing Band Council’s funding request. The Band Council had requested funding to cover the expenses for services rendered to Jeremy Meawasige and his mother, therespondent Maurina Beadle.

Its request was based upon Jordan’s Principle, a resolution passed by the House of Commons wherebyCanada announced that it would provide funding for First Nations children in certain circumstances. The appellant argued that the moving parties did not satisfy the test for intervention under rule 109 of the Federal Courts Rules andsubmitted that in deciding the motions for intervention the Court should have regard to Rothmans, Benson & Hedges Inc. v. Canada(Attorney General) (Rothmans). Held, the motions should be granted.

The common law list of factors, developed over two decades ago in Rothmans, required modification in light of today’s litigationenvironment. The new considerations implemented some of the more central concerns that the Rothmans factors were meant to address,while dealing with the challenges that regularly present themselves today in litigation, particularly public law litigation, in the FederalCourts. In the case at bar, the moving parties complied with the specific procedural requirements in subsection 109(2) of the FederalCourts Rules.

The evidence satisfactorily addressed the considerations relevant to the Court’s exercise of discretion. The moving partieshad a genuine interest in the matter before the Court and brought different and valuable insights and perspectives that would further theCourt’s determination of the appeal. The issues in the appeal—the responsibility for the welfare of aboriginal children and the properinterpretation and scope of the relevant funding principle—assumed a sufficient dimension of public interest, importance and complexitysuch that intervention should be permitted.

Finally, the proposed interventions were not inconsistent with the imperatives in rule 3 of theFederal Courts Rules. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 15. Federal Courts Rules, SOR/98-106, rr. 3, 65–68, 70, 109, 359–369. CASES CITED applied: Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), (NS CA), [1990] 1 F.C. 74, (1989), (FC), 41 Admin. L.R. 102 (T.D.), affd (FCA), [1990] 1 F.C. 90, (1989), 45 C.R.R. 382 (C.A.). referred to: CCH Canadian Ltd. v. Law Society of Upper Canada, , 189 D.L.R. (4th) 125 (F.C.A.); R. v. Salituro, (SCC), [1991] 3 S.C.R. 654, (1991), 68 C.R.R. (3d) 289; Forest Ethics Advocacy Association v.

Canada (National Energy Board), 2013FCA 236, 64 Admin. L.R. (5th) 80; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014]2 F.C.R. 557; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654;Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3S.C.R. 895; Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237 O.A.C. 71; Canada (AttorneyGeneral) v.

Abraham, 2012 FCA 266, [2013] 1 C.T.C. 69; Canada (Attorney General) v. Canadian Human Rights Commission, 2013FCA 75. AUTHORS CITED

Bryden, Philip L. “Public Intervention in the Courts” (1987), 66 Can. Bar Rev. 490. Koch, John, “Making Room: New Directions in Third Party Intervention” (1990), 48 U. T. Fac. L. Rev. 151. MOTIONS seeking leave to intervene in the appeal arising from the Federal Court’s decision (2013 FC 342, 430 F.T.R. 141) to quashAboriginal Affairs and Northern Development Canada’s refusal to grant a funding request made by the respondent Pictou Landing BandCouncil. Motions granted. APPEARANCES Jonathan D. N. Tarlton and Melissa Chan for appellant.

Justin Safayeni and Kathrin Furniss for proposed intervener Amnesty International. Katherine Hensel and Sarah Clarke for proposed intervener First Nations Child and Family Caring Society. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Champ & Associates, Ottawa, for respondents. Stockwoods LLP Barristers, Toronto, for proposed intervener, Amnesty International. Hensel Barristers, Toronto, for proposed intervener, First Nations Child and Family Caring Society.

The following are the reasons for order rendered in English by [1] Stratas J.A.: Two motions to intervene in this appeal have been brought: one by the First Nations Child & Family Caring Societyof Canada and another by Amnesty International. [2] The appellant Attorney General opposes the motions, arguing that the moving parties have not satisfied the test for interventionunder rule 109 of the Federal Courts Rules, SOR/98-106 [the Rules]. The respondents consent to the motions. [3] Rule 109 provides as follows: Leave tointervene 109.

(1) The Court may, on motion, grant leave to any person to intervene in a proceeding. Contents ofnotice of motion

(2) Notice of a motion under subsection (1) shall (

a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposedintervener; and (

b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assistthe determination of a factual or legal issue related to the proceeding. Directions

(3) In granting a motion under subsection (1), the Court shall give directions regarding (

a) the service of documents; and (

b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to befollowed by the intervener. [4] Below, I describe the nature of this appeal and the moving parties’ proposed interventions in this appeal. At the outset, however,I wish to address the test for intervention to be applied in these motions. [5] The Attorney General submits, as do the moving parties, that in deciding the motions for intervention I should have regard toRothmans, Benson & Hedges Inc. v.

Canada (Attorney General), (NS CA), [1990] 1 F.C. 74 (T.D.), at paragraph 12,affd (FCA), [1990] 1 F.C. 90 (C.A.), an oft-applied authority: see, e.g. CCH Canadian Ltd. v. Law Society of UpperCanada, , 189 D.L.R. (4th) 125 (F.C.A.). Rothmans, Benson & Hedges instructs me that on these motions a list of sixfactors should guide my discretion. All of the factors need not be present in order to grant the motions. [6] In my view, this common law list of factors, developed over two decades ago in Rothmans, Benson & Hedges, requiresmodification in light of today’s litigation environment: R. v.

Salituro, (SCC), [1991] 3 S.C.R. 654. For the reasonsdeveloped below, a number of the Rothmans, Benson & Hedges factors seem divorced from the real issues at stake in interventionmotions that are brought today. Rothmans, Benson & Hedges also leaves out other considerations that, over time, have assumed greaterprominence in the Federal Courts’ decisions on practice and procedure. Indeed, a case can be made that the Rothmans, Benson & Hedgesfactors, when devised, failed to recognize the then-existing understandings of the value of certain interventions: Philip L.

Bryden,“Public Intervention in the Courts” (1987), 66 Can. Bar Rev. 490; John Koch, “Making Room: New Directions in Third PartyIntervention” (1990), 48 U. T. Fac. L. Rev. 151. Now is the time to tweak the Rothmans, Benson & Hedges list of factors. [7] In these reasons, I could purport to apply the Rothmans, Benson & Hedges factors, ascribing little or no weight to individualfactors that make no sense to me, and ascribing more weight to others. That would be intellectually dishonest. I prefer to deal directly

and openly with the Rothmans, Benson & Hedges factors themselves. [ 8 ] In doing this, I observe that I am a single motions judge and my reasons do not bind my colleagues on this Court.

It will be for them to assess the merit of these reasons. [ 9 ] The Rothmans, Benson & Hedges factors, and my observations concerning each, are as follows: • Is the proposed intervener directly affected by the outcome? “Directly affected” is a requirement for full party status in an application for judicial review – i.e . , standing as an applicant or a respondent in an application for judicial review: Forest Ethics Advocacy Association v. Canada (National Energy Board) , 2013 FCA 236 , 64 Admin. L.R. (5th) 80.

All other jurisdictions in Canada set the requirements for intervener status at a lower but still meaningful level. In my view, a proposed intervener need only have a genuine interest in the precise issue(

s) upon which the case is likely to turn. This is sufficient to give the Court an assurance that the proposed intervener will apply sufficient skills and resources to make a meaningful contribution to the proceeding. • Does there exist a justiciable issue and a veritable public interest? Whether there is a justiciable issue is irrelevant to whether intervention should be granted. Rather, it is relevant to whether the application for judicial review should survive in the first place.

If there is no justiciable issue in the application for judicial review, the issue is not whether a party should be permitted to intervene but whether the application should be struck because there is no viable administrative law cause of action: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue) , 2013 FCA 250 , [2014] 2 F.C.R. 557. • Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? This is irrelevant.

If an intervener can help and improve the Court’s consideration of the issues in a judicial review or an appeal therefrom, why would the Court turn the intervener aside just because the intervener can go elsewhere? If the concern underlying this factor is that the intervener is raising a new question that could be raised elsewhere, generally interveners—and others—are not allowed to raise new questions on judicial review: Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraphs 22–29 . • Is the position of the proposed intervener adequately defended by one of the parties to the case? This is relevant and important. It raises the key question under subsection 109(2) of the Rules , namely whether the intervener will bring further, different and valuable insights and perspectives to the Court that will assist it in determining the matter.

Among other things, this can acquaint the Court with the implications of approaches it might take in its reasons. • Are the interests of justice better served by the intervention of the proposed third party? Again, this is relevant and important. Sometimes the issues before the Court assume such a public and important dimension that the Court needs to be exposed to perspectives beyond the particular parties who happen to be before the Court.

Sometimes that broader exposure is necessary to appear to be doing— and to do—justice in the case. • Can the Court hear and decide the case on its merits without the proposed intervener? Almost always, the Court can hear and decide a case without the proposed intervener.

The more salient question is whether the intervener will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter. [ 10 ] To this, I would add two other considerations, not mentioned in the list of factors in Rothmans, Benson & Hedges : • Is the proposed intervention inconsistent with the imperatives in rule 3 , namely securing “the just, most expeditious and least expensive determination of every proceeding on its merits”? For example, some motions to intervene will be too late and will disrupt the orderly progress of a matter.

Others, even if not too late, by their nature may unduly complicate or protract the proceedings. Considerations such as these should now pervade the

interpretation and application of procedural rules: Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87. • Have the specific procedural requirements of subsection 109(2) and rules 359–369 been met? Subsection 109(2) requires the moving party to list its name, address and solicitor, describe how it intends to participate in the proceeding, and explain how its participation “will assist the determination of a factual or legal issue related to the proceeding”.

Further, in a motion such as this, brought under rules 359–369, moving parties should file detailed and well-particularized supporting affidavits to satisfy the Court that intervention is warranted. Compliance with the Rules is mandatory and must form part of the test on intervention motions. [ 11 ] To summarize, in my view, the following considerations should guide whether intervener status should be granted: I. Has the proposed intervener complied with the specific procedural requirements in subsection 109(2) of the Rules ? Is the evidence offered in support detailed and well-particularized?

If the answer to either of these questions is no, the Court cannot adequately assess the remaining considerations and so it must deny intervener status. If the answer to both of these questions is yes, the Court can adequately assess the remaining considerations and assess whether, on balance, intervener status should be granted. II. Does the proposed intervener have a genuine interest in the matter before the Court such that the Court can be assured that the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court? III.

In participating in this appeal in the way it proposes, will the proposed intervener advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter? IV. Is it in the interests of justice that intervention be permitted? For example, has the matter assumed such a public, important and complex dimension that the Court needs to be exposed to perspectives beyond those offered by the particular parties before the Court? Has the proposed intervener been involved in earlier proceedings in the matter? V.

Is the proposed intervention inconsistent with the imperatives in rule 3 , namely securing “the just, most expeditious and least expensive determination of every proceeding on its merits”? Are there terms that should be attached to the intervention that would

advance the imperatives in rule 3 ? [ 12 ] In my view, these considerations faithfully implement some of the more central concerns that the Rothmans, Benson & Hedges factors were meant to address, while dealing with the challenges that regularly present themselves today in litigation, particularly public law litigation, in the Federal Courts. [ 13 ] I shall now apply these considerations to the motions before me. – I – [ 14 ] The moving parties have complied with the specific procedural requirements in subsection 109(2) of the Rules .

This is not a case where the party seeking to intervene has failed to describe with sufficient particularity the nature of its participation and how its participation will assist the Court: for an example where a party failed this requirement, see Forest Ethics Advocacy Association , above, at paragraphs 34–39 . The evidence offered is particular and detailed, not vague and general. The evidence satisfactorily addresses the considerations relevant to the Court’s exercise of discretion. – II – [ 15 ] The moving parties have persuaded me that they have a genuine interest in the matter before the Court.

In this regard, the moving parties’ activities and previous interventions in legal and policy matters have persuaded me that they have considerable knowledge, skills and resources relevant to the questions before the Court and will deploy them to assist the Court. – III – [ 16 ] Both moving parties assert that they bring different and valuable insights and perspectives to the Court that will further the Court’s determination of the appeal. [ 17 ] To evaluate this assertion, it is first necessary to examine the nature of this appeal.

Since this Court’s hearing on the merits of the appeal will soon take place, I shall offer only a very brief, top-level

summary. [ 18 ] This appeal arises from the Federal Court’s decision to quash Aboriginal Affairs and Northern Development Canada’s refusal to grant a funding request made by the respondent Band Council: Pictou Landing Band Council v. Canada (Attorney General) , 2013 FC 342 , 430 F.T.R. 141. The Band Council requested funding to cover the expenses for services rendered to Jeremy Meawasige and his mother, the respondent Maurina Beadle. [ 19 ] Jeremy is a 17-year-old disabled teenager. His condition requires assistance and care 24 hours a day. His mother served as his sole caregiver.

But in May 2010, she suffered a stroke. After that, she could not care for Jeremy without assistance. To this end, the Band provided funding for Jeremy’s care. [ 20 ] Later, the Band requested that Canada cover Jeremy’s expenses. Its request was based upon Jordan’s Principle, a resolution passed by the House of Commons. In this resolution, Canada announced that it would provide funding for First Nations children in certain circumstances.

Exactly what circumstances is very much an issue in this case. [ 21 ] Aboriginal Affairs and Northern Development Canada considered this funding principle, applied it to the facts of this case, and rejected the Band Council’s request for funding. The respondents successfully quashed this rejection in the Federal Court. The appellant has appealed to this Court. [ 22 ] The memoranda of fact and law of the appellant and the respondents have been filed. The parties raise a number of issues.

But the two-key issues are whether the Federal Court selected the correct standard of review and, if so, whether the Federal Court applied that standard of review correctly. [ 23 ] The moving parties both intend to situate the funding principle against the backdrop of

section 15 Charter [ Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] jurisprudence, international instruments, wider human rights understandings and jurisprudence, and other contextual matters. Although the appellant and the respondents do touch on some of this context, in my view the Court will be assisted by further exploration of it. [ 24 ] This further exploration of contextual matters may inform the Court’s determination whether the standard of review is correctness or reasonableness.

It will be for the Court to decide whether, in law, that is so and, if so, how it bears upon the selection of the standard of review. [ 25 ] The further exploration of contextual matters may also assist the Court in its task of assessing the funding principle and whether Aboriginal Affairs was correct in finding it inapplicable or was reasonable in finding it inapplicable. [ 26 ] If reasonableness is the standard of review, the contextual matters may have a bearing upon the range of acceptable and defensible options available to Aboriginal Affairs.

The range of acceptable and defensible options takes its colour from the context, widening or narrowing depending on the nature of the question and other circumstances: see McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895, at paragraphs 37–41 and see also Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) , 2008 ONCA 436 , 237 O.A.C. 71, at paragraph 22 ; Canada (Attorney General) v. Abraham , 2012 FCA 266 , [2013] 1 C.T.C. 69, at paragraphs 37–50 ; and Canada (Attorney General) v. Canadian Human Rights Commission , 2013 FCA 75 , at paragraphs 13–14 .

In what precise circumstances the range broadens or narrows is unclear—at this time it cannot be ruled out that the contextual matters the interveners propose to raise have a bearing on this. [ 27 ] In making these observations, I am not offering conclusions on the relevance of the contextual matters to the issues in the appeal.

In the end, the panel determining this appeal may find the contextual matters irrelevant to the appeal. At present, it is enough to say that the proposed interveners’ submissions on the contextual matters they propose to raise—informed by their different and valuable insights and perspectives—will actually further the Court’s determination of the appeal one way or the other. – IV – [ 28 ] Having reviewed some of the jurisprudence offered by the moving parties, in my view the issues in this appeal—the responsibility for the welfare of aboriginal children and the proper

interpretation and scope of the relevant funding principle—have assumed a sufficient dimension of public interest, importance and complexity such that intervention should be permitted. In the circumstances of this case, it is in the interests of justice that the Court should expose itself to perspectives beyond those advanced by the existing parties before the Court. [ 29 ] These observations should not be taken in any way to be prejudging the merits of the matter before the Court. – V – [ 30 ] The proposed interventions are not inconsistent with the imperatives in rule 3.

Indeed, as explained above, by assisting the Court in determining the issues before it, the interventions may well further the “just … determination of [this] proceeding on its merits.” [ 31 ] The matters the moving parties intend to raise do not duplicate the matters already raised in the parties’ memoranda of fact and law. [ 32 ] Although the motions to intervene were brought well after the filing of the notice of appeal in this Court, the interventions will, at best, delay the hearing of the appeal by only the three weeks required to file memoranda of fact and law.

Further, in these circumstances, and bearing in mind the fact that the issues the interveners will address are closely related to those already in issue, the existing parties will not suffer any significant prejudice. Consistent with the imperatives of rule 3 , I shall impose strict terms on the moving parties’ intervention. [ 33 ] In

summary, I conclude that the relevant considerations, taken together, suggest that the moving parties’ motions to intervene should be granted. [ 34 ] Therefore, for the foregoing reasons, I shall grant the motions to intervene. By February 20, 2014, the interveners shall file their memoranda of fact and law on the contextual matters described in these reasons (at paragraph 23, above) as they relate to the two main issues before the Court (see paragraph 22, above). The interveners’ memoranda shall not duplicate the submissions of the appellant and the respondents in their memoranda.

The interveners’ memoranda shall comply with rules 65–68 and 70, and shall be no more than 10 pages in length (exclusive of the front cover, any table of contents, the list of authorities in

Part V of the memorandum, appendices A and B, and the back cover). The interveners shall not add to the evidentiary record before the Court. Each intervener may address the Court for no more than 15 minutes at the hearing of the appeal. The interveners are not permitted to seek costs, nor shall they be liable for costs absent any abuse of process on their part. There shall be no costs of this motion.