MUNICIPALITY OF CHELSEA Appellant v. ATTORNEY GENERAL OF CANADA, 2023 FCA 179

Date: 20230823 Docket: A-52-23 Citation: 2023 FCA 179 [ENGLISH TRANSLATION] PRESENT: GLEASON J.A. BETWEEN: MUNICIPALITY OF CHELSEA Appellant and ATTORNEY GENERAL OF CANADA Respondent Motion dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on August 23, 2023. REASONS FOR ORDER BY: GLEASON J.A. Date: 20230823 Docket: A-52-23 Citation: 2023 FCA 179 PRESENT: GLEASON J.A.

BETWEEN: MUNICIPALITY OF CHELSEA Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR ORDER GLEASON J.A. [ 1 ] The Union des municipalités du Québec (UMQ) is seeking leave to intervene in this appeal, the purpose of which is to set aside the Federal Court’s judgment in Chelsea (Municipality) v. Canada (Attorney General) , 2023 FC 103 ( per Justice Pamel). In that judgment, the Federal Court dismissed the Municipality of Chelsea’s application for judicial review of a decision of the National Capital Commission (NCC).

That decision determined the amount of payments in lieu of taxes payable to the municipality for federal properties located in Gatineau Park. [ 2 ] The UMQ is a corporation created in 1919 whose mission is to politically represent nearly 400 municipalities in Quebec. According to paragraph 2 of its notice of motion, the UMQ would like to intervene in this appeal to [ translation ] " “clarify for the Court the issues raised in this appeal for all Quebec municipalities that receive payments from the federal Crown under the Payments in Lieu of Taxes Act , R.S.C. 1985, c.

M-13 (the PLTA )” " . [ 3 ] In its motion, the UMQ provided only scant details related to the arguments that the UMQ would like to make if its motion is granted. [ 4 ] The Court grants leave to intervene relatively rarely. Indeed, the test for granting leave is more restrictive before this Court than before the Supreme Court of Canada, for example. [ 5 ] The Federal Courts Rules , SOR/98-106 allow the Court to grant leave to intervene pursuant to rule 109, which provides as follows: " Leave to intervene " " Autorisation d’intervenir " " 109

(1) The Court may, on motion, grant leave to any person to intervene in a proceeding. " " 109 (1) " " La Cour peut, sur requête, autoriser toute personne à intervenir dans une instance. " " Contents of notice of motion " "

Avis de requête " "

(2) Notice of a motion under subsection (1) shall " " (2) " " L’avis d’une requête présentée pour obtenir l’autorisation d’intervenir : "

"(

a) set out the full name and address of the proposedintervener and of any solicitor acting for the proposedintervener; and " "a)"" précise les nom et adresse de la personne quidésire intervenir et ceux de son avocat, le cas échéant;""(

b) describe how the proposed intervener wishes toparticipate in the proceeding and how thatparticipation will assist the determination of a factualor legal issue related to the proceeding. " "b)"" explique de quelle manière la personne désireparticiper à l’instance et en quoi sa participation aideraà la prise d’une décision sur toute question de fait et dedroit se rapportant à l’instance. ""Directions " "Directives de la Cour ""

(3) In granting a motion under subsection (1), theCourt shall give directions regarding " "(3)"" La Cour assortit l’autorisation d’intervenir dedirectives concernant : ""(

a) the service of documents; and " "a)"" la signification de documents; ""(

b) the role of the intervener, including costs, rightsof appeal and any other matters relating to theprocedure to be followed by the intervener. " "b)"" le rôle de l’intervenant, notamment en ce quiconcerne les dépens, les droits d’appel et toute autrequestion relative à la procédure à suivre. " [6] This Court has recently and repeatedly set out the factors applicable to granting leave to intervene pursuant to rule 109 of the FederalCourts Rules. For example, full panels of the Court have reviewed this test in Métis National Council and Manitoba Métis FederationInc. v.

Varley, 2022 FCA 110, 2022 CAF 110, 2022 CarswellNat 1943 (WL Can); Gordillo v. Canada (Attorney General), 2022 FCA 23;Whapmagoostui First Nation v. McLean, 2019 FCA 187, 306 A.C.W.S. (3d) 500; and Sport Maska Inc. v. Bauer Hockey Corp., 2016FCA 44, [2016] 4 F.C.R. 3; furthermore, single judges have reviewed this test in Le-Vel Brands, L.L.C. v. Canada (Attorney General),2023 FCA 66; Smith v. Canada (Attorney General), 2022 FCA 146 [Smith]; Alliance for Equality of Blind Canadians v. Canada(Attorney General), 2022 FCA 131, 2022 CarswellNat 2708 (WL Can); Right to Life Association of Toronto and Area v.

Canada(Employment, Workforce and Labour), 2022 FCA 67, 2022 CarswellNat 1052 (WL Can); Canada (Environment and Climate Change) v.Ermineskin Cree Nation, 2022 FCA 36, 2022 CAF 36, 2022 A.C.W.S. 286; Air Passenger Rights v. Canada (Attorney General), 2021FCA 201, 2021 CarswellNat 4867 (WL Can); Canada (Citizenship and Immigration) v. Camayo, 2021 FCA 20, 338 A.C.W.S. (3d) 85;Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13, 329 A.C.W.S. (3d) 518 [Canadian Council forRefugees]; Gordillo v.

Canada (Attorney General), 2020 FCA 198, 329 A.C.W.S. (3d) 233; and Canada (Attorney General) v.Kattenburg, 2020 FCA 164, [2020] F.C.J. No. 965. [7] As I noted in paragraph 10 of Smith, all the cases cited above take as their point of departure the decision of this Court in Rothmans,Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, (FCA) [Rothmans].

Rothmans set out anumber of factors relevant to determining a motion for leave to intervene, namely: (1) whether the proposed intervener is directlyaffected; (2) whether there is a justiciable issue and veritable public interest; (3) whether there is an apparent lack of other reasonable orefficient means to submit the question to the Court; (4) whether the position of the intervener is adequately defended by one of theparties; (5) whether the interests of justice are better served by granting leave to intervene; and (6) whether the Court can decide the casewithout the proposed intervention (at p. 92). [8] The case law cited above establishes that the factors applicable to granting leave to intervene must be applied with flexibility and thatthe factors will not all be relevant in each case.

Some cases cast doubt on whether certain factors remain relevant. [9] In its recent jurisprudence, the Court tends to focus on three factors, namely, the usefulness of the intervention in relation to the issueson which the Court will be called upon to rule, the applicant’s interest in the case, and the interests of justice. Justice Stratas helpfullylaid out the applicable principles in paragraph 6 of Canadian Council for Refugees as follows: . . . the current test for intervention under Rule 109 is as follows: I.

The proposed intervener will make different and useful submissions, insights and perspectives that will further the Court’sdetermination of the legal issues raised by the parties to the proceeding, not new issues. To determine usefulness, fourquestions need to be asked: (

a) What issues have the parties raised? (

b) What does the proposed intervener intend to submit concerning those issues? (

c) Are the proposed intervener’s submissions doomed to fail? (

d) Will the proposed intervener’s arguable submissions assist the determination of the actual, real issues in the proceeding? II. The proposed intervener must have a genuine interest in the matter before the Court such that the Court can be assuredthat the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter beforethe Court; III.

It is in the interests of justice that intervention be permitted. [10] In this case, the above factors weigh in favour of dismissing the application for leave to intervene. [11] As for the usefulness of the intervention sought, the UMQ has not demonstrated how its proposed submissions would differ fromthe appellant’s, nor how its point of view on the issues in this case would be helpful to the Court. [12] In this appeal, the Court will be called upon to review the reasonableness of the NCC’s decision, which raises several issues thatapply only in this case, issues with respect to which the UMQ has nothing to contribute. [13] The most controversial issue will perhaps concern the

interpretation of subsection 16(3) of the National Capital Act, R.S.C. 1985, c.N-4, which is an issue on which the UMQ is not seeking to intervene.

[ 14 ] Indeed, the UMQ is seeking to intervene only on the issue of the reasonableness of the NCC’s decision to deviate from an opinion issued by the Payments in Lieu of Taxes Dispute Advisory Panel (the Panel). However, the parties acknowledge that such an opinion is not binding on the federal board, in this case the NCC. Consequently, the assessment of the reasonableness of the decision to deviate from the Panel’s report is very much related to the factual background before the NCC and is intrinsically linked to the nature of Gatineau Park and the zoning regulations that were adopted by the town of Chelsea.

This further limits the impact of the judgment in this appeal for other Quebec municipalities. [ 15 ] Furthermore, in its memorandum, the UMQ provided very few details on the submissions that it would like to make.

UMQ’s proposed arguments are not different from the appellant’s arguments in its notice of appeal. [ 16 ] This leads me to find that the UMQ has not demonstrated that it will provide any other submissions and perspectives that will help the Court rule on the legal issues raised by the parties in this appeal. [ 17 ] As for the UMQ’s interest in the issues in this matter, given the nature of the issues raised in this case, I am not convinced that the UMQ has a genuine interest in this appeal, notably because the appeal does not raise concrete issues for towns other than the town of Chelsea. [ 18 ] This leads me to conclude that the interests of justice do not require granting the leave sought. [ 19 ] This motion will consequently be dismissed without costs, given the respondent’s decision not to claim them. “Mary J.L.

Gleason” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-52-23 STYLE OF CAUSE: MUNICIPALITY OF CHELSEA v. ATTORNEY GENERAL OF CANADA MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: GLEASON J.A. DATED: AUGUST 23, 2023 WRITTEN REPRESENTATIONS BY : Paul Wayland Simon Frenette For the appellant Isabelle Mathieu-Millaire Patrick Visintini For the respondent SOLICITORS OF RECORD : DHC Avocats Montréal, Quebec For the appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For the respondent