DM OTT-#120357-V1-CCIA - Reply to National Post Response to Mo

7/28/2019 DM OTT-#120357-V1-CCIA - Reply to National Post Response to Mo

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DM_OTT/285491.00003/120059.8

Court File Nos.: A-394-12 and A-395-12

FEDERAL COURT OF APPEAL

BETWEEN:

RICHARD WARMAN AND NATIONAL POST COMPANY

Appellants

-and-

MARK FOURNIER AND CONSTANCE FOURNIER

Respondents

REPLY OF THE PROPOSED INTERVENER

THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION

(Motion for leave to intervene, to be heard in writing)

(Rules 109 and 369 of the Federal Courts Rules)

Fasken Martineau DuMoulin LLP

55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5

Jay Kerr-Wilson

Ariel ThomasTel: 613-236-3882

Fax: 613-230-6423

Solicitors for the Computer andCommunications Industry Association


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DM_OTT/285491.00003/120059.8

TO: The Registry

Federal Court of Appeal

Thomas D'Arcy McGee Building90 Sparks Street, 5th floor

Ottawa, Ontario

K1A 0H9

AND TO: Brazeau Seller LLP

55 Metcalfe Street, Suite 750

James Katz

Tel: 613-237-4000

Fax: [email protected]

Solicitors for the Appellant,Richard Warman

AND TO: Cassels Brock & Blackwell LLP2100 Scotia Plaza

40 King Street West, Suite 750

Casey M. ChisickTel: 416-869-5403

Fax: 416-644-9326

[email protected]

Jason Beitchman

Tel: 416-860-2988Fax: 647-259-7993

[email protected]

Solicitors for the Appellant,

National Post Company

AND TO: Mark Fournier

Constance Fournier

2000 Unity Road

Elginburg, ON

Tel: 613-929-9265

Fax: 609-379-8793

Respondents


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DM_OTT/285491.00003/120059.8

TABLE OF CONTENTS

Tab Title Pag

1 Reply written representations of the CCIA 1

This Appeal raises public interest questions that the CCIA is well suited to address 1

The CCIA is not encouraging a particular outcome of the case 2

CCIAs members interest in the legal principles raised in this Appeal is not merely

jurisprudential

2

The issue of compliance with the Berne Convention is important to the proper

determination of the issues

3

CCIAs proposed intervention would not duplicate CIPPICs 4

Conclusion 4

Authorities

2 Canada (Attorney General) v Professional Institute of the Public Service of Canada,

2010 FCA 217

6

3 Canadian Association of Broadcasters v Canada, 2007 FCA 233 8

4 Canadian Taxpayers Federation v Benoit, 2001 FCA 71 19

5 Fishing Vessel Owners' Assn. of British Columbia v Canada (Attorney General),

[1985] FCJ No 110

24

6 Globalive Wireless Management Corp. v Public Mobile Inc., 2011 FCA 119 30

7 Merck Frosst Canada Inc. v Canada (Minister of National Health and Welfare),

[1997] FCJ No. 155; [1997] ACF No 155

38

8 Rothmans, Benson & Hedges Inc v Canada (Attorney General) (CA) [1990] 1 FC 90 41


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DM_OTT/285491.00003/120059.8

Court File Nos.: A-394-12 and A-395-12


BETWEEN:

RICHARD WARMAN AND NATIONAL POST COMPANY

Appellants

-and-

MARK FOURNIER AND CONSTANCE FOURNIER

Respondents

REPLY WRITTEN REPRESENTATIONS OF THE PROPOSED INTERVENER

THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION

(Motion for leave to intervene)

Fasken Martineau DuMoulin LLP55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5

Jay Kerr-WilsonAriel Thomas

Tel: 613-236-3882

Fax: 613-230-6423

Solicitors for the Computer and

Communications Industry Association


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DM_OTT/285491.00003/120059.8

1. This is the reply of the proposed intervener, the Computer and Communications Industry

Association (CCIA), to the responding submissions of the Appellant National Post

Company (National Post or the Appellant).

2. The National Post has opposed the CCIAs intervention in this Appeal. The CCIA

maintains that it should be granted leave to intervene for the following reasons.

This Appeal raises public interest questions that the CCIA is well-suited to address

3. This Appeal is about the application of general copyright law principles to activities

related to the operation of the World Wide Web. The general legal questions the National

Post has raised in its Appealthe interpretation of the users rights to make insubstantialcopies and to deal fairly for the purpose of news reportingare two important issues that

are well within the public interest.

4. The CCIA is genuinely interested in the issues raised in this Appeal, and it has special

knowledge and expertise related to those issues. This Court found in Rothmans Benson &

Hedges that these qualities justify the granting of intervener status.

Rothmans, Benson & Hedges I nc. v Canada (Attor ney General )(CA) [1990] 1 FC 90

[Rothmans]

5. This Court also noted inRothmans that the general question of law at issue, section 1 of

the Charter of Rights and Freedoms, was an area in which the law [was] rapidly

developing and that there were therefore no good reasons to unduly restrict

interventions. Similarly, the application of copyright law online is a rapidly developing

area of the law, and the purpose of the CCIAs proposed intervention in this Appeal is to

attempt to ensure that the Court will not put in place obligations or potential liability that

will affect CCIA members activities.

Rothmansat para. 3

6. The CCIA is well situated to address these questions.

7. The National Post has opposed the CCIAs proposed intervention, in part because it

argues that the intervention would be duplicative of CIPPICs proposed intervention.

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However, the CCIA and CIPPIC approach the issue from two very different viewpoints,

each of which would be useful to the Court.

8. The CCIA, made up of commercial entities that are central to the operation of the Web, is

able to inform the Court of its decisions potential effects on the commercial sphere.

CIPPIC, on the other hand, is able to inform the Court of the potential effects of its

decision on individual citizens.

The CCIA is not encouraging a particular outcome of the case

9. The National Post has criticized the CCIA by claiming that it, unlike CIPPIC, is

encouraging a particular outcome of the case.

10. This claim is not accurate. The CCIAs phrasing in describing the issues at stake in this

proceeding differs from CIPPICs, but the CCIA is equally disinterested in the

disposition of this dispute between the parties. The CCIA is concerned with the legal

effect of this Courts particular decision when it decides, for the first time, the principles

of law at stake in this important proceeding.

CCIAs members interest in the legal principles raised in this Appeal is not merely

jurisprudential

11. The National Post claims that the CCIAs interest in this Appeal is merely

jurisprudential.

12. It is true that the CCIA seeks leave to intervene in this Appeal in order to assist the Court

in the development of important principles of law. However, the CCIAs members are

legitimate business stakeholders whose activities are similar, although not identical, to

those being questioned in this Appeal.

13. The CCIA is not merely concerned about the decisions repercussions, as the National

Post argues, but about the specific risk that this Courts decision could pose to its

members.

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14. Similarly, in Merck Frosst Canada Inc. v. Canada (Minister of National Health and

Welfare), the Federal Court allowed two companies intervener status because they had

legal interests that transcended mere commercial interests and that would be affected by

the Courts decision. Further, as is the case here, the companies interests were different

than the respondents and their intervention did not prejudice the parties.

Merck F rosst Canada Inc. v Canada (Mini ster of National H ealth and Welf are), 1997]

FCJ No 155; [1997] ACF no 155, at para. 16

15. This Court also permitted an intervention by two groups of cable television distributors

who had been feepayers under a Canadian Radio-television and Telecommunications

Commission scheme, the quashing of which was under appeal. The distributors were

found to be similarly situated to the parties. Further, it is worth noting that the two groups

of interveners in that case were permitted to make their submissions as two separate

groups, despite their identical interests in the case.

Canadian Associati on of Br oadcasters v. Canada, 2007 FCA 233

16. The outcome of this Appeal could have wide-ranging implications with the potential to

negatively affect the ability to legitimately disseminate news summaries online. As

entities that are engaged in this vital function, the members of CCIA have a direct interest

in the Courts approach to resolving the dispute the between the parties.

The issue of compliance with the Berne Convention is important to the proper

determination of the issues

17. One of the most useful functions interveners can serve is their ability to bring relevant but

heretofore unmentioned issues before the Court.

18.

This Court has found that where important public interest issues are raised, if anintervener wishes to raise a related public interest issue which naturally arises out of the

existing dispute between the parties, and which none of the other parties have raised, the

intervention is appropriate.

Canadian Taxpayers Federati on v. Benoi t, 2001 FCA 71

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19. The parties have not brought the issue of the compliance of the National Posts proposed

interpretation of subsection 3(1) of the Copyright Act with Article 10(1) of the Berne

Convention before the Court. The CCIAs intervention would thus bring the debate over

and beyond what is already available to the Court through the parties and through the

proposed intervener CIPPIC. This Court has required such a raising of the debate in order

to grant leave to intervene.

Canada (Attor ney General ) v. Prof essional I nstitu te of the Publi c Service of Canada,

2010 FCA 217 at para. 4

CCIAs proposed intervention would not duplicate CIPPICs

20.

The National Post claims, interestingly, that the CCIA's proposed intervention should notbe permitted because it is duplicative of CIPPIC's and because it raises an issue that

CIPPIC did not raise.

21. The two proposed interveners are clearly different, however. CIPPIC represents the

public interest and the CCIA represents the broad spectrum of businesses that may be

directly affected by the legal decisions this Court makes in determining the outcome of

this Appeal.

22. The CCIAs perspective differs from CIPPICs in that it is the CCIAs members

economic interest in the legal issues, as opposed to CIPPICs interest in the publics

access to copyright works, that justifies its intervention. An economic interest in the

appeal was found to justify intervention in Fishing Vessel Owners Assn. of British

Columbia v. Canada (Attorney General).

F ishing Vessel Owners' Assn. of Br iti sh Columbia v. Canada (Attorney General ),

[1985] FCJ No 110

Conclusion

23. The CCIA has a genuine interest that goes beyond a purely jurisprudential interest and an

ability to assist the Court in determining the legal issues in this Appeal. As this Court

found in Globalive Wireless Management Corp. v. Public Mobile Inc., those factors are

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DM_OTT/285491.00003/120059.8

sufficient to justify the CCIAs intervention and it is not necessary for proposed

interveners to establish that they meet all of the relevant factors set out in the case law,

including whether they will be directly affected by the outcome.

Globalive Wir eless Management Corp. v. Publi c Mobile I nc., 2011 FCA 119

24. The CCIA is not seeking to introduce evidence, is asking for reasonable timelines within

which to submit its arguments, and its intervention will not prejudice the parties.

25. The balance of convenience favours allowing the intervention. Since there would be no

inconvenience or prejudice to the parties, if the intervention offers the Court any potential

beneficial effect, the Court should grant the intervention.

Dated at OTTAWA this 31st

day of May, 2013.

______________________________

Fasken Martineau DuMoulin LLP

55 Metcalfe St., Suite 1300

Ottawa, ON K1P 6L5

Jay Kerr-Wilson

Ariel Thomas

Tel: 613-236-3882Fax: 613-230-6423

Solicitors for the Computer andCommunications Industry Association

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Date: 20070613

Dockets: A-591-06

A-17-07A-590-06A-18-07

Citation: 2007 FCA 233

Present: NOL J.A.

BETWEEN:

A-591-06 and A-17-07

CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION),GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285

INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RSEAU DES SPORTS (RDS) INC.,THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE

NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORKQUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM

LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. andPULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS)

Appellants

and

HER MAJESTY THE QUEEN

Respondent

AND BETWEEN:A-590-06 and A-18-07

VIDOTRON LTE, VIDOTRON (RGIONAL) LTE,and CF CABLE TV INC. (VIDEOTRON APPELLANTS)

Appellants

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Page: 2

and


Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on June 13, 2007.

REASONS FOR ORDER BY: NOL J.A.

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Date: 20070613

Dockets: A-591-06

A-17-07A-590-06A-18-07


Present: NOL J.A.

BETWEEN:

A-591-06 and A-17-07

CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION),GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285

INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RSEAU DES SPORTS (RDS) INC.,THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE

NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORKQUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM

LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. andPULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS)

Appellants

and


Respondent

AND BETWEEN:A-590-06 and A-18-07

VIDOTRON LTE, VIDOTRON (RGIONAL) LTE,and CF CABLE TV INC. (VIDEOTRON APPELLANTS)

Appellants

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and


Respondent

REASONS FOR ORDER

NOL J.A.

[1] These are motions by two groups of feepayers under theBroadcasting Licence Fee

Regulations, 1997, SOR/97-144 (the Regulations) Bell ExpressVu Inc., Rogers Cable

Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc. on the one hand

and Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services

Inc. on the other who seek leave to intervene in the consolidated appeals from a decision of Shore

J. dated December 14, 2006.

[2] By this decision, Shore J. held that Part II Licence Fees collected pursuant to section 11 of

the Regulations are, in fact and in law, a tax. Consequently, he declared such fees to be ultra vires

the authority conferred on the Canadian Radio-television and Telecommunications Commission

(the CRTC) by section 11 of theBroadcasting Act. However, he went on to hold that money paid

under legislation later found to be invalid is not recoverable and therefore declined to issue a

declaration that the appellants are entitled to the recovery of the Part II Licence Fees they had paid.

[3] By their respective appeals, the appellants challenge this refusal as well as Shore Js

decision to suspend the declaration of invalidity for a six month period. The respondent, Her

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Majesty the Queen, has cross-appealed seeking to set aside Shore J.s declaration that the Part II

Licence Fees are a tax; and that section 11 of the Regulations is ultra vires.

[4] The proposed interveners are feepayers under the Scheme which was ruled to be invalid by

the decision under appeal. They maintain that as a result of the recent decision of the Supreme

Court inKingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1 (QL) (Kingstreet),

they have a direct interest in the outcome of the proceedings on appeal. They refer in particular to

the following passage inKingstreet(at para. 55):

There is a second concern which arises in cases where monies have been paid topublic authorities pursuant to unconstitutional legislation or as a result of themisapplication of an otherwise valid law. In Eurig, for example, payment under

protest and the commencement of legal proceedings was held to be sufficient totrigger the exception allowing recovery. The end result is that whenever a tax isdeclared ultra vires, only the successful litigants will be granted recovery of theunconstitutional charges. All other similarly situated persons will not benefit fromthe Courts holding. This raises concerns about horizontal equity that are similar to

those raised by the doctrine of constitutional exemption. This Court has alluded tosuch concerns in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R.405, 2002 SCC 13, and inMiron v. Trudel, [1995] 2 S.C.R. 418. In my view,constitutional law should apply fairly and evenly, so that all similarly situated

persons are treated the same. [Emphasis added]

[5] The proposed interveners seek, as two separate groups, leave to make representations in

order to insure that their interests, as similarly situated persons, are properly represented. They

seek to intervene with respect to this issue on terms that each be allowed to produce a 30 page

memorandum and make oral submissions for a 60 minute period.

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[6] The Crown opposes the motions. The appellants consent, subject to theproviso that the

combined time for oral submissions by the proposed interveners be limited to 60 minutes.

DECISION

[7] I am satisfied that, as similarly situated persons, the proposed interveners have a direct

interest in the outcome of the proceedings before this Court. The Crown acknowledges as much but

nevertheless opposes the motions based on its view that what is being sought by the proposed

interveners is, in effect, a joinder of parties with the view of obtaining restitution of the fees they

have paid as non-party feepayers. According to the Crown, the issue of reimbursement at large or

with respect to individual non-party feepayers is a new one with respect to which no evidence was

led at trial since it was never raised. Counsel points out for instance that limitations period continue

to apply. Raising the issue of reimbursement at this stage, Counsel argues, would be highly

prejudicial.

[8] In response, the proposed interveners argue in separate submissions that the Crown has

fundamentally mischaracterized the relief which they seek. They do not seek to participate as

parties or add new evidence to the existing record. Indeed, they acknowledge that separate actions

may be required in each case to obtain reimbursement. They submit that their concern at this stage

is with respect to the law that would apply to any such action given the decision of the Supreme

Court inKingstreet.

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[9] I am satisfied that the proposed interventions, so understood and so limited, will cause no

prejudice to the Crown. I am also satisfied that it could be useful for the panel members hearing the

appeals to have the perspective of the proposed interveners given that their decision may affect the

rights of non-party feepayers.

[10] The only other basis for resisting the interventions is the assertion by the Crown that the

Canadian Association of Broadcasters (the CAB), as a party appellant, is in as good a position as

the proposed interveners to advance arguments relating to similarly situated persons.

[11] However, the CAB itself appears to be of the view that the proposed interveners do bring a

different perspective since it has consented to the proposed intervention. In this respect, I note that

the CAB has already filed its Factum and has not addressed the aspects ofKingstreetrelating to

similarly situated non-party feepayers. Based on the existing record, it cannot be said that the CAB

will adequately advance the interests of the proposed interveners.

[12] Finally, no objection has been raised with respect to the fact that the proposed interveners

wish to advance their argument as two separate groups.

[13] Leave to intervene will therefore be granted on the issue of horizontal equity and the

treatment of similarly situated persons arising from the decision of the Supreme Court in

Kingstreet. Because the two groups of interveners will be advocating essentially the same position,

albeit in the perspective of their respective group, a 20 page memorandum in each case appears

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sufficient. In the same vein, oral presentations of 30 minutes for each group as suggested by the

appellants seem sufficient subject to the discretion of the panel hearing the appeals to vary this

allocation.

[14] An order is issued accordingly.

Marc NolJ.A.

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NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS: A-591-06 and A-17-07And A-590-06 and A-18-07

STYLE OF CAUSE: A-591-06 and A-17-07CANADIAN ASSOCIATION OFBROADCASTERS (THE APPELLANTASSOCIATION), GROUP TVA INC., CTV

TELEVISION INC., THE SPORTS NETWORKINC., 2953285 INC. (o.b.a. DISCOVERYCHANNEL CANADA), LE RSEAU DESSPORTS (RDS) INC., THE COMEDYNETWORK INC., 1163031 ONTARIO INC.(o.b.a. OUTDOOR LIFE NETWORK),CANWEST MEDIAWORKS INC., GLOBALTELEVISION NETWORK QUEBEC LIMITEDPARTNERSHIP, PRIME TV, GENERALPARTNERSHIP, CHUM LIMITED, CHUMOTTAWA INC., CHUM TELEVISION

VANCOUVER INC. and PULSE24 GENERALPARTNERSHIP (THE CORPORATEAPPELLANTS) and HER MAJESTY THEQUEEN

ANDA-590-06 and A-18-07VIDEOTRON LTE, VIDOTRON(RGIONAL) LTE, and CF CABLE TV INC.(VIDEOTRON APPELLANTS) and HERMAJESTY THE QUEEN

MOTIONS DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: NOL J.A.

DATED: June 13, 2007

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WRITTEN REPRESENTATIONS BY:

Barbara A. McIsaac, Q.C.R. Benjamin MillsHoward R. Fohr

FOR THE APPELLANTSThe Canadian Association ofBroadcasters(A-591-06 & A-17-07)

Daniel UrbasCarl Souquet

FOR THE APPELLANTSVidotron Lte et al.(A-590-06 & A-18-07)

F.B. (Rick) WoyiwadaR Jeff Anderson

FOR THE RESPONDENT(A-591-06 & A-17-07)

Francisco CoutoAlexander Pless


Neil Finkelstein (LSUC #21640K)Catherine Beagan Flood (LSUC #43013U)Simon Heeney (LSUC #51529R)

FOR THE INTERVENERSBell ExpressVu Inc., Rogers CableCommunications Inc., Cogeco Cable

Canada Inc. and Cogeco Cable QuebecInc.

Charles F. ScottMichael J. Sims

FOR THE INTERVENERSShaw Communications Inc., StarChoice Television Networks Inc. andShaw Satellite Services Inc.

SOLICITORS OF RECORD:

McCARTHY TTRAULT LLPOttawa, Ontario

FOR THE APPELLANTSThe Canadian Association ofBroadcasters et al.(A-591-06 & A-17-07)

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BORDEN LADNER GERVAIS srl/LLPMontral, Quebec

FOR THE APPELLANTSVidotron Lte et al.

(A-590-06 & A-18-07)

JOHN H. SIMS, Q.C.Deputy Attorney General of CanadaOttawa, Ontario


JOHN H. SIMS, Q.C.Deputy Attorney General of CanadaMontral, Quebec


BLAKE, CASSELS & GRAYDON LLPToronto, Ontario

FOR THE INTERVENERSBell ExpressVu Inc., Rogers CableCommunications Inc., Cogeco CableCanada Inc. and Cogeco Cable QuebecInc.

LAX OSULLIVAN SCOTT LLPToronto, Ontario

FOR THE INTERVENERSShaw Communications Inc., StarChoice Television Networks Inc. andShaw Satellite Services Inc.

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Date: 20010316

Docket: A-464-00


CORAM: STRAYER J.A.

LINDEN J.A.

SEXTON J.A.

BETWEEN:

CANADIAN TAXPAYERS FEDERATION

Appellant

- and -

CHARLES JOHN GORDON BENOIT,

JOAN ELIZABETH BENOIT,

GORDON JAMES ALFRED BENOIT,

ATHABASKA TRIBAL CORPORATION, and

THE NORTHWEST TERRITORIES TREATY 8 TRIBAL COUNCIL, and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA and

THE ATTORNEY GENERAL OF ALBERTA

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered orally from the Bench in Vancouver, B.C.

Thursday, March 15, 2001)

SEXTON J.A.

[1] In this action, the Plaintiffs, who are Indians as defined in theIndian Act, claim thatby virtue of a treaty (Treaty #8), Her Majesty the Queen in right of Canada ("The Queen")

cannot impose tax of any kind upon them. The Queen in her defence, denies that the treaty

prevents her from imposing tax upon the Plaintiffs and says alternatively if there ever was an

exemption from taxation it was extinguished. The Queen, further says that "a limitation of thePlaintiffs' alleged exemption is justified by the valid legislative objective of providing public

funding to finance the many and diverse needs of people in Canada, who include the Plaintiffs,and by public objectives including economic fairness and regional fairness".

[2] The Appellant was incorporated federally in 1991 as a vehicle for people throughout

Canada concerned about all types of taxation in the Country. It has offices in Ottawa, B.C.,Alberta, Saskatchewan and Manitoba and has approximately 40,000 paying supporters in

Canada. The Appellant is not affiliated with any political party and does not accept government

grants or financial concessions.

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http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html


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[3] The Applicant, has a fundamental objective in its public activities and in this action,

to seek to uphold the principle that all Canadian taxpayers should be treated equally in taxation

matters before and under the law with the right to the equal protection and equal benefit of thelaw without discrimination based on race, national or ethnic origin, colour or religion.

[4] The Appellant and its members are concerned that if the Federal Court upholds the

Plaintiffs' claim that, as Indians they are exempt from imposition of any tax on them by Canadaand the Province of Alberta, the effect of a judgment affirming such claim would be to amend bynecessary implication every federal and Alberta statute dealing with taxes or tax-like charges so

as to exempt on racial grounds a particular class of people and impose, on racial grounds, such

taxes and charges on the remaining classes of people.

[5] The Appellant wishes to intervene in this action so as to raise this issue because The

Queen has not raised it. The Appellant says that its membership will be affected by the outcome

in this case, and that there therefore, it has a genuine public interest. It says that this issue will

not be raised unless the Appellant is allowed to intervene and that there is an important publicissue involved.

[6] Before the Motions Judge, the Appellant sought to be added as a defendant oralternatively to be allowed to intervene. The Motions Judge dismissed the Appellant's motion in

its entirety. He said that in order for the Appellant to be added as an Defendant, it must be shownthat a cause of action exists between the Plaintiffs and the Appellant over which this Court has

jurisdiction. He found that no such cause of action exists.

[7] With respect to the request to intervene pursuant to Rule 109, he found that the

Appellant had failed to show that The Queen was constrained in her defence of the presentaction. The Appellant had argued before him that the Queen is bound by many constitutional,

statutory and other legal responsibilities and fiduciary obligations to Indians and must

necessarily be constrained from making submissions or arguments perceived to be against theinterests of the Plaintiffs. The Appellant further argued that it was not so constrained.

[8] The Respondents Athabaska Tribal Corporation and the Northwest TerritoriesTreaty 8 Tribal Council were earlier in the proceeding granted leave to intervene and weresubsequently added as plaintiffs in the action. On the return of the Appellant's Motion, before the

Motions Judge Her Majesty the Queen and the Attorney General of Alberta did not oppose the

Appellant's application to intervene nor have they taken any position on this appeal.

[9] The Appellant has appealed only the decision of the Motions Judge relating to its

motion for leave to intervene.

[10] TheFederal Court Rules provide for intervention in Rule 109:

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

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

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

proposed interverner; and

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(b) describe how the proposed intervener wishes to participate in the proceeding and how that

participation will assist in the determination of a factual or legal issue related to the proceeding.

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

(a) the service of documents;

(b) the role of the intervener, including costs, rights of appeal and any other matters relating tothe procedure to be followed by the intervener.

[11] On this appeal, the Appellant argues that the issue of equality before and under the

law sought to be raised by the Appellant is not encompassed within the Queen's Amended

Defence and is of such constitutional and statutory importance that it ought to be dealt with bythe Court in this action and that the failure of the Crown to raise the issue warrants an order

granting the Appellant leave to intervene.

[12] In support of its position the Appellant wishes to rely on theConstitution Act, 1867,

the Charter of the United Nations to which Canada is a party, the Universal Declaration ofHuman Rights to which Canada is a party, the United Nations Declaration on the Elimination of

all Forms of Racial Discrimination which Canada has joined in, the International Convention on

the Elimination of All forms of Racial Discrimination 1965 which Canada has joined in, theInternational Covenant on Civil and Political Rights - December 1966 which Canada became a

party to, theCitizenship Act, the Charter and the Canadian Multicultural Act.

[13] The Order of the Motions Judge is discretionary and the test for review of this

exercise of discretion is whether the judge in first instance has given sufficient weight to allrelevant considerations.

[1]

[14] The only reason given by the Motions Judge for refusing the Appellants request to

intervene was that he found no evidence to support the Appellant's assertion that the Queen was

constrained in her defence and therefore he concluded that the Appellant's participation wouldnot assist in the determination of a factual or legal issue in the action.

[15] This Court, in Canadian Union of Public Employees (Airline Division) v. Canadian

Airlines International Ltd.[2]

set out the factors which might be considered on a motion to

intervene. They are:

1) Is the proposed intervener directly affected by the outcome?

2) Does there exist a justiciable issue and a veritable public interest?

3) Is there an apparent lack of any other reasonable or efficient means to submit thequestion of the Court?

4) Is the position of the proposed intervener adequately defended by one of the parties tothe case?

5) Are the interests of justice better served by the intervention of the proposed third

party?

6) Can the Court hear and decide the cause on its merits without the proposed intervener?

21
http://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.htmlhttp://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.htmlhttp://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-29/latest/rsc-1985-c-c-29.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-29/latest/rsc-1985-c-c-29.htmlhttp://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-29/latest/rsc-1985-c-c-29.htmlhttp://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn1http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn1http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn1http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn2http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn2http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn2http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn2http://www.canlii.org/en/ca/fca/doc/2001/2001fca71/2001fca71.html#_ftn1http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-29/latest/rsc-1985-c-c-29.htmlhttp://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html


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[16] The Motions Judge in his Reasons did not refer to any of these factors nor did he

apparently consider that without the intervention of the Appellant, the issue of whether all

Canadians should be treated equally in taxation matters would be addressed. We thereforebelieve he erred in not giving weight to all relevant considerations. The Appellant has

established:

1) that its members will be affected by the outcome of the litigation;

2) there is a justiciable public interest issue raised;

3) if the Appellant is not allowed to intervene, this issue will not be raised;

4) the interests of justice would be better served by permitting the Appellant to intervene.

[17] The Supreme Court of Canada inR. v. Finta [1993] 150 N.R. 370 said one criteria forallowing intervention is if the intervenor has submissions which will be useful and different from

those of the other parties. That would seem to be the case here.

[18] We are of the view that if in a case where important public interest issues are raised,an intervenor wishes to raise a related public interest question which naturally arises out of the

existing lis between the parties, and which none of the other parties has raised, it is appropriate to

permit the intervention.

[19] We would therefore allow the appeal, set aside the Order of the Motions Judge, andgrant the Appellant leave to intervene in the action on the following basis:

1) The Appellant shall be served with all materials of the other parties.

2) The Appellant will not itself lead evidence but will rely on the evidence adduced by the

parties and on the documents referred to in these reasons as well as any other documents of

which the Court may take judicial notice.

3) The Appellant will be allowed to be present at trial and to make such written and oral

argument as the Trial Judge permits.

4) The Appellant will not seek costs.

5) The Appellant will not itself seek to appeal any judgment, but will be allowed to

participate in any appeal.

(Sgd.) "J.E. Sexton"

J.A.

March 16, 2001

Vancouver, British Columbia

FEDERAL COURT OF CANADA

TRIAL DIVISION


DOCKET: A-464-00

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- 5 -

STYLE OF CAUSE: Canadian Taxpayers Federation v. Charles John

Gordon Benoit et al.

PLACE OF HEARING: Vancouver, BC

DATE OF HEARING: March 15, 2001

REASONS FOR JUDGMENT OF Sexton, J.A.

DATED: March 16, 2001

APPEARANCES:

Norman Mullins FOR APPELANT

Elizabeth Johnson FOR RESPONDENTBENOIT

ET AL.

Everett Bunnell FOR RESPONDENT

ATTORNEY GENERAL OF ABSOLICITORS OF RECORD:

Norman Mullins FOR APPELANT

Vancouver, BC

Ackroyd, Piasta, Roth & Day FOR RESPONDENTBENOIT

Vancouver, BC ET AL.

Parlee McLaws RESPONDENTBENOIT

Calgary, AB ET AL.

[1] SeeReza v. Canada, [1994] S.C.J. No 49 at paragraph 20

[2] [2000] F.C.J. No. 220, Court File A-346-99 (F.C.A.)

23
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Page 1

1 of 2 DOCUMENTS

Indexed as:

FishingVesselOwners' Assn. ofB.C. v. Canada (Attorney

General)

Between

Fishing Vessel Owners' Association of British Columbia,

Pacific Coast Salmon Seiners Association and Prince Rupert

Fishing Vessel Owners Association, Plaintiffs, and

The Attorney General of Canada, The Governor in Council, The

Director General of the Department of Fisheries and Oceans forthe Pacific Region, The "Fisheries Officers", Wayne Shinners

and Her Majesty the Queen in Right of Canada as represented by

the Department of Fisheries and Oceans, Defendants

[1984] F.C.J. No. 613

[1984] A.C.F. no 613

Action No. T-1356-84

Federal Court of Canada - Trial Division

Vancouver, British Columbia

Collier J.

Heard: July 9, 10, 1984

Judgment: July 13, 1984

(11 pp.)

Nils Daugulis, for the Plaintiffs.G.O. Eggertson, for the Defendants.

COLLIER J.:-- The three plaintiffs are societies incorporated under the applicable laws ofBritish Columbia. Most of their members are owners of vessels equipped with purse seine net fish-

ing gear. The vessels are licenced pursuant to the Fisheries Act, R.S.C. 1970 c. F-14, as amended.

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Page 2

The members of the first plaintiff represent approximately 120 to 150 vessels. The members of the

third plaintiff represent approximately 75 vessels. No figures were given in respect of the vessels

represented by members of the second plaintiff. That plaintiff has approximately 277 members,

made up of purse seine vessel owners and crew members.

In this action, the plaintiffs seek a declaration that a proposed fishing plan, outlined by theDepartment of Fisheries and Oceans in respect of areas 12, 13, 16 and 23 of the Pacific Region, is

beyond the legislative power of parliament, or beyond the powers given to the defendants pursuant

to the Fisheries Act. Injunctive relief is also sought. Judicial review by way of certiorari, prohibitionand mandamus is claimed, as well. Finally, damages are asked for.

The present proceeding before this Court is a motion, by the plaintiffs, for an interlocutory

injunction and other incidental relief. The plaintiffs also seek, as an alternative, judicial review of

the proposed fishing plan. Prohibition, certiorari and mandamus are resorted to, each as alternative

remedies.

In March 1984, officials and officers of the Department of Fisheries and Oceans issued a

document "The 1984 Commercial Fishing Guide" for the Pacific Regions. At page 42, the followingstatements were made:

SALMON MANAGEMENT OVERVIEW AN OBJECTIVES

It was anticipated that 1984 would see the initiation of a number of new man-

agement practices including area and gear licensing and catch allocation by gear

type. However the department has not yet agreed to recommendations from var-ious advisory groups. The 1984 salmon fishing season will therefore commence

with few changes from past years.

The gillnet share of the commercial catch reached an all-time low in 1983. Action taken to

prevent the continuing decline in the gillnet share was insufficient, and therefore, different ap-proaches will be taken in 1984. In areas open to both net gear, the gillnet fleet will be given addi-

tional fishing time in order to achieve a fair share of the coastwide catch. In areas where increased

fishing time will not resolve the catch share problem, there will be additional fishing areas provided.

The 1984 expectations are for poor returns of most species in most areas and the

department is committed to halting the decline of depleted stocks. Fishermen

should be prepared for further cuts in fishing time and area wherever conserva-tion problems are identified.

The present situation in the Pacific Region is this. In all areas or sub-areas, for all species of

salmon, and for gillnet, purse seine and trolling gear, there is complete closure from January 1 to

December 31. The Governor-in-Council passed that regulation in 1982.

Presumably the Department of Fisheries and Oceans (and the Governor-in-Council) decidedto impose complete closure for protection and conservation reasons. That, in my view, is a prime

purpose of the Fisheries Act, and of Parliament's legislative power in respect of sea coast and inland

fisheries. Management and control of the fisheries, necessarily incidental to their protection is, tomy mind, also permitted under the legislative power and by the Fisheries Act. See:

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Page 3

A.G. for Canada v. A.G. for B.C. [1930]

A.C. 111 (J.C.P.C.) affirming Supreme Court of

Canada (1928) S.C.R. 457.

Fowler v. The Queen (1980] 2 S.C.R. 213, and the cases there re-ferred to.

B.C. Packers Limited et al v. C.L.R.B.[1976] 1 F.C. 375 (F.C.A.)

By paragraph 34(m) of the statute, the Governor-in-Council may make regulations

(m) authorizing a person engaged or employed in the administration or en-

forcement of this Act to vary any close time or fishing quota that has beenfixed by the regulations. 1960-61, c. 23, s. 5; 1970 (1st Supp) c. 17, s. 4.

The regulations presently provide as follows:

5(1) The Regional Director or a fishery officer may vary any fishing quota

or close time set out in these Regulations in respect of any river, Area or

Subarea.

The purpose of this scheme, as I see it, is to permit salmon to be harvested in certain areas atcertain times, where the resource is, in those particular areas and at those particular times, thought

to have been otherwise sufficiently protected or conserved.

I turn now to the evidence on this motion.

The Department of Fisheries and Oceans proposed, in areas 12, 13, 16 and 23, that vesselsusing gill net gear would have, during certain "open periods", more fishing time than vessels usingpurse seine gear. The proposal also provided that gill netters would fish in advance of the opening

for seiners.

This proposal was in fact carried out in area 23 in June of 1984. But at the time this motion

was heard, any openings had expired. There was no commercial salmon fishing in any of the areasnow in question.

It is evident, however, the Department will implement the future openings set out, unless oth-

er considerations, related to conservation and protection, intervene.

The affidavit evidence on behalf of the plaintiffs showed clearly, in my view, the allocation of

catch between gill net and purse seine vessels was not based on considerations of protection, orconservation of the salmon resources in general, or of any species in particular.

An affidavit was filed by David C. Schutz on behalf of the defendants. Schutz is the Regional

Salmon Co-ordinator for the Pacific Region. His affidavit, sworn July 6, 1984, purported to state

that the scheduled opening times, and the differentiation between gill netters and seiners, was forconservation and protection of the Chinook salmon species in particular. Schutz' affidavit was based

on second-hand information from Mr McCullough, the District Supervisor, Field Operations, West

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Page 4

Coast of Vancouver Island, and from Mr Allan Gould, Salmon Management Biologist, South Coast

Division.

I do not accept the statement nor the inference in this affidavit that the proposed allocation of

fishing times in the areas in question was based on conservation or protection considerations.

The affidavit evidence adduced on behalf of the plaintiffs describes discussion, following theproposed fishing plan in the areas in question, among fishermen and department personnel. No

mention was ever made of any conservation or protective reasons for the plan. The departmental

personnel, when questioned on the matter at those meetings, said the plan was to ensure that gillnetters got a fair or increased share of the catch.

Mr Schutz was at a meeting on May 9, 1984 along with the Director General and others. John

Lenic, president of the first plaintiff, was at that meeting. His evidence is as follows:

25. That subsequent to promulagation of the 1984 Plan, we did hold a meeting withthe Department to make our views known. On May 9, 1984, we held a meeting at

the offices of the Department of Fisheries in Vancouver. Present at the meetingon behalf of the Fishing Vessel Owners' Association of British Columbia were

Mr. Luiz Sousa, Secretary of the Association, Mr. John Reid, Director, Mr. VinceFiamengo, Vice-President of the Association and myself. Other Associations

were also represented, namely the Native Brotherhood, the Prince Rupert Vessel

Owners' Association and the Salmon Seiners Association. The Department ofFisheries was represeted by Wayne Shinners, Director General, Pacific Region,

Dave Schutz, Regional Salmon Co-ordinator and David Reid, Department

Economist. The industry representatives were present to object to the proposedpolicies of the Department as set out in the 1984 Commercial Fishing Guide. We

were advised by Mr. Shinners that it was the Department's view that the gillnet

share had declined and it was their intention in accordance with the 1984 Plan toensure that the gillnets caught a greater proportion of the allowable catch. At notime during the course of the meetiing was any conservation reason offered for

the proposals. ...

Mr Schutz, in his affidavit, does not deal with, nor deny, what went on at that meeting. John

C. Reid, in his affidavit, described a meeting held on June 24, 1984 with representatives of the fish-ing industry and the department. The regional director was there, as was Mr McCullough, earlier

referred to. Reid asked the department representatives for the reason for additional time for gill net-

ters. The regional director said he wanted to make sure the gill netters would be a viable group; hewas going to make sure they got their share. At no time, according to Reid, were any conservation

or protection reasons given.

That evidence adduced by the plaintiffs is uncontradicted.

I am satisfied the proposal for areas 12, 13, 16 and 23, trying to divert a greater portion of the

allowable catch to gill netters, was not based on any ground of protection or conservation. Nor was

it related to management or control necessarily incidental to protection or conservation. I conclude,from the evidence, the sole ground was socioeconomic: to ensure that a greater portion of the salm-

on fishing industry business and its source of economic livelihood went to fishermen who used gill

net gear.

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Page 5

I made similar statements at the end of the hearing of argument on this motion. I then said I

would reserve judgment, primarily to consider what relief, if any, I could give.

The plaintiffs are, in my view, entitled to an interlocutory injunction restraining the regional

director or any fishing officer from varying any fishing quota or close time in the manner as set out

in the 1984 Commercial Fishing Guide. The interim injunction will, of course, only apply where adistinction is made between vessels using gill net gear and vessels using purse seine gear. It will be

restricted to areas 12, 13, 16 and 23.

Mr Eggertson, counsel for the defendants, candidly conceded the plaintiffs' claim in this ac-tion is not frivolous or vexatious; there is a serious question to be tried (see American Cyanamid

Co. v, Ethicon Ltd. (1975) A.C. 396). That case has been referred to, without criticism, in decisions

of the Federal Court of Appeal [See for example, Bulman Group Ltd. v. Alpha One-Write Systems

Ltd. (1981) 54 C.P.R. (2d) 79 and Cutter Ltd. v. Baxter Travenol Laboratories of Canada Ltd.

(1980) 47 C.P.R. (2d) 53.]. It has been followed many times by members of the Trial Division ofthis Court and by other courts.

Following the Cyanamid principles, I turn now to the balance of convenience. I am satisfiedthat if the plaintiffs succeed at trial in establishing a right to a permanent injunction, they would not

be adequately compensated by an award of damages. Indeed, it seems unlikely the plaintiffs andtheir members could legally fix any of the defendants with liability for damages.

Counsel for the defendants relied on the next step in the Cyanamid process. He pointed out

the plaintiffs had not given any undertaking to pay damages which the defendant might suffer; fur-

ther the defendants could not be adequately compensated, by way of monetary damages, if it shouldbe found, in the interim period between now and trial, they could lawfully have opened or varied the

close times as they propose to do.

I am unable to see what damage the defendants will suffer if an interim injunction is granted.

It was said the gill netters would likely suffer damage if they were not permitted additional fishingtime over that of purse seiners. But the quarrel here is not between gill netters and purse seiners.

The dispute is between seiners and the defendants over the claimed right to differentiate against

purse seiners in favour of gill netters. A somewhat similar situation arose in Waste Not Wanted Inc.v. The Queen et al, (unreported, T-657-84, Reasons dated May 16, 1984). There I granted an inter-

im injunction.

In the circumstances here, I do not think it necessary to exact from the plaintiffs an undertak-

ing as to damages. That undertaking is usually, as a matter of practice in this court, required. But awide discretion, as to the terms and conditions on which an injunction will be granted, is given by s.

44 of the Federal Court Act. It seems to me the kind of suit before me is one where my discretion

should be exercised by dispensing with the undertaking. [See Corporation of Delta v. Nationwide

Auctions Inc. et al (1980) 100 D.L.R. (3d) 272 (Locke, J. S.C.B.C.) where an undertaking as todamages was not required.]

Finally, on the whole matter of balance of convenience, it is proper, in some cases, to consid-

er the relative strength of the case of each party. [See the Cyanamid case, at p. 409, letters A to C.]

The plaintiffs here, have, to my mind, a strong case.

Further legal grounds for the interlocutory injunctive relief and for certiorari and prohibitionwere advanced by the plaintiffs. There was, for example, a contention that the regulation, permitting

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Page 6

the regional director or fishery officers to vary a close time, was an improper delegation of authority

by the Governor-in-Council. I express no opinion, one way or the other, on that argument, or on the

other legal arguments advanced on behalf of the plaintiffs.

In respect of relief by way of certiorari or prohibition, I also do not propose to express any

opinion, one way or the other, on the arguments advanced. It is unnecessary to do so, in view of theconclusion I have come to as to injunctive relief.

The costs of this motion are in the cause.

COLLIER J.

29


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Date: 20110328

Docket: A-78-11


Present: STRATAS J.A.

BETWEEN:

GLOBALIVE WIRELESS MANAGEMENT CORP.

Appellant

and

PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA,

AND TELUS COMMUNICATIONS COMPANY

Respondents

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on March 28, 2011.

REASONS FOR ORDER BY: STRATAS J.A.

Federal Court

of Appeal

Cour d'appel

fdrale

30


35/47

Date: 20110328

Docket: A-78-11


Present: STRATAS J.A.

BETWEEN:

GLOBALIVE WIRELESS MANAGEMENT CORP.

Appellant

and

PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA,

AND TELUS COMMUNICATIONS COMPANY

Respondents

REASONS FOR ORDER

STRATAS J.A.

[1] The moving parties, Alliance of Canadian Cinema, Television and Radio Artists,

Communications, Energy and Paperworkers Union of Canada, and Friends of Canadian

Broadcasting (the moving parties), move under rule 109 for leave to intervene in this appeal.

Federal Court

of Appeal

Cour d'appel

fdrale

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Page: 2

[2] The Attorney General of Canada, supported by Globalive Wireless Management Corp.,

opposes the motion. TELUS Communications Company consents to the motion, provided that no

change will be made to the deadline for filing the respondents memoranda of fact and law.

[3] The issue in this appeal is whether the Governor in Council, in its decision (P.C. 2009-2008

dated December 10, 2009), acted within its statutory mandate under the Telecommunications Act,

S.C. 1993, c. 38. The Federal Court found (at 2011 FC 130) that the Governor in Council acted

outside of its statutory mandate. It quashed the Governor in Councils decision.

[4] In the Federal Court, the moving parties were permitted to intervene: see the order of

Prothonotary Tabib and the order of Prothonotary Aronovitch, dated April 13, 2010 and June 8,

2010, respectively. The moving parties intervention was restricted to the issue whether the

Governor in Council, in applying subsection 16(3) of the Telecommunications Act, failed to

consider, failed to give effect, or acted inconsistently with the non-commercial objectives of the Act

set out in the opening words of section 7 and subsections 7(a), (h) and (i). The thrust of the moving

parties submission in the Federal Court was that the Governor in Council improperly accorded

paramount importance to increasing competition in the telecommunications sector to the prejudice

of the Acts non-commercial objectives.

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Page: 3

[5] I grant the motion for leave to intervene in the appeal in this Court for the following reasons:

a. In my view, absent fundamental error in the decision in the Federal Court to grant

the moving parties leave to intervene, some material change in the issues on appeal,

or important new facts bearing on the issue, this Court has no reason to exercise its

discretion differently from the Federal Court. No one has submitted that there is

fundamental error, material change or important new facts.

b. It is evident from the reasons of the Federal Court that the moving parties

submissions were relevant to the issues and useful to the Court in its determination.

c. It is not necessary for the moving parties to establish that they meet all of the

relevant factors inRothmans Benson and Hedges Inc. v. Canada, [1990] 1 F.C. 84

(T.D.), affirmed [1990] 1 F.C. 90 (C.A.), including whether the moving parties will

be directly affected by the outcome:Boutique Jacob Inc. v. Paintainer Ltd., 2006

FCA 426 at paragraph 21, 357 N.R. 384. I am satisfied that the moving parties in

this public law case possess a genuine interest namely, a demonstrated

commitment to the strict interpretation of the foreign ownership restrictions in the

Telecommunications Act. This interest is beyond a mere jurisprudential interest,

such as a concern that this Courts decision will have repercussions for other areas of

law: see, e.g., Canadian Union of Public Employees (Airline Division) v. Canadian

Airlines International Ltd., a 2000 decision of this Court, belatedly reported at

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Page: 4

[2010] 1 F.C.R. 226. Further, the moving parties will be able to assist the Court in a

useful way in this public law case, bringing to bear a distinct perspective and

expertise concerning the issues on which they seek to intervene:Rothmans Benson

and Hedges Inc. (F.C.A.),supra at page 92. It is in the interests of justice that the

moving parties be permitted to intervene in this public law case.

[6] This Court, acting under rules 53(1) and 109(3), will attach terms to the order granting the

moving parties leave to intervene.

[7] The moving parties written and oral submissions shall be limited to the subject-matters set

out in paragraph 4, above. Those submissions shall not duplicate the submissions of the other parties

and shall not add to the factual record in any way.

[8] This appeal has been expedited and a schedule has been set. That schedule shall not be

disrupted.

[9] The moving parties support the result reached by the Federal Court. Accordingly, the

deadline for their memorandum of fact and law should be set around the time set for the memoranda

of fact and law of the parties who also are supporting the result reached by the Federal Court,

namely TELUS Communications Company and Public Mobile Inc. So that the moving parties can

be sure that their submissions do not duplicate those of any of the other parties, the deadline for their

memorandum of fact and law should be just after TELUS Communications Company and Public

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Page: 5

Mobile Inc. have filed their memoranda of fact and law (May 2, 2011). Therefore, the deadline for

the service and filing of the moving parties memorandum shall be May 5, 2011.

[10] The moving parties memorandum shall be limited to 12 pages in length. The moving

parties shall be permitted to make oral submissions at the hearing of the appeal for a total of no

more than 20 minutes. No costs will be awarded for or against any of the interveners.

[11] The style of cause shall be amended to reflect the fact that the moving parties are now

interveners.

"David Stratas"

J.A.

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40/47



DOCKET: A-78-11

STYLE OF CAUSE: Globalive Wireless Management

Corp. v. Public Mobile Inc., AttorneyGeneral of Canada, and Telus

Communications Company

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: Stratas J.A.

DATED: March 28, 2011

WRITTEN REPRESENTATIONS BY:

Steven Shrybman FOR THE PROPOSEDINTERVENERS

Malcolm M. Mercer FOR GLOBALIVE WIRELESS

MANAGEMENT CORP.

Robert MacKinnon

Alexander Gay

FOR THE ATTORNEY GENERAL

OF CANADA

Stephen Schmidt FOR THE RESPONDENT, TELUSCOMMUNICATIONS COMPANY

SOLICITORS OF RECORD:

Sack Goldblatt Mitchell LLPOttawa, Ontario

FOR THE PROPOSEDINTERVENERS

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Page: 2

McCarthy Tetrault

Toronto, Ontario

FOR GLOBALIVE WIRELESS

MANAGEMENT CORP.

Myles J. KirvanDeputy Attorney General of Canada

FOR THE ATTORNEY GENERALOF CANADA

TELUS Communications Company

Ottawa, Ontario

FOR THE RESPONDENT, TELUS

COMMUNICATIONS COMPANY

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Page 1

Indexed as:

Rothmans, Benson & Hedges Inc. v. Canada (Attorney

General) (C.A.)

Rothmans, Benson & Hedges Inc. (Plaintiff) (Appellant)

v.

Attorney General of Canada (Defendant) (Respondent)

and

Canadian Cancer Society (Intervenor)

Rothmans, Benson & Hedges Inc. (Plaintiff)

v.Attorney General of Canada (Defendant)

[1990] 1 F.C. 90

[1989] F.C.J. No. 707

Court File Nos. A-277-89, A-301-89

Federal Court of Canada - Court of Appeal

Hugessen, MacGuigan and Desjardins JJ.A.

Ottawa, August 17, 1989.

Practice -- Parties -- Intervention -- Appeals from orders granting Canadian Cancer Society (CCS),and denying Institute of Canadian Advertising (ICA), leave to intervene in action attacking consti-

tutionality of Tobacco Products Control Act -- Interventions at trial not to be unduly restricted

where Charter s. 1 defence to attack on public statute only serious issue -- Interest required to in-

tervene in public interest litigation recognized by courts in organization genuinely interested in,and possessing special knowledge and expertise related to, issues -- No error in finding CCS meet-

ing test, but intervention should be restricted to s. 1 issues -- ICA's application granted -- Position

extending beyond question of advertising of tobacco products to more general questions relating to

commercial free speech -- May contribute to balancing process in s. 1 assessment of justification oflimits imposed upon Charter-guaranteed freedom.

Constitutional law -- Charter of Rights -- Limitation clause -- Appeals from orders granting oneorganization and denying another leave to intervene in action attacking constitutionality of Tobac-

co Products Control Act -- Interventions at trial not subject to traditional restrictions where Char-

ter s. 1 defence to attack on public statute only serious issue -- Interest required to intervene recog-

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nized in organization genuinely [page91] interested in, and possessing special knowledge and ex-pertise related to, issues.

Statutes and Regulations Judicially Considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B,Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(b).

Tobacco Products Control Act, S.C. 1988, c. 20.

Cases Judicially Considered

Referred to:

Re Canadian Labour Congress and Bhindi et al. (1985), 17 D.L.R. (4th) 193 (B.C.C.A.).

Counsel:

Edward P. Belobaba and Barbara L. Rutherford, for the appellant.

Gerry N. Sparrow, for the respondent.Karl Delwaide and Andre T. Mecs, for the intervenor.

Claude R. Thomson, Q.C., for the Institute of Canadian Advertising.

Solicitors:

Gowling, Strathy & Henderson, Toronto, for the appellant.

Deputy Attorney General of Canada, for the respondent.Martineau, Walker, Montral, for the intervenor.

Campbell, Godfrey & Lewtas, Toronto, for the Institute of Canadian Advertising.

The following are the reasons for judgment of the Court delivered orally in English by

1 HUGESSEN J.A.:-- These two appeals, which were heard together, are from orders made byRouleau J. granting, in the case of the Canadian Cancer Society (CCS) [ [1990] 1 F.C. 74], and

denying, in the case of the Institute of Canadian Advertising (ICA) [[1990] 1 F.C. 84], leave to in-

tervene in an action brought by Rothmans, Benson & Hedges Inc. (Rothmans) against the AttorneyGeneral of Canada attacking the constitutionality of the Tobacco Products Control Act (TPCA)

(S.C. 1988, c. 20).

[page92]

2 It is common ground that the plaintiff's attack is primarily 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.)] based, invoking the guarantee of freedom of expression in paragraph 2(b). Therecan also be no doubt, given the prohibitions contained in the TPCA, that such attack is best met by a

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