Date: 20030925
Docket: A-306-03
Citation: 2003 FCA 352
CORAM: SHARLOW J.A.
BETWEEN:
GEORGE ANDERSON
Appellant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1] The Professional Institute of the Public Service of Canada (the Institute) seeks leave to intervene in the appeal of George Anderson. Mr. Anderson is challenging the dismissal of his application for judicial review of the negative decision of an official of the Canada Customs and Revenue Agency in connection with his application for a particular position. Mr. Anderson consents to the intervention. The Canada Customs and Revenue Agency opposes it.
[2] The Institute is a public service union, one of two unions that represent employees of the Canada Customs and Revenue Agency. Mr. Anderson is a member of the other union, the Public Service Alliance of Canada.
[3] According to Mr. Anderson's notice of appeal, he will be asking this Court to determine, among other things, whether the staffing recourse procedure established by the Canada Customs and Revenue Agency meets the requirements of subsection 54(1) of the Canada Customs and Revenue Agency Act, S.C. 1999, c. 17, and the principles of natural justice. That is the issue of interest to the Institute.
[4] In fact, the Institute has commenced an application for judicial review to seek a declaration on the same point (T-598-00). That application was commenced in 2000 and has yet to be heard, but a requisition for hearing has been filed. That means that the application will be scheduled for hearing in due course, subject to the availability of counsel and judicial resources.
[5] According to Rule 109(2) of the Federal Court Rules, 1998, SOR/98-106, an applicant for leave to intervene in an appeal must establish that the proposed intervention "will assist the determination of a factual or legal issue related to the proceeding". The factors to be considered in determining whether to grant leave to intervene are set out in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (QL) (F.C.A.) at paragraph 8.
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1) Is the proposed intervener directly affected by the outcome? |
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2) Does there exist a justiciable issue and a veritable public interest? |
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3) Is there an apparent lack of any other reasonable or efficient means to submit the question of the Court? |
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4) Is the position of the proposed intervener adequately defended by one of the parties to the case? |
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5) Are the interests of justice better served by the intervention of the proposed third party? |
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6) Can the Court hear and decide the cause on its merits without the proposed intervener? |
[6] It has also been established that intervention should not be permitted where the sole interest of the proposed intervener is jurisprudential in nature, in the sense that the outcome of the case may have repercussions in another case: CUPE v. Canadian Airlines (cited above), The Queen v. Bolton, [1976] 1 F.C. 252 (F.C.A.), Tioxide Canada Inc. v. Canada, [1994] 174 N.R. 212 (F.C.A.).
[7] In my view, the Institute has established that it will be directly affected by the outcome of the Anderson appeal. In that regard, I am prepared to accept that the effect of the case on the members of the Institute is, for all practical purposes, a direct effect on the Institute itself. I am also satisfied that there is a justiciable issue and a veritable public interest. However, the answers to the remaining questions do not favour granting the intervention.
[8] The position of the Institute appears to be virtually the same as the position of Mr. Anderson as set out in his notice of appeal. The material provided by the Institute does not indicate that its arguments on that issue will be substantially different from the arguments of Mr. Anderson. I do not doubt that the Court will have the benefit of full and able argument on this issue from counsel for Mr. Anderson. There is no basis for concluding that the Institute has no reasonable or efficient alternative for the resolution of that issue; the Institute has already taken steps in that regard.
[9] The Institute is concerned, with good reason, that this appeal could set a precedent that will affect its own application for judicial review. However, it appears to me that this is a case where the interest of the Institute is primarily a jurisprudential interest. In this Court, that has never been considered a sufficient ground to permit an intervention.
[10] On balance, I am not satisfied that the intervention of the Institute will assist the determination of the appeal. For that reason, the Institute's application to intervene will be dismissed with costs.
(s) "K. Sharlow"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-306-03
STYLE OF CAUSE: GEORGE ANDERSON v. CANADA CUSTOMS AND REVENUE AGENCY
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE SHARLOW
DATED: September 25, 2003
WRITTEN REPRESENTATIONS:
Mr. David
Ottawa, Ontario FOR THE APPELLANT
Mr. J. Sanderson Graham
Ottawa, Ontario FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne
Ottawa, Ontario FOR THE APPELLANT
Mr. Morris Rosenbeg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT