Date: 20030307
Docket: A-505-02
Neutral citation: 2003 FCA 123
Present: The Honourable Justice Sharlow
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GEORGIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, March 7, 2003
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20030307
Docket: A-505-02
Neutral citation: 2003 FCA 123
Present: The Honourable Justice Sharlow
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
GEORGIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Respondent
REASONS FOR ORDER
[1] The Canadian International Trade Tribunal (CITT) seeks leave to intervene in an application for judicial review. The subject of the application for judicial review is the decision of the CITT not to award costs to the Crown upon the dismissal of a complaint filed by Georgian College of Applied Arts and Technology under subsection 30.13(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.).
[2] Leave to intervene is granted only if the participation of the proposed intervener will assist the determination of a factual or legal issue related to the proceeding (Rule 109(3) of the Federal Court Rules, 1998). Leave is rarely given to a tribunal to intervene in an application for judicial review of one of its own decisions because of the concern that the tribunal will simply seek to defend the correctness of the challenged decision.
[3] However, it has been recognized inBell Canada v. Communications, Energy and Paperworks Union of Canada et al (1996), 121 F.T.R. 52 (T.D.), Canadian Broadcasting Corp. v. Paul (1997), 130 F.T.R. 315 (T.D.) and other cases that it may be appropriate to permit the intervention of a tribunal where the tribunal's experience is necessary to draw the court's attention to specialized knowledge and considerations without which a reasonable decision might appear unreasonable. That conclusion is apparently rooted in the decision of Justice La Forest in Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983 at page 1016, which adopts the following excerpt from British Columbia Government Employees' Union v.Industrial Relations Council (1988), 26 B.C.L.R. (2d) 145, 32 Admin. L.R. 78 (B.C.C.A.), per Taggart J.A.:
| The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issues becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them. |
[4] Paccar is also cited for the proposition that it may be appropriate in certain circumstances to permit the intervention of a tribunal to make representations as to the appropriate standard of review, to explain the record, or to defend its jurisdiction.
[5] The written argument of the CITT in its motion record recites all the appropriate tests and includes general statements to the effect that if the CITT is permitted to intervene, it will make submissions that will meet those tests. However, no particulars are given as to the submissions it proposes to make. The most detailed statement is found in its reply submission (paragraph 21):
| ... the Tribunal ... wishes to explain the international trade implications of its jurisdiction in awarding costs in procurement matters. |
[6] Even in the CITT's reply submission, however, there is no hint of what those implications might be.
[7] I am unable to conclude, on the material before me, that the intervention of the CITT will assist the determination of any issue in this application for judicial review. For that reason, the CITT's motion to intervene is dismissed.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-505-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA and GEORGIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES)
REASONS FOR ORDER : SHARLOW J.A.
DATED: March 7, 2003
WRITTEN REPRESENTATIONS BY:
Reagan Walker FOR THE PROPOSED INTERVENER
Marie-France Dagenais
Susanne Pereira FOR THE APPLICANT
SOLICITORS OF RECORD:
Canadian International Trade Tribunal PROPOSED INTERVENER
Morris Rosenberg
Deputy Attorney General
Ottawa, Ontario FOR THE APPLICANT
Graham, Wilson & Green
Barrie, Ontario FOR THE RESPONDENT