Date: 19980812
Docket: T-2297-96
BETWEEN:
CANADIAN BROADCASTING CORPORATION,
Applicant,
- and -
COLLEEN GRAHAM,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Canadian Human Rights Commission (the "Commission") seeks to become an intervenor in this proceeding which arises out of two complaints, filed with the Commission out of time, by Colleen Graham, a free-lance camera operator, alleging sexual discrimination against the Canadian Broadcasting Corporation (the "CBC"). More specifically, on 20 September 1996, the Commission, exercising its discretion, extended the time for filing of Ms. Graham's complaints. The CBC came to the Federal Court, in this proceeding, for various relief including to have the decision to extend time quashed and to obtain an Order preventing the Commission from taking any further proceedings.
[2] Ms. Graham has, to date, acted for herself, for she cannot afford counsel. This is a factor in the Commission seeking to intervene.
[3] As to the position of the Commission generally, the Federal Court of Appeal made clear, in Canadian Human Rights Commission v. Canada (Attorney General) and Bernard (1994), 164 N.R. 361, that the Commission may not be a respondent when one of its decisions is challenged, for it is not an interested party under old Rule 1602(3), but might apply to intervene. In the present instance the Commission applies to intervene, for various reasons, including in order to defend its procedure, to insure all relevant evidence is before the Court and to speak on general questions of law. The Commission meets various of the criteria for intervention and may intervene.
CONSIDERATION
[4] In coming to the decision that the Commission ought to be allowed to intervene, with fairly broad participation, I have considered that while the Respondent, Ms. Graham, is intelligent, well educated in her field, both formally and practically and takes the matter seriously, it is a given that, without proper legal representation in this adversarial proceeding, which raises complex questions of law perhaps baffling to a lay person, the Respondent will not have full and ample opportunity to put forward her best case and will be at a substantial disadvantage. This is particularly so given that the CBC is well represented. Here the Commission can assist the Court by presenting a view and argument to balance those of the CBC.
[5] I have also kept in mind that, from a practical point of view, the addition of an intervenor will almost invariably complicate the proceedings, resulting in a disposition of the matter requiring additional time and expense. Thus, where the rights of intervenors are not affected by the litigation and the intervenors cannot add anything new, the Court ought not to allow itself to become bogged down through the addition of participants in the litigation. And this is so even in the case of a public interest litigant, who may have important views, but whose participation must be balanced against the preservation of scarce judicial resources. This was neatly put by Mr. Justice Cory, speaking for the Supreme Court of Canada, in Canadian Council of Churches v. Canada et al. (1992), 132 N.R. 241 at 263:
| [43] It has been seen that a public interest litigant is more likely to be granted standing in Canada than in other common law jurisdictions. Indeed, if the basis for granting status were significantly broadened, these public interest litigants would displace the private litigant. Yet the views of the public litigant who cannot obtain standing need not be lost. Public interests organizations are, as they should be, frequently granted intervenor status. The views and submissions of intervenors on issues of public importance frequently provide great assistance to the courts. Yet that assistance is given against a background of established facts and in a time frame and context that is controlled by the courts. A proper balance between providing for the submissions of public interest groups and preserving judicial resources is maintained. |
The present instance may well be an exception in that the participation of the Commission, as an intervenor, ought to result in a more concise and less complicated proceeding than would be the case if Ms. Graham tried to formulate and deliver responses to the Applicant's arguments.
[6] The criteria by which to determine whether a would be intervenor is in fact allowed aboard have been set out in various ways. Counsel for the Commission submitted that the courts look to see whether the proposed intervenor has a real, substantive and identifiable interest in the subject matter; has an important perspective apart from the perspective of the immediate parties; or is a well recognized group with special expertise and a broad identifiable membership base. For these criteria, at least one of which must be met, counsel refers to Ontario (Attorney General) v. Dieleman (1994), 108 D.L.R. (4th) 458 at 464, a decision of the Ontario General Division. Such criteria have been set out in various ways by the courts. Indeed, the criteria may be somewhat open-ended, however, generally, where a person or entity shows a strong enough interest, or a sufficient interest and is able to bring to bear a different perspective, a perspective which would assist the court, that person or entity ought to be added as an intervenor, and here I have in mind cases such as Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al. (1996), 109 F.T.R. 144 at 147 and Lee v. Canadian Human Rights Commission et al. (1996), 108 F.T.R. 75. In the latter Mr. Justice Dubé refers to the various criteria set out by Mr. Justice Rouleau in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74, (affirmed [1990] 1 F.C. 90): some of which he went on to apply. While the Rothman's case dealt with participation of an intervenor in a public interest matter, the criteria, or at least some of them, are generally applicable:
| (1) Is the proposed intervenor 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 the question to the Court? |
| (4) Is the position of the proposed intervenor adequately defended by one of the parties to the 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 intervenor? |
| (pages 79 - 80) |
[7] Mr. Justice Rouleau makes it clear that not all of the criteria must be met to succeed in becoming an intervenor, in that, for example, "... the ability of a proposed intervenor to assist the court in a unique way in making its decision would overcome the absence of a direct interest in the outcome." (page 82) However, I think the most important observation that Mr. Justice Rouleau makes in Rothman's is that:
| "What the Court must consider in applications such as the one now before it is the nature of the issue involved and the likelihood of the applicant being able to make a useful contribution to the resolution of the action, with no injustice being imposed on the immediate parties." (page 82) |
In essence, I must look at the issue involved and decide whether the Commission can make a useful contribution without taking the litigation away from the parties or otherwise imposing an injustice.
[8] The issue in the present instance is whether the Commission properly exercised its discretion in granting Ms. Graham an extension of time within which to bring her claim.
[9] The Commission in the present instance has a substantial interest in this matter for the decision challenged does not deal with the merits of the case, but rather, as I say, with the application of discretion to the granting of a time extension. The Commission has a real interest in and is directly affected by any determination which might be critical of or provide guidelines for the exercise of that discretion.
[10] Indeed, it is open to an administrative tribunal to defend its own procedure: see for example Canada (Attorney General) v. Canadian Human Rights Commission and Boone (1993), 60 F.T.R. 142 at 152, involving a decision by the Canadian Human Rights Commission to deal with a time barred complaint; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at page 1014, dealing with the scope of a board's jurisdiction and the reasonableness of its decision; and Canada (Attorney General) v. Human Rights Tribunal Panel (1994), 76 F.T.R. 1, to which I will refer as "Reed and Vincer", at page 12 and following. In Reed and Vincer, the issue was, among other things, the reasonableness of the Canadian Human Rights Commission's decision to refer a complaint to a full inquiry. In Reed and Vincer the Federal Court touched upon the necessity of the participation of the Canadian Human Rights Commission as an intervenor, for neither of the individual defendants could afford counsel and indeed one of them had neither the time nor the money to make the trip from Newfoundland to be present himself. Madame Justice Reed, who decided the case, pointed out that it was the procedure of the Canadian Human Rights Commission which was under review, a matter completely within the knowledge of the Commission and unknown to the individual defendants, thus the role of the Commission, by necessity, to defend its procedure:
| [51] In the present case the two individual defendants will not obtain any significant economic benefit from the outcome of their complaints. One lives in Newfoundland; the other lives in Toronto. It is unthinkable that either would hire legal counsel to represent them for the purposes of the present judicial review application. Indeed, while Mr. Reed, as a result of the Federal Court of Appeal decision in Bernard, travelled from Toronto to be present in the court room in Ottawa, on February 23, 1994, Mr. Vincer simply could not afford either the time or the money to make the trip from Newfoundland. Most importantly, however, neither of the individual respondents have any knowledge of the facts underlying the applicant's challenge to the Commission's decision. It is the procedure which the Commission followed which is under review. This is a matter almost totally within the knowledge of the Commission and not that of the individual respondents. If the Commission cannot defend the application, there will be no response made to the applicant's position. I cannot believe that the Supreme Court intended such a result. |
| . . . . |
| [53] In any event, in the present case, the Commission, as a matter of necessity, must be given the right to respond to the applicant's application and in a manner comparable to that of a party. |
| (pages 13 and 14) |
This concept of an intervention driven by a necessity to properly present a position was picked up by Madame Justice Reed in Jones et al. v. RCMP Public Complaints Commission et al., an unreported decision of 20 July 1998 in action T-1313-98, to which I will shortly turn, by way of noting that the perspective of an intervenor may be similar to that of a party, yet there is a reason by which to allow an intervention.
[11] The perspective of the Commission, as an intervenor, may not differ substantially from that of the Respondent, however the position is one which the Respondent, in my view, would be unable to articulate properly, or perhaps at all. The Respondent would be unable to properly test the Applicant's affidavit evidence through cross-examination or to challenge any matter about which experienced and highly competent lawyers might find opposing procedural or substantive view points. That could lead to a one-sided hearing which would be of no benefit and could lead to a wrong and damaging decision. This was the sort of situation which Madame Justice Reed faced in Jones et al. v. RCMP Public Complaints Commission et al. (supra). The Jones case does not make any changes to the principles set out in Reed and Vincer, but rather provides a further illustration of the need for proper representation. In that case, the unrepresented respondents were in a position of imbalance that might have led to an unfair hearing and potential damage to their reputations. And indeed, Madame Justice Reed felt that there would not have been a level playing field: she referred to the view that there was a potential for unfairness where a party was not represented by counsel at a hearing. Madame Justice Reed felt that crucial to the upcoming hearing was whether legal representation of the applicants, who could not afford their own lawyers, would improve the quality of the proceeding as a whole. She went on to point out:
| "... that when decision-makers have before them one party who is represented by conscientious, experienced and highly competent counsel, a description that we all know from experience applies to Mr. Whitehall, they prefer that the opposite party be on a similar footing. They prefer that one party not be unrepresented. An equality in representation usually makes for easier and better decision-making." (page 12) |
This emphasis on proper representation by each side in a litigation matter was critical in her decision to quash the decision of the RCMP Public Complaints Commission not to recommend funding which would have provided representation for unrepresented parties so they might properly present positions.
[12] Here the issue involves the procedure by which discretion is exercised by the Commission. It is a procedure within the knowledge of the Commission, but is unknown to Ms. Graham. In effect, the position of the Commission would not be adequately defended by the Respondent acting for herself. An improper outcome would directly affect the Commission. And this points to the danger that a Court might well not be able to hear and decide the case on its merits unless the Commission intervenes, in effect allowing the interests of justice to be better served.
CONCLUSION
[13] I have considered the criteria suggested in Attorney General of Ontario v. Dielman (supra) and I have applied some of the criteria established by Mr. Justice Rouleau in the Rothman's case (supra) and the principles considered by Madame Justice Reed in both Reed and Vincer and in Jones v. RCMP (supra). I have also considered the limitations that counsel for the CBC would like to place on the scope and ability of the Commission to intervene, particularly by placing different characterizations on what is at stake. However, it is clear, not only that the Commission will be directly affected by the outcome in this matter, but also that the position of the intervenor will not be adequately defended by Ms. Graham, through no fault of her own. It is in the interest of justice that the Commission be allowed to intervene so the Court may properly assess and decide this case on its merits.
[14] All of this may be accomplished by allowing the Commission to make useful contribution through its intervention, with no injustice being imposed on the CBC.
[15] The Commission may intervene by filing an intervenor's application record, including memorandum of points to be argued, by participating fully in interim motions, including bringing interim motions and in making representations at the hearing of the review application with right of appeal.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
August 12, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: May 1, 1998
COURT NO.: T-2297-96
STYLE OF CAUSE: Canadian Broadcasting Corporation
v.
Colleen Graham
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated August 12, 1998
APPEARANCES:
Mr. Robert Grant for Applicant
Ms. Odette Lalumiere for Canadian Human Rights Commission
SOLICITORS OF RECORD:
Heenan, Blaikie
Vancouver, BC for Applicant