Date: 20010914
Docket: T-1836-00
Neutral citation: 2001 FCT 1022
Ottawa, Ontario, this 14th day of September, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
EMILY CHARLOTTE DURANT
Applicant
- and -
CANADA (MINISTER OF FISHERIES AND OCEANS)
Respondent
[1] This is a motion by the P.E.I. Shellfishers' Coalition (the "Coalition") pursuant to Rule 109 of the Federal Court Rules, 1998 for leave to intervene the judicial review application filed by Emily Charlotte Durant.
[2] The Coalition is composed of oyster cleaners, along with oyster fishers and overall shellfishers.
[3] Emily Charlotte Durant is an oyster cleaner and her husband is an oyster fisher.
[4] Issue
Should the Coalition be granted leave, pursuant to Rule 109 of the Federal Court Rules, 1998 to intervene in the judicial review application?
[5] Relevant Rule
Rule 109 of the Federal Court Rules, 1998 states:
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109. (1) The Court may, on motion, grant leave to any person to intervene in a proceeding. (2) Notice of a 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 intervener; and (b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist 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; and (b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener. |
109. (1) La Cour peut, sur requête, autoriser toute personne à intervenir dans une instance. (2) L'avis d'une requête présentée pour obtenir l'autorisation d'intervenir : a) précise les nom et adresse de la personne qui désire intervenir et ceux de son avocat, le cas échéant; b) explique de quelle manière la personne désire participer à l'instance et en quoi sa participation aidera à la prise d'une décision sur toute question de fait et de droit se rapportant à l'instance. (3) La Cour assortit l'autorisation d'intervenir de directives concernant : a) la signification de documents; b) le rôle de l'intervenant, notamment en ce qui concerne les dépens, les droits d'appel et toute autre question relative à la procédure à suivre. |
[6] Analysis and Decision
The Federal Court of Appeal in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (F.C.A.), discussed and set out the factors to be considered when deciding whether or not to grant leave to intervene in a proceeding. These factors may be summarized as follows:
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 the question to the Court?
4. Is the position of the proposed intervener 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 intervener?
7. Is Rule 109 of the Federal Court Rules, 1998 satisfied in that the intervener has demonstrated how the proposed intervention will assist the determination of a factual or legal issue related to the proceeding?
[7] Is the proposed intervener directly affected by the outcome?
Some of the members of the proposed intervener will be affected by the outcome.
[8] Does there exist a justiciable issue and a veritable public interest?
There does exist a justiciable issue. As not all of the members of the intervener are oyster washers or oyster fishers, a veritable public interest does not exist for the intervener as a whole.
[9] Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
The question is already before the Court in Emily Charlotte Durant's application for judicial review.
[10] Is the position of the proposed intervener adequately defended by one of the parties to the case?
The position of the proposed intervener is the same as that of Emily Charlotte Durant and is adequately defended by Ms. Durant.
[11] Are the interests of justice better served by the intervention of the proposed third party?
The interests of justice are not better served by the intervention as the same issue and almost identical arguments are being put forward by the applicant, Emily Charlotte Durant.
[12] Can the Court hear and decide the cause on its merits without the proposed intervener?
A review of the material filed in the judicial review application discloses that almost identical arguments are being put forward by the applicant, Ms. Durant. The issue can be decided on its merits without the proposed intervener.
[13] Has the proposed intervener demonstrated how the proposed intervention will assist the determination of a factual or legal issue related to the proceeding (Rule 109(2)(b))?
I am not satisfied that the proposed intervener has met the requirements of Rule 109(2)(b) as it is relying on almost the same facts and almost identical arguments to that of the applicant, Ms. Durant. The Court will already have the submissions of Ms. Durant and it would be of no assistance to the Court to hear similar submissions from the applicant. As well, the applicant has not met factors 3, 4, 5,6 and has not fully met factors 1 and 2.
[14] The motion by the Coalition to be granted leave to intervene in the judicial review proceeding commenced by Emily Charlotte Durant is dismissed.
ORDER
[15] IT IS ORDERED that the motion by the Coalition to be granted leave to
intervene in the judicial review proceeding commenced by Emily Charlotte Durant is dismissed.
"John A. O'Keefe" J.F.C.C.
Ottawa, Ontario
September 14, 2001