Date: 19971105
Dockets: A-581-96
A-584-96
CORAM:
STONE, J.A.
LINDEN, J.A.
GRAY, D.J.
BETWEEN:
MARK SALUTIN
TANSE LEUNG
MICHAEL YEE
Appellants
- and -
ROY PRINCE
Respondent
Heard at Toronto, Ontario, Tuesday November 4, 1997
Judgment delivered from the Bench at Toronto, Ontario, Tuesday November 4, 1997
REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.
Date: 19971105
Dockets: A-581-96
A-584-96
CORAM: STONE, J.A.
LINDEN, J.A.
GRAY, D.J.
BETWEEN:
MARK SALUTIN
TANSE LEUNG
MICHAEL YEE
Appellants
- and -
ROY PRINCE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, November 4, 1997)
STONE, J.A.:
[1] These are two appeals and a cross-appeal from two orders of the Trial Division made on July 12, 1996.
[2] By one of those orders, the appellants were required to amend the style of cause to join either the Public Service Commission Appeal Board or the Minister of National Revenue in the application for judicial review of a decision of the Appeal Board, which had determined the respondent to be successful in an open competition for a position in the public service but ordering that the respondent remain as a respondent on the basis of his being a person interested who could be adversely affected by the outcome. The same order granted the Attorney General of Canada liberty, following amendment of the style of cause, to "bring whatever application it deems necessary" within a stated time limit. By the other order, the Attorney General of Canada's separate motion for leave to intervene was denied without reasons, although the appellant had consented to it.
[3] The Trial Division had earlier made an order on March 25, 1996, refusing the respondent's motion to be removed from the style of cause. That order was neither appealed against nor made the subject of a request for reconsideration pursuant to Rule 337(5).
[4] We agree that the Appeal Board should not be joined. The Board should not be permitted to defend its own decision on a section 28 application, and it is not suggested that its jurisdiction is in issue. On the other hand, the Attorney General of Canada ought to be allowed to intervene at this stage in order to defend, if it can, the employment selection process and the manner in which competitions are conducted. In our view, the Attorney General as a direct public interest in the outcome of the case. See Energy Probe v. Atomic
"A.J. S."
Energy Control Board et al. [1985] 1 F.C. 563 (C.A.), at pages 576, 585; Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (1989), 103 N.R. 391 (F.C.A.).
[5] Both appeals and the cross-appeal will be allowed, the two orders set aside and the Attorney General of Canada joined as an intervener. There will be no order as to costs.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKETS: A-581-96
A-584-96
| STYLE OF CAUSE: MARK SALUTIN |
TANSE LEUNG
MICHAEL YEE
- and -
| ROY PRINCE |
DATE OF HEARING: NOVEMBER 4, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: STONE, J.A.
Delivered from the Bench at Toronto, Ontario
on Tuesday, November 4, 1997
APPEARANCES:
Mr. Robin Morch,
as the agent of David O'Brien
For the Appellants
Mr. Roy Prince
For the Respondent
Ms. Gina M. Scarcella
For the Intervener
(Attorney General of Canada)
- 2 -
SOLICITORS OF RECORD:
Robin Morch
Barrister and Solicitor
130 Bloor Street West
Toronto, Ontario
M5S 1N5
As the agent for David O'Brien
David O'Brien
Lownds & Harrison
Barristers and Solicitors
2702-1 Dundas Street West
Box 81
Toronto, Ontario
M5G 1Z3
For the Appellants
Roy Prince
c/o Special Investigations
Revenue Canada
9th Floor
438 University Avenue
Toronto, Ontario
M5G 2K8
For the Respondent
Department of Justice
The Exchange Tower
Suite 3400, Box 36
2 First Canadian Place
Toronto, Ontario
M5X 1K6
For the Intervener
(Attorney General of Canada)
| FEDERAL COURT OF APPEAL |
| Date: 19971105 |
| Dockets: A-581-96 |
| A-584-96 |
| BETWEEN: |
| MARK SALUTIN |
| TANSE LEUNG |
| MICHAEL YEE |
| Appellants |
| -and- |
| ROY PRINCE |
| Respondent |
| REASONS FOR JUDGMENT OF THE COURT |