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Responding Motion Record of National Post May 13 13

Responding Motion Record of National Post May 13 13

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Court File No.

A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants

~rre
MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE APPELLANT, NATIONAL POST COMPANY (Motion for leave to intervene, to be heard in writing) CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

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TO:

SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &PUBLIC INTEREST CLINIC (CIPPIC) University of Ottawa, Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa ON K1 N 6N5 David Fewer LSUC #:45307C Tei: 613.562.5800, Ext. 2558 Fax: 613.562.5417 Solicitors for the Proposed Intervener

AND TO:

BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1 P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Appellant, Richard Warman

AND TO:

MARK and CONSTANCE FOURNIER 2000 Unity Road Elginburg ON KOH 1 NO Tel: 613.929.9265 Fax: 609.379.8793 Respondents

Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE APPELLANT, NATIONAL POST COMPANY (Motion for leave to intervene, to be heard in writing)

INDEX
Tab 1. 2. A B C 3. 4. 5. Description Draft Order Affidavit of Caitlin Russell, sworn May 13, 2013, along with the exhibits listed therein Exhibit "A" to the Affidavit of Caitlin Russell, a copy of the Notice of Appeal of the National Post in Court File No. A-394-12 Exhibit "B" to the Affidavit of Caitlin Russell, a copy of the Notice of Appeal of Richard Warman in Court File No. A-395-12 Exhibit "C" to the Affidavit of Caitlin Russell, a copy of the Order of Mr. Justice Pelletier, dated December 18, 2012 Written Representations of the Appellant, National Post Company, dated May 13, 2013 Page 01-03 04-05 06-17 18-25 26-30 31-43 44-60 61-73

Warman et al. v. Fournier, 2012 FC 803 Canada (Director of Investigation &Research) v. Air Canada (1988),[1989]2 F.C. 88 (Fed. C.A.

6. 7. 8.

Canada (Minister of Indian &Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed. C.A.) Ferroequus Railway Co. v. C.N.R., 2003 FCA 408 Edmonton Friends of the North Environmental Society v. Canada (Min. of Western Economic Diversification), [1991] 1 F.C. 416 (C.A.) Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General), 2011 FC 158

74-78 79-91 92-100

9.

101-114

D1
Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL

Ottawa, Ontario Present: BETWEEN:
(Court Seal)

) )

.................THE ......... DAY OF ............... 2013

RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

~~ : ~

WHEREAS Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic( "CIPPIC") has applied for an order granting it leave to intervene in two related appeals of the decision of Mr. Justice Rennie dated June 21, 2011, in Federal Court File No. T-784-11, in appeals A-394-12 and A-395-12; AND WHEREAS after considering the submissions of CIPPIC and the responding submissions of the National Post Company; THIS COURT ORDERS that: 1. Leave to intervene in the appeals A-394-12 and A-395-12 is granted, subject to the

following terms:

(a)

CIPPIC shall be permitted to address only the following issues: (i) The application of the statutory limitation period set out in subsection 41(1) of the CopyrightAct, R.S.C. 1985, c. C-42, to works published on the Internet; (ii) The interpretation of "distinctive", as stated in the definition of "work" in section 2 of the Copyright Act; (iii) What constitutes "substantial" reproduction as stated in

subsection 3(1) of the Copyright Act; (iv) The interpretation of statutory conditions precedent to the fair dealing exceptions, as listed in section 29 and sections 29.1 and 29.2 of the Copyright Act; and (v) The circumstances in which an excerpt for the purpose of news reporting or criticism should be considered "fair" dealing; (b) CIPPIC shall be permitted to file a memorandum of fact and law, not to exceed 20 pages, which shall be served and filed within 30 days of the date of this Order. The National Post shall be permitted to file a responding memorandum of fact and law not to exceed 20 pages, within 30 days of the service of CIPPIC's memorandum. There shall be no reply;

(c)

CIPPIC shall be permitted to address the Court at the hearing of the Appeals, but its oral submissions shall not exceed 30 minutes;

oa

03
(d) CIPPIC shall not duplicate the submissions of the other parties;

(e)

CIPPIC shall be bound by the record and may not introduce any new evidence;

(fl
(g)

CIPPIC shall have no right to appeal;

No costs shall be awarded in favour of or against CIPPIC in relation to its intervention in the Appeals; and

2.

CIPPIC shall be added to the style of cause in the Appeals as an intervener.

~,~

0~
Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

AFFIDAVIT OF CAITLIN RUSSELL (SWORN MAY 13, 2013) I, Caitlin Russell, of the city of Toronto, in the province of Ontario, SWEAR THAT: 1. I am an articling student with the firm of Cassels, Brock &Blackwell LLP, counsel

to the National Post Company( "National Post") and am assisting with this matter. As such, I have personal knowledge of the matters hereinafter deposed. Where my knowledge is based on information and belief, I have so stated and believe such information and belief to be true. 2. Attached hereto as Exhibit "A" is a copy of the Notice of Appeal of the National

Post in Court File No. A-394-12. 3. Attached hereto as Exhibit "B" is a copy of the Notice of Appeal of Richard Warman

in Court File No. A-395-12. 4. Attached hereto as Exhibit "C" is a copy of the Order of Mr. Justice Pelletier, dated

December 18, 2012.

DS
-25. I am advised by Jason Beitchman, counsel to the National Post, and believe that,

despite the fact that the National Post was named as an applicant in the application in Court File No. T-784-11 (the "Application"), the National Post had no knowledge that the Application had been commenced, was never served with any of the documents in the proceeding (including the originating process), and had no knowledge of the Application until after judgment was issued. The National Post did not submit any evidence or argument in the Application and did not appear at the hearing of the Application. 6. I am advised by Mr. Beitchman, and believe, that after learning of the judgment,

the National Post instructed counsel to commence the appeal in Court File No. A-394-12. 7. I have reviewed the Court Index and Docket on the Federal Court website in

respect of appeals A-394-12 and A-395-12. By April 23, 2013, all parties had delivered memorandum of fact and law on the merits in both appeals, in accordance with the order of Mr. Justice Pelletier. SWORN BEFORE ME at the City of Toronto, in the Province of Ontario on May 13, 2013.

=F%C~C ~Cc,c.~ ~S1
Commissio (or as the aking Affidavits' se maybe) (Signature of deponent)

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This is Exhibit "A" referred to in the Affidavit of Caitlin Russell, sworn May 13, 2013

Commissioner for

(or as maybe)

A-~3°i~+ -!Z
Court Fiie No. FEDERAL COURT OF APPEAL

.HARD WARMAN and NATIONAL. POST COMPANY Appellants - and MARK FOURNIER and CONSTANCE FOURNIER Respondents NOTICE OF APPEAL TO THE RESPONDENT: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the appellant, the National Post Company (the "National Post"). The relief claimed by the appellant appears on the following page. THIS APPEAL will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court direcfis otherwise, the place of hearing will be as requested by the appellant. The appellant requests that this appeal be heard at the Federal Court of Appeal in Toronto. IF YOU WISH TO OPPOSE THIS APPEAL, to receive notice of any step in the appeal or to be served with any documents in the appeal, you or a solicitor acting for you must prepare a notice of appearance in Form 341 prescribed by the Federal Courts Rules and serve it on the appellant's solicitor, or where the appellant is self-represented, on the appellant, WITHIN 10 DAYS of being served with this notice of appeal.

-2IF YOU INTEND TO SEEK A DIFFERENT DISPOSITION of the order appealed from, you must serve and file a notice of cross-appeal in Form 341 prescribed by the Federal Courts Rules instead of serving and filing a notice of appearance. Copies of the Federal Courts Rules, information concerning the local offices of fihe Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office. IF YOU FAIL TO OPPOSE THIS APPEAL, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

~l(A.GG~~; lL~~U

Date

SEP Z 1l 2012

Issued by Address of
local office:

~c:~~'r' ~~u c:i~:~~~~ (Re stry Officer)
180 Queen Street West Suite 200 Toronto, Onfiario M5V 3L6

TO:

BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Applicant, Richard Warman

AND TO:

MARK FOURNIER 20Q0 Unity Road Elginburg ON KOH 1 NO Respondent

~C~

AND TO:

CONSTANCE FOURNIER 2000 Unity Road Elginburg ON KOH 1 NO Respondent

APPEAL THE APPELLANT APPEALS fio the Federal Court of Appeal from the Judgment of the Honourable Mr. Justice Douglas Rennie dated June 21, 2012, by which the Court dismissed the Application and determined, among other things, that: ~ `~~"/ V (a) the reproduction of excerpts of an article entitled "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry", which was authored by Jonathan Kay as an employee of the National Post (fihe "Kay Work"), did not constitute the reproduction of a substantial part of that work and therefore was not an infringement of copyright pursuant to subsections 3(1) and 27(1) of the Copyright Act, R.S.C., 1985, c. C-42 (the "AcY'); and (b) even if the reproduced excerpts of the Kay Work amounted to a substantial part of the work, the respondents' reproduction of the excerpt constitutes fair dealing for the purpose of news reporting pursuant to section 29.2 of the Act and therefore did not infringe copyright in the Kay Work. THE APPELLANT ASKS that: 1. The appeal be allowed and that this Honourable Court order that: (a) the respondents' use of the excerpts of the Kay Work constitutes reproduction of a substantial part of that work within the meaning of subsection 3(1) of the Act;

-2(b) the respondents infringed copyright in the Kay Work, contrary to subsection 27(1) of the Act, both by reproducing the full text of the work and by reproducing the excerpts of the work; (c) the respondents' use of the Kay Work was not fair dealing for the purposes of news reporting and therefore does not qualify for the exception from copyright infringement in section 29.2 of the Act; (d) the appellants are entitled to statutory damages for infringement of copyright in the Kay Work; (e) the respondents remove the posting of the Kay Work from their website and be enjoined from further publishing the excerpt of the Kay Work;

(fl

the respondents pay to the appellants the costs of this appeal and of the application; and

(g)

the appellants be granted such further and other relief as this Honourable Court deems just.

THE GROUNDS OF APPEAL are as follows: I. Overview 2. Postmedia Networks Inc., which is the successor corporafiion to the National Post

(collectively referred to as "National Post"), is the sole owner of copyright in the Kay Work. It holds no copyright interest in the other finro works at issue in the court below. The National Post's interest in this proceeding is restricted to addressing the correct

~~

_3_ interpretation of the Copyright Act as it applies to alleged infringement of copyright in the Kay Work. 1t takes no position on the dispute between Mr. Warman and the respondents. 3. On January 13, 2010, the National Post granted an exclusive licence to copyright

in the Kay Work to Mr. Warman. 4. In April 2010, Mr. Warman discovered that the full text of the Kay Work had been

reproduced on the respondents' website, www.freedominion.com( "Free Dominion") 5. On April 16, 2010, Mr. Warman demanded that the respondents remove the Kay

Work, and the respondents did so. However, after taking down the reproduction of the entire work, the respondents replaced it by posting excerpts of the Kay Work on Free Dominion. 6. Mr. Warman and the National Post then commenced the application below,

claiming damages for copyright infringement in the Kay Work arising from the reproduction of the posted excerpts. 7. The full text of the Kay Work consists of the headline and 11 paragraphs. The Free

Dominion website reproduced the headline of the article, three complete paragraphs, and part of a fourth paragraph. 8. In the view of the application judge, there was no infringement of copyright in the

Kay Work.

13
-49. First, he determined that "the respondents did not reproduce a substantial part of

the Kay Work" and that therefore there was no infringement of the applicants rights under subsection 3(1) of the Act. 10. Second, he found that, even if the reproduced portions of the Kay Work amounted

to a substantial part, such reproduction constituted "fair dealing for the purposes of news reporting" pursuant to section 29.2 of the Act. 11. In the National Posts view, these findings constitute significant errors on the part

of the application judge. As described below, this appeal raises important questions about the correct application of sections 3(1), 27(1) and 29.2 of the Act. II. The Respondents Reproduced a Substantial Part of the Kay Work 12. The Court erred by failing to conclude that the respondents' reproduction of the

entire Kay Work infringed copyright in that work. 13. The Court erred further by concluding that the respondents did not reproduce a

"substantial part" of the Kay Work by posting the excerpts at issue on their website. In so finding, the Court erred by: (a) finding that a quantity of "less than half of the work" — specifically, the headline, three complete paragraphs, and part of a fourth paragraph from an article comprising a headline and 11 paragraphs in total — is not a substantial part of a work;

4~

(b)

arbitrarily finding in paragraph 26 that "it appears [Warman] sought the exclusive licence to the Kay Work in order to prevent its further publication," which finding is unsupportable on the evidence;

(c)

concluding that the Kay Work was not excerpted to "save time and effort," which conclusion is arbitrary and unsupported by the evidence; and

(d)

incorrectly characterizing the excerpt as a paraphrase of the Kay Work, when only a small portion of the excerpt was actually paraphrased, and ignoring the fact that, as a reasonable alternative to reproducing the excerpt, the respondents could have restated the underlying ideas of the Kay.Work in their own words.

111. The Reproduction was Not Fair Dealing for the Purpose of News Reporting 14. The Court erred in determining, in the alternative, that the reproduction constitutes

fair dealing for the purposes of news reporting. 15. Specifically, the Court erred in finding that the statutory pre-conditions for the news

reporting exception, which require that the source and the author of the work be named, were met when in fact the neither the source (the National Post) nor the author (Jonathan Kay) were referenced in the infringing reproduction. 16. Further, in considering whether the dealing was "fair", the Court erred in its

application of the fairness facfiors by:

►s
(a) determining that the purpose of the dealing was for news reporting when that finding was contrary to the respondent's admission on

cross-examination that the purpose of the dealing was to "critique" Mr. Warman's activities;, (b) determining that the amount of the dealing was "very limited" and that this favoured a finding of fairness, when in fact the amount of the work reproduced was substantial and strongly favours a finding that a dealing is unfair; (c) failing to consider the nature of the work, which if considered would have supported a finding of unfairness; and (d) failing to find the dealing unfair, despite its findings that the alternatives to the dealing and fihe character of the dealing favoured a finding of unfairness; 17. 18. 19. The Federal Court Rules, Rule 335; The Federal Cou►ts Act, section 27; The Copyright Act, R.S.C., 1985, c. C-42, sections 3, 27, and 29.2.

September 20, 2012 ,~~f_

CASSELS BROCF~ BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R

~~

7Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

i~
Court File No. FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants -and MARK FOURNIER and CONSTANCE FOURNIER Respondents

NOTICE OF APPEAL

Cassels Brock &Blackwell LLP Barristers &Solicitors Scotia Plaza, Suite 2100 40 King Street West Toronto, Ontario, M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

k" r

This is Exhibit "B" referred to in the Affidavit of Caitlin Russell sworn May 13, 2013

Commissioner for Ta~/ig Affidavits (or as maybe)

i~

Court File No. A- ,~j~L~, ~ ~~~j FEC1~~Al. GC7Uf~'~ OF APP~A~ E3 ~ `t' W ~! tV: F2FCMARD WARMAN end N~TIQNAL Pf~ST COM('ANY /~pp~ilants

IIAAC~K F'C)URNI~R and CONS'TANCE ~OURNIEf~ F2espond~i7ts NOTICE(7F APPEAL, 'f~N~~N~"S: A ~,~(3A~. pRC1C~EDINC HA$ i~~~N ~CIMMENGED AG,AIMV~T YOU by tl7e ~ppella~it, Richard Ws~rrr»rt (the "Appellan~'~. The relief claimed by the Appellant appears ors the fo(Inwirrc~ page. THIS APP~A,~. will be heard by the Courk ~k ~ tittt~ and place to k~e fixers ttiy tiya Judioi~l /~drr~fr~istrator. Unless the Court df~act~ otheruvise, the place of he~rin~ will b~ a~ requested by the appellant. Thy appeilanfi requests that this appQ~l b~ heard at the F'edaral Court of Appeal•in Ottawa. #F YOU Wl~hl T4 t~PPOSE THIS APP~AI., to receive notice of any stun ire t17~ appeal or to t~~ ~erv~~ with any doaum~nts in t1i~ appeal, you or r~ solic:it~r acting far you must pr~~c~re a notice of Appearance in Form 3A~9 prescribed by fih~ ~odQr~l courts Rubs end nerve it on the appeli~nt's solicitor, or where the ap~~ilarit is self

-2~ r~p~es~t7tPd, an the appellant, WITHIN 10 BAYS of being s~nred with this notice of app~~i. If~ YDU ~NT'~N~ TC7 SEEK b DIF~~~tENT DI~pC131TiOM of the ordar ~~pealed from, you rnust setae end file ~ natiGe of ct'~as-appal in Farm X49 pr~uGribc~d by the J~ederat courts Rules 1nst~ed of s~nring end fiiing a rtptice a~F a~pearanrp. Gopie~ c~~F the Federal Gourfs Rules, information ~pnceming the Ioca1 afi~c~a of tli~ Courk and other necessa~r information may be obtairtad nn r~ques# fa the Administrator of this Court aE Otk~wa (telephane 813-9~2~4238)or at any Ir~cal ~fff~e. I~ YOU ~AlL TO CfP~'OSE YH~~ APPEAL., JUDGIVI~NT MAY ~C GIVEN {N '1F't7UFt A~3~~NCE J~►,Np iNiTHC?UT ~URTH~R Nt~TI~GE T4 YC1U.
s' Y ~r' '~' E`' ~

~~P 7, ~ ?t~~7
D8►te Issued by ,~.<:;'~~,I~,;'~i ~ ~~. ~ a,~~~,~,L::c?~" (fie ~istry (~fficc~r) Address of local ~fFic~: Tomas p'Arcy McGee ~~~ilding 90 Sparks Street, 5th Floor Ottawa, ON KIA ol-f9

a~ _~_
TCJ: ~NSS~L,S I~RQC{C ~ CiLACKVIfELL LI,P 21 UO Scotia I~la~a 4a f<ir►g street west Taranto, C3N M5H 3C2 C~s~y M. Chia(ck ~,$UC: #: 465728 Tel: d.9 C~.8~9.54Q3 Fax: 41(3.t~~A~.~~2~
oohisick~casaelsbra~k,com Jason Beitcliman LuUC #: 5~4i70 ?~88 Tel. ~16.8G0.

?99~ ~'ax: 647.26.
jbQit~chman~can~e~Isbrack,com

~r~(iaitars for the National Post Cor~npany ANQ TO' 11l~ARFC ~DURNI~fZ, 200q Unity Rnad Eiglnb~~ i7~J KOH 1 RIQ Ros~andet~tt A~NI:? TD: ~t~NSTANC~ ~fxUF~N1~R 21~OQ L.lni~r f~aad

~(ginburg ON KQH 1 NU
Respondent

~4ApP~AI, THE A~'F'~L.L.ANT ,ApPEAL,S to the Federal Court df ~ppoal from the Jud~m~nt of the Hnnour~bl~ Mr. ~lustice aauglas R~nni~ dated Jung ~1, X012, by which the Gourk
distnis~~d thc~ flppe(tant's application and dotermine~, Inter ells, tl~at; (~) the reproduction of excerpts of an arkicl~ entitled "Jonathan Kay an Rlch~rc! Wr~rrn~r~t arTd Ganacla's Phony-f?aolsm Industry', whirt~ was authored by Jonathan Kay ~S ~n em~layoe of the N~tion~l ~'t~sfi company (t17~ "K~y Work"), dfd not constitute the reproduction of a sul7sta►~tial pert of fh~t work and ther~fQre was not ~n infrin~em~nt of a~pyri~{7t pursuanfi 10 ~ub~~c#ions 3(1) and 27(1) of the Copyright Acf, R.S.C., 19 5, c. C-~z (thy "Act ")~ (b) euan if the reproduced eXcerpts of the IC~y Wank was tt s►~bstantial dart of the work, thQ re~pande nts' reproduction of the excor~t constitwtes fair

dealing for the purpose of news reporting pursuant to s~clion 29.2 of the Apt end tiler fore did not infringe the applicant's copyright in the Key Work; and (c) ths~t 4he ~lppailant's claim far copyr~ghf infringement regarding the

resprnde~nts' repraduckiott of the en#ire article ~ntitlecf "Maximum
,~7lsruptlor~: Sto~aplr7g IVeo-Nazis By (A/mosfJ Any M~~~as N~:cc~s~~ry", wS~ich way ~uthar~d by the App~ll~nt (thy "Warman Vllork"), was statute barred, purgu~ank to tho expiry of the (imitation perfacl set auf fn Section A~1

c~~F the /~~fi.

a3 .~_
TF#~ Af'P~~,~„A,NT ASKS #het: 1. Thc~ appeal b~ ~ilnwe:rf end fltiat this Honc~urabl~ Court order that: (a) trig respondents infringed copyright in t~~e lC~y Work, cs~ntr~ry to

sRabsactiion t~(~) of the Acf, both by reproducing the full text cif the wr~rk
~r►d by r~praducing fihe ~xc~rpts of the work; (b) fihe respondents' use of ~I~e c~xcerpts of the Kay Wc~rlc constikutes reptc~ductian of a substantial part of ~h~t work within fhe meaning of subs~ption ~(1)of the Ack; (c) the resp~nde~nts' use of the Key Wvrk w~~ not fair d~~tling for the purpt~ses of nPw~ repc~rking end therefore c~oe~ not qualify for tl7e exception from copyright infringement In section 29.2 a~ the Acct; (d} the respnnd~r~ts Infringed capyrk~h# in the Wc~rmaii Work, contrary to sub~eatfcan 27(1} aF the Act, by repeated{y and cantiriuousl~ reproducing thr: full ~c~xt of tha Warman(Nark; (e) the App~llt~nt is anti#ied fio s~atutary damages fnr infring~m~nt of capyrfgrit in the Key Work and the Warman Wark; (~ the r~s~~ndents be ehjained from further pubiishfng the Kay Wark and the Warman Wt~rk;

ay -~~
(g) the r~spor~d~~nts pay try the Appellant his ca~ta of tl7is appeal end ~f they application, ~~nd (I7) the Appell~nfi be granted s«et~ furfiher and o~lie~r relief ~s this Honourably CUUrt deerr7:~ just. THE ~F~aUNaS CAF ,A,pp~AL are as fellows: 2. "fhe hlono~irable Mr. Justir,.~ Rennie erred iii fact and in I~w in failing to conclude

that the res~iond~nts' ir7itial r~productian of the er~tir~ Kay Wari< f~ifring~d copyright in that work, 3. The Hc~naur~bl~ Mr. Justice: F2~nn1~ ~rr~d In fae~ and In law In fir7ding ti~at thc~

respondents did not r~prc~cluce a substantial part of the Kay Work and that therefar~ #here was n~ (nfring~m~ii~ caf that work Rursuant to subs~o~i~n 3(1) of the Apt. ~. The HanQ~rable Mr. Justice Rennie erred in fact and in law in finding that, even if

the re~r~duced poi-~Inn:~ of the Kay Wark had ~maunted to a subst~nti~l pert, such reproduction constitut~c~ Bali• dealing for the purposes of news repacking p~r~uant to Suction 2y.2 of thy: Act. 5. TI~~ hlar~our~ble Mr. Justice Bennie erred in tack and in law in fii7ding fhak the

~0.pp~llant's cl~(~ri of aa~yright infringement of the Warman Work was entiroly statute barred, p~~rsuant to Se~;tion ~1 of the Act. in particular, Mr. J~stice Bennie failed to CGnclude that the c~nfiinuous and repea~t~d r~proc~uatian c►f the W~r~7»n Work an fine resp~i7dc~nts' uveb~ite thrc~ughaut the thr~@-year p~ridd immediately prior tc~ the

as
-'lAppellant's ciairn for ihfring~:rn~n~t of tlt~t work brought that portion of the cic~irn within the statutoi~ fiirtitatican p~rlod yet out In S~ctlon 41 of the Act. 6. such f~ittl7er and otlior grounds as Counsel may advise and i~~is I-ianaurabl~

Court may ~armifi. 7. ~. 9. The F=eder+~1 Caur#s 1~ules, Rule 335; The l=ad~r~l ~purfs Acf, scaction 27; The Ca~yrlghtAct, R.S.C., 9~8~, c. G~42, s~ot(ons 3, Z7, X8.2 and 4~.

S~pfiember 2~, 2U12

~RAUSELL,~R.LL,P 7~a-55 Metcalfe S#teat ottAwa, Ont~rlo K1P 6~.5

James Katz L.SUC #: ~~046K
Tel: G13-237-40U0 ext 26'T -4001 Fax: @1 ~-237 Solicitors for tha Appellant,

Richard Warman

This is Exhibit "C" referred to in the Affidavit of Caitlin Russell sworn May 13, 2013 ,,

Commissioner for Taking

(or as maybe)

~r ~~

~~~~~~r~ ~~~~ ~~~~~rX

~'

f~~~tr ~'~~~~e1 ~~e~~r~Z~
Date: 20121218 Docket: A-394-12

Ottawa,Ontario,December 18,2012

Present:

PELLETIER J.A.

BETWEEN: RICHARll WARMAN and NATIONAL POST COMPANY Appellants and MARK FOUI2NIER and CONSTANCE FOURNIER Respondents

ORDER

WHEREAS by direction dated November 21,2012,the Court asked the parties for their cornrnents as to why the Court should not make the order proposed in that direction: and

WHEREAS the parties' submissions have been received and considered;

Page : 2 NOW THEREFORE IT IS HEREBY ORDERED THAT:

1) The motions to dismiss appeals A-394-12 and A-395-12 are dismissed. Pursuant to Rule 53(2), the following orders are made:

2) The appeals in files A-394-12 and A-395-12 shall be consolidated.

3) The appeal in file A-394-12 shall be considered as the lead appeal'and file A-395-12 shall be considered the related appeal.

4}

The style of cause in any further proceedings shall be the style of cause in file A-394-12 and

shall bear the docket numbers A-394-12 and A-395-12.

5}

One appeal book shall be prepared containing the material for both appeals. There shall be one

agreement as to the contents of the appeal book which shall be served and filed in the lead appeal and in the related appeal within 21 days of the date of this order,failing which a motion to settle the conCents of the appeal book shall be served and filed wiChin a fuRher 1Q days.

6}

Six copies of the appeal book, and any other documents to be served and filed, shall be filed

within thirty days after the later of the filing of the agreement as to the contents of the appeal book, or the date of the order settling the contents of the appeal book. The sixth copy shall be placed on the related file.

7) The appellant in the lead appeal shill prepare a memorandum of fact and law, not to exceed 30 pages, dealing with any common issues and the issues which are specific to the National Post Company, which shall be served and filed within 30 days of the filing of the appeal book.

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Page : 3 8) The appellant in the related appeal shall prepare a memorandum of argwnent, not to exceed 15 pages dealing only with the issues which are specific to the appellant Richard Warman, which shall be served and filed within 15 days ofthe date offiling of the lead appellant's memorandum offact

and law.

9) The respondents shall file a single memorandum offact and law which shall not exceed thirty pages and which shall be filed within 30 days from the date of service on the respondents ofthe memorandum offact and law in the related appeal.

10) The requisition for hearing together with a common book of authorities in the lead and the related appeal sha11 be served and filed within 20 days ofthe date of service ofthe respondent's memorandum offact and law.

11) The respondent's book of authorities sha11 be served ar~d filed within 20 days offiling ofthe requisition for hearing.

12) The time lines in this order are peremptory and must be strictly complied with. If, for any reason, an extension oftime is required, the motion seeking such extension must be filed before the expiration ofthe time for doing the act for which an extension oftime is required.

13) The costs ofthe motions to dismiss shall be costs iun the cause.

"J.D. Denis Pelletier" J.A.

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Court File No.: A-394-12 and A-395-12 FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

AFFIDAVIT OF CAITLIN RUSSELL (Filed this 13th day of May, 2013)

Cassels Brock &Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

31
Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents

WRITTEN REPRESENTATIONS OF THE NATIONAL POST COMPANY (Responding Party to the CIPPIC Motion in Writing for Leave to Intervene) CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

~~
TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY &PUBLIC INTEREST CLINIC (CIPPIC) University of Ottawa, Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa ON K1 N 6N5 David Fewer LSUC #:45307C Tel: 613.562.5800, Ext. 2558 Fax: 613.562.5417 Solicitors for the Proposed Intervener AND TO: BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1 P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Appellant, Richard Warman AND TO: MARK and CONSTANCE FOURNIER 2000 Unity Road Elginburg ON KOH 1 NO Tel: 613.929.9265 Fax: 609.379.8793
Respondents

3a

33
Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents WRITTEN REPRESENTATIONS OF THE NATIONAL POST COMPANY (Responding Party to the CIPPIC Motion in Writing for Leave to Intervene)

OVERVIEW 1. The National Post Company (the "National Post") does not oppose the
per se

motion for leave to intervene in this appeal filed by the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic( "CIPPIC") 2. However, the National Post submits that this Court ought to place appropriate

terms on the nature and scope of CIPPIC's intervention, to ensure that, if granted leave to intervene, CIPPIC's participation be limited to addressing issues raised by the parties, and that its role remain that of an intervener and not as quasi party.

2 PARTI -FACTS 3. CIPPIC's motion seeks leave to intervene in two related appeals in Court File Nos.

3\

A-394-12 and A-395-12 (together, the "Appeals").' The National Post is the Appellant in A-394-12. Richard Warman is the Appellant in the related appeal, A-395-12. 4. The Appeals both challenge the Reasons for Judgment and Judgment of Mr.

Justice Douglas Rennie, dated June 21, 2012(the "Judgment"),2 in which Justice Rennie dismissed an Application (the "Application") alleging infringement of copyright in three works. 5. One of these three works is a newspaper article authored by Jonathan Kay, an

employee of the National Post (the "Kay Work"). The National Post is the owner of copyright in the Kay Work. Mr. Warman is the exclusive licensee of the Kay Work.3 The Appeal in A-394-12 relates exclusively to the Kay Work. 6. The respondents to the Appeals, Mark and Constance Fournier (the

"Respondents"), operate a website discussion forum.4 The Application alleged that the Kay Work was reproduced on the Respondents' website without consent of the owner or the exclusive licensee, and therefore infringed copyright. The Application alleged that the

The Notice of Appeal in both A-394-12 and A-395-12 appear as Exhibit to the Affidavit of Caitlin Russell, sworn May 13, 2013( "Russell Affidavit'), Responding Motion Record, Tab 2(A) and (B).
2

Warman et al. v. Fournier, 2013 FC 803, Responding Motion Record, Tab 4.

3 Ibid. 4

at para. 3.

Ibid at para. 5.

3 Respondents' website published the Kay Work first in its entirety, and then subsequently removed the complete text of the Kay Work and replaced it with excerpts of that work.5 7. Mr. Justice Rennie dismissed the Application. He determined that the excerpts of the

3S

Kay Work reproduced by the Respondents did not constitute a "substantial part" of the work contrary to section 3 and 27 of the CopyrightAct,6 and therefore there was no infringement. He further determined that even if the reproduced portions of the Kay Work amounted to a substantial part, the Respondents' reproduction constituted fair dealing for the purpose of news reporting, pursuant to section 29.2 of the Copyright Act.' 8. While the National Post was named as an applicant in the Application, it had no

knowledge that the proceeding had been commenced. The National Post was never served with any documents in the proceeding (including the originating process), and had no knowledge of the Application until after the Judgment was issued. The National Post did not submit any evidence or argument in the Application and did not appear at the hearing of the Application.$ 9. After learning of the Judgment, the National Post instructed counsel to commence

this appeal, which was issued on September 20, 2012. By April 23, 2013, all parties had delivered memorandum of argument on the merits in the Appeals.9

5 6

Ibid at para. 7.
R.S.C., 1985, c. C-42.

Ibid at paras. 23, 24 and 29.
$ Russell Affidavit at pars. 5, Responding Motion Record, Tab 2.
9

Russell Affidavit at paras. 6 - 7, Responding Motion Record, Tab 2.

4 10. Approximately 10 days later, on May 2, 2013, CIPPIC served a motion record in

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support of its motion for leave to intervene in the Appeals. CIPPIC did not intervene in the Application.

PART II - POINTS IN ISSUE 11. The issue on this motion is as follows: (a) If CIPPIC is granted leave to intervene, what is the appropriate scope and nature of such intervention?

PART III - SUBMISSIONS 12. Rule 109(3) of the Federal Court Rules10 provides the Court with the discretion to

place terms and conditions on the role of an intervener as may be appropriate in the circumstances of a particular case.~~ Indeed, it is not uncommon for the Court to attach terms including limits on the issues that an intervener may address, the length of the memorandum of fact and law that an intervener may file and the time allocated to the intervener for oral argument.12 For example, in the case of Globalive Wireless Management Corp. v. Public

13.

Mobile /nc.,13 relied upon by CIPPIC in this motion, the Court limited the proposed intervener's participation to only certain issues, and limited its memorandum to 12 pages in length and oral submissions to no more than 20 minutes.
~0 1998, S.O.R./98-106. "Canada (Director of Investigation &Research) v. Air Canada (1988), [1989] 2 F.C. 88 (Fed. C.A.) at para 14. 12 Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119, CIPPIC Motion Record, Tab 6. 13 Ibid.

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14. The National Post submits that the scope of the intervention proposed by CIPPIC is overly broad. If leave to intervene is granted to CIPPIC, this Honourable Court ought to place appropriate terms on that intervention, as further discussed below. CIPPIC Seeks to Raise a New Issue 15. An intervener may not widen or add to the issues to be determined in a

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proceeding.'4 16. CIPPIC sets out the issues it seeks to address in the Appeals at paragraph 4 of its

Notice of Motion.15 At paragraph 4(b), CIPPIC has proposed that, if granted leave, it be permitted to address "the scope of copyright liability that an intermediary can incur for work posted to its site by a third party." 17. This issue was not considered by Mr. Justice Rennie in the proceeding below, and

did not form part of the Judgment. This issue was not raised by the National Post in the Notice of Appeal, and was not addressed by any of the parties in the memoranda of law filed in the Appeals. It is further unclear the extent to which the evidentiary record in this proceeding is sufficient to opine in any way on this issue. 18. CIPPIC should not be permitted to raise this new issue. If granted intervener

status, CIPPIC's participation should be limited to addressing issues raised in the Appeals by the parties.

'a Canada (Minister of Indian &Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed. C.A.).

15 CIPPIC Motion Record, Tab 1, p. 3.

0

Limits on Other Issues Raised by CIPPIC 19. If leave to intervene is granted, CIPPIC's intervention ought to be limited to

addressing the issues it proposes to address in paragraphs 4(a), (c), (d),(e) and (fl of its Notice of Motion,16 with appropriate modifications as set out below. 20. With respect to the proposed issue in paragraph 4(d), for greater certainty, the

National Post submits that CIPPIC ought to be limited to addressing "what constitutes `substantial' reproduction as stated in subsection 3(1) of the Copyright Act."~' It is "substantial" reproduction as defined in subsection 3(1) that is at issue in this proceeding. 21. Further, the National Post objects to CIPPIC's use of the word "minor" in paragraph

4(fl, where CIPPIC proposes that it address whether "minor excerpting" should be considered fair dealing. The question of whether the excerpting of the Kay Work by the Respondents is "minor" or not is the very issue that this Court is to determine in appeal A-394-12. Any order granting CIPPIC leave to intervene and defining the issues that CIPPIC may address ought to present those issues neutrally. Accordingly, the word "minor" should be removed from CIPPIC's list of proposed issues. Limits on Written and Oral Argument 22. The role of an intervener is necessarily more limited than the participation of a

respondent who enjoys all rights of a party.'$ Accordingly, in order to ensure an efficient

~6 CIPPIC Motion Record, Tab 1, p. 3. "The underlined portion represents proposed additional wording to amend the issue set out in CIPPIC's Notice of Motion. '$Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General), 2011 FC 158 at pars. 41, rev'd in part 2011 FCA 129.

7 resolution of the hearing and respect the rights of the parties, limitations should be put on the length and duration of CIPPIC's written and oral submissions. 23. The National Post proposes that, if leave to intervene is granted, CIPPIC's

3~

participation should be limited to filing a memorandum of fact and law not to exceed twenty (20) pages in length and its oral submissions should not exceed thirty (30) minutes. 24. The National Post notes that it and the Respondents were limited to submitting

memoranda of fact and law of not more than 30 pages, and that Mr. Warman was limited to a memorandum of not more than 15 pages.19 25. To the extent that CIPPIC is granted leave to intervene and permitted to file a

memorandum of fact and law, the National Post requests the right to deliver a responding memorandum, not to exceed 20 pages. Other Terms An intervener's participation in a proceeding must not merely be a reiteration of the

26.

position taken by a party, but rather must provide a different perspective.20 Accordingly, CIPPIC should not duplicate the submissions of the other parties. 27. Similarly, an intervener must take the record as she finds,21 and CIPPIC ought not

be permitted to introduce any new evidence.

190rder of Pelletier J.A., dated December 18, 2012, Russell Affidavit, Exhibit "C", Responding Motion Record, Tab 2(C). 20 Ferroequus Railway Co. v. C.N.R., 2003 FCA 408 at pars. 13.

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Conclusion 28. These terms permit CIPPIC to participate in the proceeding and address the

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issues they seek leave to intervene to address. However, placing terms on CIPPIC's intervention strikes an appropriate balance of fairness to the parties, drawing a clear distinction between CIPPIC as an intervener and the parties to the Appeals. PART IV -ORDER SOUGHT 29. If CIPPIC is granted leave to intervene in the Appeals, the National Post

respectfully requests that this Honourable Court grant leave to intervene on the following conditions: (a) CIPPIC shall be permitted to address only the following issues: (i) The application of the statutory limitation period set out in subsection 41(1) of the CopyrightAct, R.S.C. 1985, c. C-42, to works published on the Internet; (ii) The interpretation of "distinctive", as stated in the definition of "work" in section 2 of the Copyright Act; (iii) What constitutes "substantial" reproduction as stated in subsection 3(1) of the Copyright Act;

Z' Edmonton Friends of the North Environmental Society v. Canada (Min. of Western Economic Diversification), [1991] 1 F.C. 416 (C.A.) at pars. 9.

0
(iv) The interpretation of statutory conditions precedent to the fair dealing exceptions, as listed in section 29 and sections 29.1 and 29.2 of the Copyright Act; and (v) The circumstances in which an excerpt for the purpose of news reporting or criticism should be considered "fair" dealing; (b) CIPPIC shall be permitted to file a memorandum of fact and law, not to exceed 20 pages, which shall be served and filed within 30 days of the date of any Order granting leave to intervene. The National Post shall be permitted to file a responding memorandum of fact and law not to exceed 20 pages, within 30 days of the service of CIPPIC's memorandum. There shall be no reply;

~i

(c)

CIPPIC shall be permitted to address the Court at the hearing of the Appeals, but its oral submissions shall not exceed 30 minutes;

(d)

CIPPIC shall not duplicate the submissions of the other parties;

(e)

CIPPIC shall be bound by the record and may not introduce any new evidence;

(fl

CIPPIC shall have no right to appeal;

(g)

No costs shall be awarded in favour of or against CIPPIC in relation to its intervention in the Appeals; and

~a
10 (h) CIPPIC shall be added to the style of cause in the Appeals as an intervener.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 13t" day of May, 2013.

CASSELS BROC~yBLACKWELL LLP 2100 Scotia Plaz ~~ 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cch isick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

PART V -LIST OF AUTHORITIES 1. Copyright Act R.S.C., 1985, c. C-42 2. Federal Court Rules, 1998, S.O.R./98-106, R. 109 3. Warman et al. v. Fournier, 2013 FC 803 4. Canada (Director of Investigation &Research) v. Air Canada (1988),[1989]2 F.C. 88 (Fed. C.A.) 5. Canada (Minister of Indian &Northern Affairs) v. Corbiere (1996), 199 N.R. 1 (Fed. C.A.) 6. Ferroequus Railway Co. v. C.N.R., 2003 FCA 408 7. Edmonton Friends of the North Environmental Sociefy v. Canada (Min. of Western Economic Diversification), [1991] 1 F.C. 416 (C.A.) 8. Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General), 2011 FC 158

Federal Court

Cour federale

Date: 20120621 Docket: T-784-ll ~, Citation: 2012 FC 803 Ottawa, Ontario, June 21, 2012 PRESENT: BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Applicants and The Honourable Mr.Justice Rennie
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MARK FOURNIER and CONSTANCE FOURNIER Respondents

REASONS FOR JUDGMENT AND JUDGMENT

[1]

The applicant alleges infringement by the respondents of his copyright in three works, and

seeks several remedies in respect ofthat alleged infringement. Forthe reasons that follow the application is dismissed in respect ofall three works.

Facts [2] This application relates to the alleged infringement ofRichard Warman's (applicant's)

copyright in three works. The first is a speech authored by the applicant, titled, "Ma~mum

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Page: 2 Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessity"(Warman Work). The applicant authored the Warman Work in July 2005,and registered his copyright in the Warman Work on February 18,2011.

[3]

The second work is an article authored by Jonathan Kay while he was employed by the

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National Post Company (NP),titled "Jonathan Kay on Richard Warman and Canada's PhonyRacism Industry" (Kay Work). The applicant obtained an exclusive license to the copyright in the Kay Work through an agreement with NP on January 13,2010. The applicant registered his copyright in the Kay Work on March 10,2011.

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[4]

The third work is a photogaph ofthe applicant and another individual, taken by M.Barrera

(Barrera Work). The applicant obtained the copyright in the Barrera Work by assignment on August 11,2010, and registered his copyright on February 18,2011.

[5]

The respondents, Mark and Constance Fournier, operate the website

www.freedominion.com (Free Dominion). They describe Free Dominion as an online polRical news discussion forum which is accessible to any member ofthe public and which is used for discussing political issues from a conservative viewpoint.

[6]

The applicant states that he first discovered that the Warnlan Work had been reproduced on

Free Dominion in September 2007. The respondents acknowledge that a copy ofthe Warman Work was uploaded onto the Free Dominion server at that time. They state that it was a scanned copy of an e~ibit in a Canadian Human Rights Tribunal case. The applicant sent an email to the

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Page: 3 respondents through a third party on October7, 2007, demanding that the Warman Work be removed from the website.

[7]

The applicant states that he discovered in April 2010 that the Kay Work had been
U

reproduced on Free Dominion. The respondents state that the Kay Work was posted in a discussion thread on Free Dominion on January 10,2008(although the date ofthe post in the record appears as February 18,2008). The applicant demanded that the Kay Work betaken down on April 16, 2010, at which tithe the respondents removed the Kay Work, but posted excerpts ofthe Kay Work in its place.

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[8]

The applicant states that he discovered that the Barrera Work had been reproduced on Free

Dominion in August 2010, and that the Warman Work also continued to be reproduced at that time. The respondents state that the Barrera Work was never uploaded onto the server for Free Dominion; rather, a member posted an inline link to the Barrera Work as it appeared on the applicants personal website on May 27,2010. The respondents state that the Barrera Work was no longer displayed on the applicant's website and therefore the inline link no longer worked, as ofJune 7, 201 1.

Relevant Legislation [9] Section 27 of the Copyright Act(RSC, 1985, c C-42)(Copyright Act)defines infringement

of a copyright: Infringement generally 27.(1)It is an infringement of copyright for any person to do, without the consent ofthe owner of the copyright, anything that by this Act Regle generale 27.(1)Constitue une violation du droit d'auteur 1'accomplissement, sans le consentement du titulaire de ce droit, d'un acte qu'en ve~•tu de la pi-esente loi

Page: 4 seul ce titulaire a la facuhe d'accomplir.

only the owner ofthe copyright has the right to do.

[10]

Section 3 ofthe Copyright Act sets out the rights included in a copyright in a work: Copyright in works 3.(1)For the purposes ofthis Act, "copyright ", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right (a)to produce, reproduce, perform or publish any translation ofthe work, (b)in the case of a dramatic work,to convert it into a novel or other nondramatic work, (c) in the case ofa novel or other nondramatic work, or ofan artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, (d)in the case of a literary, dramatic or musical work, to make any sound recording, cinematogaph film or other contrivance by means of which the work may be mechanically reproduced or performed, (e) in the case of any literary, dramatic, musical or artistic work,to reproduce, adapt and publicly present the work as a cinematogaphic work, (fl in the case of any literary, dramatic, musical or artistic work,to Droit d'auteur sur 1'oeuvre 3.(1)Le droit d'auteur sur 1'oeuvre comporte le droit exclusif de produire ou reproduire la totalite ou une partie importante de 1'oeuvre, sous une forme materielle quelconque, d'en executer ou d'en representer la totalite ou une partie importante en public et, si 1'oeuvre nest pas publiee, d'en publier la totalite ou une partie importante; ce droit comporte, en outre, le droit exclusif a)de produire, reproduire, representer ou publier une traduction de 1'oeuvre; b) s'il s'agit dune oeuvre dramatique, de la transformer en un roman ou en une autre oeuvre non dramatique; c) s'il s'agit d'un roman ou d'une autre oeuvre non dramatique, ou d'une oeuvre artistique, de transformer cette oeuvre en une oeuvre dramatique, par voie de representation publique ou autrement; d)s'il s'agit dune oeuvre litteraire, dramatique ou musicale, d'en faire un enregistrement sonore, film cinematogaphique ou autre support, a 1'aide desquels 1'oeuvre peut etre reproduite, representee ou executee mecaniquement; e) s'il s'agit dune oeuvre litteraire, dramatique, musicale ou artistique, de reproduire, d'adapter et de presenter publiquement 1'oeuvre en tant
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communicate the work to the public by

qu'oeuvre cinematographique; fl de communiquer au public, par telecommunication, une oeuvre litteraire, dramatique, musicale ou artistique; g) de presenter au public tors dune exposition, a des fins autres que la vente ou la location, une oeuvre
artistique — autre qu'une carte

telecommunication, (g) to present at a public e~ibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, (h) in the case ofa computer progam that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer progam, and (i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and to authorize any such acts.

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geogaphique ou marine, un plan ou un graphique — creee apres le 7juin 1988; h) de louer un progamme d'ordinateur qui peut etre reproduit dans le cadre normal de son utilisation, sauf la reproduction effectuee pendant son execution avec un ordinateur ou autre machine ou appareil; s'il s'agit dune oeuvre musicale, d'en louer tout enregistrement sonore. Est inclus dans la presente definition le droit exclusif d'autoriser ces actes.

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wllY3ltQlt WOl'~C

[11]

The respondents do not dispute that copyright subsists in the Warman Work,or that the

applicant is the owner ofthe copyright as the author. I am satisfied that these elements of establishing infringement are met.

[12]

I find that, while the applicant has established primafacie infringement ofhis copyright in

the Warman Work, he is precluded from obtaining any remedy for the infringement pursuant to section 41(1)ofthe Copyright Act.

Pabe: 6

[13]

The applicant has established that the respondents authorized the communication ofthe

Warman Work by telecommunication, by uploading a copy ofit onto their server. The Canada Copyright Board held in Public Performance ofMusical Works(Re),[1999]CBD No 5, at p 19, that a person authorizes communication of a work by telecommunication when that person makes the work available to the public on a server. The respondents do not deny doing this and therefore I find that primafacie infringement has been established.
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[14]

The respondents advance several possible defences for this infringement but they need not

be considered because the applicant is not entitled to a remedy in respect ofthis infi-ingement, pursuant to section 41(1)ofthe Copyright Act, which states:

Limitation period for civil remedies 41.(1)Subject to subsection (2),a court may not award a remedy in relation to an infringement unless (a) in the case where the plaintiff knew, or could reasonably have been expected to know, ofthe infringement at the time it occurred, the proceedings for infringement are commenced within three years after the infringement occurred; (b)in the case where the plaintiff did not know, and could not reasonably have been expected to know, ofthe infringement at the time it occurred, the proceedings for infringement are commenced within three years a$er the time when the plaintiff first knew, or could reasonably have been expected to know, ofthe infringement.

Prescription 41.(1)Sous reserve du paragaphe (2), le tribunal saisi d'un recours en violation ne peat accorder de reparations que si a) le demandeur engage des procedures dans les trois ans qui suivent le moment ou la violation a eu lieu, s'il avail connaissance de la violation au moment ou elle a eu lieu ou s'il est raisonnable de s'attendre a ce qu'il en art eu connaissance ace moment; b)le demandeur engage des procedures dans les trois ans qui suivent le moment ou it a pris connaissance de la violation ou le moment ou it est raisonrsable de s'attendre a ce qu'il en art pris connaissance, s'il n'en avail pas connaissance au moment ou elle a eu

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Page: 7 lieu ou s'il nest pas raisonnable de s'attendre a ce qu'il en ait eu connaissance a ce moment.

[15]

The applicant has acknowledged that he knew about the respondent's infi-ingement ofthe

Warman Work since September 2007. Thus, he did not bring this proceeding within the limitation
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period prescribed by section 41(1) ofthe Copyright Act and therefore he is time-barred from raising copyright infringement in respect ofthat work:Philip Morris ProductsSA v Malboro Canada Ltd, 2010 FC 1099 at para 353.

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[16]

The applicant advanced two arguments on this issue: first, he alleged in his affidavit that he

learned ofa new, subsequent infringement in 2010,and therefore the application falls within the limitation period in respect ofthat infringement.

[17]

This allegation is not substantiated by the evidence. The applicant included a URL in his

affidavit that supposedly led to a second uploaded copy ofthe Warman Work but, as the respondents note, that URL was not functional. The applicant did not, for example, provide a printout ofthe Warman Work with that URL listed at the bottom which would have been evidence that there was an additional uploaded copy ofthe Warman Work. Thus, the only infringement of the Warman Work established by the evidence falls outside the limitation period.

[18]

Second, the applicant argues that, following the Court's decision in Milliken & Co. v

Interface Flooring Systems(Canada)Inc.(1996), 123 FTR 269,75 CPR(3d)481,the limitation period in section 41(1)ofthe CopyrightAct does not apply with respect to injunctive relief. In that

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Pabe: 8 decision, Justice Tremblay-Lamer found that section 41(1)was inapplicable to an application for an injunction, because ofthe equitable nature ofthat relief.

[19]

The only cases cited in that decision date back to the 1920s. I would note that recent cases U
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ofthis Court and other courts, including. those in which an injunction was sought, have applied the limitation period and denied any remedy. No exception was made for injunctive relief: Drolet v Stiftung Gralsbotschaft, 2009 FC 17;Smith v Hayden,2010 ONCA 271. It is unclear whether the parties in those cases argued that injunctive relief was available outside the limitation period.

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[20]

In my view, even if section 41(1)does not preclude the ganting ofinjunctive relief, it at the

very least informs the exercise ofthe Court's discretion to gant an injunction for copyright infringement. It would be contrary to Parliament's intent to find that an injunction is presumptively available for an infi-ingement if the application is brought outside the limitation period. It is more consistent with the Copyright Act for the Court to limit the exercise ofits discretion to gant an injunction to circumstances where it will have some practical effect and the balance of convenience strongly favours granting the injunction. The Supreme Court of Canada(SCC)confirmed in CCH Canadian Ltd. v Law Society of Upper Canada,2004 SCC 13, at para 85,that an injunction is an equitable remedy and thus within the Court's discretion.

[21]

In this case,the applicant has not shown that an injunction is necessary to prevent further

infringement; rather, the evidence is that the respondents have removed the Warman Work from their server and the physical copies they retain are for the purposes of defending the defamation

sa
Page: 9 action brought against them by the applicant. Thus, I decline to exercise my discretion to grant an injunction in respect ofthe Warman Work and this aspect ofthe application is dismissed.

Kay Work [22] The applicant obtained an exclusive license to the copyright in the Kay Work on January 13,
M

2010,and therefore is able to sue a third party for infringement: Euro Excellence Inc v Kraft Canada Inc,2007 SCC 37,at pars 31. Once again, the respondent does not dispute that copyright subsists in the Kay Work or that the applicant is entitled to bring an application for infringement. The respondents argue the application is also time-barred in respect ofthe Kay Work; however, the applicant did not obtain license to the copyright until 2010,and therefore could not have become aware of infringement of his copyright until that time.

o c~ r
0

No Reproduction ofa SubstantialPart [23] The applicant submits that the respondents infringed his copyright in the Kay Work by

reproducing excerpts from it. He argues that the reproduced excerpts constitute a substantial part of the Kay Work,contrary to sections 3 and 27 ofthe Copyright Act. Whether a substantial part of a work has been reproduced is a question offact and involves a qualitative rather than quantitative analysis. The relevant factors to be considered include: a. the quality and quantity ofthe material taken; b. the e~ctent to which the respondent's use adversely affects the applicant's activities and diminishes the value ofthe applicant's copyright; c. whether the material taken is the proper subject-matter ofa copy►-i~l~t;

~3
Page: 10 d. whether the respondent ii~tentioi~ally appropriated the applicant's work to save tine and effort; and e. whether the material taken is used in the same or a similar fashion as the applicant's: U & R Tax Services Ltd v H& R Block Canada Inc,[1995]FCJ No 962,at Para 35.
J C N

U

[24]

Applying those factors to this case, I find that the respondents did not reproduce a

0

M

substantial part ofthe Kay Work, and therefore there is no infringement.

00 U N r
O N

[25]

Quantitatively, the reproduction constitutes less than half ofthe work. The Kay Work itself

consists of a headline and eleven paragaphs. The reproduction on Free Dominion included the headline, three complete paragaphs and part of a fourth. Qualitatively, the portions reproduced are the opening "hook" ofthe article, and the summary ofthe facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced.

[26]

Most ofthe other factors are not directly relevant in this case given the circumstances in

which the applicant obtained the copyright: he does not appear to "use" the subject matter ofthe copyright in the sense ofreproducing or publishing the Kay Work. It is a highly critical article about the applicant and it appears he sought the exclusive license to the Kay Work in order to prevent its further publication.

[27]

It does not appear that the excerpts ofthe Kay Work were reproduced to "save time and

effort". Based on the context ofthe posting, the respondents reproduced portions ofthe Kay Work to preserve a record ofthe facts summarized in the article, so that members ofFree Dominion could

continue to discuss those facts on the forum. Also, contrary to the applicant's argument, the

Page: 11 reproduction does inch~de a summary or paraphrase ofpart ofthe work, specifically the second paragaph.

[28]

Thus, considering the matter as a whole, I find as a fact that the applicant has not established v
M

that the excepts of the Kay Work reproduced by the respondent constitute a "substantial part" of the work, and there is therefore no infringement.

o v u~
N r O {V

FairDealingfor the Purposes ofNewsReporting [29] In the alternative, even if the reproduced portions ofthe Kay Work amount to a substantial

part, I find that the respondents' reproduction constitutes fair dealing for the purposes of news reporting, pursuant to section 29.2 ofthe Copyright Act.

[30]

The SCC's decision m CCHsets out important guiding principles in applying the fau-

dealing exception. The SCC emphasized at paragraph 48 that fair dealing is best understood as an integal part ofthe copyright regime and as a user's right, rather than a defence. In order to avail themselves ofthe exception the respondents must establish first, that the dealing was for one ofthe purposes articulated in section 29 ofthe Copyright Act, and second,that the dealing was fair.

[31]

The SCC stated in CCH,at paragraph 51,that the fair dealing purposes (in that case,

research)"must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained." Applying this large and lberal interpretation to news reporting, I find that the respondents' dealing in respect of the Kay Work falls within this purpose. They posted the excerpts ofthe Kay Work on Free Dominion to promulgate the facts recounted in that article. Thus, the first

S~
Page: 12 criterion for fair dealing is met. The news reporting exception also requires that the source and author be mentioned, which is also satisfied in this case.

[32]

The SCC set out several factors that may be relevant in determining whether dealing is fair
J C

in CCH,at paragaph 53: (1)the purpose ofthe dealing; (2)the character ofthe dealing; (3)the amount ofthe dealing; (4)alternatives to the dealing; (5)the nature ofthe work; and (6)the effect ofthe dealing on the work. Although these considerations will not all arise in every case offair dealing, this list offactors provides a useful analytical framework to govern determinations offairness in future cases.

m U

M O

N
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[33]

These factors milRate in favour of a finding offair dealing in this case. As discussed above,

the dealing was for one ofthe allowable purposes under the Copyright Act. The amount ofthe dealing was very limited. The reproduced portion ofthe Kay Work contained mostly facts and did not contain most ofthe original commentary by the author. The nature ofthe work favours a finding offair dealing. The Kay Work is not currently published, which supports a finding offair dealing because one ofthe purposes ofcopyright law is to promote wider dissemination of works: CCH,at para 58. Furthermore, the dealing is not competing with the applicant's use ofthe Kay Work because he does not seek to publish it.

[34]

Some ofthe factors weigh less strongly in favour ofa finding of fair dealing: there was

arguably an alternative to the dealing, namely providing a summary ofthe Kay Work instead of reproducing excerpts. Also, the character ofthe dealing does not strongly support a finding offair

dealing. The excerpts are widely distributed on the Internet as opposed to the making ofa private

f~ Page: 13

copy. However, balancing all the factors together, I find that the reproduction of t11e Kay Work falls within the fair dealing exception for the purposes of news reporting.

[35]

Thus, because the reproduction ofthe Kay Work did not constitute a substantial part, and
J

even if it did, the reproduction falls within the scope of fair dealing for the purposes of news reporting, the application in respect ofthe Kay Work is dismissed.

v
M

o°o v
N
r

C.~ C'V

Bai•rera Work [36] The application in respect ofthe Barrera Work must fail because any communication ofthe

Barrera Work by telecommunication was authorized by the applicant. Communication ofa work by telecommunication will only constitute infringement if it was unauthorized. In Public Performance, the Copyright Board held at page 19 that making a work available on an Internet website accessible to the public constitutes authorization ofcommunication by telecommunication: "Authorization" constitutes a separate protected use under the Act. To authorize is to sanction, approve or countenance. The person who makes a musical work available on an Internet-accessible site authorizes its communication. The work is posted for the sole purpose of being communicated and with full knowledge and intention that such a communication would occur. The person who makes the work available does more than merely provide the means to communicate the work; he/she either controls or purports to control the right to communicate it.

[37]

The evidence is clear that the Barrera Work was posted on the applicant's personal website

and thus the communication ofthe Barrera Work occurred by creating a hyperlink to the applicant's own website. Thus, the applicant authorized communication ofthe Barrera Work by posting it on his website and therefore there is no infringement.

S~
Page: 14 [38] Counsel for the applicant argued that the respondents cannot rely on the fact that the Barrera

Work was posted on the applicant's website because that would amount to "blaming the victim". However, the applicant is only a victim of infringement if the respondents did something only he has the right to do without his authorization. As the respondents submit, the Barrera Work was within the applicant's full control and if he did not wish it to be communicated by telecommunication, he could remove it from his website, as he eventually did. v
M

o v
N
r

O N

[39]

Therefore, the application in respect ofthe Bar►•era Work is also dismissed.

Damages/Costs [40] The respondents submit that the applicant has brought the administration ofjustice into

disrepute by making this application and that since it constitutes an abuse ofprocess, the Court should award punitive or exemplary damages against the applicant. I agee with the applicant that the defence of abuse of process is not applicable in this case. The application was not frivolous or vexatious, nor have the respondents shown that the applicant unnecessarily lengthened the proceedings or brought unnecessary motions.

[41]

It appears that what the respondents are actually arguing is that the application is an abuse of

process because it was brought for an improper, collateral purpose. The applicant was not seeking to exercise his copyright, but rather was using the copyright regime as a means to harass the respondents because oftheir political views. Thus, what the respondents appear to argue is actually the tort of abuse of process; however, that is a separate action that must be brought by the

Page: 15 respondents. The Court makes no comment on whether the tort ofabuse of process could be established in this instance.

[42]

The respondents also ask that the Court grant costs on the highest scale permitted.
U
M O

However, they again have not presented any evidence ofconduct ofthe applicant during this proceeding that would warrant a higher cost award than the norm. Therefore, party-and-party costs in accordance with Column III of Tariff B are awarded.

U N

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S~
Page: 16 JUDGMENT THIS COURT'S JUDGMENT is that the application for judicial review is dismissed with costs to the respondents. Party-and-party costs in accordance with Column III ofTarifF B are awarded.
J t6

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U

'Donald J. Rennie" Judge

N O N

FEDERAL COURT SOLICITORS OF RECORD

DOCKET: STYLE OF CAUSE:

T-784-11 RICHARD WARMAN and NATIONAL POST COMPANY v MARK FOURNIER and CONSTANCE FOURNIER

U ._..
M O U LL N

~a

PLACE OF HEARING: DATE OF HEARING: REASONS FOR JUDGMENT AND JUDGMENT: DATED:

Ottawa May 28, 2012

0
N

RENNIE J. June 21, 2012

APP~ARANC~S: Mr. James Katz FOR THE APPLICANT Richard Warman FOR TIC RESPONDENTS

Mr. Mark Fournier Ms. Constance Fournier•

SOLICITORS OF RECORD: Brazeauseller.LLP Ottawa, Ontario FOR THE APPLICANT Richard Warman FOR'TI~ RESPONDENTS

Page 1 1988 CarswellNat 676, 33 Adtpin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241

1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741,23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241 Canada(Director of Investigation &Research) v. Air Canada AMERICAN AIRLINES INC, v. COMPETITION TRIBUNAL et al. Federal Court of Canada, Court of Appeal Iacobucci C.J., Heald and Stone JJ. Heard: October 25, 1988 Judgment: November 10, 1988 Docket: Doc. No. A-851-88 D Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Counsel: Colin L. Campbell, for appellant. N.J. Shultz and Janet Yale, for Consumers' Association of Canada. C. Marshall and E. Rothstein, for respondents Air Canada Ltd., 153333 Canada Ltd. partnership, Air Canada Services Inc. JoAnne Strekaf, for respondents PWA Corp. Canadian Airlines International Ltd., Pacific Western Airlines Ltd., Canadian Pacific Airlines Ltd., 154793 Canada Ltd., 153333 Canada Ltd. partnership, Air Canada Services Inc. John Rook and Trevor Whiffen, for Director of Investigation &Research. No one appearing for Attorney General of Manitoba or' for Wardair Canada Inc. Subject: Intellectual Property; Public; Property; Civil Practice and Procedure Practice --- Parties — Intervenors

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Page 2 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741,23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241

Practice --- Costs —Costs of appeals —Power of appellate court to award costs Statutes --- Interpretation — Extrinsic aids — Statutes in pari materia Intervenors —Scope of intervention — Competition Tribunal — Powers of superior Court with respect to conduct of proceedings — Discretion to permit intervenors to make "representations" including authority to permit calling of evidence, cross-examination of witnesses and participation in discovery — Competition Tribunal Act, S.C. 1986, c. 26, ss. 8(2), 9(3). Practice —Costs — Federal Court of Appeal — Appeal from Competition Tribunal —Where appeal to be treated as trial from Trial Division, provision with respect to appeals from Trial Division, not tribunal relevant — Authority to award costs by reference, inter alia, to success in proceedings — Federal Court Rules, rr. 344, 1312. The Director of Investigation &Research(DIR)applied to the Competition Tribunal under s. 64 ofthe Competition Act, for an order dissolving a limited partnership between Air Canada(AC) and a subsidiary of Canadian Airlines (CA) for the joint operation of a computerized reservation system. It was alleged that this effected a lessening of competition contrary to the Act. American Airlines(AA), Wardair(W)and the Consumers Association of Canada(CAC)all sought leave to intervene in the proceedings and also to participate fully in those proceedings both at the discovery and hearing stages (except that W did not ask to participate in discovery). Under s. 8(2) of the Competition Tribunal Act, the Tribunal was given all the "powers, rights and privileges" of a superior Court with respect to a series of specific matters as well as "other matters necessary or proper for the due exercise ofits jurisdiction". Additionally, by s. 9(3), the Tribunal was given a discretion to permit interventions by an affected person "to make representations relevant to the proceedings in respect of any matter that affects that person". The Tribunal held that all the applicants were entitled to intervenor status but that their participation was to be limited to the making of oral or written representations. According to the Tribunal, it did not have any discretion to allow wider participation. Despite the broad discretion conferred by s. 8(2)with respect to the conduct ofits proceedings,the Tribunal's powers with respect to intervenors were explicitly limited by s. 9(3) to the allowing of oral or written representations and did not extend to the leading of evidence, cross-examination of witnesses or participation in the discovery process. AA appealed and CAC cross-appealed from this ruling to the Federal Court of Appeal under s. 13 of the Competition Tribunal Act. Held: The appeal and cross-appeal were allowed. The matter was referred back to the Tribunal to be dealt with on the basis

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Page 3 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241 that the Tribunal had a discretion to permit participation ofthe type sought by the intervenors. As a matter of principle,tribunals have inherent authority to control their procedures to ensure the proper fulfilment of their statutory mandate. Included within this concept was an authority to permit interventions. Where, as here, that inherent authority was given statutory backing by a provision such as s. 8(2)equating the Tribunal with superior courts of record for such purposes, any limitation on that authority required clearly expressed language. Against this background, s. 9(3) was not so clearly expressed as to eliminate the Tribunal's authority or discretion to permit extensive participation by intervenors. In terms of dictionary definitions, the word "representation" did not exclude the adducing of facts and reasons in support of arguments being made. Moreover, to the extent that s. 9(3)spoke in terms of matters that "affect" the intervenors, there was a basis for reading "representation" in that broader sense ofenabling the intervenors to participate fully and effectively with respect to such matters. The simple fact that they were not parties and the principal lis was between the director and the persons against whom an order was sought did not necessitate a restrictive interpretation of "representations" and the concomitant requirement that the intervenors rely on the director for adducing evidence on their behalf. Nor would their broader participation necessarily compromise the essential nature of the proceedings between the director and the named parties. This conclusion was reinforced by the entire context of the Competition Act and the nature of the proceedings under that Act. First, the preamble to the Act contemplated widespread effects ofanti-competitive behaviour,this suggesting (when read with the statutory provision for intervention) the need for effective participation by those claiming to be affected by such behaviour. Secondly, this was reinforced by s. 65 ofthe Act and the range offactors to be taken into account by the Tribunal in considering whether to order the dissolution of a merger; given that range, the intervenors could be well-positioned to provide the Tribunal with necessary insights possible only through full participation. Thirdly, it was not inconceivable that in some cases the interests ofthe intervenors and the director would be different and, in such cases, it would not be fair to restrict the intervenors to presenting evidence through the director with respect to matters "affect[ing]" them. Indeed, the Act's instruction to the Tribunal to act both informally and expeditiously was conditioned by the requirements of fairness. Finally, while the Competition Act and the Competition Tribunal Act were statutes in pari materia, this did not necessitate the interpretation ofthe term "representation" consistently throughout both statutes. Thus, the fact that, under the Competition Act, the director was authorized to both call evidence and make representations in proceedings before federal and provincial agencies did not necessitate a finding that elsewhere making representations excluded the calling of evidence. The meaning of "representations" had to be determined by reference to the specific context in which it occurred. Given that appeals from the Tribunal were to be treated as though appeals from the Federal Court, Trial Division (Competition Tribunal Act, s. 13(1)), costs were to be awarded on the same basis as on appeals from the Trial Division (r. 344)as opposed to r. 1312 which provided that, in appeals to the Court from tribunals, no costs were payable except for special reasons. By virtue ofr. 344,the Court had a complete discretion with respect to costs though subject to a list offactors including success in the proceedings. Accordingly, costs would be awarded here if sought.

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~y
Page 4 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741,23 C.P.R.(3d) 178,[1989)2 F.C. 88, 89 N.R. 241 Cases considered: Fishing Vessel Owner's Assn. ofB.C. v. Canada (A.G.)~I985), 1 C.P.C.(2d 312, S7 N.R. 376 (Fed. C.A.) considered Statutes considered: Combines Investigation Act, R.S.C. 1970, c. C-23 [now R.S.C. 1985, c. C-34; renamed Competition Act by R.S.C. 1985(2nd Supp.), c. 19, s. 19] Part VII s. 1.1 s. 47, as en. 1986, c. 26, s. 47 s. 60, as en. 1986, c. 26, s. 47 s. 64, as en. 1986, c. 26, s. 47 s. 73, as en. 1986, c. 26, s. 47 s. 76, as en. 1986, c. 26, s. 47 s. 77, as en. 1986, c. 26, s. 47 s. 97, as en. 1986, c. 26, s. 47 s. 98, as en. 1986, c. 26, s. 47 s. 100, as en. 1986, c. 26, s. 47 Competition Tribunal Act, S.C. 1986, c. 26, Pt. I s. 8 s. 9 s. 13(1)

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~s
Page 5 1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal)) 89 N.R. 241 ,54 D.L.R.(4th) 741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241 s. 16 s. 17 Rules considered: Federal Court Rules — r. 344, as en. SOR/87 — 221, s. 2 r. 1203 r. 1312 Authorities considered: Shorter Oxford Dictionary "representation".Words and phrases considered: representation APPEAL and CROSS-APPEAL from decision of Competition Tribunal with respect to scope of participation in proceedings by intervenors. The judgment of the Court was delivered by Iacobucci C.J.: 1 This is an appeal by American Airlines Inc. ( "American" or "appellant"), pursuant to s. 13(1)ofthe Competition Tribunal Act, S.C. 1986, c. 26,from the order of Strayer J. ofthe Competition Tribunal with respect to an application by American to intervene, pursuant to s. 9(3)ofthe Competition Tribunal Act, in a proceeding before the Competition Tribunal. 2 The proceeding in question was instituted by the application of the Director of Investigation and Research ( "Director")for, amongst other things, an order under s. 64 ofthe Competition Act, R.S.C. 1970, c. C-23, as amended, and for an interim order under s. 76 of the Competition Act. FNl In effect, the Director has alleged that Air Canada and Canadian Airlines International Limited and other named parties have formed a merger ofthe computer reservations systems of Air Canada and Canadian Airlines International Limited which prevents or lessens, or is likely to prevent or lessen, competition substantially within the meaning of s. 64 of the Competition Act, in the provision of computer reservation system services to airlines, travel agents and consumers in Canada. Requests to intervene in the proceeding were also filed by Wardair Canada Inc. "Wardair"), and the Consumers' (

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Page 6 1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741,23 C.P.R.(3d) 178,[1989]2 F.C. 88,89 N.R. 241 Association of Canada ( "CAC"). The order of Strayer J. gave leave to intervene in the proceedings to American, Wardair and CAC and, in particular, allowed them to attend and present argument on all motions and at all pre-hearing conferences and hearings, on any matter affecting them, respectively. 4 American, supported by CAC,appeals because ofthe limited scope ofthe intervention afforded by the order of Strayer J. CAC has appealed to this Court by way ofcross-appeal pursuant to s. 1203 ofthe Federal Court Rules. It is noteworthy that the Director supports the arguments ofthe appellant and other intervenors for an increased role in their intervention. 5 The appellant argues in short that Strayer J. erred in law in his interpretation of s. 9(3) of the Competition Tribunal Act which had the effect of preventing the intervenors from participating in examination for discovery, calling evidence, and cross-examining witnesses. PN2 6 I am ofthe view that the appeal and cross-appeal should be allowed, but before setting out my reasons, I would like to refer to parts of the judgment appealed from because of the importance of the issue to proceedings under the Competition Act and because ofthe admirably comprehensive approach taken by Strayer J. in his reasoning. 7 At the outset I think it appropriate to refer to s. 9 ofthe Competition Tribunal Act, which provides as follows: 9.(1)The Tribunal is a court ofrecord and shall have an official seal which shall be judicially noticed. (2) All proceedings before the Tribunal shall be dealt with as informally and expeditiously as the circumstances and considerations offairness permit. (3) Any person may, with leave of the Tribunal, intervene in any proceedings before the Tribunal to make representations relevant to those proceedings in respect of any matter that affects that person. [Emphasis added]. Judgment appealed from 8 Strayer J. interpreted "representations" in s. 9(3) to mean "arguments" and held that the section could not be taken to include the rights claimed by the intervenors, viz., participating in discovery, calling evidence and cross-examining witnesses. In this connection, he stated: Subsection 9(3)ofthe Competition Tribunal Act authorizes any person, with leave ofthe Tribunal, to'intervene ... to make representations.'The first point to note is that the authority is given to intervene for a particular purpose only, and one therefore cannot derive any broader authority by reference to other meanings which the term 'intervene'may have in other contexts. The term'to make representations'in normal English usage would suggest the presentation of argument; that is, persuasion rather than proof. If there is any lingering ambiguity of this term in the English version, it appears to be clarified in the French version which states the purpose of a permitted in-

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Page 7 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal)) 89 N.R. 241 ,54 D.L.R.(4th) 741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241 tervention as 'afin de presenter des observations'. The term 'observations' is most commonly applied to the presentation of comments or argument before a court or tribunal. [Appeal Book, pages 14-15]. 9 Strayer J. said that this interpretation ofs. 9(3)was strengthened by reference to ss. 97 and 98 ofthe Competition Act which authorizes the Director to participate before federal and provincial, respectively, boards and agencies. In each of those sections the Director is authorized to "make representations to and call evidence" before the Board. A distinction is thus made between representations and the calling ofevidence, which is supported in the French version ofthe two sections: "presenter des observations et des preuves" in s. 97, and "presenter des observations et soumettre des 81~ments de preuve" in s. 98. Because Strayer J. found the Competition Tribunal Act and the Competition Act in pari materia he stated that similar language in the two statutes should be given similar meanings. Accordingly,since in ss. 97 and 98 ofthe Competition Act "representations" do not include the presentation ofevidence, so it should be ins. 9(3) of the Competition Tribunal Act, namely, that "making representations" should not include the calling of evidence. In reaching this conclusion, Strayer J. also noted that to grant the intervenors the role they wished would be 10 tantamount to treating them as parties, and under the Competition Act only the Director can apply for orders against specified persons. Thus the only parties in proceedings under the Competition Act are to be the Director and the persons against whom orders are sought. He concluded that the Competition Act does not provide any private right of action against the parties to an anti-competitive merger since the only action contemplated is one taken by the Director. 11 Strayer J. also found that the general implied authority ofa Court to permit interventions on terms it thinks fit was restricted by the limiting language ofs. 9(3)ofthe Competition Tribunal Act. In addition, in looking at the context ofthe Competition Act, Strayer J. was ofthe view that proceedings before the Competition Tribunal were justiciable in nature which in his view reinforced a narrow interpretation of s. 9(3). In this respect, he said: It is quite consistent with the view that Parliament has in effect created a lis between the Director ofInvestigation and Research and the parties to the merger; a lis which is determined on the basis of the facts and the law for which the proper parties to the proceedings have the prime responsibility ofpresentation. In such a context it is not inappropriate that the potential role ofintervenants be quite limited, nor can an interpretation ofsubsection 9(3)to this effect be considered absurd or inconsistent with the general purposes ofthe Act. It was open to Parliament to allow anyone potentially aggrieved by a merger to commence a proceeding before the Tribunal against the merging parties, but Parliament elected not to do so. Instead it obviously saw the commencement of such a proceeding and its direction as a matter involving an important public interest which was to be defined and pursued by the Director, a public officer, as he thinks best in the public interest. In such circumstances it is irrelevant that other persons might take a different view of when or how such proceeding should be conducted. Their assistance will no doubt be welcomed by the Director in the development of evidence supportive of the allegations he has made but it is he who has the carriage ofthe proceeding. It is he who, together with the respondents, has the ultimate responsibility of shaping the issues and, indeed, of settling the matter (subject to the approval of the Tribunal should a consent order be required).

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• • Page 8 1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241

[Appeal Book, pp. 22-23]. 12 Strayer J. also pointed to s. 9(2) which directs the Competition Tribunal to deal with all proceedings "as informally and expeditiously as the circumstances and considerations of fairness permit". In his view allowing intervenors to prolong proceedings through the multiplication of witnesses and cross-examination of witnesses could only lead to delaying the decisions of the Tribunal and discourage use of it. Thus a narrow interpretation of "representations" in s. 9(3) was justified. By way of final comment, Strayer J. referred to the intervention role of provincial and federal Attorneys General in constitutional cases at the appellate level and the fact that they had not been handicapped unduly in their interventions by not having been involved at the trial level in the presentation of evidence and cross-examination of witnesses. He said: The role ofthe Competition Tribunal in merger proceedings is more akin to that ofa court than to that ofa public inquiry and it is not absurd, illogical, or demeaning that non-parties to such proceedings have only a limited part to play. If they have evidence to provide which would be helpful to one of the authorized parties to these proceedings it is difficult to believe such party will not welcome their assistance. But ifthey want to raise new issues which neither party is prepared to embrace, they cannot do so because that would be inconsistent with the adversarial system which Parliament has prescribed. [Appeal Book, p. 28]. Issue before the Court 13 With this background and review ofthe reasons of Strayer J., the issue before us focusses on the meaning ofs. 9(3) of the Competition Tribunal Act. Indeed, every party appearing before this Court agrees with the observation made by Strayer J. that, were it not for s. 9(3), the Tribunal would have implied authority to permit intervenors to call evidence and cross-examine witnesses. The issue then is whether s. 9(3) restricts intervenors in the manner held by Strayer J. or whether, as contended by the appellants, s. 9(3)does not prevent the Competition Tribunal from using its discretion to decide the role that intervenors will play. Reasons for allowing the appeal 14 A useful starting point to answer the issue before us is the principle, which is widely recognized and accepted, that Courts and tribunals are the masters of their own procedures. As a part of this principle, Courts have also been recognized as having an inherent authority or power to permit interventions basically on terms and conditions that they believe are appropriate in the circumstances. This principle was clearly articulated by this Court in the Fishing Vessel-Owners Association Fishing 6'ersel Oti~~ner_s.' Assn._o B.C, v. Canada `1985)11._C;P_C_.~2d) 3l2 at. 31957 N.R. 376 at 3g1 (Fed. C.A.I] case: Every tribunal has the fundamental power to control its own procedure in order to ensure thatjustice is done. This, however, is subject to any limitations or provisions imposed on it by the law generally, by statute or by the rules of

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Page 9 1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88,89 N.R. 241

Court.[Emphasis added].
IS With respect to the Competition Tribunal, it is clearly stated in its statute that the Tribunal is given court-like powers and a concomitant procedural discretion to deal with matters before it: see ss. 8, 9(1), 16 of the Competition Tribunal Act. FN3 Of particular relevance is section 8(2): 8.(2)The Tribunal has, with respect to the attendance,swearing and examination of witnesses,the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record. 16 The principle of a Court's authority and discretion over its procedure is so fundamental to the proper functioning ofa Court and the interests ofjustice that, in my view, only clearly expressed language in a Court's constating statute or other applicable law should be employed to take away that authority and discretion. When one looks at the dictionary meaning of the operative words used in s. 9 as well as the context of the section and of the proceedings under the Competition Act, I do not think that the wording of s. 9(3) is clearly expressly to eliminate the Tribunal's inherent authority or discretion in the manner found by Strayer J. 17 Section 9(3) allows persons to intervene, with leave of the Competition Tribunal, "to make representations relevant to [the] proceedings in respect ofany matter that affects that person". To ascertain the meaning ofthe words in the section one should look not only at the dictionary definition and the context but also at the nature of the matters being dealt with in the action as well as the overall objectives ofthe underlying legislation. 18 In the Shorter Oxford Dictionary,"representation" is stated to mean,among other things, the following, which I find applicable to s. 9(3): ... a formal and serious statement offacts, reasons or arguments made with a view to effecting some change, preventing some action, etc ... [Emphasis added]. 19 Strayer J. chose to restrict representations to mean only "argument" in the sense of persuasion and not proof. Under Strayer J.'s reasoning, the facts or reasons relied on by intervenors to support their arguments would be provided by the Director (or possibly by the party against whom the Director was seeking an order). 20 But it is important to note that s. 9(3) allows persons to intervene to make representations relevant to those proceedings in respect ofany matter that affects that person. It is expressly recognized that orders ofthe Tribunal could be made that would affect the intervenors, such as in the case at Bar. If the intervenors can make a statement offacts, reasons or argument on matters that affect them, the question arises whether they should be allowed, at the discretion of the Court in accordance with the general principle discussed above, to call evidence to support the facts which would show the manner in which the intervenor was affected by the proceeding. Similarly, one can question why the intervenors cannot ensure that their argument or reasons are supported by facts that they have had the chance to prove

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Page 10 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741,23 C.P.R.(3d) 178,[1989]2 F.C. 88, 89 N.R. 241 in evidence. 21 It seems to me that it is not a satisfactory answer to say that the Director must be relied on to establish the facts (or reasons)for the intervenors because only the Director is a party, or only the Director and the persons against whom an order is sought are the parties or have a lis between them, or that the Director must have carriage ofthe proceedings under the Competition Act. 22 I fail to see how allowing intervenors to have an effective and meaningful intervention to ensure they are able to show how they could be affected by an order, all subject to the discretion and supervision ofthe Tribunal, cannot be reconciled with the adversarial or justiciable nature of proceedings before the Tribunal. Moreover such a role for intervenors will not necessarily displace the status ofthe parties before the Tribunal, the carriage ofthe matter by the Director, or the lis nature ofthe proceedings. I am confident that the presiding members ofthe Competition Tribunal can deal with the matters to give respect to those concerns if or as needed. 23 My conclusion on this meaning of"representations" for the purpose of s. 9(3)ofthe Competition Tribunal Act is strengthened when one looks to the wider context and nature ofthe proceedings under the Competition Act. 24 The purpose ofthe Competition Act as shown in s. 1.1 thereof is extremely broad: 1.1 The purpose ofthis Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role offoreign competition in Canada,in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumer with competitive prices and product choices. 25 It is evident from the purpose clause that the effects of anti-competitive behaviour, such as a merger that has the result of substantially lessening competition, can be widespread and of great interest to many persons. In these matters, Parliament has provided for the Director to serve as the guardian ofthe competition ethic and the initiator of Tribunal proceedings under Pt. VII of the Competition Act; but Parliament has also provided a means to ensure that those who may be affected can participate in the proceedings in order to inform the Tribunal of the ways in which matters complained ofimpact on them. I would ascribe to Parliament the intention to permit those intervenors not only to participate but also to do so effectively. A restrictive interpretation of s. 9(3)could in some cases run counter to the effective handling of disputes coming before the Tribunal. 26 At issue in the case before us is, among other things, an order for dissolution, pursuant to s. 64 of the CompetitionAct, ofthe merger ofcomputer reservation systems in the airline business. Section 651ists various factors that the Tribunal may consider in deciding whether to issue such an order. These factors are fairly broad and it would seem reasonable to assume that persons attaining intervenor status under s. 9(3)could bewell-positioned to provide insights concerning them through argument and reasons based on facts. Moreover they arguably could more effectively and efficiently prove these facts ifthey have the ability to lead evidence orcross-examine witnesses depending on the issue involved and the circumstances ofthe particular case.

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~/ Page 11 1988 CarsweilNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal)) 89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88,89 N.R. 241 27 It seems to me that permitting intervenors to play a role wider than simply presenting argument is also a fairer way of treating them. Although the Director is supporting the wider interpretation before us, it is not difficult to envision future situations where the Director and an intervenor might disagree on some matter of fact or evidence of which the Tribunal should be apprised. It is therefore not only logical to give the Tribunal the jurisdiction to decide the issue rather than simply leaving it to the Director to decide in each case, but it is also fair. 28 Fairness is a relevant consideration because s. 9(2)ofthe Competition Tribunal Act expressly requires that the proceedings before the Tribunal be dealt with as informally and as expeditiously as the circumstances and fairness allow. This point offairness also answers the concern raised by Strayer J. that a wider role for intervenors will prolong and complicate proceedings before and thereby delay decisions of the Tribunal. But, if a wider role for intervenors does not lead to longer or more complex proceedings before the Tribunal, surely that is a necessary price to pay in the interests offairness, which is expressly required under s. 9(2). 29 Finally, I refer to the view of Strayer J. that his conclusion for a narrow interpretation was strengthened when one looked to the wording of ss. 97 and 98 ofthe Competition Act. Those sections, which were found by Strayer J. to be in a statute in pari materia with the Competition Tribunal Act, distinguished between making representations and calling evidence; he concluded the same distinction should be made in interpreting s. 9(3)ofthe Competition Tribunal Act. 30 I do not dispute his finding the statutes in pari materia; however, I do not accept that the choice of words in ss. 97 and 98 of the Competition Act dictates their meaning in s. 9(3) of the Competition Tribunal Act. There are several other sections in both statutes which use the words "representations" or "make representations". Sections 60 and 73 of the Competition Act allow interventions by the Attorneys General of provinces "for the purpose of making representations" on behalf of provinces; ss. 22(2) and (3) of the Competition Act allows interested persons "to make representations" with respect to proposed regulations relating to certain applications, orders and proceedings; and s. 17 of the Competition Tribunal Act which invites interested persons "to make representations ... in writing" with respect to any rules that the Competition Tribunal may make. I do not think that in each section of the two statutes the use of "representation" must necessarily be given the same meaning, especially where the context and purpose ofa particular section may dictate otherwise. Sections 97 and 98 of the Competition Act deal with endowing the Director with the authority to appear before federal and provincial agencies or boards which raises different considerations from those raised by s. 9(3)ofthe Competition Tribunal Act. It maybe,although I refrain from any formal holding on the matter, that Parliament, out of an abundance of caution, has added the "calling of evidence" in ss. 97 and 98 to ensure that making representations is not interpreted narrowly by the federal or provincial boards and agencies before which the Director is appearing. In any event, I believe the main task of a Court is in each case to ascertain the meaning of a specific section by looking to its wording and context. The fact that Parliament has chosen a formulation of words in another section of a related statute which appears to convey a particular meaning should not of itself displace convincing reasons why the same interpretation should not apply to the section in issue before the Court. The point made about ss. 97 and 98 is, after all, a rule of interpretation that can be rebutted, and in this case has been, by more persuasive arguments. 31 In light of my reasons for allowing the appeal, I do not end it necessary to deal with other arguments of the appellant relating to the judgment of Strayer J. amounting to a denial of natural justice or as being contrary to the

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Page 12 1988 CarswellNat 676, 33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal)) 89 N.R. 241 ,54 D.L.R.(4th) 741, 23 C.P.R.(3d) 178,[1989]2 F.C. 88,89 N.R. 241 Canadian Bill of Rights. Conclusion 32 Mindful ofthe ordinary dictionary meaning of"representations" as discussed above, and ofthe recognition in s. 9(3) itself of intervenors as persons who are affected by competition proceedings, and of the overall purpose and context ofthe Competition Act and proceedings thereunder, I conclude that the meaning of"representations" in s. 9(3) ofthe Competition Tribunal Act is not as restrictive as decided by Strayer J. I would therefore allow the appeal and the cross-appeal, set aside the decision of Strayer J., and refer the matter back to the Tribunal on the following bases: 33 (a)that the Tribunal is not precluded, in exercising its inherent discretion from allowing intervenors to fully participate in the proceedings before it, including, if it so determines,the right to discovery, the calling ofevidence and the cross-examination of witnesses; and 34 (b) that the specific role of the intervenors in this proceeding should be left to the Tribunal to decide, in the circumstances ofthis case, but in accordance with fairness and fundamental justice and subject to the requirements of s. 9(3)that the intervenors' representations must be relevant to this proceeding in respect ofany matter affecting those intervenors. 35 The only matter remaining to be considered is the question of costs. Neither the appellant nor any of those supporting it asked for costs either in their memoranda or orally at the hearing of the appeal. On the other hand, counsel for the respondents appearing on the appeal asked, in their memorandum, that the appeal be dismissed with costs. They did not, however, make any oral argument with respect to costs. The position then ofthe Court is that no argument, written or oral, has been addressed to it in this regard. However,I am ofthe view that the question of costs should be dealt with. 36 Section 13(1) of the Competition Tribunal Act provides that any decision or order of the Tribunal may be appealed to this Court "as if it were a judgment of the Federal Court —Trial Division". Accordingly, it would seem that costs should be disposed of in an appeal from the Tribunal on a basis similar to that employed in appeals from the Trial Division. Under new r. 344, which came into effect on Apri12, 1987,it seems clear that an award ofcosts is in the complete discretion of the Court. Subsection (3) of r. 344 sets out a number of matters that the Court is entitled to consider when awarding costs. One ofthe matters enumerated is the result ofthe proceeding. Since the appellant and those supporting it have been successful in this appeal, I consider this to be a cogent reason, in the circumstances of this case, for awarding costs. A perusal ofthe various other matters enumerated in subs.(3), when they are related to the circumstances of this appeal, do not persuade me otherwise. 37 I should add that, were it not for the provisions of s. 13(1) of the Competition Tribunal Act, the Court's discretion under R. 344(1) would have been displaced by the provisions of R. 1312, which is the general rule applicable to appeals from tribunals other than the Trial Division. That rule provides: No costs shall be payable by any party to an appeal under this Division to another unless the Court, in its discretion, for special reasons, so orders.

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Page 13 1988 CarswellNat 676,33 Admin. L.R. 229,(sub nom. American Airlines Inc. v. Canada(Competition Tribunal))89 N.R. 241 ,54 D.L.R.(4th)741, 23 C.P.R.(3d) 178,[1989]2 F,C. 88, 89 N.R. 241

38 Ifthat rule were otherwise to apply here, I would have had no hesitation in concluding that costs should not be awarded unless special reasons to the contrary had been established on the record. However,in view ofthe words used in s. 13, supra, I think r. 344(1)and not r. 1312 applies to this appeal and because, ifthis were an appeal from the Trial Division, I would award costs for the reasons expressed earlier herein, I would allow this appeal and the cross-appeal with costs, if asked for. Appeal and cross-appeal allowed,• matter referred back to the Competition Tribunal to be dealt with on the basis that the Tribunal possessed a discretion to permit participation to the extent requested. FN 1 The Director's application was subsequently amended by order of the Competition Tribunal to include a prayer for relief under ss. 64(1)(e)(iii), 77 and 77(1)(b) ofthe Competition Act. FN2 Before Strayer J., Wardair apparently did not ask to participate in discovery but wished to call evidence and cross-examine witnesses in addition to presenting argument. FN3 Section 8(1)gives the Tribunal jurisdiction to hear applications under Part VII ofthe Competition Act and related matters and s. 8(3) deals with contempt orders of the Tribunal. Section 9(1) stipulates that the Tribunal is a Court of record and shall have an official seal which shall be judicially noticed. Section 16 gives rule making power to the Tribunal END OF DOCUMENT

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~~ Page 1 1996 CarswellNat 667,(sub nom. Corbie~~e v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. ], 7 W.D.C.P.(2d)292

1996 CarswellNat 667,(sub nom. Corbiere v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. 1, 7 W.D.C.P.(2d)292 Canada (Minister of Indian &Northern Affairs) v. Corbiere Her Majesty the Queen as represented by the Minister of Indian and Northern Affairs Canada and the Attorney General of Canada (Appellant /Defendant) and John Corbiere, Charlotte Syrette, Claire Robinson and Frank Nolan, each on their own behalf and on behalf of all non-resident members ofthe Batchewana Band (Respondents / Plaintiffs), and Congress of Aboriginal Peoples, and Native Women's Association of Canada, and Lesser Slave Lake Indian Regional Council (Intervenors) Federal Court of Appeal Hugessen J.A. Judgment: May 10, 1996 Docket: A-578-93 O Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Counsel: John Edmond,for Appellant. William Henderson, for Respondents Batchewana Indian Band. Gary E. Corbiere, for Respondents John Corbiere, Claire Robinson and Frank Nolan. Martin Henderson, Phillip Healey and Catherine Twinn, for Intervenor Lesser Slave Lake Indian Regional Council. Lucy McSweeney, for Intervenor Native Women's Association of Canada. Subject: Public; Civil Practice and Procedure Native law --- Practice and procedure — Appeals

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Page 2 1996 CarswellNat 667,(sub nom. Corbiere v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. 1, 7 W.D.C.P.(2d)292 Native law — Practice and procedure — Appeals —Trial judge finding that s. 77(1) of Indian Act infringing plaintiffs rights under s. I S of Charter — Government appealing — Council considering intervention in appeal for two years — Parties printing appeal books and filing memoranda — Council subsequently applying for intervenor status — Counci] requesting order enlarging issues — Council arguing that their aboriginal right to' govern their reserve lands being put at risk, and parties not raising relevant issues — Application being granted in part — Council not being able to re-cast litigation between others — Enlarging issues or introducing fresh evidence would cause serious prejudice and delay — Council being granted intervenor status on terms — Council not being able to seek to introduce new evidence and having to file and serve memorandum within three weeks — Canadian Charter of Rights and Freedoms, s. 15 — Indian Act, R.S.C. 1985, c. I-5, s. 77(1). The trial judge found that s. 77(1) of the Indian Act infringed the rights of the plaintiffs and others who were not residents of any ofthe band's reserves under s. 15 ofthe Canadian Charter ofRights and Freedoms. The government appealed. The Indian regional council considered intervening in the appeal for two years. The appeal books were printed, and the parties filed their memoranda. An application for a hearing date was made. The Indian regional council subsequently applied to intervene in the appeal. They further requested an order enlarging the issues beyond those that had been pleaded by the parties and dealt with by the trialjudge, arguing that their aboriginal right to govern their reserve lands had been put at risk or diminished by the judgment under appeal, and that the parties had failed to put s. 25 ofthe Charter or s. 35 ofthe Constitution Act, 1982 in issue, as they should have. Held: The application was granted in part. An intervenor in an appellate court must take the case as he or she finds it, and cannot, to the prejudice ofthe parties, argue new issues which require the introduction offresh evidence. Even ifthe Indian regional council's argument were correct, it was not able to re-cast the litigation between others. Further, enlarging the issues or allowing the Indian regional council to introduce new evidence would cause serious prejudice and delay. The court owed a duty to all the litigants to bring the matter to a timely conclusion. The Indian regional council should be granted intervenor status on terms that they do not seek to introduce new evidence, and that they file and serve a memorandum of points to be argued within three weeks. Cases considered: International Fundfor Animal Welfare Inc. v. R.(1988),(sub nom.International Fundfor Animal Welfare Inc. v. Canada (Minister ofFisheries & Oceans,) 83 N.R. 301,j1988] 3 F.C. 590(C.A.) — referred to R. v. Morgentaler, f 1993]] S.C.R. 462 — referred to Reference re Excise Tax Act (Canada),(sub nom. Reference re Goods &Services Tax (1992]4 W.W.R. 673,2 Alta. L.R.(3dl 289, 138 N.R. 247, 127 A.R. 161, 20 W.A.C. 161,[1992] 2 S.C.R. 445,(sub nom. Reference re Goods &Services Tax (Alberta)) 94 D.L.R.(4th) Sl,(sub nom. Reference Re Bill C-62) f1992) G.S.T.C. 2 — referred to

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~~ Page 3 1996 CarswellNat 667,(sub nom. Corbiere v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. 1, 7 W.D.C.P.(2d)292
Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada

Act 1982(U.K.), 1982, c. 1 l s. 15referred to s. 25referred to Constitution Act, 1982, being Schedule B ofthe Canada Act 1982(U.K.), 1982, c. 11 s. 35referred to Indian Act, R.S.C. 1985, c. I-5 s. 77(1)[re-en. R.S.C. 1985, c. 32(1st Supp.), s. ]4]referred to APPLICATION by council for intervenor status. Hugessen J.A.(orally): 1 This is an application by the Lesser Slave Lake Indian Regional Council to intervene in the pending appeal against a judgment ofthe Trial Division which found that subsection 77(1)ofthe Indian Act FN 1 infringes in certain respects the rights under section 15 of the Charter of the plaintiffs and certain others who are not residents on any reserve ofthe Batchewana Band. While I am ready to accept the application on certain terms as indicated below, I am not prepared to accede to the applicant's request that 1 should enlarge the issues beyond those that were pleaded in the Court below and dealt with by the learned Trial judge. Nor am 1 prepared to allow the applicants to lead new evidence. 2 The rule is clear that an intervenor in an appellate court must take the case as she finds it and cannot, to the prejudice of the parties, argue new issues which require the introduction of fresh evidence. FN2 The applicants say, however,that this case is different because their aboriginal rights to the governance oftheir reserve lands are put at risk or indeed directly diminished by the judgment under appeal, and that the parties, by accident or even by design, failed to put in issue section 25 of the Charter FN3 or section 35 of the Constitution Act, 1982 FN4 as should have been done. Ifthat is indeed the case (and I make no finding on the point) it may well provide an argument to the applicants to urge that the judgment, if it is not to be overturned entirely, should be restricted in its scope. It does not, however, give them warrant to entirely re-cast the litigation between others so as to make it to their own liking. 3 There is a second reason which leads me to this conclusion quite independently of what I have said above. The judgment at trial was given in September 1993. The applicants have known about it and have been considering intervening for at least two years. The Appeal Books have been printed and the appellant Crown and cross-appellant Band have filed their memoranda. Other intervenors have been allowed in on terms that they not seek to introduce new

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~~ Page 4 ]996 CarswellNat 667,(sub nom. Corbiere v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. 1, 7 W.D.C.P.(2d)292 evidence. An application for a hearing date has been made suggesting dates this month or next. To allow the applicants what they now ask would cause serious prejudice and delay. The Order suspending the effect of the judgment under appeal might even have to be reconsidered. The applicants are not the only ones in this record who allege that their aboriginal rights are at stake and the Court owes the same duty to all the litigants before it to bring this matter to a timely conclusion. That would be difficult or impossible ifthe ground rules were now to be changed in the way sought by the applicants. An Order will go allowing the applicants to intervene herein on terms that: I) they not seek to introduce new evidence; and 2)they file and serve a memorandum of points to be argued on or before 31 May 1996. The style of cause will be changed accordingly. 6 A direction will be given to the judicial administrator to set this appeal down for hearing at Toronto in September or the first week of October 1996. 77. (1) A member of a band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief ofthe band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors. 77.(1) Un membre dune bande, qui a au moins dix-huit ans et aside ordinairement sur la reserve, a quality pour voter en faveur dune personne presentee comme candidat au poste de chef de la bande et, lorsque la reserve, aux fins d'~lection, ne comprend qu'une section electorale, pour voter en faveur de personnel presentees aux postes de conseillers. (a)any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way ofland claims agreements or may be so acquired. (2)In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. Application granted in part.

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Page 5 1996 CarswellNat 667,(sub nom. Corbiere v. Canada (Minister of Indian &Northern Affairs)) 199 N.R. 1, 7 W.D.C.P.(2d)292

FN 1 R.S.C. 1985, c. I-5 FN2 See Reference re Excise Tax Act, f 1992] 2 S.C.R. 445 at 486-487; R. v. Morgentaler,[1993] 1 S.C.R. 462; International Fundfor Animal Welfare Inc. v. Canada,[19881 3 F.C. 590(C.A.) at 593 FN3 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty of other rights or freedoms that pertain to the aboriginal peoples of Canada including FN4 35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. END OF DOCUMENT

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Page 1 2003 CarswellNat 3504, 2003 FCA 408

2003 CarswellNat 3504, 2003 FCA 408 Ferroequus Railway v. Canadian National Railway Ferroequus Railway Company Limited, Appellant and Canadian National Railway Company Limited and The Canadian Transportation Agency, Respondents and Canadian Pacific Railway Company,Intervener Federal Court of Appeal Noel J.A. Judgment: October 31, 2003 Docket: A-89-03 D Thomson Reuters Canada Limited or its Licensors (excluding individual courC documents). All rights reserved. Counsel: Margaret I. Wiebe (written), for Proposed Intervener Louis J. Zivot(written), for Appellant W.J. Kenny (written), for Respondent, Canadian National Railway Company Limited Marc Shannon (written), for Intervener, Canadian Pacific Railway Company Subject: Civil Practice and Procedure Civil practice and procedure --- Practice on appeal Cases considered by Noll J.A.: Abbott v. R.~20001 2000 CarswellNat 623 (sub nom Abbott v Canada)(200013 F.C. 482 (sub nom. Abbott v. Canada) 186 F.T.R. 269 (sub nom. Abbott v. Canada 188 F.T.R. 198, 2000 CarswellNat 3420 (Fed. T.D.) — followed Parties — Adding parties — Intervenors on appeal

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Statutes considered:

Canada Transportation Act, S.C. 1996, c. 10 Generally — referred to s. 138 — refen~ed to Rules considered by Noll J.A.: Federal Court Rules, 1998, SOR/98-106 R. 109 — considered Noel J.A.: 1 The Canadian Wheat Board(CWB)seeks leave to intervene in the present appeal which is set to be heard in Vancouver on November 25 and 26, 2003. It seeks permission to file a memorandum, a draft of which was filed together with its leave application, and permission to make oral submissions at the hearing. Background 2 The decision under appeal was rendered by Canadian Transportation Agency (the Agency) on September 10, 2002. The Canadian Wheat Board(CWB)was an intervener in the proceeding leading up to this decision. 3 Ferroequus Railway Company Limited (FE) sought leave to appeal on October 8, 2002. The CWB was an addressee ofthe Notice of Motion. 4 On October 23, 2002, the CWB sent a letter to the Administrator of the Federal Court of Appeal stating that it did not intend to participate in the Motion for Leave to Appeal but reserved the right to request leave to "intervene in the appeal proceedings as its interests may require". 5 On December 9, 2002, leave to appeal was granted and on February 14, 2003, FE served its Notice of Appeal under cover of a letter which was copied to the CWB. 6 The Agency, Canadian National Railway Company(CN)and Canadian Pacific Railway Company(CPR)filed their Notices of Appearance on February 21,27 and 28, 2003, respectively. 7 The Appeal Books were agreed to and served on April 15, 2003. FE filed its memorandum of fact and law on May 14, 2003, and CN,CPR and the Agency filed their respective memoranda in response on June 13, 2003.

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Page 3 2003 CarswellNat 3504, 2003 FCA 408

8 The Requisition for Hearing was filed on June 27,2003 and the hearing was set to be heard on November 25 and 26, 2003, in Vancouver. 9 The CWB now seeks to intervene. Although the affidavit filed in support ofthe application asserts that the CWB always intended to intervene, nothing is stated to explain why the motion was left to be made at this late juncture. 10 The draft memorandum of fact and law filed by the CWB in conjunction with its motion has 100 paragraphs and raises the following issues: (a) did the Canadian Transportation Agency err in law or jurisdiction: i. when it imposed a jurisdictional restriction in the form of conditions precedent to its exercise of its authority under s. 138 ofthe CTA,that are not contained in the statute? and/or ii. by fettering its discretion in making its decision solely on the alleged failure ofthe Applicant, FE to meet non-statutory conditions prior to the consideration ofthe public interest as a whole? those conditions being that FE must be able to establish that: A. there is a rate or service problem in the relevant markets, B.the problem is related to a lack ofadequate and effective competition or existing or potential market abuse; and C. the granting of regulated running rights will either eliminate or alleviate the problem. (c) Further, or in the alternative, did the Agency err in law or jurisdiction by failing to take into account relevant considerations in its determination ofthe "public interest" as it is required to do under s. 138 ofthe CTA,in that the Agency failed to: give effect to the shippers right, in this case the CWB, to choose the routing of its traffic, the carrier or combination of carriers that will carry its traffic and to obtain the best price for the movement of its traffic. 11 In addition to filing a memorandum of fact and law, the CWB asks permission to make oral submissions. No suggestion is made as to the time required. 12 Both CN and CP have filed extensive submissions opposing the intervention. FE has indicated its consent to the intervention but has not filed submissions in support ofthe application.

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Page 4 2003 CarswellNat 3504, 2003 FCA 408

Analysis and Decision 13 Rule 109 of the Federal Court Rules, 1998, requires that a prospective intervenor show how its participation will assist the Court in the determination ofthe issues. This assistance must not merely be a reiteration ofthe position taken by a party, but rather must provide a different perspective. What is required is a "relevant and useful point of view which the initial parties cannot or will not present"(Abbott v. R..[2000] 3 F.C. 482(Fed. T.D.)). 14 This assessment must be made in context. Specifically, CWB has to show that its potential contribution at least counterbalances the disruption which its late intervention might cause (Abbott v. R. ,supra at paragraph 18). In this respect, I note that FE, in its requisition for hearing requested two days and was only allowed a day and one half. The cases assigned for Vancouver during the week ofNovember 24 do not allow for any additional time and it is apparent, from CWB's draft memorandum,that it would require as much time as the intervener to make its oral submissions. The existing parties would also have to find the time to respond within the already restricted time frame. 15 Beyond asserting its significance as the largest shipper of grain in Canada, CWB has not demonstrated that it would bring to the appeal anything beyond what has already been made available to the Court by the parties. Specifically, it has not shown how its expertise in marketing grain is required for the proper determination of the issues placed before the Court by the parties. 16 Paragraphs 39 to 63 of CWB's draft memorandum are dedicated to the standard of review. CWB's status as a shipper does not provide it with a unique perspective with respect to the standard ofreview to be applied. 17 In paragraphs 91 to 100 of its draft memorandum,the CWB simply asserts its agreement with the dissenting opinion of Member Bennett, a matter that is fully canvassed by FE in its own memorandum. 18 The issue raised by the appeal is one of statutory interpretation. The CWB can claim no particular expertise in the interpretation ofthe Canada Transportation Act, S.C. 1996, c. 10(the CTA). Although the CWB can provide the perspective ofa grain shipper which admittedly differs from that ofFE(a railway company), I do not believe that this perspective is required to fully explore the issues surrounding the interpretation ofthe CTA (section 138). 19 In short, the limited contribution which the CWB proposes to make is outweighed by the disruption which its intervention would likely cause if it was to be allowed at this late stage. 20 The application is dismissed with costs in favour of both CN and CP.

END OF DOCUMENT

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Page 1 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416

0
1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991) 1 F.C. 416 Edmonton Friends ofthe North Environmental Society v. Canada (Minister of Western Economic Diversification) R. IN RIGHT OF ALBERTA v. EDMONTON FRIENDS OF THE NORTH ENVIRONMENTAL SOCIETY et al. Federal Court of Canada,[Appeal Division] Iacobucci C.J.F.C., Heald and Stone JJ.A. Heard: September 10, 1990 Judgment: September 28, 1990 Docket: No. A-224-90 OO Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Proceedings: reversed in part Edmonton Friends ofthe North Environmental Society v. Canada (Minister of Western Economic Diversification)((1990, 1990 CarswellNat 2, 34 F.T.R.] 37,69 D.L.R.(4th 143,44 Admin. L.R. l 0$,75 Alta. L.R.(2d) 1 ((Fed. T.D.)) Counsel: A. Moen,for the Crown in Right of Alberta. J. Gill, for respondents. P.J. Landry, for Daishowa Canada Co. Ltd. I. Hutton, for Minister Western Economic Diversification, Minister of Transport, Minister of Fisheries and Oceans, and Minister ofthe Environment. Subject: Public; Civil Practice and Procedure Practice --- Parties — Adding or substituting parties — Adding party on own motion

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Page 2 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 Administrative law — Appeals from administrative decisions — Parties — Federal Court Trial Division making order adding provincial Crown as party respondent in applications for judicial review under s. 18 of Federal Court Act — Trial Division imposing conditions on provincial Crown in order — Conditions effectively reducing provincial Crown to role of intervener — Provincial Crown having direct economic interest in outcome of s. 18 proceedings — Federal Court of Appeal deleting conditions from order. Crown — Proceedings on behalf of Crown — Federal Court Trial Division making order adding provincial Crown as party respondent in applications for judicial review under s. 18 of Federal Court Act —Trial Division imposing conditions on provincial Crown in order — Conditions effectively reducing provincial Crown to role of intervener — Provincial Crown having direct economic interest in outcome of s. 18 proceedings — Federal Court of Appeal deleting conditions from order. The provincial Crown sought to be joined as respondents or interveners in two applications for judicial review made under s. 18 of the Federal Court Act. Both applications related to a pulp mill project being constructed by D. Ltd. Central to the dispute was the assertion that several federal ministers, in making decisions regarding the mill and related facilities, failed to comply with the Environmental Assessment and Review Process Guidelines Order which purportedly bound them. The Federal Court, Trial Division added the provincial Crown and the contractor as party respondents, but on the condition that they could not add to the issues, file pleadings, cross-examine the applicants' affiants, change the timetable or add costs. The Crown appealed. The respondent cross-appealed, submitting that the provincial Crown ought not to have been joined at all because the Trial Division lacked jurisdiction to grant relief against the Crown under the invoked legislation. Held: Appeal allowed; conditions removed; cross-appeal dismissed. The real question was whether the order imposing the conditions was a proper exercise ofthe broad judicial discretion conferred by Federal Court R. 1716(2)(b). An appellate court could interfere on limited grounds, including a finding that the order was "just and reasonable." Success ofthe s. 18 application could lead to severe consequences for the provincial Crown. It had invested money in a bridge and railway spur being built incidentally to the pulp mill construction; that money might be jeopardized ifthe application were granted. The efficacy ofissued provincial licences and permits might also be put in question. Yet,the provincial Crown would be unable to adduce evidence or advance arguments as to the applicability ofthe guidelines order, or to delve fully into any aspect bearing on the exercise ofthe s. 18 discretion. The conditions imposed tended to reduce the provincial Crown's role to that of an intervener rather than a full party. In addition, the condition depriving the provincial Crown of costs could well affect the manner in which discretion was exercised in the matter. Finally, since the provincial Crown's rights would be directly affected by the outcome ofthe dispute, it should be able to assert rights of appeal. Cases considered:

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t Page 3 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 A.G. v. Pontypridd Waterworks Co.,[1908] 1 Ch. 388(Ch. D.) — referred to Adidas (Can.) Ltd. v. Skoro Ent. Ltd.,[1971] F.C. 382, 12 C.P.R.(2dl b7(C.A.)— applied Algonquin Mercantile Corp. v. Dart Indust. Can. Ltd. (1984), 5 C.I.P.R. 40, 3 C:P.R.(3d) 143 (Fed. C.A.) referred to Amon v. Raphael Tuck &Sons Ltd.,.~195b11 Q_8~357,_[1956] 2 W.L:F2_372_[195,6]_1 All E.R~ 273 (Q.B.D.) — considered Ayscough v. Bullar(1889), 41 Ch. D. 341 (C.A.)— referred to Colangelo v. Mississauga (City); Morencie v. Windsor (City)(1989), 37 O.A.C. 321, 1.04 N.R. 298 (S.C.C.) — referred to Dene Nation v. R.,[1983 1 F.C. 146 (T.D.) — referred to Friends ofOldman River Soc. v. Can.(Min. ofTpt.)zj199012 F.C. 18, 76 Alta. L.R.(2d)289,[1991] 1 W.W.R. 352,5 C.E.L.R.(N.S.) 1, 68 D.L.R. t4th) 375, 108 N.R.241 [leave to appeal to S.C.C. granted 76 Alta. L.R.(2d) lvii] — applied Curtner v. Circuit,_j1968~.2_.Q_B~587,~196$],2, W_L.R. 688 1.968]._1 All E _R 328(C.A.) — considered Halton Community Credit Union Ltd, v. ICL Computers Can. Ltd.~19851, 3 C.P.C. (2dL(Ont. C.A.) — referred to I.B.M. Corp. v. Xerox ofCan. Ltd. (1977), 16 N.R. 355 (Fed. C.A.) — referred to Performing Rights Organization ofCan. Ltd. v. CBC(1986), 7 C.P.R.(3d)433, 64 N.R. 330(Fed. C.A.) — referred to Statutes considered: Navigable Waters Protection Act, R.S.C. 1985, c. N-22 Rules considered: Federal Court Rules, C.R.C. 1978, c. 663 R. 1716(2)(b)

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Page 4 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416

Regulations considered: Department of the Environment Act, R.S.C. 1985, c. E-10 — Environmental Assessment and Review Process Guidelines Order, SOR/84-467 Appeal from order of Reed J., 75 Alta. L.R.(2d) 1, 44 Admir~..L.R_108,69 D.L,R~,4th~.143,34 F.T_R.. 137,, adding provincial Crown as party respondent, with conditions attached, in judicial review proceedings; Cross-Appeal based on lack ofjurisdiction. The judgment of the court was delivered by Stoite J.A.: 1 This is an appeal from an order made by the Trial Division on 13th March l 990[75 Alta. L.R.(2d) 1,44 Admin. L.R. 108, 69 D.L.R.(4th) 143, 34 F.T.R. 137j by which the appellant was added as a party respondent in s. 18 proceedings commenced by way of an origi- nating notice of motion filed on 16th February 1990. The appellant had applied to that division to be joined in those proceedings as a party respondent or, alternatively, as an intervener. 2 The reliefsought in those proceedings are orders in the nature of certiorari and mandamus to be directed against the Minister of Western Economic Diversification,the Minister ofTransport,the Minister ofFisheries and Oceans and the Minister of the Environment, respondents in the Trial Division proceedings, in respect of decisions made pertaining to the construction and operation of a pulp mill and related facilities on the Peace River in northern Alberta. Central to the dispute is the assertion that these decisions are affected by the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (the "guidelines order") which is said to be binding upon these ministers and not to have been complied with. 3 This appeal, together with appeals from similar orders made concurrently in the Trial Division in court file Nos. T-441-90 (A-211-90), T-441-90 (A-212-90) and T-441-90 (A-225-90), were heard at the same time. The reasons given in this file will apply to the other files and will be placed on those files so as to become the reasons forjudgment therein as well except as modified or supplemented. The Order It will be convenient if I set out the text ofthe order which is attacked FN 1 Order Her Majesty the Queen in Right of Alberta is to be hereby added as a party Respondent in these proceedings upon the following conditions: 1. No pleadings additional to those already on the record maybe filed by this Respondent;

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Page 5 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 2. The conduct ofthe Respondent's case must fit within the time frames set out for the conduct of the case by the present parties; 3. The Respondent may attend on any cross-examinations which are held of the applicants' affiants but is not entitled to participate therein. This restriction does not apply to any affidavits filed by the applicants in direct response to any affidavits which this Respondent might file in these proceedings. To the extent that the cross-examination ofone affiant by more than one counsel might arise as a result ofthis order counsel are directed to avoid duplication and delay by their designating lead counsel or otherwise dividing responsibility. 4. The respondent shall not be entitled to claim costs. All ofthe above conditions, are of course, subject to any decision which the judge hearing this application on its merits might make. The Issues 5 Two issues are raised in this appeal which require our attention. The appellant contends that the conditions in question ought to be struck out, and especially so in view ofthe fact that the judge had already determined that the case was a proper one for the joinder ofthe appellant as a party respondent rather than as an intervener. The respondent by way of across-appeal submits that the appellant ought not to have been joined at all because the Trial Division lacks jurisdiction to grant relief against the appellant. FN2 Discussion The conditions 6 I shall deal first with the issue relating to the conditions. The appellant asserts a direct interest in the outcome of the proceedings as owner of a railway spur and bridge across the Peace River being built incidentally to the construction ofthe pulp mill by Daishowa Canada Co. Ltd. As of23rd February 1990 the spur was 97 per cent complete and the bridge 26 per cent. Funding for construction of the spur was received in the amount of $9,500,000 from the federal Department of Western Economic Diversification. Further, the appellant asserts that Alberta actually issued permits for the construction of the pulp mill as well as an interim licence for the construction of the water intake/effluent outfall facilities into the Peace River, with a right to divert water from that river. These facilities were exempted from the provisions of the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, by the Minister of Transport who also granted an approval to the appellant in respect of the bridge pursuant to the same statute. The appellant, accordingly, contends that she should have been granted full respondent standing, free of the conditions contained in the order. As she puts it in para. 6 of her memorandum: 6. Alberta has an immediate interest in the outcome ofthe current proceedings flowing from its ownership ofthe Bridge and the spur. Furthermore, Alberta owns natural resources generally in the Province of Alberta and has exclusive constitutional jurisdiction to deal with her natural resources as she sees fit, including the right to issue

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~. ~• Page 6 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R.240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 permits, licenses and to generally manage these natural resources. The conditions imposed, she submits, would hamper her ability to adduce evidence, to cross-examine any witnesses adverse in interest and to make submissions. 7 The learned judge below gave the following reasons for imposing the impugned conditions (appeal book, pp.

In this case, I have come to the conclusion that the appropriate course of action is to add Alberta and Daishowa as party respondents but with very strict conditions attached to the roles they may play. This conclusion is based on the fact that the only reason to add them as respondents, instead of as interveners, is to accord them appeal rights. It is based on a consciousness of the principle that the initiating party in a legal proceeding should normally be able to choose who is added as a party and to control the general structure ofthe case. It is based very heavily on the fact that the arguments on the application will be largely legal in nature (the appropriate interpretation of the E.A.R.P. guidelines and the respective pieces offederal legislature) as well as on the fact that all of the relevant evidence should be in the control and the knowledge ofthe present respondents. Rule 1716 contemplates that such terms and conditions maybe imposed, when parties are added, if it is just to do so. In the present case I think the following terms fit within that category. While Alberta and Daishowa should have the right to call evidence (i.e., to file affidavit evidence)and to cross-examine affiants ofany affidavits filed in reply thereto, I do not think they should be able to add to the issues which the applicants have established as the framework of their case. They will not be given any right to file pleadings, but must take the pleadings as they presently exist. With respect to the cross-examination ofthe applicants' affiants, they will be entitled to attend as observers thereon but not to participate therein. The addition of Alberta and Daishowa as respondents should not be allowed to interfere with or delay the timetable which the applicants and the present respondents either agree upon or which the applicants convince the court to impose. In this regard, the order adding Alberta and Daishowa as respondents will be on the express condition that they fit themselves within that timetable. In addition, I do not believe that either should be able to claim costs. Orders will issue in accordance with these reasons. 8 The learned judge below relied on R. 1716(2)(b) FN3 by way of analogy. She was of the view that the appellant's presence before the court was not "necessary," and no attack is made on that conclusion. The ground upon which she seems to have decided to join the appellant as a party respondent was that the appellant "ought to have been joined," though she also thought the joinder should be permitted because she believed the appellant wished "to acquire rights of appeal"(appeal book, p. 31)[pp.6-7]. 9 Rule 1716(2)(b) is not peculiar to practice and procedure in the Federal Court. It, or a variation of it, has been a feature of the rules governing practice and procedure in the Supreme Court of Ontario since at least 1913. It was apparently inherited from England. It is not a rule for joining an intervener but for joining a party. There is, of course, a significant difference between the position of an intervener in proceedings and that of a party. The intervener, for example, must as a rule take the record as he finds it. He has no status to pursue an appeal: Toronto (City) v. Morencie, S.C.C. No. 21207,judgment rendered 17th April 1989 [reported Colangelo v. Mississauga (City); Morencie v. Windsor (City), 37 O.A.C.321, 104 N.R. 298]. On the other hand,a partyjoined by order ofa court will normally enjoy the

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Page 7 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 same rights as those of other parties, including the right to adduce evidence and to make submissions. It has been said, indeed, that he holds an absolute right to cross-examine witnesses adverse in interest: see HuCton Conzmz~~~iiy Cf•edit Urtio~a Ltcl v. ICL Comp~~ters Can. Ltd(1985), 3 C.P.C.(2d)252 at 253(Ont. C.A.). 10 The real question at this stage is whether the judge below, in imposing the conditions in question, acted properly within the discretion vested in her by R. 1716(2)(b). That discretion is undoubtedly broad — "on such terms as it thinks just" —but it is not an absolute power to be exercised with full and complete discretion. Such a broad discretion is subject to the constraint of being exercised upon reasonable grounds: see, e.g., Per orrnin Ri hts Of~~ani~ution ofCan. Ltd. v. Cl3C(1986) 7 C.P.R. (3dL 64 N.R. 330 at 339(,Fed.. C.A.,per Heald J.A. Although this court must be slow to interfere with the exercise of a discretion such as this, it may do so on certain limited grounds, including if we should find that the order is not "just and reasonable": see, e.g., I.B.M. C~j~ . v. Xerox v Can. Ltd. 1977 16 N.IZ. 355 Fed. C.A. ;Algonquin Mercantile Corp. v. Dartlndust. Can. Ltd.(1984,5 C.I.P.R. 40,3 C.P.R. 3d 143(Fed. C.A.). 11 The s. 18 application is, as I have said, brought against several federal ministers. If it succeeds, the consequences for the appellant could well be quite severe. Money the appellant has invested in the bridge and railway spur might be put in jeopardy if the mill is unable to operate or its operation is delayed significantly on account of the failure of the federal ministers to comply with the guidelines order, assuming that order is found to be binding upon them. The efficacy of any permits and licences issued under provincial law for construction of the mill as well as for the intake/outfall facilities on the basis of a federal exemption granted to the mill owner Daishowa Canada Co. Ltd. pursuant to the Navigable Waters Protection Act, might be put in question. Yet, the appellant will not be able to adduce her own evidence and advance her own arguments that the guidelines order is inapplicable because a federal-provincial agreement purports to leave environmental assessment ofthe project in the hands ofthe province. She will be prevented, also,from delving fully into any aspect ofthe matter which may bear upon the exercise ofdiscretion vested in the Trial Division under s. 18. 12 The order below is somewhat of a hybrid, partaking offeatures both of an orderjoining a party simpliciter and, with the addition of the conditions, of an order granting intervener status. I am not at all certain that the judge was correct in adding those conditions. FN4j 13 We have not had drawn to our attention any case in which a court, having decided to join a party before a matter was heard, qualified the role ofthe new party in such fundamental ways as those found in the conditions. Those conditions go a long way, in my opinion, towards reducing the appellant's role in the proceedings to more like that of an intervener than of a full party. They limit the appellant in the evidence she may wish to adduce, in cross-examination and in the position she may wish to adopt. They require the appellant, in effect, to take the record as she finds it and to conform to a "timetable" for the hearing of the s. 18 application regardless of the impact that timetable may have on the ability ofthe appellant to advance her own position. FNS 14 The order below also deprives the appellant of costs in the s. 18 proceedings even though the final decision is left to the judge hearing that application. In my view such a condition could well affect the way in which that judge exercises the discretion in the matter. It would have been better to say nothing about costs and leave the matter entirely in the hands of that judge, to be exercised in the way he or she may feel most appropriate having regard to the cir-

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~~ Page 8 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 cumstances prevailing at the time the discretion is to be exercised. Thatjudge is in the best position to make the decision unaffected by the views ofthe learned motions judge formed at the preliminary stage. 15 In summary the order, in my view, is not "just and reasonable" because of the conditions it imposes. I would delete those conditions. Jurisdiction 16 It now becomes necessary to address the submission of the respondents in their cross-appeal that the judge below ought not to have joined the appellant because no claim for relief is made against her, and also because the Trial Division would lack jurisdiction to grant relief to the appellant under the invoked legislation: Dene Nation v. R., X1983]_1 F.C. 146(T.D.). The courts have sometimes joined a party defendant even though no relief would be sought against him (Gurtner v. Circuit, 1968] 2~.TB~~87,,.j1968~2 W.L.R. 688,(1968,_1 All G.R. 328 (C.A.)), and have recognized also that the party joined would be enabled to resist the relief sought and be heard on the terms of any judgment: compare Anz~r~_v.. Raphael Tuck_c4r Sans Ltd_.,.j195C] 1 Q;B _357_at 383,...L195G12 WlL.R._372,~;19561._1_All E,R. 273(Q:B_D,~. Much will depend upon the circumstances ofthe particular case. This court has been willing to join a party in proceedings such as these simply because, as that party's rights will be directly affected by the outcome of the dispute, he should be enabled to assert rights of appeal: Adidas(Can.)Ltd. v. Skoro Ent. Ltd. 197 ~_F_C. 382, 12 C_P,R. ~2d~67(C.A.); Friends ofOldman River Soc. v. Can.(Mir?_o T t. 1990 2 F.C. 18, 76 Alta. L_R,_(2d) 289, L1991]_l W~W.R:.352L5 „C.E:L.R. ~N.S,~l.,,_68 D.;L:R.~h~ 375,.._1.08 N8:_241 ~C A.~. The principle enunciated by this court in Adidas would appear to apply with even greater force where, as here, the s. 18 application is still pending in the Trial Division. Disposition 17 I should add one final word before disposing of this appeal. The respondents fear that the presence of the appellant as a full party will enlarge and delay the s. 18 proceedings and will add to the costs. I agree that all these things are possible, but, surely, these are but consequences which may normally flow from any legal proceedings in which a third party's rights will be directly affected by the outcome. The court has power to control its own process in order to ensure thatjustice is done and,to that end, it may in appropriate circumstances deal with any obvious abuse of its process in a variety of ways including by the levying ofcosts. No such abuse is evident on the record before us. 18 In the result I would allow the appeal with costs and would amend the order made 13th March 1990 by deleting therefrom all ofthe words commencing with the words "upon the following conditions:” so that the order as amended will read: Her Majesty the Queen in Right of Alberta is to be hereby added as a party Respondent in these proceedings. The style of cause in this application shall be amended to reflect the adding of Her Majesty the Queen in Right of Alberta as a party Respondent.

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~~ Page 9 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 19 The cross-appeal is dismissed.

(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action maybe effectually and completely determined and adjudicated upon,to be added as a party. Appeal allowed,• cross-appeal dismissed. FN 1. Similarly, the order in court file No. A-225-90 was made in favour of the appellant, while in court file Nos. A-211-90 and A-212-90 the orders were made in favour of Daishowa Canada Co. Ltd., the appellant therein. FN2 No cross-appeal was launched in the other matters now pending before us. FN3 (2) At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or on application, FN4 I do not think it desirable to lay down a general rule for the construction of the words of discretion in R. 1716(2)(b). While the rule gives no guidance as to the way the discretion should be exercised, it permits a judge, at a minimum,to require an applicant to pay the costs ofthe interlocutory application(see, e.g.,A.Zscou~h v. Bullar(l 889, 41 Ch. D. 341 C.A. ; A.G. v. Pontypridd Water°works Co.t f1908 1 Ch. 388(Ch. D.)), though it is broader than that. Such an order as to costs would not interfere with the ordinary rights the person joined may exercise as a party in the underlying proceedings. FN5 At the hearing we were told that the s. 18 application is now scheduled to be heard in early 1991. The agreed upon "timetable" seems thus to have been overtaken by events in that it was apparently drawn with a view to a date in July 1990 when the plant was expected to commence operations, which it did. END OF DOCUMENT

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Page 1 1990 CarswellNat4,78 Alta. L.R.(2d)97,73 D.L.R.(4t11)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416

1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 Edmonton Friends ofthe North Environmental Society v. Canada(Minister of Western Economic Diversification) R. IN RIGHT OF ALBERTA v. EDMONTON FRIENDS OF THE NORTH ENVIRONMENTAL SOCIETY et al. Federal Court of Canada,[Appeal Division] Iacobucci C.J.F.C., Heald and Stone JJ.A. Heard: September 10, 1990 Judgment: September 28, 1990 Docket: No. A-224-90 D Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Proceedings: reversed in part Edmonton Friends ofthe North Environmental Society v. Canada (Minister of Western Economic Diversification)_~1990)), 1990 CarswellNat 2, 34 F.T.R. 1.37, 69 D.L.R.(4th) 143,44 Admin. L.R.] 08,75 Alta. L.R.(2d~((Fed. T.D.)) Counsel: A. Moen,for the Crown in Rigllt of Alberta. J. Gill, for respondents. P.J. Landry, for Daishowa Canada Co. Ltd. I. Hutton, for Minister Western Economic Diversification, Minister of Transport, Minister of Fisheries and Oceans, and Minister ofthe Environment. Subject: Public; Civil Practice and Procedure Practice --- Parties — Adding or substituting parties — Adding party on own motion

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Page 2 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 Administrative law — Appeals from administrative decisions — Parties — Federal Court Trial Division making order adding provincial Crown as party respondent in applications for judicial review under s. 18 of Federal Court Act — TrialDivision imposing conditions on provincial Crown in order — Conditions effectively reducing provincial Crown to role of intervener — Provincial Crown having direct economic interest in outcome of s. 18 proceedings — Federal Court of Appeal deleting conditions from order. Crown — Proceedings on behalf of Crown — Federal Court Trial Division making order adding provincial Crown as party respondent in applications for judicial review under s. 18 of Federal Court Act —Trial Division imposing conditions on provincial Crown in order — Conditions effectively reducing provincial Crown to role of intervener — Provincial Crown having direct economic interest in outcome of s. 18 proceedings — Federal Court of Appeal deleting conditions from order. The provincial Crown sought to be joined as respondents or interveners in two applications for judicial review made under s. 18 of the Federal Court Act. Both applications related to a pulp mill project being constructed by D. Ltd. Central to the dispute was the assertion that several federal ministers, in making decisions regarding the mill and related facilities, failed to comply with the Environmental Assessment and Review Process Guidelines Order which purportedly bound them. The Federal Court, Trial Division added the provincial Crown and the contractor as party respondents, but on the condition that they could not add to the issues, file pleadings, cross-examine the applicants' affiants, change the timetable or add costs. The Crown appealed. The respondent cross-appealed, submitting that the provincial Crown ought not to have been joined at all because the Trial Division lacked jurisdiction to grant relief against the Crown under the invoked legislation. Held: Appeal allowed; conditions removed; cross-appeal dismissed. The real question was whether the order imposing the conditions was a proper exercise ofthe broad judicial discretion conferred by Federal Court R. 1716(2)(b). An appellate court could interfere on limited grounds, including a finding that the order was "just and reasonable." Success ofthe s. 18 application could lead to severe consequences for the provincial Crown. It had invested money in abridge and railway spur being built incidentally to the pulp mill construction; that money might be jeopardized ifthe application were granted. The efficacy ofissued provincial licences and permits might also be put in question. Yet,the provincial Crown would be unable to adduce evidence or advance arguments as to the applicability of the guidelines order, or to delve fully into any aspect bearing on the exercise ofthe s. 18 discretion. The conditions imposed tended to reduce the provincial Crown's role to that ofan intervener rather than a full party. In addition, the condition depriving the provincial Crown of costs could well affect the manner in which discretion was exercised in the matter. Finally, since the provincial Crown's rights would be directly affected by the outcome ofthe dispute, it should be able to assert rights of appeal. Cases considered:

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;. ~ ; Page 3 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 A.G. v. Pontypridd Waterworks Co.,[1908] 1 Ch. 388(Ch. D.) — referred to Adidas (Can.)Ltd, v. Skoro Ent. Ltd.,[1971] F.C. 382, 12 C.P.R.(2d)67(C.A.) — applied Algonquin Mercantile Corp. v. Dart Indust. Can. Ltd. (1984), 5 C.I.P.R. 40, 3 C.P.R.(3d) 143 (Fed. C.A.) — referred to Amon v. Raphael Tuck &Sons Ltd.t_[1956~1 Q.B...357. ,._[1956~W.L._K._372,,_[19561_I All_E.R,_273(Q.B.D.)— considered Ayscough v. Bullar (1889), 41 Ch. D. 341 (C.A.) — referred to Colangelo v. Mississauga (City); Morencie v. Windsor (City)(19891, 37 O.A.C. 321, 1.04 N.R. 298 (S.C.C.) referred to Dene Nation v. R.,[l 983]] F.C. 146(T.D.) — referred to Friends ofOldman RiverSoc. v. Can. (Min. ofTpt.),[1990]2 F.C. 18, 76 Alta. L.R.(2d)289,j1991] 1 W.W.R. 352 5 C.E.L.R.(N.S.) 1,68 D.L.R. t4th) 375 108 N.R. 241 [leave to appeal to S.C.C. granted 76 Alta. L.R.(2d) lvii] — applied Curtner v. Circuit,_~1968] 2_Q_B. S&7,_j1968].2._W_L.R~6$8 [.19 8.]_1 All E.R. 328(C.A.) — considered Halton Community Credit Union Ltd. v. ICL Computers Can. Ltd. (1985), 3 C.P.C.(2d 252(Ont. C.A.) — referred to I.B.M. Corp, v. Xerox ofCan. Ltd. (1977), 16 N.R. 355 (Fed. C.A.)— referred to Performing Rights Organization ofCan. Ltd. v. CBC(1986), 7 C.P.R.(3d)433,64 N.R. 330(Fed. C.A.) — referred to Statutes considered: Navigable Waters Protection Act, R.S.C. 1985, c. N-22 Rules considered: Federal Court Rules, C.R.C. 1978, c. 663 R. 1716(2)(b)

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Page 4 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416

Regulations considered: Department of the Environment Act, R.S.C. 1985, c. E-]0 — Environmental Assessment and Review Process Guidelines Order, SOR/84-467 Appeal from order of Reed J., 75 Alta. L.R.(2d) 1,44 Admin. L.R. 108,.69 D.L.R. 4th 143, 34 F.T.R._ 1.37, adding provincial Crown as party respondent, with conditions attached, in judicial review proceedings; Cross-Appeal based on lack ofjurisdiction. The judgment of the court was delivered by Stone J.A.: 1 This is an appeal from an order made by the Trial Division on 13th March 1990[75 Alta. L.R.(2d) 1,44 Admin. L.R. 1 U8, 69 D.L.R.(4th) 143, 34 F.T.R. 137] by which the appellant was added as a party respondent in s. 18 proceedings commenced by way of an origi- nating notice of motion filed on 16th February 1990. The appellant had applied to that division to be joined in those proceedings as a party respondent or, alternatively, as an intervener. 2 The reliefsought in those proceedings are orders in the nature ofcertiorari and mandamus to be directed against the Minister of Western Economic Diversification,the Minister ofTransport,the Minister ofFisheries and Oceans and the Minister of the Environment, respondents in the Trial Division proceedings, in respect of decisions made pertaining to the construction and operation of a pulp mill and related facilities on the Peace River in northern Alberta. Central to the dispute is the assertion that these decisions are affected by the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (the "guidelines order") which is said to be binding upon these ministers and not to have been complied with. 3 This appeal,together with appeals from similar orders made concurrently in the Trial Division in court file Nos. T-441-90 (A-211-90), T-441-90 (A-212-90) and T-441-90 (A-225-90), were heard at the same time. The reasons given in this file will apply to the other files and will be placed on those files so as to become the reasons forjudgment therein as well except as modified or supplemented. The Order 4 It will be convenient if I set out the text ofthe order which is attacked FN1 Order Her Majesty the Queen in Right of Alberta is to be hereby added as a party Respondent in these proceedings upon the following conditions: 1. No pleadings additional to those already on the record may be filed by this Respondent;

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Page 5 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 2. The conduct ofthe Respondent's case must fit within the time frames set out for the conduct ofthe case by the present parties; 3. The Respondent may attend on any cross-examinations which are held of the applicants' affiants but is not entitled to participate therein. This restriction does not apply to any affidavits filed by the applicants in direct response to any affidavits which this Respondent might file in these proceedings. To the extent that the cross-examination ofone affiant by more than one counsel might arise as a result ofthis order counsel are directed to avoid duplication and delay by their designating lead counsel or otherwise dividing responsibility. 4. The respondent shall not be entitled to claim costs. All ofthe above conditions, are of course, subject to any decision which the judge hearing this application on its merits might make. The Issues 5 Two issues are raised in this appeal which require our attention. The appellant contends that the conditions in question ought to be struck out, and especially so in view ofthe fact that thejudge had already determined that the case was a proper one for the joinder ofthe appellant as a party respondent rather than as an intervener. The respondent by way of across-appeal submits that the appellant ought not to have been joined at all because the Trial Division lacks jurisdiction to grant relief against the appellant. FN2 Discussion The conditions 6 I shall deal first with the issue relating to the conditions. The appellant asserts a direct interest in the outcome of the proceedings as owner of a railway spur and bridge across the Peace River being built incidentally to the construction ofthe pulp mill by Daishowa Canada Co. Ltd. As of23rd February 1990 the spur was 97 per cent complete and the bridge 26 per cent. Funding for construction of the spur was received in the amount of $9,500,000 from the federal Department of Western Economic Diversification. Further, the appellant asserts that Alberta actually issued permits for the construction of the pulp mill as well as an interim licence for the construction of the water intake/effluent outfall facilities into the Peace River, with a right to divert water from that river. These facilities were exempted from the provisions of the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, by the Minister of Transport who also granted an approval to the appellant in respect of the bridge pursuant to the same statute. The appellant, accordingly, contends that she should have been granted full respondent standing, free of the conditions contained in the order. As she puts it in para. 6 of her memorandum: 6. Alberta has an immediate interest in the outcome ofthe current proceedings flowing from its ownership ofthe Bridge and the spur. Furthermore, Alberta owns natural resources generally in the Province of Alberta and has exclusive constitutional jurisdiction to deal with her natural resources as she sees fit, including the right to issue

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Page 6 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R.240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 permits, licenses and to generally manage these natural resources. The conditions imposed, she submits, would hamper her ability to adduce evidence, to cross-examine any witnesses adverse in interest and to make submissions. 7 The learned judge below gave the following reasons for imposing the impugned conditions (appeal book, pp.

In this case, I have come to the conclusion that the appropriate course of action is to add Alberta and Daishowa as party respondents but with very strict conditions attached to the roles they may play. This conclusion is based on the fact that the only reason to add them as respondents, instead of as interveners, is to accord them appeal rights. It is based on a consciousness of the principle that the initiating party in a legal proceeding should normally be able to choose who is added as a party and to control the general structure ofthe case. It is based very heavily on the fact that the arguments on the application will be largely legal in nature (the appropriate interpretation of the E.A.R.P. guidelines and the respective pieces of federal legislature) as well as on the fact that all of the relevant evidence should be in the control and the knowledge ofthe present respondents. Rule 1716 contemplates that such terms and conditions may be imposed, when parties are added, if it is just to do so. In the present case I think the following terms fit within that category. While Alberta and Daishowa should have the right to call evidence (i.e., to file affidavit evidence) and to cross-examine affiants ofany affidavits filed in reply thereto, I do not think they should be able to add to the issues which the applicants have established as the framework of their case. They will not be given any right to file pleadings, but must take the pleadings as they presently exist. With respect to the cross-examination ofthe applicants' affiants, they will be entitled to attend as observers thereon but not to participate therein. The addition of Alberta and Daishowa as respondents should not be allowed to interfere with or delay the timetable which the applicants and the present respondents either agree upon or which the applicants convince the court to impose. In this regard, the order adding Alberta and Daishowa as respondents will be on the express condition that they fit themselves within that timetable. In addition, I do not believe that either should be able to claim costs. Orders will issue in accordance with these reasons. 8 The learned judge below relied on R. 1716(2)(b) FN3 by way of analogy. She was of the view that the appellant's presence before the court was not "necessary," and no attack is made on that conclusion. The ground upon which she seems to have decided to join the appellant as a party respondent was that the appellant "ought to have been joined," though she also thought the joinder should be permitted because she believed the appellant wished "to acquire rights of appeal"(appeal book, p. 31)[pp.6-7]. 9 Rule 1716(2)(b) is not peculiar to practice and procedure in the Federal Court. It, or a variation of it, has been a feature of the rules governing practice and procedure in the Supreme Court of Ontario since at least 1913. It was apparently inherited from England. It is not a rule for joining an intervener but for joining a party. There is, of course, a significant difference between the position of an intervener in proceedings and that of a party. The intervener, for example, must as a rule take the record as he finds it. He has no status to pursue an appeal: Toronto (City) v. Morencie, S.C.C. No. 21207,judgment rendered 17th April 1989 [reported Colangelo v. Mississauga (City); Morencie v. Windsor (City), 37 O.A.C. 32 l,, 104 N.R. 298]. On the other hand,a partyjoined by order ofa court will normally enjoy the

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Page 7 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153, 38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 same rights as those of other parties, including the right to adduce evidence and to make submissions. It has been said, indeed, that he holds an absolute right to cross-examine witnesses adverse in interest: see Halton Comnzz~nity Credit U~tior~ Ltc~ n..ICL Computers Can. Ltd(1985 3 C.P.C.(2d)252 at 253(Ont C.A ). 10 The real question at this stage is whether the judge below, in imposing the conditions in question, acted properly within the discretion vested in her by R. 1716(2)(b). That discretion is undoubtedly broad — "on such terms as it thinks just" —but it is not an absolute power to be exercised with full and complete discretion. Such a broad discretion is subject to the constraint of being exercised upon reasonable grounds: see, e.g., Perforfning Ruts Of•~ai~i~ution ofCan. Lzi~ v. CBC(l 986,7 C P R (3d)433,64 N R 330 at 339(Fed C A ),per Heald J.A. Although this court must be slow to interfere with the exercise of a discretion such as this, it may do so on certain limited grounds, including if we should find that the order is not "just and reasonable": see, e.g., LB.M. Cof~~. v. Xei°ox of Ccen. Ltc~ (1977), 16 N.R. 355(Fed. C.A.); Algonquin Mercantile Corp. v. Dartindust. Can. Ltd.(1984),5 C.I.P.R. 40,3 C.P.R. 3f d} 143 (Fed. C.A.). 11 The s. 18 application is, as I have said, brought against several federal ministers. If it succeeds, the consequences for the appellant could well be quite severe. Money the appellant has invested in the bridge and railway spur might be put in jeopardy if the mill is unable to operate or its operation is delayed significantly on account of the failure of the federal ministers to comply with the guidelines order, assuming that order is found to be binding upon them. The efficacy of any permits and licences issued under provincial law for construction ofthe mill as well as for the intake/outfall facilities on the basis of a federal exemption granted to the mill owner Daishowa Canada Co. Ltd. pursuant to the Navigable Waters Protection Act, might be put in question. Yet, the appellant will not be able to adduce her own evidence and advance her own arguments that the guidelines order is inapplicable because a federal-provincial agreement purports to leave environmental assessment ofthe project in the hands ofthe province. She will be prevented, also, from delving fully into any aspect ofthe matter which may bear upon the exercise ofdiscretion vested in the Trial Division under s. 18. 12 The order below is somewhat ofa hybrid, partaking offeatures both of an orderjoining a party simpliciter and, with the addition of the conditions, of an order granting intervener status. I am not at all certain that the judge was correct in adding those conditions..[FN41 13 We have not had drawn to our attention any case in which a court, having decided to join a party before a matter was heard, qualified the role ofthe new party in such fundamental ways as those found in the conditions. Those conditions go a long way, in my opinion, towards reducing the appellant's role in the proceedings to more like that of an intervener than of a full party. They limit the appellant in the evidence she may wish to adduce, in cross-examination and in the position she may wish to adopt. They require the appellant, in effect, to take the record as she finds it and to conform to a "timetable" for the hearing of the s. 18 application regardless of the impact that timetable may have on the ability ofthe appellant to advance her own position. FNS 14 The order below also deprives the appellant of costs in the s. 18 proceedings even though the final decision is left to the judge hearing that application. In my view such a condition could well affect the way in which that judge exercises the discretion in the matter. It would have been better to say nothing about costs and leave the matter entirely in the hands of that judge, to be exercised in the way he or she may feel most appropriate having regard to the cir-

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Page 8 ~~ 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 cumstances prevailing at the time the discretion is to be exercised. That judge is in the best position to make the decision unaffected by the views ofthe learned motions judge formed at the preliminary stage. 15 In summary the order, in my view, is not "just and reasonable" because of the conditions it imposes. I would

delete those conditions. Jurisdiction 16 It now becomes necessary to address the submission of the respondents in their cross-appeal that the judge below ought not to havejoined the appellant because no claim for relief is made against her, and also because the Trial Division would lack jurisdiction to grant relief to the appellant under the invoked legislation: Dene Nation v. R..1 j]_9831.1 F.C;,_146 (T.D.). The courts have sometimes joined a party defendant even though no relief would be sought against him (Curtner v. CircuitLj1968] 2 Q.B. 587,._j19681.2 W.L:R. 688, j19681 I All E_R. 328 (C.A.)), and have recognized also that the party joined would be enabled to resist the relief sought and be heard on the terms of any judgment: compare ~tmo~~v. Raphael T:~ck & Sons.Gtd, 1956] 1 Q.B. 357 at 383L~1956],,2 W.L.R. 372.,_.[19561,.1 All E,R.273_(Q.f3.D.). Much will depend upon the circumstances ofthe particular case. This court has been willing to join a party in proceedings such as these simply because, as that party's rights will be directly affected by the outcome of the dispute, he should be enabled to assert rights of appeal: Adidas(Can.)Ltd. v. Skoro Ent. Ltd.., 197_l,a_F.C. 382,._12 C_P.R..~2d~67(C.A.); Friends ofOldman River Soc. v. Can.(Mi». n T~tL990]2 F.C. 18,76 Alta. L.R.~2d~ 289 j1991] I _W,W.R...352~5 C.E_L~R. ~N_S~_1 ._68 D.L.K_~4th~375,,108 N.R_ 241~C~A,Z. The principle enunciated by this court in Adidas would appear to apply with even greater force where, as here, the s. 18 application is still pending in the Trial Division.
Disposition I should add one final word before disposing of this appeal. The respondents fear that the presence of the 17 appellant as a full party will enlarge and delay the s. 18 proceedings and will add to the costs. I agree that all these things are possible, but, surely, these are but consequences which may normally flow from any legal proceedings in which a third party's rights will be directly affected by the outcome. The court has power to control its own process in order to ensure thatjustice is done and,to that end, it may in appropriate circumstances deal with any obvious abuse of its process in a variety of ways including by the levying of costs. No such abuse is evident on the record before us.

18 In the result I would allow the appeal with costs and would amend the order made 13th March 1990 by deleting therefrom all ofthe words commencing with the words "upon the following conditions:" so that the order as amended will read: Her Majesty the Queen in Right of Alberta is to be hereby added as a party Respondent in these proceedings. The style ofcause in this application shall be amended to reflect the adding ofHer Majesty the Queen in Right of Alberta as a party Respondent.

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Page 9 1990 CarswellNat 4,78 Alta. L.R.(2d)97,73 D.L.R.(4th)653, 114 N.R. 153,38 F.T.R. 240(note),[1991]2 W.W.R. 577,47 Admin. L.R. 265,[1991] 1 F.C. 416 19 The cross-appeal is dismissed.

(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action maybe effectually and completely determined and adjudicated upon,to be added as a party. Appeal allowed,• cross-appeal dismissed. FN 1 Similarly, the order in court file No. A-225-90 was made in favour of the appellant, while in court file Nos. A-211-90 and A-212-90 the orders were made in favour of Daishowa Canada Co. Ltd., the appellant therein. FN2 No cross-appeal was launched in the other matters now pending before us. FN3 (2) At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or on application, FN4 I do not think it desirable to lay down a general rule for the construction of the words of discretion in R. 1716(2)(b). While the rule gives no guidance as to the way the discretion should be exercised, it permits a judge, at a minimum,to require an applicant to pay the costs ofthe interlocutory application(see, e.g., A ~s cough v. Bullar(1889), 41 Ch. D. 34l (C~A.~; A.G. v. Pontypridd Waterworks Ca., j1908] 1 Ch. 388(Ch. D.)), though it is broader than that. Such an order as to costs would not interfere with the ordinary rights the person joined may exercise as a party in the underlying proceedings. FN,S At the hearing we were told that the s. 18 application is now scheduled to be heard in early 1991. The agreed upon "timetable" seems thus to have been overtaken by events in that it was apparently drawn with a view to a date in July 1990 when the plant was expected to commence operations, which it did. END OF DOCUMENT

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2011 CarswellNat 294, 2011 FC 158 Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada(Attorney General) Sandy Pond Alliance to Protect Canadian Waters Inc., Applicant and Her Majesty the Queen in Right of Canada as Represented by the Attorney General, Respondent Federal Court E. Heneghan J. Heard: September 10, 2010 Judgment: February 10, 2011 Docket: T-888-10 D Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Proceedings: reversed in part Sandy PondAlliance to Protect Canadian Waters Inc. v. Canada(Attorney General)~2011.),20]1 FCA 129, 201 l CarswellNat l 121 (F.C.A.) Counsel: Owen Myers, for Applicant Douglas Hamilton, Christopher A. Wayland,for Intervener, Vale Inco Ltd. James Thistle, Q.C., for Intervener, Mining Association of Canada and Mining Association of British Columbia Subject: Civil Practice and Procedure; Natural Resources Civil practice and procedure --- Parties — Intervenors — As party Applicant environmental group commenced application for judicial review to challenge provisions of mining regulations — Environmental group sought declaration that portions of regulations were unlawful contrary to Fisheries Act —Three mining organizations sought motion to intervene with full rights ofrespondents — Motion granted —One mining company proposed to offer evidence of how mining could take place in environmentally responsible manner —Two mining organizations proposed to offer evidence on how other mining projects would be affected if land was declared unconstitutional —Test for intervenor status included factors ofbeing directly affected by outcome, public interest position not being defended by party to case and effect of intervenor on interests ofjustice —Not all factors had to be met to allow intervenor status — Although

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mining organizations not directly affected, they had legitimate interest in proceedings that was not defended by party respondents —Court would be assisted by hearing perspectives of mining organizations — Intervenor status granted on basis that mining organizations could file application record, bring evidence and make arguments on listed issues — Mining organizations could not cross-examine, bring motions or appeal interlocutory orders. Cases considered by E. Heneghan J.: Canada (Prime Minister) v. Khadr~2009) 2009 CarswellNat 4062, 2009 FCA 186, 2009 CarswellNat 5338,?009 CAF 186 (F.C.A.) — referred to Canadian Pacific Railway v. Boutique Jacob Inc. 2006 2006 CarswellNat X1588200_6_ FCA 426..2006 Carswe]1Nat 5627,. 2006 CAF 426,~Lub nom.l3~i~t~ue Jncob Inc,._y. Puntainer.Ltcf•L357 N.R. 384(F.C.A.)— referred to Chretien v. Canada (Attorney General)52005) 2005 FC 541 2005 CarsweliNat 1036, 273 F.T.R. 219(E~ ),29 Admin. 19.5 L.R..(4th) (F.C.) — considered Edmonton Friends ofthe North Environmental Society v. Canada (Minister of Western Economic Diversafication) l 990 38 F.T.R. 240(note) 78 Alta. L..R.(2d)97 (199112 W.W.R. 577,47 AC~Illlll. L,.R. 265, X19911 l F.C. 416, 114 N.R. 153. 1990 CarswellNat 4, 1990 ClrswellNat 719, 73 D.L.R.(4th)653(Fed. C.A.) — referred to Hislop v. Canada(Attorney General)(2007) 222 O.A.C. 324 37 R.F.L.(6th) 1 ~4 O.R.(3d)80~note),278 D.L.R.(4th 385,(sub nom. Canada (Attorney General v. 1-fisdo~) X20071 1 S.C.R. 4292007 SCC 10, 2007 CarswellOut 1049, 2007 CarswellOnt 1050, 358 N.R. 197,(sub nom. R. v. Hislop) l53 C.R.R. (2d~(S.C.C.)— followed Rothmans, Benson &Hedges Inc. v. Canada (Attorney General)(1989) [1990] 1 F.C. 74, 1989 CarswellNat 663, 29 F.T.R. 267 41 Admin. I.,.R. 102 1989 CarswellNat 594(Fed. T.D.) — followed Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(1)[en. 1990, c. 8, s. 5] — considered Fisheries Act, R.S.C. 1985, c. F-14 Generally — referred to s. 1 — referred to s. 34(2)— referred to

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s. 36(5)— referred to s. 38(9)— referred to Rules considered: Federal Courts Rules, SOR/98-106 Generally — referred to R. 109 — considered R. 109(3) — considered R. 303(1) — considered Regulations considered: Fisheries Act, R.S.C. 1985, c. F-14 Metal Mining Effluent Regulations, SOR/2002-222 Generally — referred to s. 5 — referred to s. 27.1 [en. SOR/2006-239] — referred to Sched. 2 — referred to MOTION by mining organizations for leave to intervene in environmental law matter.
E. HenegJ :an J.:

1 Vale Inco Ltd. ( "Vale"), the Mining Association of Canada ( "MAC") and the Mining Association of British Columbia ( "MABC")(collectively, the "Proposed Interveners") seek leave, pursuant to the Federal Courts Rules, SOR/98-106 (the "Rules")to intervene in the within proceeding with all rights of a respondent including but not limited to, the right to raise preliminary objections, bring motions, file evidence, make legal submissions, and appeal any and all orders and judgments. Alternatively, they seek status as parties.

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2011 CarswellNat 294, 2011 FC 158

2 Sandy Pond Alliance to Protect Canadian Waters Inc.(the "Applicant ")commenced this application forjudicial review in order to challenge certain provisions of the Metal Mining Effluent Regulations, SOR/2002-222 (the "Regulations") and seeks the following relief 3. The applicant makes application for: Declaratory Relief as follows: (a)A declaration that the following sections ofthe Metal Mining Effluent Regulations, SOR/2002-222 as amended are unlawful as being contrary to the Fisheries Act [R.S., c. F-14, s. 1] and ultra vices the authority granted to the Governor in Council pursuant to the Fisheries Act and subsections 34(2), 36(5) and 38(9) of the Fisheries Act and are hereby declared to be of no force and effect: i. SCHEDULE 2 ofthe Metal Mining Effluent Regulations ii. Section 5 ofthe Metal Mining Effluent Regulations iii. Section 27.1 ofthe Metal Mining Effluent Regulations 4. That in the alternative to (a) above, a declaration that the Governor in Council acted beyond its jurisdiction or without jurisdiction in issuing SOR/2006-239, October 3, 2006 and creating SCHEDULE 2, Section 5 and Section 27.1 of the Metal Mining Effluent Regulations. 3 The Applicant is anot-for-profit corporation registered in Newfoundland and Labrador, pursuant to the laws of that province. According to the incorporation documents, the Applicant was incorporated for the following purposes: The Corporation is established for the following purposes and shall restrict itselfto such activities as in its opinion, directly or indirectly, furthers such purposes: a)To protect and conserve Canadian waters and their ecosystems; and b)To take appropriate actions to assist the Alliance in fulfilling its purpose, including promoting and recommending laws and policies, and informing and engaging the public; and c)To join and/or cooperate with other organizations or institutions with similar purposes. 4 Her Majesty the Queen in Right ofCanada as Represented by the Attorney General(the "Respondent")is the Respondent in the application for judicial review. The Regulations were passed pursuant to the Fisheries Act, R.S.C. 1985, c. F-14. The Respondent takes no position on the motions by the Proposed Interveners and did not participate in the hearing ofthe motions brought by Vale, MAC and MABC.

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The Applicant is challenging the constitutionality of Schedule 2 ofthe Regulations, as well as sections 5 and 27.1 ofthe Regulations as being, among other things, contrary to the protection and conservation offish habitat which is the purpose ofthe Fisheries Act.

6 The focus of the Applicant's challenge to the Regulations is the inclusion of a body of water known as Sandy Pond, located in the Long Harbour area on the Avalon Peninsula of the Province of Newfoundland and Labrador. The inclusion of Sandy Pond on Schedule 2 of the Regulations means that that body of water is eligible to be used as a tailings impoundment area in connection with certain operations carried out in Long Harbour by Vale. The brief statement offacts that appears below is culled from the affidavits filed to date in this proceeding. 8 The Applicant has filed the affidavit of Dr. John Gibson, a fisheries scientist. The Respondent has filed the affidavits of Mr. Marvin A. Barnes and Mr. Chris Doiron. 9 Vale has filed the affidavits of Mr. Don Stevens and Ms. Margarette Livie. MAC filed the affidavit of Mr. Gordon Peeling and the MABC filed the affidavit of Mr. Pierre Grafton. 10 The Applicant filed the affidavit of Dr. John Gibson, a fisheries scientist. Dr. Gibson expressed opinions about the harmful effect on the conservation function ofthe Fisheries Act resulting from the inclusion ofSandy Pond on Schedule 2 ofthe Regulations. 11 Vale is a Canadian company with significant mining operations throughout Canada. Vale Inco Newfoundland and Labrador Limited is a wholly owned subsidiary of Vale, operating a plant at Long Harbour, Placentia Bay, Newfoundland and Labrador. The Long Harbour operation is embarking on a proposed nickel processing plant. That plant will generate tailings and require a tailings impoundment area. Currently, eighteen "Tailings impoundment areas" are described in Schedule 2 ofthe Regulations by their geographic coordinates. 12 In December 2007, Voisey's Bay Nickel Company Limited( "VBNC"), the former owner of the Long Harbour Processing Plant, submitted a request to the Department of Fisheries and Oceans( "DFO") to amend the Regulations to include hydrometallurgical plants, such as the proposed project, as a regulated operation and to designate Sandy Pond as a management and storage site. On June 10, 2009, Sandy Pond was included on Schedule 2 ofthe Regulations. 13 The history of the steps taken to obtain the requested amendment is set out in the affidavit of Mr. Marvin A. Barnes, Regional Manager,Environmental Assessment and Major Projects with DFO.This affidavit was filed by the Respondent in the responding application record, relative to the underlying application for judicial review. 14 Mr. Chris Doiron is the Chief ofthe Mining Section ofthe Mining and Processing Division of Environment Canada in Ottawa. In his affidavit, he states that he played the principal supervisory role within Environment Canada relative to regulatory

process leading up to the inclusion of Sandy Pond as a tailings impoundment area on Schedule 2 of the Regulations. His affidavit outlines the key steps that were required in order to have Sandy Pond listed as a tailings impoundment area on Schedule 2 ofthe Regulations. Those steps included consultations with the public.

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15 Vale filed the affidavits of Mr. Don Stevens and Ms. Margarette Livie in support of its motion to participate as a respondent or as an intervener. Mr. Stevens is the General Manager ofthe Long Harbour Processing Plant that is operated by Vale Inco Newfoundland and Labrador Limited, a wholly owned subsidiary of Vale. 16 In his affidavit he stated that he was aware ofthe circumstances relative to Vale's request to add Sandy Pond to Schedule 2 of the Regulations and that he was aware of the challenge brought by the Applicant against the inclusion of Sandy Pond in Schedule 2 of those Regulations. He further stated he believes that Vale is able to offer a unique perspective about the nature and operations of tailings impoundment areas, their importance to the mining industry and the extent to which they can be established and operated in an environmentally responsible manner. 17 Ms. Livie is a law clerk to Counsel for Vale. The purpose of her affidavit is to submit certain exhibits, including a transcript of radio broadcast, a copy of a "backgrounder document" about the Applicant, documents relating to the incorporation ofthe Applicant, a transcript ofa television news story and a copy ofa video. All ofthese documents appear to be available in the public domain and were produced by Vale for the purpose of showing that the Applicant is focusing solely on the Long Harbour operations and Sandy Pond itself, that this application has a local and specific focus. 18 Mr. Gordon Peeling is the President and CEO ofthe MAC.The MAC is a national organization for the Canadian Mining Industry and has existed since 1935, initially under the name "the Canadian Metal Mining Association". 19 MAC represents most of the mining operations currently listed in Schedule 2 of the Regulations. MAC says the Applicant is seeking to have Schedule 2 declared ultra vires the authority ofthe Fisheries Act. At paragraph 6 of his affidavit, Mr. Peeling describes the severe effects upon 11 mining projects in Canada if the Applicant is successful in its application for review. Ifthis application for judicial review succeeds, 11 mining projects in Canada would be affected. 20 Mr. Peeling also deposed that the MAC has been granted intervener status in the several cases described in paragraph 7 of his affidavit. 21 Mr. Pierre Grafton is the President and Chief Executive Officer of the MABC. The MABC was established in 1901 pursuant to an act ofthe British Columbia legislature. It is the dominant voice ofthe mining industry in British Columbia and represents 49 member companies who are engaged in metal and coal mining in British Columbia and throughout the world. The MABC has been granted intervener status in those cases set out in paragraph 6 of his affidavit. Mr. Grafton also comments on the severe consequences for the mining industry should this application for judicial review succeed. 22 As stated above, Vale, MAC and MABC seek to intervene in this application for judicial review with the full rights of respondents, and alternatively, they request that they be added as parties. 23 The Applicant, by letter dated August 6, 2010, indicated that it was prepared to consent to the intervention of the Proposed Interveners on a limited basis, as follows: (i) That the interveners be restricted to one more affidavit.

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(ii) That the interveners would not seek any costs from the Applicant whatsoever for the whole of the full Application. (iii) That the normal procedures respecting cross examination etc are available to the parties but that no further motions can be brought on by any party without leave ofthe Court. 24 25 This proposal was not accepted by the Proposed Interveners. I will first address the motion for intervener status. Rule ]09 governs intervention and provides as follows: Leave to intervene 109.(1)The Court may, on motion, grant leave to any person to intervene in a proceeding. Contents of notice of motion (2)Notice of a motion under subsection(1) shall (a)set out the full name and address ofthe proposed intervener and ofany 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. Directions (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. Autorisation d'intervenir 109.(1)La Cour peut, sur requete, autoriser toute personne intervenir dans une instance. Avis de requete (2)L'avis dune requete presentee pour obtenir 1'autorisation d'intervenir:
a

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a) precise les nom et adresse de la personne qui desire intervenir et ceux de son avocat, le cas ~ch~ant; b)explique de quelle mani8re la personne desire participer ~ 1'instance et en quoi sa participation aidera a la prise dune decision sur toute question de fait et de droit se rapportant ~ 1'instance. Directives de la Cour (3)La Cour assortit 1'autorisation d'intervenir de directives concernant: a)la signification de documents; b)le role de 1'intervenant, notamment en ce qui concerne les depens, les droits d'appel et toute autre question relative a la procedure a suivre. 26 I refer to the decision in Rothmans, Benson &Hedges Inc. v. Canada (Attorney General)~1989~f 19901 1 F.C. 74(Fed. T.D.), where the Court set out the following criteria to be considered when dealing with a motion for intervener status: (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 ofthe proposed intervenor adequately defended by one ofthe parties to the case? (5)Are the interests ofjustice better served by the intervention ofthe proposed third party? (6)Can the Court hear and decide the cause on its merits without the proposed intervenor? 27 The factors are not cumulative and the Proposed Interveners need not meet every one of the factors; see Canadian Pacific Railway v. Boutique Jacob Inc.(2006), 357 N.R. 384(F.C.A.) at paras. 19-21. 28 It is clear that neither MAC nor MABC are "directly affected" because they have no direct connection with the use of Sandy Pond as a tailings impoundment area. Their interest is a broad one, as representatives ofthe mining industry in Canada, generally. Vale also argues that it is not "directly affected" by the subject matter ofthis application for judicial review. It submits

29

that if this application for judicial review is successful, a declaration that section 5, section 27.1, and Schedule 2 ofthe Regulations are unconstitutional and will not have retroactive effect, meaning that its entitlement to operate a tailings impoundment

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area at Sandy Pond will not be affected. 30 Having regard to the Supreme Court of Canada's decision in Hislop v. Canada (Attorney General),(2007 l S.C.R. 429 (S.C.C.), the retroactive effect ofa declaration ofconstitutional invalidity is to be decided on acase-by-case basis. In any event, based on my analysis ofthe remaining criteria, it is unnecessary to determine if Vale is "directly affected" by this application for judicial review in order to dispose of its motion to intervene. 31 There is a justiciable issue raised by the application for judicial review and an interest that affects the public interest.

32 Contrary to the Applicant's submissions on factor number 4,I am satisfied that the interests ofthe Proposed Interveners may not be adequately defended by either the Applicant or the Respondent. The interests of both the Applicant and the Respondent are not the same as those ofthe Proposed Interveners. While the Respondent represents the public interest, he does so on a broad plane and without an obligation to address the interests ofthe Proposed Interveners. 33 I am satisfied that the interests ofjustice are better served by the participation ofthe three Proposed Interveners and that the public interest may suffer if those three parties are denied the right to participate, albeit on a limited basis, in this proceeding. 34 Finally, having regard to the sixth factor, in my opinion the Court will be assisted in adjudicating the present application for judicial review, by the participation of the three Proposed Interveners. The Proposed Interveners can offer relevant and different perspectives on the underlying application for judicial review. Their interest is not merely jurisprudential, as was the case in Canada (Prime Minister) v. Khadr,2009 FCA 186 (F.C.A.). 35 As the Proposed Interveners have satisfied a number of the criteria set out in Rothmans,.Benson &Hedges Inc., this motion to intervene will be granted. 36 Rule 109(3) provides that in granting a motion to intervene, the Court shall give directions concerning the service of documents and the role of the intervener, including costs, rights of appeal and any other relevant matters concerning the procedure to be followed by the intervener. 37 The Proposed Interveners seek to participate on a very broad basis, including the right to make motions and to appeal any and all orders that may issue on an interlocutory basis. This degree of participation is more consistent with the role of a party, not as interveners. The Proposed Interveners seek status as a respondent, as an alternative to obtaining status as interveners. 38 In response to a Direction issued after the hearing of the motions, the Proposed Interveners were asked to make submissions as to the Direction that the Court should issue, as required by Rule 109, if intervener status is granted. To a large degree, the Proposed Interveners responded by again requesting a broad participatory role, echoing what they had set out in their Notices of Motion. 39 In other words, although they request a role as "interveners", the Proposed Interveners want to conduct themselves as

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parties, in this case as respondents. 40 I am not prepared to issue the Directions as sought by the Proposed Interveners. If the Proposed Interveners had submittedevidence to show that they should be granted party status, a basis would exist for the exercise of discretion to allow them to participate as respondents. No Directions would be required because the Rules guide the manner in which parties can participate in an application forjudicial review. I note that according to subsection 18.1(1) ofthe Federal Courts Act, R.S.C. 1985, c. F-7 and Rule 303(1) of the Rules, a key characteristic of a "respondent" to an application for judicial review is that such person be "directly affected" by the subject ofthe application for judicial review. 41 It is not necessary for me to comment on whether any or all of the Proposed Interveners are "directly affected" by the subject matter ofthis application forjudicial review. I am satisfied that having regard to the evidence submitted and the relevant jurisprudence pertaining to the granting of intervener status, that the three Proposed Interveners should be permitted to participate in that capacity, that is as interveners. The role of an intervener is necessarily more limited than the participation of a respondent who enjoys all rights ofa party. The Direction concerning the role ofthese Proposed Interveners, as interveners, will reflect that more limited role. 42 As indicated, in response to a request from the Court, the Proposed Interveners made submissions concerning the Directions that should issue in respect of their status as interveners. 43 The Proposed Interveners have made it clear that they will not be seeking costs in this matter. There is an obvious concern about a right of appeal. 44 Ordinarily, an intervener has no right of appeal; see Edmonton Friends ofthe North Environmental Society v. Canada (Minister of Western Economic Diversification) (1990), f 19911 1. F.C. 416 (Fed. C.A.). In Chretien v. Canada (Attorney General)(2005,273 F.'I".R. 219(En~~ (F.C.), Prothonotary Aronovitch addressed the issue of a right of appeal for an intervener, at paras. 41 and 42 as follows: [41]Ordinarily an intervener is not granted the right to pursue an appeal should the decision in the proceeding in which it is intervening be contrary to its interests. [42] One ofthe considerations in determining whether interveners ought to be granted a right of appeal is whether there is an expectation that the respondent would have any vital interest or motivation to prosecute an appeal with the same vigor as the intervening parties would do. Then,the appeal is generally limited to the issues which the intervener was given leave to address below. [references omitted] 45 In the present case, it seems to me that a right of appeal for the Proposed Interveners will be ofconcern only in the event that the judicial review application is granted with retroactive effect. That situation would certainly be of great concern to Vale. The potential difficulty in that regard may be addressed by the Proposed Interveners seeking leave to appeal from the hearings judge upon the hearing ofthe application forjudicial review. The Proposed Interveners will address that issue in their respective

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application records. 46 Having regard to the submissions made by the parties and the relevantjurisprudence, I am satisfied that Vale, and MAC and MABC jointly, should be granted intervener status in this proceeding and their participation shall proceed on the following basis: (i) documents will be served upon Counsel for the Applicant and Respondent, respectively, within 60 days after receipt of this Order; (ii) Vale may ale an application record, including supporting affidavits from one more fact witness and one expert witness, in addition to the affidavits filed to date; (iii) MAC and MABC,jointly, may file an application record, including supporting affidavits from one fact witness and one expert witness, in addition to the affidavits filed to date; (iv) the interveners shall not have the right to participate in cross examination of the deponents for the Applicant and the Respondent, unless there is consent from both the Applicant and the Respondent in that regard; (v) Vale will be permitted to bring evidence and make arguments on the following issues: a. the use of Sandy Pond as a tailings impoundment area is an example ofa project that is consistent with the purpose ofthe Fisheries Act; b. how Sandy Pond came to be chosen as a tailings impoundment area; c. how it was decided that the Regulations would apply to the use of Sandy Pond as a tailings impoundment area and why it was decided that Vale should seek an amendment to the Regulations; d. the nature and extent of the environmental assessments and public consultation conducted by Vale in respect of Sandy Pond; and e. full particulars of the Compensation Plan developed by Vale and why it appropriately compensates for the use of Sandy Pond as a tailings impoundment area; (vi) MAC and MABC,jointly, will be permitted to bring evidence and make arguments on the following issues: a. the history ofthe mining practices with respect to effluent, and the evolution of standards over time; b. the need for and nature of tailings and the body of research and evolution of best management practice developed through the Mine Environment Neutral Drainage (MEND) program and the MAC Towards Sustainable Mining

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(TSM)Initiative; c. the nature of fish populations in water bodies within Canada, and the Applicant's position that individual populations are generally unique in any material respect; and d. the desirability from a safety and environmental protection perspective of usage of natural water body versus an artificial structure; (vii) the interveners may present oral argument subject to further Directions from the hearings judge; (viii) the interveners shall not be entitled to bring interlocutory motions; (ix)the interveners will have no right to appeal any interlocutory orders made in this proceeding; (x)the interveners may ask the presidingjudge upon the hearing ofthis application to entertain a motion for the interveners to have the right to appeal from the final judgment disposing ofthe application for judicial review; (xi)the interveners shall not be entitled to seek costs against the Applicant or the Respondent nor shall the Applicant or the Respondent be entitled to seek costs against the interveners whatsoever for the whole of this proceeding. 47 Order
THIS COURT ORDERS that.•

There shall be no costs to any party upon the present motions.

1. The motions are granted, Vale Inco Ltd. ( "Vale"), the Mining Association of Canada ( "MAC") and the Mining Association of British Columbia ( "MBAC")are granted intervener status upon the following basis: (i) documents will be served upon Counsel for the Applicant and Respondent, respectively, within 60 days after receipt of this Order; (ii) Vale may file an application record, including supporting affidavits from one more fact witness and one expert witness, in addition to the affidavits filed to date; (iii) MAC and MABC,jointly, may file an application record, including supporting affidavits from one fact witness and one expert witness, in addition to the affidavits filed to date; (iv)the interveners shall not have the right to participate in cross examination ofthe deponents for the Applicant and the Respondent, unless there is consent from both the Applicant and the Respondent in that regard;

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(v) Vale will be permitted to bring evidence and make arguments on the following issues: a. the use of Sandy Pond as a tailings impoundment area is an example of a project that is consistent with the purpose of the Fisheries Act; b. how Sandy Pond came to be chosen as a tailings impoundment area; c. how it was decided that the Regulations would apply to the use of Sandy Pond as a tailings impoundment area and why it was decided that Vale should seek an amendment to the Regulations; d. the nature and extent ofthe environmental assessments and public consultation conducted by Vale in respect of Sandy Pond; and e. full particulars ofthe Compensation Plan developed by Vale and why it appropriately compensates for the use of Sandy Pond as a tailings impoundment area; (vi) MAC and MABC,jointly, will be permitted to bring evidence and make arguments on the following issues: a. the history ofthe mining practices with respect to effluent, and the evolution of standards over time; b. the need for and nature of tailings and the body of research and evolution of best management practice developed through the Mine Environment Neutral Drainage(MEND)program and the MAC Towards Sustainable Mining(TSM)Initiative; c. the nature of fish populations in water bodies within Canada, and the Applicant's position that individual populations are generally unique in any material respect; and d. the desirability from a safety and environmental protection perspective of usage of natural water body versus an artificial structure; (vii) the interveners may present oral argument subject to further Directions from the hearings judge; (viii) the interveners shall not be entitled to bring interlocutory motions; (ix)the interveners will have no right to appeal any interlocutory orders made in this proceeding; (x) the interveners may ask the presiding judge upon the hearing of this application to entertain a motion for the interveners to have the right to appeal from the final judgment disposing ofthe application for judicial review;

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(xi)the interveners shall not be entitled to seek costs against the Applicant or the Respondent nor shall the Applicant or the Respondent be entitled to seek costs against the interveners whatsoever for the whole of this proceeding. 2. The style of cause is amended as follows: SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS INC. Applicant and HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL Respondent and VALE INCO LTD., MINING ASSOCIATION OF CANADA AND MINING ASSOCIATION OF BRITISH COLUMBIA Interveners

3. There shall be no order as to costs for any party or any intervener upon these motions.

Motion granted.
END OF DOCUMENT

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Court File No.: A-394-12 and A-395-12

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants ~Tir! MARK FOURNIER and CONSTANCE FOURNIER Respondents

RESPONDING MOTION RECORD OF THE APPELLANT, NATIONAL POST COMPANY (Motion for leave to intervene, to be heard in writing) (Filed this 13th day of May, 2013) Cassels Brock &Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326
cchisick@casselsbrock.com

Jason Beitchman LSUC #: 564770 Tel: 416.860.2988 Fax: 647.259.7993
jbeitchman@casselsbrock.com

Solicitors for the Appellant, National Post Company

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