Court File Nos.

: A-394-12 and A-395-12

FEDERAL COURT OF APPEAL
BETWEEN: RICHARD WARMAN AND NATIONAL POST COMPANY Appellants -andMARK FOURNIER AND CONSTANCE FOURNIER Respondents

REPLY OF THE PROPOSED INTERVENER THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION (Motion for leave to intervene, to be heard in writing) (Rules 109 and 369 of the Federal Courts Rules)

Fasken Martineau DuMoulin LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1P 6L5 Jay Kerr-Wilson Ariel Thomas Tel: 613-236-3882 Fax: 613-230-6423 Solicitors for the Computer and Communications Industry Association

DM_OTT/285491.00003/120059.8

TO:

The Registry Federal Court of Appeal Thomas D'Arcy McGee Building 90 Sparks Street, 5th floor Ottawa, Ontario K1A 0H9

AND TO:

Brazeau Seller LLP 55 Metcalfe Street, Suite 750 James Katz Tel: 613-237-4000 Fax: 613-237-4001 jkatz@brazeauseller.com Solicitors for the Appellant, Richard Warman

AND TO:

Cassels Brock & Blackwell LLP 2100 Scotia Plaza 40 King Street West, Suite 750 Casey M. Chisick Tel: 416-869-5403 Fax: 416-644-9326 cchisick@casselsbrock.com Jason Beitchman Tel: 416-860-2988 Fax: 647-259-7993 jbeitchman@casselsbrock.com Solicitors for the Appellant, National Post Company

AND TO:

Mark Fournier Constance Fournier 2000 Unity Road Elginburg, ON Tel: 613-929-9265 Fax: 609-379-8793 Respondents

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i TABLE OF CONTENTS Tab 1 Title Reply written representations of the CCIA
This Appeal raises public interest questions that the CCIA is well suited to address

Page 1 1 2 2

The CCIA is not encouraging a particular outcome of the case CCIA’s members’ interest in the legal principles raised in this Appeal is not “merely jurisprudential” The issue of compliance with the Berne Convention is important to the proper determination of the issues CCIA’s proposed intervention would not duplicate CIPPIC’s Conclusion

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Authorities 2 Canada (Attorney General) v Professional Institute of the Public Service of Canada, 2010 FCA 217 Canadian Association of Broadcasters v Canada, 2007 FCA 233 Canadian Taxpayers Federation v Benoit, 2001 FCA 71 Fishing Vessel Owners' Assn. of British Columbia v Canada (Attorney General), [1985] FCJ No 110 Globalive Wireless Management Corp. v Public Mobile Inc., 2011 FCA 119 Merck Frosst Canada Inc. v Canada (Minister of National Health and Welfare), [1997] FCJ No. 155; [1997] ACF No 155 Rothmans, Benson & Hedges Inc v Canada (Attorney General) (CA) [1990] 1 FC 90 6

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DM_OTT/285491.00003/120059.8

Court File Nos.: A-394-12 and A-395-12

FEDERAL COURT OF APPEAL
BETWEEN: RICHARD WARMAN AND NATIONAL POST COMPANY Appellants -andMARK FOURNIER AND CONSTANCE FOURNIER Respondents

REPLY WRITTEN REPRESENTATIONS OF THE PROPOSED INTERVENER THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION (Motion for leave to intervene)

Fasken Martineau DuMoulin LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1P 6L5 Jay Kerr-Wilson Ariel Thomas Tel: 613-236-3882 Fax: 613-230-6423 Solicitors for the Computer and Communications Industry Association

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1.

This is the reply of the proposed intervener, the Computer and Communications Industry Association (CCIA), to the responding submissions of the Appellant National Post Company (“National Post” or the “Appellant”).

2.

The National Post has opposed the CCIA’s intervention in this Appeal. The CCIA maintains that it should be granted leave to intervene for the following reasons.

This Appeal raises public interest questions that the CCIA is well-suited to address 3. This Appeal is about the application of general copyright law principles to activities related to the operation of the World Wide Web. The general legal questions the National Post has raised in its Appeal —the interpretation of the users’ rights to make insubstantial copies and to deal fairly for the purpose of news reporting—are two important issues that are well within the public interest. 4. The CCIA is genuinely interested in the issues raised in this Appeal, and it has special knowledge and expertise related to those issues. This Court found in Rothmans Benson & Hedges that these qualities justify the granting of intervener status.
Rothmans, Benson & Hedges Inc. v Canada (Attorney General) (CA) [1990] 1 FC 90 [“Rothmans”]

5.

This Court also noted in Rothmans that the general question of law at issue, section 1 of the Charter of Rights and Freedoms, was “an area in which the law [was] rapidly developing” and that there were therefore “no good reasons to unduly restrict interventions”. Similarly, the application of copyright law online is a rapidly developing area of the law, and the purpose of the CCIA’s proposed intervention in this Appeal is to attempt to ensure that the Court will not put in place obligations or potential liability that will affect CCIA members’ activities.
Rothmans at para. 3

6. 7.

The CCIA is well situated to address these questions. The National Post has opposed the CCIA’s proposed intervention, in part because it argues that the intervention would be duplicative of CIPPIC’s proposed intervention.

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1

2 However, the CCIA and CIPPIC approach the issue from two very different viewpoints, each of which would be useful to the Court. 8. The CCIA, made up of commercial entities that are central to the operation of the Web, is able to inform the Court of its decision’s potential effects on the commercial sphere. CIPPIC, on the other hand, is able to inform the Court of the potential effects of its decision on individual citizens.

The CCIA is not encouraging a particular outcome of the case 9. The National Post has criticized the CCIA by claiming that it, unlike CIPPIC, is encouraging a particular outcome of the case. 10. This claim is not accurate. The CCIA’s phrasing in describing the issues at stake in this proceeding differs from CIPPIC’s, but the CCIA is equally disinterested in the disposition of this dispute between the parties. The CCIA is concerned with the legal effect of this Court’s particular decision when it decides, for the first time, the principles of law at stake in this important proceeding.

CCIA’s members’ interest in the legal principles raised in this Appeal is not “merely jurisprudential” 11. The National Post claims that the CCIA’s interest in this Appeal is “merely jurisprudential”. 12. It is true that the CCIA seeks leave to intervene in this Appeal in order to assist the Court in the development of important principles of law. However, the CCIA’s members are legitimate business stakeholders whose activities are similar, although not identical, to those being questioned in this Appeal. 13. The CCIA is not merely concerned about the decision’s “repercussions,” as the National Post argues, but about the specific risk that this Court’s decision could pose to its members.

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3 14. Similarly, in Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare), the Federal Court allowed two companies intervener status because they had legal interests that transcended mere commercial interests and that would be affected by the Court’s decision. Further, as is the case here, the companies’ interests were different than the respondent’s and their intervention did not prejudice the parties.
Merck Frosst Canada Inc. v Canada (Minister of National Health and Welfare) , 1997] FCJ No 155; [1997] ACF no 155, at para. 16

15.

This Court also permitted an intervention by two groups of cable television distributors who had been feepayers under a Canadian Radio-television and Telecommunications Commission scheme, the quashing of which was under appeal. The distributors were found to be similarly situated to the parties. Further, it is worth noting that the two groups of interveners in that case were permitted to make their submissions as two separate groups, despite their identical interests in the case.
Canadian Association of Broadcasters v. Canada, 2007 FCA 233

16.

The outcome of this Appeal could have wide-ranging implications with the potential to negatively affect the ability to legitimately disseminate news summaries online. As entities that are engaged in this vital function, the members of CCIA have a direct interest in the Court’s approach to resolving the dispute the between the parties.

The issue of compliance with the Berne Convention is important to the proper determination of the issues 17. One of the most useful functions interveners can serve is their ability to bring relevant but heretofore unmentioned issues before the Court. 18. This Court has found that where important public interest issues are raised, if an intervener wishes to raise a related public interest issue which naturally arises out of the existing dispute between the parties, and which none of the other parties have raised, the intervention is appropriate.
Canadian Taxpayers Federation v. Benoit, 2001 FCA 71

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3

4 19. The parties have not brought the issue of the compliance of the National Post’s proposed interpretation of subsection 3(1) of the Copyright Act with Article 10(1) of the Berne Convention before the Court. The CCIA’s intervention would thus bring the debate over and beyond what is already available to the Court through the parties and through the proposed intervener CIPPIC. This Court has required such a raising of the debate in order to grant leave to intervene.
Canada (Attorney General) v. Professional Institute of the Public Service of Canada, 2010 FCA 217 at para. 4

CCIA’s proposed intervention would not duplicate CIPPIC’s 20. The National Post claims, interestingly, that the CCIA's proposed intervention should not be permitted because it is duplicative of CIPPIC's and because it raises an issue that CIPPIC did not raise. 21. The two proposed interveners are clearly different, however. CIPPIC represents the public interest and the CCIA represents the broad spectrum of businesses that may be directly affected by the legal decisions this Court makes in determining the outcome of this Appeal. 22. The CCIA’s perspective differs from CIPPIC’s in that it is the CCIA’s members’ economic interest in the legal issues, as opposed to CIPPIC’s interest in the public’s access to copyright works, that justifies its intervention. An economic interest in the appeal was found to justify intervention in Fishing Vessel Owners’ Assn. of British Columbia v. Canada (Attorney General).
Fishing Vessel Owners' Assn. of British Columbia v. Canada (Attorney General) , [1985] FCJ No 110

Conclusion 23. The CCIA has a genuine interest that goes beyond a purely jurisprudential interest and an ability to assist the Court in determining the legal issues in this Appeal. As this Court found in Globalive Wireless Management Corp. v. Public Mobile Inc., those factors are

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4

5 sufficient to justify the CCIA’s intervention and it is not necessary for proposed interveners to establish that they meet all of the relevant factors set out in the case law, including whether they will be directly affected by the outcome.
Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 119

24.

The CCIA is not seeking to introduce evidence, is asking for reasonable timelines within which to submit its arguments, and its intervention will not prejudice the parties.

25.

The balance of convenience favours allowing the intervention. Since there would be no inconvenience or prejudice to the parties, if the intervention offers the Court any potential beneficial effect, the Court should grant the intervention.

Dated at OTTAWA this 31st day of May, 2013.

______________________________ Fasken Martineau DuMoulin LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1P 6L5 Jay Kerr-Wilson Ariel Thomas Tel: 613-236-3882 Fax: 613-230-6423 Solicitors for the Computer and Communications Industry Association

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5

6

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Date: 20070613 Dockets: A-591-06 A-17-07 A-590-06 A-18-07 Citation: 2007 FCA 233

Present:

NOËL J.A.

BETWEEN: A-591-06 and A-17-07 CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS) Appellants and HER MAJESTY THE QUEEN Respondent

AND BETWEEN: A-590-06 and A-18-07 VIDÉOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE, and CF CABLE TV INC. (VIDEOTRON APPELLANTS) Appellants

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2007 FCA 233 (CanLII)

Page: 2

and HER MAJESTY THE QUEEN Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on June 13, 2007.
2007 FCA 233 (CanLII)

REASONS FOR ORDER BY:

NOËL J.A.

9

Date: 20070613 Dockets: A-591-06 A-17-07 A-590-06 A-18-07 Citation: 2007 FCA 233

Present:

NOËL J.A.

BETWEEN: A-591-06 and A-17-07 CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS) Appellants and HER MAJESTY THE QUEEN Respondent

AND BETWEEN: A-590-06 and A-18-07 VIDÉOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE, and CF CABLE TV INC. (VIDEOTRON APPELLANTS) Appellants

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2007 FCA 233 (CanLII)

Page: 2

and HER MAJESTY THE QUEEN Respondent
2007 FCA 233 (CanLII)

REASONS FOR ORDER NOËL J.A. [1] These are motions by two groups of feepayers under the Broadcasting Licence Fee

Regulations, 1997, SOR/97-144 (“the Regulations”) – Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc. on the one hand and Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc. on the other – who seek leave to intervene in the consolidated appeals from a decision of Shore J. dated December 14, 2006.

[2]

By this decision, Shore J. held that Part II Licence Fees collected pursuant to section 11 of

the Regulations are, in fact and in law, a tax. Consequently, he declared such fees to be ultra vires the authority conferred on the Canadian Radio-television and Telecommunications Commission (the “CRTC”) by section 11 of the Broadcasting Act. However, he went on to hold that money paid under legislation later found to be invalid is not recoverable and therefore declined to issue a declaration that the appellants are entitled to the recovery of the Part II Licence Fees they had paid.

[3]

By their respective appeals, the appellants challenge this refusal as well as Shore J’s

decision to suspend the declaration of invalidity for a six month period. The respondent, Her

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Page: 3

Majesty the Queen, has cross-appealed seeking to set aside Shore J.’s declaration that the Part II Licence Fees are a tax; and that section 11 of the Regulations is ultra vires.
2007 FCA 233 (CanLII)

[4]

The proposed interveners are feepayers under the Scheme which was ruled to be invalid by

the decision under appeal. They maintain that as a result of the recent decision of the Supreme Court in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1 (QL) (“Kingstreet”), they have a direct interest in the outcome of the proceedings on appeal. They refer in particular to the following passage in Kingstreet (at para. 55):

There is a second concern which arises in cases where monies have been paid to public authorities pursuant to unconstitutional legislation or as a result of the misapplication of an otherwise valid law. In Eurig, for example, payment under protest and the commencement of legal proceedings was held to be sufficient to trigger the exception allowing recovery. The end result is that whenever a tax is declared ultra vires, only the successful litigants will be granted recovery of the unconstitutional charges. All other similarly situated persons will not benefit from the Court’s holding. This raises concerns about horizontal equity that are similar to those raised by the doctrine of constitutional exemption. This Court has alluded to such concerns in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, and in Miron v. Trudel, [1995] 2 S.C.R. 418. In my view, constitutional law should apply fairly and evenly, so that all similarly situated persons are treated the same. [Emphasis added]

[5]

The proposed interveners seek, as two separate groups, leave to make representations in

order to insure that their interests, as “similarly situated persons”, are properly represented. They seek to intervene with respect to this issue on terms that each be allowed to produce a 30 page memorandum and make oral submissions for a 60 minute period.

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[6]

The Crown opposes the motions. The appellants consent, subject to the proviso that the

combined time for oral submissions by the proposed interveners be limited to 60 minutes.
2007 FCA 233 (CanLII)

DECISION [7] I am satisfied that, as similarly situated persons, the proposed interveners have a direct

interest in the outcome of the proceedings before this Court. The Crown acknowledges as much but nevertheless opposes the motions based on its view that what is being sought by the proposed interveners is, in effect, a joinder of parties with the view of obtaining restitution of the fees they have paid as non-party feepayers. According to the Crown, the issue of reimbursement at large or with respect to individual non-party feepayers is a new one with respect to which no evidence was led at trial since it was never raised. Counsel points out for instance that limitations period continue to apply. Raising the issue of reimbursement at this stage, Counsel argues, would be highly prejudicial.

[8]

In response, the proposed interveners argue in separate submissions that the Crown has

fundamentally mischaracterized the relief which they seek. They do not seek to participate as parties or add new evidence to the existing record. Indeed, they acknowledge that separate actions may be required in each case to obtain reimbursement. They submit that their concern at this stage is with respect to the law that would apply to any such action given the decision of the Supreme Court in Kingstreet.

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[9]

I am satisfied that the proposed interventions, so understood and so limited, will cause no

prejudice to the Crown. I am also satisfied that it could be useful for the panel members hearing the appeals to have the perspective of the proposed interveners given that their decision may affect the rights of non-party feepayers.
2007 FCA 233 (CanLII)

[10]

The only other basis for resisting the interventions is the assertion by the Crown that the

Canadian Association of Broadcasters (the “CAB”), as a party appellant, is in as good a position as the proposed interveners to advance arguments relating to similarly situated persons.

[11]

However, the CAB itself appears to be of the view that the proposed interveners do bring a

different perspective since it has consented to the proposed intervention. In this respect, I note that the CAB has already filed its Factum and has not addressed the aspects of Kingstreet relating to similarly situated non-party feepayers. Based on the existing record, it cannot be said that the CAB will adequately advance the interests of the proposed interveners.

[12]

Finally, no objection has been raised with respect to the fact that the proposed interveners

wish to advance their argument as two separate groups.

[13]

Leave to intervene will therefore be granted on the issue of “horizontal equity” and the

treatment of “similarly situated persons” arising from the decision of the Supreme Court in Kingstreet. Because the two groups of interveners will be advocating essentially the same position, albeit in the perspective of their respective group, a 20 page memorandum in each case appears

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sufficient. In the same vein, oral presentations of 30 minutes for each group as suggested by the appellants seem sufficient subject to the discretion of the panel hearing the appeals to vary this allocation.
2007 FCA 233 (CanLII)

[14]

An order is issued accordingly.

“Marc Noël” J.A.

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FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
2007 FCA 233 (CanLII)

DOCKETS:

A-591-06 and A-17-07 And A-590-06 and A-18-07

STYLE OF CAUSE:

A-591-06 and A-17-07 CANADIAN ASSOCIATION OF BROADCASTERS (THE APPELLANT ASSOCIATION), GROUP TVA INC., CTV TELEVISION INC., THE SPORTS NETWORK INC., 2953285 INC. (o.b.a. DISCOVERY CHANNEL CANADA), LE RÉSEAU DES SPORTS (RDS) INC., THE COMEDY NETWORK INC., 1163031 ONTARIO INC. (o.b.a. OUTDOOR LIFE NETWORK), CANWEST MEDIAWORKS INC., GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP, PRIME TV, GENERAL PARTNERSHIP, CHUM LIMITED, CHUM OTTAWA INC., CHUM TELEVISION VANCOUVER INC. and PULSE24 GENERAL PARTNERSHIP (THE CORPORATE APPELLANTS) and HER MAJESTY THE QUEEN AND A-590-06 and A-18-07 VIDEOTRON LTÉE, VIDÉOTRON (RÉGIONAL) LTÉE, and CF CABLE TV INC. (VIDEOTRON APPELLANTS) and HER MAJESTY THE QUEEN

MOTIONS DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: DATED:

NOËL J.A. June 13, 2007

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Page: 2

WRITTEN REPRESENTATIONS BY:

Daniel Urbas Carl Souquet

FOR THE APPELLANTS Vidéotron Ltée et al. (A-590-06 & A-18-07)

F.B. (Rick) Woyiwada R Jeff Anderson

FOR THE RESPONDENT (A-591-06 & A-17-07)

Francisco Couto Alexander Pless

FOR THE RESPONDENT (A-590-06 & A-18-07)

Neil Finkelstein (LSUC #21640K) Catherine Beagan Flood (LSUC #43013U) Simon Heeney (LSUC #51529R)

FOR THE INTERVENERS Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc.

Charles F. Scott Michael J. Sims

FOR THE INTERVENERS Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc.

SOLICITORS OF RECORD: McCARTHY TÉTRAULT LLP Ottawa, Ontario FOR THE APPELLANTS The Canadian Association of Broadcasters et al. (A-591-06 & A-17-07)

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2007 FCA 233 (CanLII)

Barbara A. McIsaac, Q.C. R. Benjamin Mills Howard R. Fohr

FOR THE APPELLANTS The Canadian Association of Broadcasters (A-591-06 & A-17-07)

Page: 3

BORDEN LADNER GERVAIS srl/LLP Montréal, Quebec

JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Montréal, Quebec BLAKE, CASSELS & GRAYDON LLP Toronto, Ontario

FOR THE RESPONDENT (A-591-06 & A-17-07)

FOR THE RESPONDENT (A-590-06 & A-18-07)

FOR THE INTERVENERS Bell ExpressVu Inc., Rogers Cable Communications Inc., Cogeco Cable Canada Inc. and Cogeco Cable Quebec Inc. FOR THE INTERVENERS Shaw Communications Inc., Star Choice Television Networks Inc. and Shaw Satellite Services Inc.

LAX O’SULLIVAN SCOTT LLP Toronto, Ontario

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2007 FCA 233 (CanLII)

FOR THE APPELLANTS Vidéotron Ltée et al. (A-590-06 & A-18-07)

Date: 20010316 Docket: A-464-00 Citation: 2001 FCA 71 CORAM: LINDEN J.A. SEXTON J.A. BETWEEN: CANADIAN TAXPAYERS FEDERATION Appellant - and CHARLES JOHN GORDON BENOIT, JOAN ELIZABETH BENOIT, GORDON JAMES ALFRED BENOIT, ATHABASKA TRIBAL CORPORATION, and THE NORTHWEST TERRITORIES TREATY 8 TRIBAL COUNCIL, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA and THE ATTORNEY GENERAL OF ALBERTA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered orally from the Bench in Vancouver, B.C. Thursday, March 15, 2001) SEXTON J.A. STRAYER J.A.

[1] In this action, the Plaintiffs, who are Indians as defined in the Indian Act, claim that by virtue of a treaty (Treaty #8), Her Majesty the Queen in right of Canada ("The Queen") cannot impose tax of any kind upon them. The Queen in her defence, denies that the treaty prevents her from imposing tax upon the Plaintiffs and says alternatively if there ever was an exemption from taxation it was extinguished. The Queen, further says that "a limitation of the Plaintiffs' alleged exemption is justified by the valid legislative objective of providing public funding to finance the many and diverse needs of people in Canada, who include the Plaintiffs, and by public objectives including economic fairness and regional fairness". The Appellant was incorporated federally in 1991 as a vehicle for people throughout [2] Canada concerned about all types of taxation in the Country. It has offices in Ottawa, B.C., Alberta, Saskatchewan and Manitoba and has approximately 40,000 paying supporters in Canada. The Appellant is not affiliated with any political party and does not accept government grants or financial concessions.

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-2[3] The Applicant, has a fundamental objective in its public activities and in this action, to seek to uphold the principle that all Canadian taxpayers should be treated equally in taxation matters before and under the law with the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour or religion. [4] The Appellant and its members are concerned that if the Federal Court upholds the Plaintiffs' claim that, as Indians they are exempt from imposition of any tax on them by Canada and the Province of Alberta, the effect of a judgment affirming such claim would be to amend by necessary implication every federal and Alberta statute dealing with taxes or tax-like charges so as to exempt on racial grounds a particular class of people and impose, on racial grounds, such taxes and charges on the remaining classes of people.

[5] The Appellant wishes to intervene in this action so as to raise this issue because The Queen has not raised it. The Appellant says that its membership will be affected by the outcome in this case, and that there therefore, it has a genuine public interest. It says that this issue will not be raised unless the Appellant is allowed to intervene and that there is an important public issue involved. Before the Motions Judge, the Appellant sought to be added as a defendant or [6] alternatively to be allowed to intervene. The Motions Judge dismissed the Appellant's motion in its entirety. He said that in order for the Appellant to be added as an Defendant, it must be shown that a cause of action exists between the Plaintiffs and the Appellant over which this Court has jurisdiction. He found that no such cause of action exists. [7] With respect to the request to intervene pursuant to Rule 109, he found that the Appellant had failed to show that The Queen was constrained in her defence of the present action. The Appellant had argued before him that the Queen is bound by many constitutional, statutory and other legal responsibilities and fiduciary obligations to Indians and must necessarily be constrained from making submissions or arguments perceived to be against the interests of the Plaintiffs. The Appellant further argued that it was not so constrained.

[8] The Respondents Athabaska Tribal Corporation and the Northwest Territories Treaty 8 Tribal Council were earlier in the proceeding granted leave to intervene and were subsequently added as plaintiffs in the action. On the return of the Appellant's Motion, before the Motions Judge Her Majesty the Queen and the Attorney General of Alberta did not oppose the Appellant's application to intervene nor have they taken any position on this appeal. [9] The Appellant has appealed only the decision of the Motions Judge relating to its motion for leave to intervene. [10] The Federal Court Rules provide for intervention in Rule 109: 109.(1) The Court may, on motion, grant leave to any person to intervene in a proceeding. (2) Notice of motion under subsection (1) shall (a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed interverner; and

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-3(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist in the determination of a factual or legal issue related to the proceeding. (3) In granting a motion under subsection (1), the Court shall give directions regarding (a) the service of documents; (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. [11] On this appeal, the Appellant argues that the issue of equality before and under the law sought to be raised by the Appellant is not encompassed within the Queen's Amended Defence and is of such constitutional and statutory importance that it ought to be dealt with by the Court in this action and that the failure of the Crown to raise the issue warrants an order granting the Appellant leave to intervene.

In support of its position the Appellant wishes to rely on the Constitution Act, 1867, [12] the Charter of the United Nations to which Canada is a party, the Universal Declaration of Human Rights to which Canada is a party, the United Nations Declaration on the Elimination of all Forms of Racial Discrimination which Canada has joined in, the International Convention on the Elimination of All forms of Racial Discrimination 1965 which Canada has joined in, the International Covenant on Civil and Political Rights - December 1966 which Canada became a party to, the Citizenship Act, the Charter and the Canadian Multicultural Act. [13] The Order of the Motions Judge is discretionary and the test for review of this exercise of discretion is whether the judge in first instance has given sufficient weight to all relevant considerations.[1] [14] The only reason given by the Motions Judge for refusing the Appellants request to intervene was that he found no evidence to support the Appellant's assertion that the Queen was constrained in her defence and therefore he concluded that the Appellant's participation would not assist in the determination of a factual or legal issue in the action. [15] This Court, in Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd.[2] set out the factors which might be considered on a motion to intervene. They are:

1) 2)

Is the proposed intervener directly affected by the outcome? 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 of the Court? 4) Is the position of the proposed intervener adequately defended by one of the parties to the case? 5) party? 6) Are the interests of justice better served by the intervention of the proposed third Can the Court hear and decide the cause on its merits without the proposed intervener?

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-4[16] The Motions Judge in his Reasons did not refer to any of these factors nor did he apparently consider that without the intervention of the Appellant, the issue of whether all Canadians should be treated equally in taxation matters would be addressed. We therefore believe he erred in not giving weight to all relevant considerations. The Appellant has established: 1) 2) 3) 4) that its members will be affected by the outcome of the litigation; there is a justiciable public interest issue raised; if the Appellant is not allowed to intervene, this issue will not be raised; the interests of justice would be better served by permitting the Appellant to intervene.

[17] The Supreme Court of Canada in R. v. Finta [1993] 150 N.R. 370 said one criteria for allowing intervention is if the intervenor has submissions which will be useful and different from those of the other parties. That would seem to be the case here.

[18] We are of the view that if in a case where important public interest issues are raised, an intervenor wishes to raise a related public interest question which naturally arises out of the existing lis between the parties, and which none of the other parties has raised, it is appropriate to permit the intervention. [19] We would therefore allow the appeal, set aside the Order of the Motions Judge, and grant the Appellant leave to intervene in the action on the following basis: 1) The Appellant shall be served with all materials of the other parties. 2) The Appellant will not itself lead evidence but will rely on the evidence adduced by the parties and on the documents referred to in these reasons as well as any other documents of which the Court may take judicial notice. 3) The Appellant will be allowed to be present at trial and to make such written and oral argument as the Trial Judge permits. 4) The Appellant will not seek costs. 5) The Appellant will not itself seek to appeal any judgment, but will be allowed to participate in any appeal. (Sgd.) "J.E. Sexton" J.A. March 16, 2001 Vancouver, British Columbia

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-464-00

22

-5STYLE OF CAUSE: Gordon Benoit et al. PLACE OF HEARING: DATE OF HEARING: DATED: APPEARANCES: Norman Mullins Elizabeth Johnson ET AL. Everett Bunnell ATTORNEY GENERAL OF AB SOLICITORS OF RECORD: Norman Mullins Vancouver, BC Ackroyd, Piasta, Roth & Day Vancouver, BC Parlee McLaws Calgary, AB FOR RESPONDENT BENOIT ET AL. RESPONDENT BENOIT ET AL. FOR APPELANT FOR RESPONDENT FOR APPELANT FOR RESPONDENT BENOIT Vancouver, BC March 15, 2001 March 16, 2001 Canadian Taxpayers Federation v. Charles John

REASONS FOR JUDGMENT OF Sexton, J.A.

[1] [2]

See Reza v. Canada, [1994] S.C.J. No 49 at paragraph 20 [2000] F.C.J. No. 220, Court File A-346-99 (F.C.A.)

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1 of 2 DOCUMENTS

Indexed as:

Fishing Vessel Owners' Assn. of B.C. v. Canada (Attorney General)
Between Fishing Vessel Owners' Association of British Columbia, Pacific Coast Salmon Seiners Association and Prince Rupert Fishing Vessel Owners Association, Plaintiffs, and The Attorney General of Canada, The Governor in Council, The Director General of the Department of Fisheries and Oceans for the Pacific Region, The "Fisheries Officers", Wayne Shinners and Her Majesty the Queen in Right of Canada as represented by the Department of Fisheries and Oceans, Defendants [1984] F.C.J. No. 613 [1984] A.C.F. no 613 Action No. T-1356-84

Federal Court of Canada - Trial Division Vancouver, British Columbia Collier J. Heard: July 9, 10, 1984 Judgment: July 13, 1984 (11 pp.) Nils Daugulis, for the Plaintiffs. G.O. Eggertson, for the Defendants.

COLLIER J.:-- The three plaintiffs are societies incorporated under the applicable laws of British Columbia. Most of their members are owners of vessels equipped with purse seine net fishing gear. The vessels are licenced pursuant to the Fisheries Act, R.S.C. 1970 c. F-14, as amended.
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The members of the first plaintiff represent approximately 120 to 150 vessels. The members of the third plaintiff represent approximately 75 vessels. No figures were given in respect of the vessels represented by members of the second plaintiff. That plaintiff has approximately 277 members, made up of purse seine vessel owners and crew members. In this action, the plaintiffs seek a declaration that a proposed fishing plan, outlined by the Department of Fisheries and Oceans in respect of areas 12, 13, 16 and 23 of the Pacific Region, is beyond the legislative power of parliament, or beyond the powers given to the defendants pursuant to the Fisheries Act. Injunctive relief is also sought. Judicial review by way of certiorari, prohibition and mandamus is claimed, as well. Finally, damages are asked for. The present proceeding before this Court is a motion, by the plaintiffs, for an interlocutory injunction and other incidental relief. The plaintiffs also seek, as an alternative, judicial review of the proposed fishing plan. Prohibition, certiorari and mandamus are resorted to, each as alternative remedies. In March 1984, officials and officers of the Department of Fisheries and Oceans issued a document "The 1984 Commercial Fishing Guide" for the Pacific Regions. At page 42, the following statements were made: SALMON MANAGEMENT OVERVIEW AN OBJECTIVES It was anticipated that 1984 would see the initiation of a number of new management practices including area and gear licensing and catch allocation by gear type. However the department has not yet agreed to recommendations from various advisory groups. The 1984 salmon fishing season will therefore commence with few changes from past years. The gillnet share of the commercial catch reached an all-time low in 1983. Action taken to prevent the continuing decline in the gillnet share was insufficient, and therefore, different approaches will be taken in 1984. In areas open to both net gear, the gillnet fleet will be given additional fishing time in order to achieve a fair share of the coastwide catch. In areas where increased fishing time will not resolve the catch share problem, there will be additional fishing areas provided. The 1984 expectations are for poor returns of most species in most areas and the department is committed to halting the decline of depleted stocks. Fishermen should be prepared for further cuts in fishing time and area wherever conservation problems are identified. The present situation in the Pacific Region is this. In all areas or sub-areas, for all species of salmon, and for gillnet, purse seine and trolling gear, there is complete closure from January 1 to December 31. The Governor-in-Council passed that regulation in 1982. Presumably the Department of Fisheries and Oceans (and the Governor-in-Council) decided to impose complete closure for protection and conservation reasons. That, in my view, is a prime purpose of the Fisheries Act, and of Parliament's legislative power in respect of sea coast and inland fisheries. Management and control of the fisheries, necessarily incidental to their protection is, to my mind, also permitted under the legislative power and by the Fisheries Act. See:

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A.G.

for Canada v. A.G. for B.C. [1930] A.C. 111 (J.C.P.C.) affirming Supreme Court of Canada (1928) S.C.R. 457. Fowler v. The Queen (1980] 2 S.C.R. 213, and the cases there referred to.

B.C.

Packers Limited et al v. C.L.R.B. [1976] 1 F.C. 375 (F.C.A.)

By paragraph 34(m) of the statute, the Governor-in-Council may make regulations (m) authorizing a person engaged or employed in the administration or enforcement of this Act to vary any close time or fishing quota that has been fixed by the regulations. 1960-61, c. 23, s. 5; 1970 (1st Supp) c. 17, s. 4.

The regulations presently provide as follows: 5(1) The Regional Director or a fishery officer may vary any fishing quota or close time set out in these Regulations in respect of any river, Area or Subarea. The purpose of this scheme, as I see it, is to permit salmon to be harvested in certain areas at certain times, where the resource is, in those particular areas and at those particular times, thought to have been otherwise sufficiently protected or conserved. I turn now to the evidence on this motion. The Department of Fisheries and Oceans proposed, in areas 12, 13, 16 and 23, that vessels using gill net gear would have, during certain "open periods", more fishing time than vessels using purse seine gear. The proposal also provided that gill netters would fish in advance of the opening for seiners. This proposal was in fact carried out in area 23 in June of 1984. But at the time this motion was heard, any openings had expired. There was no commercial salmon fishing in any of the areas now in question. It is evident, however, the Department will implement the future openings set out, unless other considerations, related to conservation and protection, intervene. The affidavit evidence on behalf of the plaintiffs showed clearly, in my view, the allocation of catch between gill net and purse seine vessels was not based on considerations of protection, or conservation of the salmon resources in general, or of any species in particular. An affidavit was filed by David C. Schutz on behalf of the defendants. Schutz is the Regional Salmon Co-ordinator for the Pacific Region. His affidavit, sworn July 6, 1984, purported to state that the scheduled opening times, and the differentiation between gill netters and seiners, was for conservation and protection of the Chinook salmon species in particular. Schutz' affidavit was based on second-hand information from Mr McCullough, the District Supervisor, Field Operations, West

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Coast of Vancouver Island, and from Mr Allan Gould, Salmon Management Biologist, South Coast Division. I do not accept the statement nor the inference in this affidavit that the proposed allocation of fishing times in the areas in question was based on conservation or protection considerations. The affidavit evidence adduced on behalf of the plaintiffs describes discussion, following the proposed fishing plan in the areas in question, among fishermen and department personnel. No mention was ever made of any conservation or protective reasons for the plan. The departmental personnel, when questioned on the matter at those meetings, said the plan was to ensure that gill netters got a fair or increased share of the catch. Mr Schutz was at a meeting on May 9, 1984 along with the Director General and others. John Lenic, president of the first plaintiff, was at that meeting. His evidence is as follows: 25. That subsequent to promulagation of the 1984 Plan, we did hold a meeting with the Department to make our views known. On May 9, 1984, we held a meeting at the offices of the Department of Fisheries in Vancouver. Present at the meeting on behalf of the Fishing Vessel Owners' Association of British Columbia were Mr. Luiz Sousa, Secretary of the Association, Mr. John Reid, Director, Mr. Vince Fiamengo, Vice-President of the Association and myself. Other Associations were also represented, namely the Native Brotherhood, the Prince Rupert Vessel Owners' Association and the Salmon Seiners Association. The Department of Fisheries was represeted by Wayne Shinners, Director General, Pacific Region, Dave Schutz, Regional Salmon Co-ordinator and David Reid, Department Economist. The industry representatives were present to object to the proposed policies of the Department as set out in the 1984 Commercial Fishing Guide. We were advised by Mr. Shinners that it was the Department's view that the gillnet share had declined and it was their intention in accordance with the 1984 Plan to ensure that the gillnets caught a greater proportion of the allowable catch. At no time during the course of the meetiing was any conservation reason offered for the proposals. ...

Mr Schutz, in his affidavit, does not deal with, nor deny, what went on at that meeting. John C. Reid, in his affidavit, described a meeting held on June 24, 1984 with representatives of the fishing industry and the department. The regional director was there, as was Mr McCullough, earlier referred to. Reid asked the department representatives for the reason for additional time for gill netters. The regional director said he wanted to make sure the gill netters would be a viable group; he was going to make sure they got their share. At no time, according to Reid, were any conservation or protection reasons given. That evidence adduced by the plaintiffs is uncontradicted. I am satisfied the proposal for areas 12, 13, 16 and 23, trying to divert a greater portion of the allowable catch to gill netters, was not based on any ground of protection or conservation. Nor was it related to management or control necessarily incidental to protection or conservation. I conclude, from the evidence, the sole ground was socioeconomic: to ensure that a greater portion of the salmon fishing industry business and its source of economic livelihood went to fishermen who used gill net gear.

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I made similar statements at the end of the hearing of argument on this motion. I then said I would reserve judgment, primarily to consider what relief, if any, I could give. The plaintiffs are, in my view, entitled to an interlocutory injunction restraining the regional director or any fishing officer from varying any fishing quota or close time in the manner as set out in the 1984 Commercial Fishing Guide. The interim injunction will, of course, only apply where a distinction is made between vessels using gill net gear and vessels using purse seine gear. It will be restricted to areas 12, 13, 16 and 23. Mr Eggertson, counsel for the defendants, candidly conceded the plaintiffs' claim in this action is not frivolous or vexatious; there is a serious question to be tried (see American Cyanamid Co. v, Ethicon Ltd. (1975) A.C. 396). That case has been referred to, without criticism, in decisions of the Federal Court of Appeal [See for example, Bulman Group Ltd. v. Alpha One-Write Systems Ltd. (1981) 54 C.P.R. (2d) 79 and Cutter Ltd. v. Baxter Travenol Laboratories of Canada Ltd. (1980) 47 C.P.R. (2d) 53.]. It has been followed many times by members of the Trial Division of this Court and by other courts. Following the Cyanamid principles, I turn now to the balance of convenience. I am satisfied that if the plaintiffs succeed at trial in establishing a right to a permanent injunction, they would not be adequately compensated by an award of damages. Indeed, it seems unlikely the plaintiffs and their members could legally fix any of the defendants with liability for damages. Counsel for the defendants relied on the next step in the Cyanamid process. He pointed out the plaintiffs had not given any undertaking to pay damages which the defendant might suffer; further the defendants could not be adequately compensated, by way of monetary damages, if it should be found, in the interim period between now and trial, they could lawfully have opened or varied the close times as they propose to do. I am unable to see what damage the defendants will suffer if an interim injunction is granted. It was said the gill netters would likely suffer damage if they were not permitted additional fishing time over that of purse seiners. But the quarrel here is not between gill netters and purse seiners. The dispute is between seiners and the defendants over the claimed right to differentiate against purse seiners in favour of gill netters. A somewhat similar situation arose in Waste Not Wanted Inc. v. The Queen et al, (unreported, T-657-84, Reasons dated May 16, 1984). There I granted an interim injunction. In the circumstances here, I do not think it necessary to exact from the plaintiffs an undertaking as to damages. That undertaking is usually, as a matter of practice in this court, required. But a wide discretion, as to the terms and conditions on which an injunction will be granted, is given by s. 44 of the Federal Court Act. It seems to me the kind of suit before me is one where my discretion should be exercised by dispensing with the undertaking. [See Corporation of Delta v. Nationwide Auctions Inc. et al (1980) 100 D.L.R. (3d) 272 (Locke, J. S.C.B.C.) where an undertaking as to damages was not required.] Finally, on the whole matter of balance of convenience, it is proper, in some cases, to consider the relative strength of the case of each party. [See the Cyanamid case, at p. 409, letters A to C.] The plaintiffs here, have, to my mind, a strong case. Further legal grounds for the interlocutory injunctive relief and for certiorari and prohibition were advanced by the plaintiffs. There was, for example, a contention that the regulation, permitting

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Page 6

the regional director or fishery officers to vary a close time, was an improper delegation of authority by the Governor-in-Council. I express no opinion, one way or the other, on that argument, or on the other legal arguments advanced on behalf of the plaintiffs. In respect of relief by way of certiorari or prohibition, I also do not propose to express any opinion, one way or the other, on the arguments advanced. It is unnecessary to do so, in view of the conclusion I have come to as to injunctive relief. The costs of this motion are in the cause. COLLIER J.

29

Federal Court of Appeal

Cour d'appel fédérale
Date: 20110328 Docket: A-78-11 Citation: 2011 FCA 119
2011 FCA 119 (CanLII)

Present:

STRATAS J.A.

BETWEEN: GLOBALIVE WIRELESS MANAGEMENT CORP. Appellant and PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA, AND TELUS COMMUNICATIONS COMPANY Respondents

Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on March 28, 2011.

REASONS FOR ORDER BY:

STRATAS J.A.

30

Federal Court of Appeal

Cour d'appel fédérale
Date: 20110328 Docket: A-78-11 Citation: 2011 FCA 119
2011 FCA 119 (CanLII)

Present:

STRATAS J.A.

BETWEEN: GLOBALIVE WIRELESS MANAGEMENT CORP. Appellant and PUBLIC MOBILE INC., ATTORNEY GENERAL OF CANADA, AND TELUS COMMUNICATIONS COMPANY Respondents

REASONS FOR ORDER

STRATAS J.A.

[1]

The moving parties, Alliance of Canadian Cinema, Television and Radio Artists,

Communications, Energy and Paperworkers Union of Canada, and Friends of Canadian Broadcasting (the “moving parties”), move under rule 109 for leave to intervene in this appeal.

31

Page: 2

[2]

The Attorney General of Canada, supported by Globalive Wireless Management Corp.,

opposes the motion. TELUS Communications Company consents to the motion, provided that no change will be made to the deadline for filing the respondents’ memoranda of fact and law.
2011 FCA 119 (CanLII)

[3]

The issue in this appeal is whether the Governor in Council, in its decision (P.C. 2009-2008

dated December 10, 2009), acted within its statutory mandate under the Telecommunications Act, S.C. 1993, c. 38. The Federal Court found (at 2011 FC 130) that the Governor in Council acted outside of its statutory mandate. It quashed the Governor in Council’s decision.

[4]

In the Federal Court, the moving parties were permitted to intervene: see the order of

Prothonotary Tabib and the order of Prothonotary Aronovitch, dated April 13, 2010 and June 8, 2010, respectively. The moving parties’ intervention was restricted to the issue whether the Governor in Council, in applying subsection 16(3) of the Telecommunications Act, failed to consider, failed to give effect, or acted inconsistently with the non-commercial objectives of the Act set out in the opening words of section 7 and subsections 7(a), (h) and (i). The thrust of the moving parties’ submission in the Federal Court was that the Governor in Council improperly accorded paramount importance to increasing competition in the telecommunications sector to the prejudice of the Act’s non-commercial objectives.

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Page: 3

[5]

I grant the motion for leave to intervene in the appeal in this Court for the following reasons:

a. In my view, absent fundamental error in the decision in the Federal Court to grant the moving parties leave to intervene, some material change in the issues on appeal, or important new facts bearing on the issue, this Court has no reason to exercise its discretion differently from the Federal Court. No one has submitted that there is fundamental error, material change or important new facts.

b. It is evident from the reasons of the Federal Court that the moving parties’ submissions were relevant to the issues and useful to the Court in its determination.

c. It is not necessary for the moving parties to establish that they meet all of the relevant factors in Rothmans Benson and Hedges Inc. v. Canada, [1990] 1 F.C. 84 (T.D.), affirmed [1990] 1 F.C. 90 (C.A.), including whether the moving parties will be directly affected by the outcome: Boutique Jacob Inc. v. Paintainer Ltd., 2006 FCA 426 at paragraph 21, 357 N.R. 384. I am satisfied that the moving parties in this public law case possess a genuine interest – namely, a demonstrated commitment to the strict interpretation of the foreign ownership restrictions in the Telecommunications Act. This interest is beyond a mere “jurisprudential” interest, such as a concern that this Court’s decision will have repercussions for other areas of law: see, e.g., Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., a 2000 decision of this Court, belatedly reported at

33

2011 FCA 119 (CanLII)

Page: 4

[2010] 1 F.C.R. 226. Further, the moving parties will be able to assist the Court in a useful way in this public law case, bringing to bear a distinct perspective and expertise concerning the issues on which they seek to intervene: Rothmans Benson and Hedges Inc. (F.C.A.), supra at page 92. It is in the interests of justice that the moving parties be permitted to intervene in this public law case.
2011 FCA 119 (CanLII)

[6]

This Court, acting under rules 53(1) and 109(3), will attach terms to the order granting the

moving parties leave to intervene.

[7]

The moving parties’ written and oral submissions shall be limited to the subject-matters set

out in paragraph 4, above. Those submissions shall not duplicate the submissions of the other parties and shall not add to the factual record in any way.

[8]

This appeal has been expedited and a schedule has been set. That schedule shall not be

disrupted.

[9]

The moving parties support the result reached by the Federal Court. Accordingly, the

deadline for their memorandum of fact and law should be set around the time set for the memoranda of fact and law of the parties who also are supporting the result reached by the Federal Court, namely TELUS Communications Company and Public Mobile Inc. So that the moving parties can be sure that their submissions do not duplicate those of any of the other parties, the deadline for their memorandum of fact and law should be just after TELUS Communications Company and Public

34

Page: 5

Mobile Inc. have filed their memoranda of fact and law (May 2, 2011). Therefore, the deadline for the service and filing of the moving parties’ memorandum shall be May 5, 2011.
2011 FCA 119 (CanLII)

[10]

The moving parties’ memorandum shall be limited to 12 pages in length. The moving

parties shall be permitted to make oral submissions at the hearing of the appeal for a total of no more than 20 minutes. No costs will be awarded for or against any of the interveners.

[11]

The style of cause shall be amended to reflect the fact that the moving parties are now

interveners.

"David Stratas" J.A.

35

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
2011 FCA 119 (CanLII)

DOCKET: STYLE OF CAUSE:

A-78-11 Globalive Wireless Management Corp. v. Public Mobile Inc., Attorney General of Canada, and Telus Communications Company

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY: DATED:

Stratas J.A. March 28, 2011

WRITTEN REPRESENTATIONS BY:

Steven Shrybman

FOR THE PROPOSED INTERVENERS FOR GLOBALIVE WIRELESS MANAGEMENT CORP. FOR THE ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT, TELUS COMMUNICATIONS COMPANY

Malcolm M. Mercer

Robert MacKinnon Alexander Gay Stephen Schmidt

SOLICITORS OF RECORD: Sack Goldblatt Mitchell LLP Ottawa, Ontario FOR THE PROPOSED INTERVENERS

36

Page: 2

McCarthy Tetrault Toronto, Ontario Myles J. Kirvan Deputy Attorney General of Canada TELUS Communications Company Ottawa, Ontario

FOR GLOBALIVE WIRELESS MANAGEMENT CORP.
2011 FCA 119 (CanLII)

FOR THE ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT, TELUS COMMUNICATIONS COMPANY

37

38

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Indexed as:

Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (C.A.)
Rothmans, Benson & Hedges Inc. (Plaintiff) (Appellant) v. Attorney General of Canada (Defendant) (Respondent) and Canadian Cancer Society (Intervenor) Rothmans, Benson & Hedges Inc. (Plaintiff) v. Attorney General of Canada (Defendant) [1990] 1 F.C. 90 [1989] F.C.J. No. 707 Court File Nos. A-277-89, A-301-89

Federal Court of Canada - Court of Appeal Hugessen, MacGuigan and Desjardins JJ.A. Ottawa, August 17, 1989. Practice -- Parties -- Intervention -- Appeals from orders granting Canadian Cancer Society (CCS), and denying Institute of Canadian Advertising (ICA), leave to intervene in action attacking constitutionality of Tobacco Products Control Act -- Interventions at trial not to be unduly restricted where Charter s. 1 defence to attack on public statute only serious issue -- Interest required to intervene in public interest litigation recognized by courts in organization genuinely interested in, and possessing special knowledge and expertise related to, issues -- No error in finding CCS meeting test, but intervention should be restricted to s. 1 issues -- ICA's application granted -- Position extending beyond question of advertising of tobacco products to more general questions relating to commercial free speech -- May contribute to balancing process in s. 1 assessment of justification of limits imposed upon Charter-guaranteed freedom. Constitutional law -- Charter of Rights -- Limitation clause -- Appeals from orders granting one organization and denying another leave to intervene in action attacking constitutionality of Tobacco Products Control Act -- Interventions at trial not subject to traditional restrictions where Charter s. 1 defence to attack on public statute only serious issue -- Interest required to intervene recog-

41

Page 2

nized in organization genuinely [page91] interested in, and possessing special knowledge and expertise related to, issues. Statutes and Regulations Judicially Considered Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(b). Tobacco Products Control Act, S.C. 1988, c. 20. Cases Judicially Considered Referred to: Re Canadian Labour Congress and Bhindi et al. (1985), 17 D.L.R. (4th) 193 (B.C.C.A.). Counsel: Edward P. Belobaba and Barbara L. Rutherford, for the appellant. Gerry N. Sparrow, for the respondent. Karl Delwaide and Andre T. Mecs, for the intervenor. Claude R. Thomson, Q.C., for the Institute of Canadian Advertising. Solicitors: Gowling, Strathy & Henderson, Toronto, for the appellant. Deputy Attorney General of Canada, for the respondent. Martineau, Walker, Montréal, for the intervenor. Campbell, Godfrey & Lewtas, Toronto, for the Institute of Canadian Advertising.

The following are the reasons for judgment of the Court delivered orally in English by 1 HUGESSEN J.A.:-- These two appeals, which were heard together, are from orders made by Rouleau J. granting, in the case of the Canadian Cancer Society (CCS) [ [1990] 1 F.C. 74], and denying, in the case of the Institute of Canadian Advertising (ICA) [[1990] 1 F.C. 84], leave to intervene in an action brought by Rothmans, Benson & Hedges Inc. (Rothmans) against the Attorney General of Canada attacking the constitutionality of the Tobacco Products Control Act (TPCA) (S.C. 1988, c. 20).

[page92] 2 It is common ground that the plaintiff's attack is primarily Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] based, invoking the guarantee of freedom of expression in paragraph 2(b). There can also be no doubt, given the prohibitions contained in the TPCA, that such attack is best met by a

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