[2000] 3 F.C. 482
T-1168-96
Allison G. Abbott, Margaret Abbott and Margaret Elizabeth McIntosh (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
Indexed as: Abbott v. Canada (T.D.)
Trial Division, Hargrave P.—Vancouver, March 16 and 29, 2000.
Practice — Parties — Intervention — Canadian Pacific Hotels (CP) applying to intervene in class action involving leases in national park in Manitoba — Crown alleging perpetual renewal clauses in leases null, void — CP operating resorts on national park land in Alberta under leases containing perpetual renewal clauses — Application of three-part test for intervention — Long-term planning, future investment, development decisions seriously affected without long-term security of perpetually renewable leases — Although CP’s leases subject to outcome of action, interest broader than mere jurisprudential — Custodian of part of western Canada’s heritage — Federal Court Rules, 1998, r. 109 requiring prospective interveners to show how participation will assist Court in determination of issues — Must have different perspective in sense of relevant, different point of view than parties — CP, as long-term commercial user, having different perspective than individual plaintiffs leasing property for cottage, recreational use — CP’s potential contribution counterbalancing disruption intervention might cause.
This was a motion to intervene by Canadian Pacific Hotels Corporation (CP) in this class action involving leases in Riding Mountain National Park in Manitoba. The issue is whether the plaintiffs’ leases contain or should contain a perpetual renewal clause. The Crown’s argument, that perpetual renewal clauses were null and void, alarmed CP, which operates resorts on national park land in Banff and Lake Louise under leases containing perpetual renewal clauses.
Held, the application should be allowed.
There are three basic conditions which must be met before intervention will be allowed: the applicant for intervention must have an interest in the outcome; the rights of the applicant will be seriously affected by the outcome of the litigation; and, the applicant, as intervener, will bring a different perspective to the proceedings. There must also be a balancing of the possible advantages of intervention with the disruption that may be caused. The cautious approach to the exercise of the discretion to add interveners may be relaxed where there is a broader interest in the subject-matter. And finally, a mere jurisprudential interest is not sufficient to warrant intervention. An intervener representing some broader interest or acting in some representative capacity on behalf of those who have a broader interest, has more than a mere jurisprudential interest.
As to the first two conditions, without the long-term security of perpetually renewable leases, CP’s long-term planning, future investment and development decisions will be seriously affected.
CP has no litigation of its own in which to present its case and may never have such an opportunity once this case is decided. The Crown is apparently saying that CP’s leases will be subject to the outcome of this action, in effect forcing an interest on CP because its leases contain similar renewal clauses, the same landlord and the same context, namely a national park. CP is, in a sense, the custodian of a part of Western Canada’s heritage, for the benefit of park users and those interested in their heritage. This is representative of an interest broader than a mere jurisprudential interest. Although CP is not seeking status on a representative basis, the effect is the same, for CP’s facilities are for the use of the general public.
Federal Court Rules, 1998, rule 109 sets out the content of a motion for intervention, including the requirement that prospective interveners show how their participation will assist the Court in the determination of the issues. This assistance must not merely reiterate the position taken by a party, but must be a different perspective. The different perspective need not be unique, but a relevant and useful point of view which the initial parties cannot or will not present, a point of view without which the Court’s eventual decision might well be the poorer. The plaintiffs and CP have different perspectives. The focus of the plaintiffs is as individuals leasing park property for private cottage and recreational use. In contrast, CP’s view is as a commercial user, for a longer term, both retrospectively and prospectively. Moreover, as holder of a number of leases, CP will be able to bring to the Court wider experience in negotiating and renewing park leases with the Crown than will the plaintiffs.
CP’s potential contribution as intervener counterbalanced any disruption the intervention might cause. The plaintiffs, parties who might be most affected, do not oppose the intervention. CP has indicated that it is able to work within the time constraints of both the pending determination of questions of law and the time allocated for the hearing. The Crown may have to deal with more complex issues and different viewpoints, but that is neither prejudice nor injustice. While the eventual hearing may be more intense and complex, CP’s participation should be of assistance to the Court in making determinations. CP should, accordingly, be added as an intervener with the ability to file affidavits, make written and oral representations and to appeal.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, 1998, SOR/98-106, r. 109.
CASES JUDICIALLY CONSIDERED
APPLIED:
M. v. H. (1994), 20 O.R. (3d) 70 (Gen. Div.); Tioxide Canada Inc. v. Canada, [1995] 1 C.T.C. 285; (1994), 94 DTC 6655; 174 N.R. 212 (F.C.A.); Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2000] F.C.J. No. 208 (F.C.T.D.) (QL); Canadian Council of Professional Engineers v. Memorial University of Newfoundland (1997), 75 C.P.R. (3d) 291; 135 F.T.R. 211 (F.C.T.D.); The Queen v. Boulton, [1976] 1 F.C. 252 (C.A.); Schofield and Minister of Consumer and Commercial Relations, Re (1980), 112 D.L.R. (3d) 132; 19 C.P.C. 245 (Ont. C.A.).
REFERRED TO:
Yale Indian Band v. Aitchelitz Indian Band et al. (1998), 151 F.T.R. 36 (F.C.T.D.).
MOTION to intervene by Canadian Pacific Hotels (CP) in this class action involving leases of national park land containing perpetual renewal clauses similar to those leases under which CP operating resorts. Motion allowed.
APPEARANCES:
Arthur J. Stacey for plaintiffs.
Paul D. Edwards for defendant.
Judson E. Virtue for intervener.
SOLICITORS OF RECORD:
Thompson Dorfman Sweatman, Winnipeg, for plaintiffs.
Duboff, Edwards, Haight & Schachter, Winnipeg, for defendant.
Macleod Dixon, Calgary, for intervener.
The following are the reasons for order rendered in English by
[1] Hargrave P.: These reasons arise out of a motion for intervention by Canadian Pacific Hotels Corporation, to whom I shall refer as Canadian Pacific.
[2] As to the nature of the action itself, it is a class action involving leases in Riding Mountain National Park in Manitoba. At issue is whether the plaintiffs’ leases contain or should contain a perpetual renewal clause.
[3] The Crown raises a number of lease specific defences, some general defences and a lack of legal authority to enter into any leases containing a perpetual renewal clause, thus leading to a conclusion that such clauses were always null and void.
[4] This train of argument, that perpetual renewal clauses in leases in park land are null and void, certainly a point of concern to the plaintiffs, sounded alarming to Canadian Pacific when, recently, they learned of this litigation. Canadian Pacific had set up shop in the Canadian Rockies to provide what we now call destination resorts, to be served by the Canadian Pacific Railway, well before Banff National Park came into existence. Canadian Pacific now operates its Banff and Lake Louise facilities on leased Banff National Park land. Canadian Pacific’s leases contain perpetual renewal clauses, which clauses I accept, as a matter of conventional wisdom, provide the certainty necessary to support the Banff Springs Hotel and Chateau Lake Louise facilities. Canadian Pacific recognizes that the outcome of this action, hopefully to be dealt with as a question of law in May of this year, is critical to its operations. Canadian Pacific thus brings the present motion to intervene.
CONSIDERATION
Basic Law as to Invention
[5] The test for intervention is not at issue. There are three basic conditions which are to be read conjunctively:
1. The applicant for intervention must have an interest in the outcome;
2. The rights of the applicant will be seriously affected by the outcome of the litigation; and
3. The applicant, as intervener, will bring a different perspective to the proceedings.
This test, its origins and applications, are briefly surveyed in Yale Indian Band v. Aitchelitz Indian Band et al. (1998), 151 F.T.R. 36 (F.C.T.D.), at pages 43-44. However I would also suggest that the law on intervention has not remained static. For example it has been modified by the concept that there be a balancing of the conditions and here I would refer to M. v. H. (1994), 20 O.R. (3d) 70, at page 78, a decision of the Ontario General Division. There Mr. Justice Epstein spoke of the “requirement that the court examine and try to balance the possible advantages of intervention with the disruption that may be caused” and that [at page 77] the “court’s focus should be on determining whether the contribution that might be made by the intervenors is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action.”. Mr. Justice Epstein added a caution to the effect that the discretion to add parties ought to be exercised cautiously, for to easily grant the status of intervener to the first person applying might result in a precedent so that there would be no principled way of excluding subsequent interveners, to the detriment of the whole common law system. Here I would note, again as Mr. Justice Epstein does, that the cautious approach to intervention has been relaxed in constitutional cases because often there is a broader interest in the subject-matter. This broader interest concept is germane.
[6] There is also the concept that a purely jurisprudential interest, such as that discussed by the Federal Court of Appeal in Tioxide Canada Inc. v. Canada, [1995] 1 C.T.C. 285, is not a sufficient interest. Here I would again note that an intervener representing some broader interest or acting with some representative facet on behalf of those who have substantial interests has more than a mere jurisprudential interest: M. v. H. (supra) and, for example, Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2000] F.C.J. No. 208 (F.C.T.D.) (QL). There Madam Justice Reed noted at paragraph 8:
While the applicant does not itself have a direct interest, in the outcome of the present litigation, the individuals that it represents do, and those interests are likely to be substantial. The applicant’s interest is stronger than a mere jurisprudential interest, although that exists as well. The interests of the individuals that the applicant seeks to protect are grounded in the same fact situation as those of the plaintiffs. This alone, in my view, meets the first two parts of the Professional Engineers test.
Canadian Council of Professional Engineers v. Memorial University of Newfoundland (1997), 75 C.P.R. (3d) 291 (F.C.T.D.), at page 293 sets out the standard three-part test and it is that to which Madam Justice Reed refers. I now turn to the first two elements of the test, an interest in the outcome and the potential to be seriously affected by the litigation.
Interests in the Outcome and Rights Affected by the Litigation
[7] The first two elements in the standard test, an interest in the outcome and rights seriously affected by the outcome are, here, as in many instances, substantially common and supported by the same facts.
[8] Canadian Pacific’s position is that as tenant, under a number of long-term leases in Banff National Park, leases similar to or in the same terms as those leases held by the plaintiffs, and specifically leases containing perpetual renewal clauses, it has much to lose if the renewal clauses are void. Canadian Pacific’s facilities, including the Banff Springs Hotel and the Chateau Lake Louise, are on leased land. They are world-class facilities. Without the long-term security of the present perpetually renewable leases, long-term planning, future investment and development decisions will be seriously affected.
[9] As I have noted, a mere jurisprudential interest will not suffice to give a prospective intervener an interest in the outcome. By way of example I will again touch upon Tioxide Canada Inc. (supra) where at issue was a tax appeal in which the would-be interveners had an interest only in that any resulting precedent would impinge on their own tax cases. Mr. Justice Hugessen pointed out not only that the applicants for intervention had no direct pecuniary or proprietary interest in the outcome, but also they might make their arguments when their own cases came before the courts for “This kind of interest alone will never justify an application to intervene” (page 286).
[10] There is also, in Tioxide, a reference to The Queen v. Bolton, [1976] 1 F.C. 252 at page 253, there Chief Justice Jackett speaking for the Court of Appeal:
In our view, no matter how widely one interprets the Court’s power to permit persons to be heard, it does not extend to permit a person to be heard merely because he has an interest in another controversy where the same question of law will or may arise as that which will or may arise in the controversy that is before the Court.
[11] In the present instance Canadian Pacific has no litigation of its own in which to present its case. Moreover, the park leases being the same or similar, to those held by the plaintiffs, complete with perpetual renewal clauses, there may never be such an opportunity once the Abbotts and Ms. McIntosh have their cases decided.
[12] This point also came up in Schofield and Minister of Consumer and Commercial Relations, Re (1980), 112 D.L.R. (3d) 132 (Ont. C.A.), where one prospective intervener had a similar action and the other a settlement depended upon the outcome. They were denied intervener status because they had no interest in the actual lis between the parties to the action. In the present instance the Crown is apparently saying to Canadian Pacific that its leases will be subject to the outcome in Abbott, a case which Canadian Pacific did not know existed until very recently: this is, in effect, forcing an interest on Canadian Pacific because the Canadian Pacific leases contain similar renewal clauses, the same landlord and the same context, namely a national park.
[13] The interest of Canadian Pacific goes beyond a mere jurisprudential issue. Canadian Pacific, in a sense, is the custodian of a part of Western Canada’s heritage, a custodianship not limited to the benefit of users of Banff National Park. This is representative of an interest broader than a mere jurisprudential interest. One might say that Canadian Pacific is a self-interested commercial entity. Yet, from a number of points of view, it may be difficult to find an entity that is more trustworthy or a better advocate for certain broader public segments, both park users and those who are interested in their heritage, than Canadian Pacific as a self-interested commercial undertaking looking to preserve its customer base by being able, in the long term, to maintain its world-class facility. Here I would refer back to Madam Justice Reed’s view in Maurice v. Canada (supra) of the representative plaintiff having more than a mere jurisprudential interest. I recognize that Canadian Pacific is not seeking status on a representative basis, but the effect is the same, for Canadian Pacific, in its material, notes its facilities on leased property are for the use of the general public and staff, including lodging, staff accommodation and general facilities. This is an interest broader than a mere jurisprudential interest. The first two branches of the test, an interest in the outcome and rights that will be seriously affected by the outcome, being satisfied, I will now consider whether Canadian Pacific brings a different perspective to this proceeding.
A Different Perspective Useful to the Court
[14] Rule 109 of the Federal Court Rules, 1998, [SOR/98-106] sets out the content of a motion for intervention, including the requirement that prospective interveners show how their participation will assist the Court in the determination of the issues. This assistance must not merely be a reiteration of the position taken by a party, but rather must be a different perspective. The different perspective need not, as the defendant suggests, be a unique perspective, for it is a nearly impossible criteria to provide a perspective having no like, equal or parallel. What is required is a relevant and useful point of view which the initial parties cannot or will not present, a point of view without which the Court’s eventual decision might well be the poorer.
[15] In this action both the plaintiffs and Canadian Pacific, the latter as a proposed intervener, are all dealing with a similar commodity, leased park land, and a similar lease containing similar perpetual renewal clauses, but their perspectives and interests are not the same.
[16] The focus of the plaintiffs is as individuals leasing park property for private cottage and recreational use. Each of the individuals may have their own story to tell about the perpetual renewal clause and the conduct of the Crown, in the context of their own lease.
[17] In contrast, the view of Canadian Pacific is not only as a commercial user, but also is longer term, both retrospective and, as an established and ongoing business, prospective. Moreover, as holder of a number of leases, Canadian Pacific will be able to bring to the Court wider experience in negotiating and renewing park leases with the Crown than will the plaintiffs. Indeed, it would be surprising if Canadian Pacific’s viewpoint did not differ substantially from that of the private individual users.
Balancing the Advantages and Disruptions of Intervention
[18] Canadian Pacific has the burden of convincing me that it satisfies the three-part test for intervener status. As well as weighing the satisfaction of that burden, my exercise of discretion should focus on considering whether Canadian Pacific’s potential contribution as intervener at least counterbalances any disruption the intervention might cause, including by increasing the cost, length or complexity of the proceeding and particularly here, where issues, which may be determinative, are shortly to be decided as questions of law, whether intervention might result in delay.
[19] The parties most affected might well be the plaintiffs who, I suspect, look upon this litigation, which was been protracted, as an expensive but necessary luxury. They do not oppose the intervention. They do not complain that Canadian Pacific will complicate matters.
[20] Canadian Pacific has indicated it is able to work within the time constraints of both the pending determination of the questions of law and the time allocated for the hearing: this is proper, for an intervener may not take the litigation away from the original parties. However, to make certain there is no prejudice, Canadian Pacific will have to make deponents of any affidavits available for cross-examination without delay.
[21] From the Crown’s point of view, it may have to deal with more complex issues and certainly with different viewpoints. However that is merely challenge and a little more expense, but it is neither prejudice nor injustice.
[22] From the Court’s point of view, the eventual hearing may be more intense and complex, but overall Canadian Pacific’s participation should be of assistance to the Court in making determinations.
[23] Canadian Pacific is added as an intervener with, in this instance, the ability to file affidavits, make written and oral representations and to appeal.
[24] I thank counsel for their good and thorough presentations.