T-1416-88
Rothmans, Benson & Hedges Inc. (Plaintiff)
v.
Attorney General of Canada (Defendant)
INDEXED AS: ROTHMANS, BENSON & HEDGES INC. V. CANADA
(ATTORNEY GENERAL) (T.D.)
Trial Division, Rouleau J.—Toronto, April 7;
Ottawa, May 19, 1989.
Practice — Parties — Intervention — Canadian Cancer
Society seeking to intervene in action attacking constitutional
ity of legislation prohibiting advertising of tobacco products —
As no express provision in Federal Court Rules for interven
tion, necessary to look to practice in provincial courts —
Ontario Rules permitting intervention of nonparty claiming
interest in subject-matter of proceeding, provided no delay or
prejudice — 'Interest" broadly interpreted in constitutional
matters — Criteria justifying intervention — Objection that
addition of party lengthening proceeding rejected — Interven
tion of party with special knowledge and expertise permitted
to give courts different perspective on issue, particularly where
first-time Charter arguments involved — Nature of issue and
likelihood of useful contribution by applicant to resolution of
action without prejudice to parties key considerations —
Application allowed.
This was an application by the Canadian Cancer Society to
intervene in an action attacking the constitutionality of the
Tobacco Products Control Act, which prohibits the advertising
of tobacco products in Canada. The Society's primary object is
cancer research and education of the public. It contended that
it had special knowledge and expertise relating cancer to the
consumption of tobacco products and that it had sources of
information which may not have been available to the other
parties. It also argued that it had a special interest with respect
to the issues, and that its overall capacity to collect, comment
upon and analyze all the data related to cancer, tobacco
products and the advertising of those products would be helpful
to the Court. The plaintiff opposed the application on the
grounds that extensive hearings had been held prior to passage
of the legislation, and that any information which the Society
may have is in the public domain. Finally, it was argued that
the applicant would be putting forward the same evidence and
arguments as the Attorney General, thus unnecessarily pro
tracting the proceedings.
Held, the application should be allowed.
As there is no Federal Court Rule expressly permitting
intervention, Rule 5 allows the Court to determine its practice
and procedure by analogy to other provisions of the Federal
Court Rules or to the practice and procedure for similar
proceedings in provincial courts. The Ontario Rules of Civil
Procedure permit the intervention of a nonparty who claims an
interest in the subject-matter of the proceeding, provided this
will not delay or prejudice the proceedings. The "interest"
required has been widely interpreted, particularly where Chart
er and other constitutional issues have been raised. Recent
cases have outlined several criteria to be considered in an
application for intervention, but generally the interest required
to intervene in public interest litigation has been recognized in
an organization which is genuinely interested in, and possesses
special knowledge and expertise related to, the issues. The
objection that the addition of a party would lengthen the
proceedings was rejected in that courts are familiar with
lengthy and complex litigation including a multiplicity of par
ties. Also, even though one of the parties may be able to
adequately defend a certain public interest, the intervention of
parties with special knowledge and expertise has been permit
ted to place the issue in a slightly different perspective which
would assist the court, particularly when first-time Charter
arguments are involved. Interventions by persons or groups
having no direct interest in the outcome, but who possess an
interest in the public law issues have also been allowed. The key
considerations are the nature of the issue, and the likelihood of
the applicant being able to make a useful contribution to the
resolution of the action without causing injustice to the
immediate parties.
Applying the above principles, the applicant should be
allowed to intervene as it has a genuine interest in the issues
and could assist the Court by putting the issues in a different
perspective as it has special knowledge and expertise relating to
the public interest questions. The application should also be
allowed to offset any public perception that the interests of
justice are not being served because of possible political influ
ence being asserted by the tobacco industry.
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.).
Criminal Code, R.S.C. 1970, c. C-34, ss. 246.6 (as
enacted by S.C. 1980-81-82-83, c. 125, s. 19), 246.7
(as enacted idem).
Federal Court Rules, C.R.C., c. 663, R. 5.
Rules of Civil Procedure, O. Reg. 560/84, RR. 13.01,
13.02 (as am. by O. Reg. 221/86, s. 1).
Tobacco Products Control Act, S.C. 1988, c. 20.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.); Re
Schofield and Minister of Consumer and Commercial
Relations (1980), 112 D.L.R. (3d) 132; 28 O.R. (2d)
764; 19 C.P.C. 245 (C.A.); G.T.V. Limousine Inc. v.
Service de Limousine Murray Hill Ltée, [1988] R.J.Q.
1615 (C.A.).
COUNSEL:
Edward P. Belobaba and P. Lukasiewicz for
plaintiff.
Karl Delwaide and Andre T. Mecs for pro
posed intervenor.
Paul J. Evraire, Q.C. for defendant.
SOLICITORS:
Gowling & Henderson, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
ROULEAU J.: This is an application brought by
the Canadian Cancer Society ("Society") seeking
an order allowing it to intervene and participate in
the action. The issue relates to an attack by the
plaintiff on the constitutional validity of the
Tobacco Products Control Act, S.C. 1988, c. 20
which prohibits the advertising of tobacco products
in Canada.
The plaintiff, Rothmans, Benson & Hedges Inc.,
initiated this action by way of statement of claim
filed on July 20, 1988 and amended on October
24, 1988.
The Canadian Cancer Society is described as
the largest charitable organization dedicated to
public health in Canada. As recently as 1987 it
was made up of approximately 350,000 active
volunteer members who were responsible for the
raising of some $50,000,000 annually, which
money was primarily directed to health and relat
ed fields. The Society's primary object is cancer
research; it is also involved in the distribution of
scientific papers as well as pamphlets for the pur
pose of enlightening the general public of the
dangers of the disease. For more than 50 years this
organization has been the driving force investigat
ing causes as well as cures. In the pursuit of its
objectives, and, with the endorsement of the medi
cal scientific community, it has been instrumental
in establishing a correlation between the use of
tobacco products and the incidence of cancer; its
persistence has been the vehicle that generated
public awareness of the danger of tobacco prod
ucts. As a result of the Society's leadership and
inspiration, the research results and the assembling
of scientific data gathered from throughout the
world, it has provided the authorities and its public
health officials with the necessary or required
evidence to press the government into adopting the
legislation which is complained of in this action.
The applicant maintains that the constitutional
facts underlying the plaintiff's amended statement
of claim that will be adduced in evidence, analyzed
and discussed before the Court are essentially
related to health issues. It has special knowledge
and expertise relating cancer to the consumption
of tobacco products. It further contends that it has
sources of information in this matter to which the
other parties in the litigation may not have access.
The Canadian Cancer Society urges upon this
Court that it has a "special interest" with respect
to the issues raised in the litigation. That knowl
edge and expertise and the overall capacity of the
applicant to collect, comment upon and analyze all
the data related to cancer, tobacco products and
the advertising of those products, would be helpful
to this Court in the resolution of the litigation now
before it. It is their opinion that it meets all the
criteria set out in the jurisprudence which apply in
cases where parties seek to be allowed to intervene.
The plaintiff, Rothmans, Benson & Hedges Inc.,
opposes the application for standing. It argues that
prior to the promulgation of the Tobacco Products
Control Act, the Legislative Committee of the
House of Commons and the Standing Senate
Committee on Social Affairs and Technology held
extensive hearings into all aspects of the proposed
legislation. In the course of those hearings, the
committees received written representations and
heard evidence from numerous groups both in
favour of and opposed to the legislation, including
the applicant; that studies commissioned by the
Cancer Society relevant to the advertising of
tobacco products are all in the public domain; that
no new studies relating directly to tobacco con
sumption and advertising have been initiated nor is
it in possession of any document, report or study
relating to the alleged relationship between the
consumption of tobacco products and advertising
that is not either in the public domain or accessible
to anyone who might require it.
Finally, the plaintiff argues that the applicant's
motion should be denied on the grounds that it is
seeking to uphold the constitutionality of the
Tobacco Products Control Act by means of the
same evidence and arguments as those which will
be put forward by the defendant, the Attorney
General of Canada. Their intervention would
unnecessarily lengthen the proceeding and it is
open to the applicant to cooperate fully with the
defendant by providing viva voce as well as docu
mentary evidence in order to assist in providing the
courts with full disclosure of all facts which may
be necessary to decide the ultimate issue.
There is no Federal Court Rule explicitly per
mitting intervention in proceedings in the Trial
Division. In the absence of a rule or provision
providing for a particular matter, Rule 5 allows
the Court to determine its practice and procedure
by analogy to other provisions of the Federal
Court Rules [C.R.C., c. 663] or to the practice
and procedure for similar proceedings in the courts
of "that province to which the subject matter of
the proceedings most particularly relates".
Rule 13.01 of the Ontario Rules of Civil Proce
dure [O. Reg. 560/84] permits a person not a
party to the proceedings who claims "an interest in
the subject matter of the proceeding" to move for
leave to intervene as an added party. The rule
requires of the Court to consider "whether the
intervention will unduly delay or prejudice the
determination of the rights of the parties to the
proceeding". Rule 13.02 [as am. by O. Reg.
221/86, s. 1] permits the Court to grant leave to a
person to intervene as a friend of the Court with
out becoming a party to the proceeding. Such
intervention is only permitted "for the purpose of
rendering assistance to the court by way of
argument".
In addition to the gap rule, one must be cogni
zant of the principles of law which have been
established by the jurisprudence in applications of
this nature. In constitutional matters, and more
particularly, in Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] issues, the "interest" required
of a third party in order to be granted intervenor
status has been widely interpreted in order to
permit interventions on public interest issues. Gen
erally speaking, the interest required to intervene
in public interest litigation has been recognized by
the courts in an organization which is genuinely
interested in the issues raised by the action and
which possesses special knowledge and expertise
related to the issues raised.
There can be no doubt as to the evolution of the
jurisprudence in "public interest litigation" in this
country since the advent of the Charter. The
Supreme Court appears to be requiring somewhat
less by way of connection to consider "public
interest" intervention once they have been per
suaded as to the seriousness of the question.
In order for the Court to grant standing and to
justify the full participation of an intervenor in a
"public interest" debate, certain criteria must be
met and gathering from the more recent decisions
the following is contemplated:
(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 of the proposed intervenor
adequately defended by one of the parties to the
case?
(5) Are the interests of justice better served by
the intervention of the proposed third party?
(6) Can the Court hear and decide the cause on
its merits without the proposed intervenor?
The plaintiff has argued that adding a party
would lengthen the proceedings and burden the
courts unnecessarily, perhaps in some instances
leading to chaos. In G.T.V. Limousine Inc. v.
Service de Limousine Murray Hill Ltée, [1988]
R.J.Q. 1615 (C.A.), the Court noted that it was
quite familiar with lengthy and complex litigation
including a multiplicity of parties. This did not
lead to injustice and would certainly provide the
presiding judge with additional points of view
which may assist in enlightening it to determine
the ultimate issue. Such an objection is really of
very little merit.
I do not choose at this time to discuss in detail
each of the criteria that I have outlined since they
have all been thoroughly analyzed either individu
ally or collectively in recent jurisprudence.
The courts have been satisfied that though a
certain "public interest" may be adequately
defended by one of the parties, because of special
knowledge and expertise, they nevertheless allowed
the intervention.
As an example, in R. v. Seaboyer (1986), 50
C.R. (3d) 395 (Ont. C.A.), the Legal Education
and Action Fund ("LEAF") applied to intervene in
the appeal from a decision quashing the committal
for trial on a charge of sexual assault on the
grounds that sections 246.6 and 246.7 of the
Criminal Code [R.S.C. 1970, c. C-34 (as enacted
by S.C. 1980-81-82-83, c. 125, s. 19)] were inoper
ative because they infringed section 7 and para
graph 11(d) of the Charter. LEAF is a federally
incorporated body with an objective to secure
women's rights to equal protection and equal ben
efit of the law as guaranteed in the Charter
through litigation, education and research. The
respondents opposed the application on the
grounds that the interests represented by LEAF
were the same as those represented by the Attor
ney General for Ontario, namely, the rights of
victims of sexual assault, and that the intervention
of LEAF would place a further and unnecessary
burden on the respondents. The Court concluded
that it should exercise its discretion and grant
LEAF the right of intervention. In giving the
Court's reasons for that decision, Howland C.J.O.
stated as follows, at pages 397-398:
Counsel for LEAF contended that women were most fre
quently the victims of sexual assault and that LEAF had a
special knowledge and perspective of their rights and of the
adverse effect women would suffer if the sections were held to
be unconstitutional.
The right to intervene in criminal proceedings where the
liberty of the subject is involved is one which should be granted
sparingly. Here no new issue will be raised if intervention is
permitted. It is a question of granting the applicant a right to
intervene to illuminate a pending issue before the court. While
counsel for LEAF may be supporting the same position as
counsel for the Attorney General for Ontario, counsel for
LEAF, by reason of its special knowledge and expertise, may
be able to place the issue in a slightly different perspective
which will be of assistance to the court.
Other courts have been even more emphatic in
pointing out that when it comes to first-time
Charter arguments, the Court should be willing to
allow intervenors in order to avail itself of their
assistance. This is especially true where those pro
posed intervenors are in a position to put certain
aspects of an action into a new perspective which
might not otherwise be considered by the Court or
which might not receive the attention they deserve.
In Re Schofield and Minister of Consumer and
Commercial Relations (1980), 112 D.L.R. (3d)
132; 28 O.R. (2d) 764; 19 C.P.C. 245 (C.A.),
Thorson J.A. made the following comments in this
regard, at pages 141 D.L.R.; 773 O.R.; 255-256
C.P.C.:
It seems to me that there are circumstances in which an
applicant can properly be granted leave to intervene in an
appeal between other parties, without his necessarily having
any interest in that appeal which may be prejudicially affected
in any "direct sense", within the meaning of that expression as
used by LeDain, J., in Rothmans of Pall Mall et al. v. Minister
of National Revenue et al. (1976), 67 D.L.R. (3d) 505, [1976]
2 F.C. 500, [ 1976] C.T.C. 339, and repeated with approval by
Heald, J., in the passage in the Solosky case [infra] quoted by
my colleague. As an example of one such situation, one can
envisage an applicant with no interest in the outcome of an
appeal in any such direct sense but with an interest, because of
the particular concerns which the applicant has or represents,
such that the applicant is in an especially advantageous and
perhaps even unique position to illuminate some aspect or facet
of the appeal which ought to be considered by the Court in
reaching its decision but which, but for the applicant's interven
tion, might not receive any attention or prominence, given the
quite different interests of the immediate parties to the appeal.
The fact that such situations may not arise with any great
frequency or that, when they do, the Court's discretion may
have to be exercised on terms and conditions such as to confine
the intervener to certain defined issues so as to avoid getting
into the merits of the lis inter partes, does not persuade me that
the door should be closed on them by a test which insists on the
demonstration of an interest which is affected in the "direct
sense" earlier discussed, to the exclusion of any interest which
is not affected in that sense.
Certainly, not every application for intervenor
status by a private or public interest group which
can bring different perspective to the issue before
the Court should be allowed. However, other
courts, and notably the Supreme Court of Canada,
have permitted interventions by persons or groups
having no direct interest in the outcome, but who
possess an interest in the public law issues. In some
cases, the ability of a proposed intervenor to assist
the court in a unique way in making its decision
will overcome the absence of a direct interest in
the outcome. What the Court must consider in
applications such as the one now before it is the
nature of the issue involved and the likelihood of
the applicant being able to make a useful contribu
tion to the resolution of the action, with no injus
tice being imposed on the immediate parties.
Applying these principles to the case now before
me, I am of the opinion that the applicant should
be granted intervenor status. Certainly, the
Canadian Cancer Society has a genuine interest in
the issues before the Court. Furthermore, the
applicant has the capacity to assist the Court in its
decision making in that it possesses special knowl-
edge and expertise relating to the public interest
questions raised, and in my view it is in an excel
lent position to put some of these issues in a
different perspective from that taken by the Attor
ney General. The applicant has, after all, invested
significant time and money researching the issue
of advertising and its effects on tobacco consump
tion and I am of the opinion that it will be a most
useful intervenor from the Court's point of view.
The jurisprudence has clearly established that in
public interest litigation, the Attorney General
does not have a monopoly to represent all aspects
of public interest. In this particular case, I think it
is important that the applicant be allowed to inter
vene in order to offset any perception held by the
public that the interests of justice are not being
served because of possible political influence being
asserted on the Government by those involved in
the tobacco industry.
Finally, allowing the application by the Canadi-
an Cancer Society will not unduly lengthen or
delay the action nor will it impose an injustice or
excessive burden on the parties involved. The par
ticipation by the applicant may well expand the
evidence before the Court which could be of
invaluable assistance.
Referring back to my criteria, I am convinced
that the Canadian Cancer Society possesses special
knowledge and expertise and has general interest
in the issues before the Court. It represents a
certain aspect of various interests in society which
will be of assistance. It is a question of extreme
importance to certain segments of the population
which can be best represented in this debate.
For the foregoing reasons, the application by the
Canadian Cancer Society for leave to be joined in
the action by way of intervention as a defendant is
granted. Costs to the applicant.
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