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 — Institute of Canadian
Advertising (ICA) seeking to intervene in action attacking
constitutionality of legislation prohibiting advertising of
tobacco products in Canada — ICA speaking for Canadian
advertising industry in response to legislative and regulatory
measures appearing to threaten industry's independence and
freedom to advertise — Necessary to look to provincial prac
tice and procedure as no Federal Court Rule expressly permit
ting intervention — Ontario Rule permitting nonparty to inter
vene where interest in subject-matter or outcome —
Application dismissed — ICA not meeting criteria established
by case law — Direct financial interest in outcome of main
action insufficient alone to justify intervention — Plaintiff's
allegation legislation contravening freedom of expression basi
cally same as ICA's argument — Applicant's views adequately
represented by plaintiff — Interests of justice not better served
by allowing intervention as no evidence ICA privy to informa
tion not accessible to parties.
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), 15(1).
Federal Court Rules, C.R.C., c. 663, RR. 5, 1010, 1101.
Rules of Civil Procedure, O. Reg. 560/84, R.
13.01(1),(2) (as am. by O. Reg. 221/86, s. 1).
Rules of the Supreme Court of Canada, SOR/83-74, R.
18.
Tobacco Products Control Act, S.C. 1988, c. 20.
COUNSEL:
Edward P. Belobaba for plaintiff.
Claude R. Thomson, Q.C. and Robert W.
Staley for proposed intervenor.
Paul J. Evraire, Q.C. for defendant.
Duncan McDuff agent for Canadian Cancer
Society.
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 Institute of Canadian Advertising ("ICA")
seeking an order allowing it to participate or inter
vene 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.
("Rothmans") has challenged the constitutional
validity of the Act on the basis that it is ultra vires
and offends paragraph 2(b) and subsection 15(1)
of the 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.)]. Rothmans also asserts that the legislation
cannot be upheld under section 1 of the Charter. It
seeks to establish the right to advertise its product
based principally upon the theory that its advertis
ing does not promote more tobacco consumption,
but rather encourages existing tobacco consumers
to choose between competing tobacco manufactur
ers.
The ICA, the applicant in this motion, is Cana-
da's national association representing full-service
advertising agencies. The institute is made up of
sixty-two member agencies who contribute annual
ly for its maintenance. As part of its activities, it
has been an active spokesperson on behalf of the
Canadian advertising industry in response to vari
ous legislative and regulatory measures which
appear to threaten the industry's independence and
freedom to advertise. The ICA has been involved
in the public debate concerning advertising restric
tions on such products as beer, alcohol, lotteries,
feminine hygiene products, toys and tobacco, and
has made representations to governments and gov
ernment agencies in support of its mandate.
It is the applicant's contention that the Court
should allow it to intervene in order to voice its
concerns about the constitutional validity of the
Tobacco Products Control Act and the effect of
this legislation on commercial free speech and the
right to advertise lawful products. The ICA main
tains that it is important and useful for it to
participate as an intervenor in support of the legiti
mate role of advertising in society. According to
the applicant the Rothmans' statement of claim
suggests that its arguments based upon paragraph
2(b) and subsection 15(1) of the Charter are rela
tively narrow in focus and may not take into
account the broader concerns raised by the Act
regarding the regulation of commercial advertis
ing. The institute maintains that the Act has a
direct financial impact on ICA members retained
by the tobacco industry and this indirectly affects
the ICA's finances by reducing membership reve
nue received from these agencies.
The applicant contends that it has satisfied the
criteria applied by the courts in intervention
applications. The institute and its members are
directly affected by the outcome of the actions; the
ICA's position is different in some respects from
that of Rothmans and permitting it to argue its
position would enable the Court to more fully
consider the constitutionality of the Tobacco
Products Control Act; that the important matters
in issue in this action and their broad ramifications
suggest that a party with an interest in commercial
free speech should be permitted to intervene.
Finally, the applicant argues that the courts
have recognized in Charter cases that the princi
ples normally applied in intervention motions need
not be strictly adhered to and other considerations
may apply. The ICA argues that it is well placed
to assist the Court in considering the full range of
arguments applicable to the constitutionality of
the Tobacco Products Control Act and since the
Court's ultimate decision in this regard will impact
more than the immediate parties to the proceed
ings, the Court should allow intervention by the
ICA.
The defendant argues against the ICA being
allowed to intervene in the action on the ground
that the ICA's application for intervention is pre
mature for three reasons. First, the cross-examina
tion of Mr. Keith McKerracher, President and
Chief Executive Officer of the ICA, revealed that
it proposes to wait and see if Rothmans' attack will
be sufficiently broad or whether the ICA itself
would need to expand on it. Second, while the ICA
has "information" presently available to it, there is
no clearly identifiable evidence that the ICA
wishes to adduce any which may be different.
Third, the defendant maintains that the ICA
wishes to determine on an ad hoc basis what role it
will play in the litigation.
It is the defendant's position that the ICA
cannot satisfy the test set out in the jurisprudence
which would justify allowing it to intervene nor
has it demonstrated that the parties are unable to
adequately address the issues before the Court.
Federal Court Rule [Federal Court Rules,
C.R.C., c. 663] 1101 provides for interventions by
various Attorneys General when constitutional
questions are involved; Admiralty Rule 1010
allows intervention of persons interested in the rem
or in the monies paid into Court where a ship is
involved. There is, however, no specific provision in
the Federal Court Rules providing for intervenors
generally, such as Rule 18 of the Rules of the
Supreme Court of Canada [SOR/83-74].
However, Rule 5 of the Federal Court Rules,
which is often referred to as the "gap" rule, pro
vides that where any matter arising is not other
wise provided for by any provision in any Act or
the Rules and Orders of the Court, the practice
and procedure shall be determined by analogy
either to other provisions of the Rules or to the
practice and procedure in force for similar pro
ceedings in the court of the province to which the
subject matter most particularly relates. In this
regard Rule 13.01(1) of the Ontario Rules of Civil
Procedure, O. Reg. 560/84 as amended [by O.
Reg. 221/86, s. 1], permits the Court to grant
leave to a nonparty to intervene in a proceeding on
the ground that it has an interest in the subject-
matter of the proceeding or its outcome. That rule
provides as follows:
13.01 (1) Where a person who is not a party to a proceeding
claims,
(a) an interest in the subject matter of the proceeding;
(b) that he or she may be adversely affected by a judgment
in the proceedings; or
(c) that there exists between him or her and one or more of
the parties to the proceeding a question of law or fact in
common with one or more of the questions in issue in the
proceeding,
the person may move for leave to intervene as an added party.
(2) On the motion, the court shall consider whether the
intervention will unduly delay or prejudice the determination of
the rights of the parties to the proceeding and the court may
add the person as a party to the proceeding and may make such
order as is just.
In addition to the gap rule, a number of criteria
established by the jurisprudence must be taken
into account in considering such a motion.
(1) Is the proposed intervenor directly affected by the outcome
of the trial?
(2) Is the position of the proposed intervenor adequately
defended by one of the parties to the case?
(3) Are the interests of justice better served by the intervention
of the proposed intervenor?
(4) Can the Court hear and decide the cause on its merits
without the intervention of the proposed intervenor?
In my view, the applicant in this case has not
satisfied these criteria. The only criteria which it
has satisfied is the first one; there seems little
question that the ICA has a direct financial inter
est in the outcome of the main action. However,
that is not sufficient in and of itself to justify
permitting the ICA to intervene. I cannot see any
position taken by the applicant which will not
ultimately be argued by the plaintiff; the plaintiff
is alleging the constitutional invalidity of the legis
lation because it interferes with the plaintiff's free
dom of expression. In my opinion, this is basically
the same argument being submitted by the ICA
and I am satisfied that the applicant's views will be
adequately represented by the plaintiff in the main
action.
Furthermore, I am not convinced that the inter
ests of justice will be better served by allowing the
applicant to intervene. No evidence was presented
at the hearing demonstrating that the ICA was
privy to information which the plaintiff or the
defendant could not access. It is my opinion that
the Court will be able to hear and decide the case
on its merits without the intervention of the ICA.
For the above reasons the applicant's motion is
dismissed. Costs to the defendant.
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