A-277-89
Rothmans, Benson & Hedges Inc. (Plaintiff)
(Appellant)
v.
Attorney General of Canada (Defendant)
(Respondent)
and
Canadian Cancer Society (Intervenor)
A-301-89
Rothmans, Benson & Hedges Inc. (Plaintiff)
v.
Attorney General of Canada (Defendant)
INDEXED AS: ROTHMANS, BENSON & HEDGES INC. V. CANADA
(ATTORNEY GENERAL) (CA.)
Court of Appeal, Hugessen, MacGuigan and Des-
jardins JJ.A.—Ottawa, August 17, 1989.
Practice — Parties — Intervention — Appeals from orders
granting Canadian Cancer Society (CCS), and denying Insti
tute 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. I defence to attack on public statute only serious
issue — Interest required to intervene in public interest litiga
tion 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 interven
tion 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 pro
cess 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 constitu
tionality of Tobacco Products Control Act — Interventions at
trial not subject to traditional restrictions where Charter s. I
defence to attack on public statute only serious issue —
Interest required to intervene recognized in organization genu-
inely interested in, and possessing special knowledge and exp
ertise 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. Ruther-
ford for appellant.
Gerry N. Sparrow for respondent.
Karl Delwaide and Andre T. Mecs for
intervenor.
Claude R. Thomson, Q.C. for Institute of
Canadian Advertising.
SOLICITORS:
Gowling, Strathy & Henderson, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
Martineau, Walker, Montréal, for intervenor.
Campbell, Godfrey & Lewtas, Toronto, for
Institute of Canadian Advertising.
The following are the reasons for judgment of
the Court delivered orally in English by
HUG ESSEN 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).
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 con
tained in the TPCA, that such attack is best met
by a section 1 defence and that it is on the success
or failure of the latter that the outcome of the
action will depend.
We are all of the view that Rouleau J. correctly
enunciated the criteria which should be applicable
in determining whether or not to allow the request
ed interventions. This is an area in which the law is
rapidly developing and in a case such as this,
where the principal and perhaps the only serious
issue is a section 1 defence to an attack on a public
statute, there are no good reasons to unduly
restrict interventions at the trial level in the way
that courts have traditionally and properly done
for other sorts of litigation. A section 1 question
normally requires evidence for the Court to make
a proper determination and such evidence should
be adduced at trial (see Re Canadian Labour
Congress and Bhindi et al. (1985), 17 D.L.R.
(4th) 193 (B.C.C.A.)). Accordingly we think that,
in any event for the purpose of this case, Rouleau
J. was right when he said [at page 79] "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".
As far as the intervention by the CCS is con
cerned we have not been persuaded that Rouleau
J. committed any reviewable error in finding that
it met the test thus enunciated. It is our view,
however, that the intervention by the CCS should
be restricted to section 1 issues, that it be required
to deliver a pleading or statement of intervention
within ten days and permitted to call evidence and
to present argument in support thereof at trial.
Any questions relating to discovery or otherwise to
matters of procedure prior to trial should be deter
mined either by agreement between the parties or
on application to the Motions Judge in the Trial
Division. The appeal by Rothmans will therefore
be allowed for the limited purpose only of varying
the order as aforesaid.
As far as concerns the requested intervention by
ICA we are of the view that justice requires that
this application be granted as well. The Motions
Judge recognized that ICA has an interest in the
litigation but seemed to feel that its position and
expertise were no different from that of the plain
tiff Rothmans. With respect we disagree. The
ICA's position in this litigation extends beyond the
narrow question of advertising of tobacco products
to more general questions relating to commercial
free speech. In a section 1 assessment of the
justification and reasonableness of limits imposed
upon a Charter-guaranteed freedom that position
may contribute importantly to the weighing and
balancing process. Its appeal will therefore be
allowed and leave to intervene granted on the same
terms as those indicated above for the CCS.
In our view this is not a case for costs in either
Division.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.