paperny JA

14.58: Intervenor status on appeal
14.37: Single appeal judges

Case Summary

Several companies applied for leave to intervene in an Appeal from a Judicial Review of the Random Alcohol and Drug Testing Policy Grievance Arbitration, submitting that they would be “directly and significantly” affected by the outcome of the Appeal, and that they could provide the Court with important and unique assistance. The Applicant Intervenors were employer organizations involved in promoting work site safety in the industrial construction, mining, electrical and upstream oil and gas industries. The arbitration Decision concluded that the business interest served by random testing was insufficient to override the employee’s right to privacy. The reviewing Judge quashed the panel’s Decision and sent the matter to be reheard.

The Court noted that, under Rules 14.37(2)(e) and 14.58, an Appeal Judge is authorized to grant permission to any person to intervene in an Appeal and can impose terms and conditions on the intervention. The Court is required to consider the subject matter of the Appeal and determine whether the proposed Intervenor’s interest warrants granting intervenor status. The proposed Intervenor must demonstrate an ability to provide special expertise or a fresh perspective, which would bring some benefit to the proceedings. In this case, the Court noted that the subject of the Appeal was narrow; however, it was likely to engage larger policy issues that could be useful if they were informed by the perspective offered by the industry representatives. Further, the fact that two of the Applicants were granted intervenor status in the lower Court was an additional factor that militated in favour of the Applicants. Paperny J.A. noted that Intervenors in the lower Court were not automatically parties to the Appeal. The Court had jurisdiction to control its own process and was entitled to determine whether and to what extent an intervention was to be allowed on Appeal.

Paperny J.A. considered the leading authority and the relevant factors for determining whether to grant Intervenor status: will the Intervenor be directly affected by the Appeal; is the presence of the Intervenor necessary for the court to properly decide the matter; might the Intervenor’s interest in the proceedings not be fully protected by the parties; will the Intervenor’s submission be useful and different or bring particular expertise to the subject matter of the Appeal; will the intervention unduly delay the proceedings; will there possibly be prejudice to the parties if intervention is granted; will intervention widen the lis between the parties; and will the intervention transform the Court into a political arena. Her Ladyship observed that there was an additional factor which militated in favour of granting intervenor status: the role taken by the Intervenors in the Court below; whether the submission of the Intervenors were necessary or helpful in informing the decision being reviewed; whether the issues in the Appeal were the same as in the Court below, or whether the issues as framed on appeal could continue to impact the Applicants’ interest; and whether the particular perspective of the Applicants can continue to inform the discussion as framed on appeal.

The Court granted permission for the Applicants to intervene on the conditions that they were limited to filing one Joint Factum of 20 pages, but were not granted leave to make oral submissions, unless the panel hearing the Appeal determined otherwise.

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