Leave to Intervene – FCA Rule 109 and 110 – Approved and Denied
In this decision, the Federal Court of Appeal (“FCA”) considered two motions for leave to intervene in the FCA proceedings considering sixteen consolidated judicial review applications arising from the NEB Report, dated May 9, 2016 and Order in Council PC 2016-1069, dated November 29, 2016, approving the proposed Trans Mountain Expansion Project (the “Trans Mountain Expansion Project Approvals”).
The Attorney General of Alberta (the “Alberta AG”) and the Tsartlip First Nation (the “Tsartlip”) each made such motions to the FCA requesting leave to participate as interveners. The FCA granted the Alberta AG leave to participate as an intervener, but denied the Tsartlip’s motion.
The Trans Mountain Expansion Project
The FCA explained that the proposed Trans Mountain Expansion Project (the “Project”) would add new pipeline, in part through new rights of way, thereby expanding the capacity of the existing 1,150-kilometre pipeline running from Edmonton, Alberta to Burnaby, British Columbia, from 300,000 to 890,000 barrels of oil per day.
Alberta AG Motion
The Alberta AG made its motion for leave to intervene under Rule 110 of the Federal Courts Rules, SOR/98-106 (the “Rule(s)”), which provides:
Where a question of general importance is raised in a proceeding, other than a question referred to in section 57 of the Act,
(a) any party may serve notice of the question on the Attorney General of Canada and any attorney general of a province who may be interested;
(b) the Court may direct the Administrator to bring the proceeding to the attention of the Attorney General of Canada and any attorney general of a province who may be interested; and
(c) the Attorney General of Canada and the attorney general of a province may apply for leave to intervene. [Emphasis added.]
The FCA held that Rule 110 of the Rules contemplates a special role for attorneys general and provides them a broader right to apply to intervene in order to advance the public interest under Rule 110(c), even if such an attorney-general does not satisfy the prerequisites in Rules 109, 110(a) and 110(b) of the Rules.
The FCA explained that Rule 110 of the Rules require that there be “a question of general importance raised in the proceeding.” That requirement can be met where:
(a) There is a question that affects the interests of the government or the population in the relevant jurisdiction in a general way; or
(b) Where serious questions are raised in proceedings that themselves are of general importance.
The FCA found that the Alberta AG intended to make arguments to encourage the Court to adopt clear, consistent and predictable rules and processes to facilitate the consideration of resource development projects in Alberta in a manner that respects section 35 of the Constitution Act, 1982.
The FCA further found that the legal issues raised in the appeal are of general importance. Such issues identified by the FCA included:
(a) Issues concerning the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52;
(b) Issues concerning the Species at Risk Act, SC 2002, c 29; and
(c) Issues relating to the rights and interests of Indigenous peoples.
The FCA found that taken together, the Alberta AG had shown a strong nexus between the issues raised in the appeal and the interests of the Government of Alberta and the population it serves.
The FCA held that the Alberta AG “easily” met the test for leave to participate in the appeal as an intervener under Rule 110 of the Rules.
Tsartlip Motion
The FCA, citing its decision in Rothmans, Benson & Hedges Inc. v Canada (Attorney General), [1990] 1 F.C. 84 (T.D.), affirmed [1990] 1 F.C. 90, 103 N.R. 391 (C.A.), explained that with respect to an intervention motion brought under Rule 109 of the Rules, the FCA will consider the following factors:
(a) Is the proposed intervenor directly affected by the outcome?
(b) Does there exist a justiciable issue and a veritable public interest?
(c) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
(d) Is the position of the proposed intervenor adequately defended by one of the parties to the case?
(e) Are the interests of justice better served by the intervention of the proposed third party?
(f) Can the Court hear and decide the cause on its merits without the proposed intervenor?
The FCA held that the Tsartlip’s motion was an improper attempt to obtain full party status in the application for judicial review, without having filed its own judicial review application.
The FCA found that, in substance, the Tsartlip had not brought a motion for leave to intervene. Rather, in the FCA’s opinion, the Tsartlip had brought “an application for judicial review in the guise of a motion to intervene.”
The FCA found that the Tsartlip intended to argue that the NEB Decision was unreasonable in the administrative law sense.
Specifically, in its notice of motion, the Tsartlip stated that they intended to raise the issue as to:
“whether the environmental assessment done by the under the [sic] Canadian Environmental Assessment Act, 2012…and section 52(3) of the National Energy Board Act…was lawful” as well as “the issue of the assessment of significant environmental impacts under [the Canadian Environmental Assessment Act, 2012].”
The FCA found that, in effect, the Tsartlip intended to argue that the decision must be quashed because it unreasonably affected the Tsartlip’s own rights and interests. The FCA held that Rule 109 of the Rules cannot be used, intentionally or unintentionally, as an end-run around the potential liability for costs that judicial review applicants face.
The FCA explained that successful moving parties for intervention often propose to rely on the existing evidentiary record, but propose to do something different than the existing parties. Examples noted by the FCA included interveners that:
(a) propose to invoke a body of jurisprudence that existing parties have not invoked;
(b) ask the Court to interpret certain jurisprudence differently; or
(c) acquaint the Court with the larger implications associated with its ruling.
The FCA found that the Tsartlip were not proposing to make submissions that differed from the Tsleil-Waututh Nation, who was one of the judicial review applicants. The FCA noted that the Tsartlip did not call into question the capability or willingness of the Tsleil-Waututh Nation to advance all of the evidence in the record relevant to the assessment of the effect of the Project on the Southern Resident Killer Whale, including the evidence offered by the Tsartlip concerning the importance of this species to them.
The FCA found that the Tsartlip failed to meet the test for leave to intervene under Rule 109 of the Rules and therefore dismissed the Tsartlip’s motion.
The FCA noted that, although intervention was not open to them, the Tsartlip could still participate in other valuable, less expensive ways, such as offering the services of their counsel to assist the Tsleil-Waututh Nation and other applicants with aligned interests.
