DATE: 20030612
DOCKET: C39156
COURT OF APPEAL FOR ONTARIO
INCREDIBLE ELECTRONICS INC. , 1313242 ONTARIO INC., INTERSTAR COMMUNICATION LIMITED, SAMARTECH GROUP INC., TEDSAT CORP., 3152391 CANADA INC. carrying on business as NEW ADVANCE TECHNOLOGIES, ABNER MARTINEX carrying on business as TV INTERNATIONAL, THEODORE GORITSAS carrying on business as ANTENNA SATELITE, MARIA RESTREPO carrying on business as CARMENZA GIFT & VIDEO CENTER, ALFREDO JULIO PANART carrying on business as IMAGEN LATINA, NIKOLAI POLISHUK carrying on business as WISH SYSTEM, MUSTAFA GULER carrying on business as MG ELECTRONICS, JOHN COUCHMAN, HEADLY GROUP INC., operating as CYBERTECNIC, THE SATELLITE COMMUNICATION ASSOCIATION OF CANADA, HUSEYIN PERK carrying on business as TURKVIEW SATELITE, 90824392 QUEBEC INC., operating as AL RAI, SATELITE DEPOT CORPORATION
(Applicants (Respondents))
- and -
ATTORNEY GENERAL OF CANADA
(Respondent (Respondent)
- and -
BELL EXPRESSVU LIMITED PARTNERSHIP, ASTRAL MEDIA INC., and ALLIANCE ATLANTIS COMMUNICATIONS INC.
(Intervenors (Respondents)
- and –
CONGRÈS IBÉROAMÉRICAIN DU CANADA INC.
(Appellant)
BEFORE: O’CONNOR, ROSENBERG and SIMMONS JJ.A.
COUNSEL: Alan Riddell for the appellant
Congrès Ibéroaméricain Du Canada Inc.
Charles Wagman for the Applicants (respondents)
Kent E. Thomson for the intervenors (respondents)
M. Sean Gaudet for the respondent
Attorney General of Canada
HEARD: May 20, 2003
On appeal from the order of Justice David G. Stinson dated October 25, 2002, denying the Moving Party leave to intervene.
E N D O R S E M E N T
[1] At the conclusion of argument, we indicated to counsel that this appeal must be dismissed and that brief reasons would be provided. The appeal is from the order of Stinson J. dismissing a motion by the Congrés Ibéroamérican du Canada Inc. for leave to intervene in an application for a declaration that certain provisions of the Radiocommunication Act, R.S.C. 1985, c. R-2 violate s. 2(b) of the Canadian Charter of Rights and Freedoms and are therefore of no force and effect. Stinson J. has been case managing this complex litigation for some time. He delivered comprehensive reasons dealing with each of the points raised by the appellant and we see no basis for interfering with his conclusion.
[2] The appellant submits that the motion judge made several errors in his appreciation of the evidence. We are satisfied that none of the so-called errors are of any significance. For example, the appellant alleged that the motion judge must have ignored certain affidavits filed by Mr. Fitzgerald because he only referred to one of those affidavits. However, when the reasons are read as a whole it is clear that the motion judge not only was aware of the other affidavits but took them into account.
[3] Our principal concern on the appeal was whether the motion judge had properly held that the Congrés had no important perspective distinct from the immediate parties. The motion was argued on the basis that the Congrés could provide additional material, not placed before the court by the parties, concerning the impact of the legislation on consumers of satellite television. The motion judge found that, “it is apparent that, at least from an evidentiary perspective, the applicants have attempted to articulate the concerns of members of a variety of linguistic and ethnic minorities. There is no reason to doubt that the applicants will not continue to advocate on behalf of the interests of these various consumers.” This finding is supported by the record.
[4] However, in oral argument the appellant attempted to avoid the impact of this factual finding by arguing that it would provide evidence of the link between minority language satellite television programming and the preservation and promotion of Spanish language, culture, heritage and identity. This was not put before the motion judge nor referred to in the appellant’s factum in this court. There is little evidentiary basis for this new argument. While the appellant says that it will produce five affidavits to support this argument, those affidavits were not presented to the motion judge nor in this court. We cannot give effect to this argument.
[5] With respect to the other bases for intervention, we agree with the motion judge. The evidence supports the motion judge’s finding that the Congrés does not have a real, substantial and identifiable interest in the subject matter of the application. The motion judge’s extensive review of the record bears out that determination.
[6] We are also satisfied that it was open to the motion judge to find that the Congrés is not a well recognized group with a special expertise and a broad identifiable membership base. The Congrés is a new organization formed expressly for this litigation and does not have any members. The affidavit of Mr. Fitzgerald does not demonstrate a special expertise. At most, it shows that he has a particular interest in this litigation.
[7] The motion judge found that the proposed intervention would unduly delay and quite possibly prejudice the determination of the rights of the parties. As the case management judge he was ideally situated to make that finding. The submissions from counsel on the appeal support that determination. There is also no satisfactory explanation for the delay in bringing the motion. We do not agree with the appellant that the proposed intervention could be accommodated within the existing timetable. We also agree with the respondents that the proposed intervention would result in a significant expansion of the proceeding.
[8] To conclude, we adopt the statement by the motion judge that “it is unlikely that the [Congrés] can make a useful contribution to the resolution of the application, without causing injustice to the immediate parties”.
[9] Accordingly, the appeal is dismissed without costs.
Signed: “D O’Connor ACJO”
“M. Rosenberg J.A.”
“Janet Simmons J.A.”