DIVISIONAL COURT FILE NO.: 275/01

DATE: 20050228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

GORDON PARTRIDGE, ON BEHALF OF HIMSELF AND ALL MEMBERS OF THE CANADIAN UNION OF OPERATING ENGINEERS AND GENERAL WORKERS

Applicant

• and -

TECHNICAL STANDARDS AND SAFETY AUTHORITY

Respondent

J.A. Aucoin and P. Wong, for Professional Supply Canada Company and Ford Motor Company of Canada Limited

D.J. Wray for Applicant Union

M.J. Balogh for Respondent, Technical Standards and Safety Authority

T.D.M. Harrison, for the Attorney General of Ontario

HEARD at Toronto: February 21, 2005

O’DRISCOLL J.:

I. Nature of the Proceedings

1By way of a Notice of Motion, dated January 18, 2002, the Professional Supply Canada Company (PSCC) and the Ford Motor Company of Canada, Limited (Ford Canada) brought a motion, returnable on January 24, 2002, under rule 13.01(1) and (2) and rule 13.03(1) seeking an order that PSCC and Ford Canada be added as intervenors and parties to the application for judicial review launched by the Applicant/Union on April 20, 2001. On January 24, 2002, because of the absence of responding materials, Dunnet J. adjourned the motion to a date to be set by the Registrar. The motion came on for hearing on February 21, 2005. Counsel for the Respondent Technical Standards and Safety Authority (TSSA) and counsel for the Attorney General of Ontario (A.G. (Ont.)) appear and consent to the granting of the order sought.

II. Background and Chronology

2PSCC is a designer of furnaces classified as “Direct Gas-Fire Industrial Air Heaters”. One of those furnaces, known as “Big Foot”, is a patented air house that uses twin blowers in a direct gas-fired burner. The Big Foot is intended to heat industrial plants by circulating warm air from the roof of the building in which it is installed.

3Ford Canada entered into a performance-based contract with PSCC, known as an Energy Savings Agreement, in respect of the installation and eventual purchase of thirteen (13) Big Foot furnaces for Ford Canada’s facilities at Oakville, Ontario. This agreement requires PSCC to assist Ford Canada to apply to TSSA and seek the necessary approval for a variation.

4On November 4, 1999, applications were submitted on behalf of Ford Canada to TSSA for variance/deviation for the installation of twenty-six (26) gas-fired, re-circulating heating units, thirteen (13) of the Big Foot type, to be installed at the Ontario Truck Assembly Plant, the Oakville Assembly Plant and the Truck Assembly Paint Plant, all in Oakville, Ontario.

5In a letter, dated December 16, 1999, the TSSA allowed the variance under the authority of s. 19.(3) of the Ministry of Consumer and Commercial Relations Act, as amended by the Statute Law Amendment Act (Government Management and Services), 1994. The variance was subject to the conditions imposed.

6Commencing on September 1, 2000, Ford Canada began the installation of thirteen (13) of the “Big Foot Air Houses”. These Direct Gas-Fired Air Heaters are still in place and still in operation.

7On April 20, 2001, some sixteen (16) months after the variation was granted and some seven (7) months after the “Big Foots” were installed by Ford Canada, the Applicant Union launched an application for judicial review of TSSA’s grant of variation given on December 16, 1999. It is the Union’s position that direct gas-fired heaters, such as the Big Foot, are banned by s. 10 of the Energy Act and clause 3.2.1 of the Natural Gas Installation Code and are not permitted under any conditions/variations.

III. The requirements of rule 13.01(1) and (2) and rule 13.03(1)

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding;

(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.

13.03(1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

8PSCC undertook and completed the installation of the Big Foot furnaces. Over the term of the Energy Savings Agreement between PSCC and Ford Canada, it is anticipated that there will be an energy savings of US $40 million to US $45 million. If the variance is negated, it is estimated that it will cost PSCC Cdn $375,000 per furnace to make the Big Foot furnaces compliant – close to Cdn $5 million. It is also estimated that PSCC would suffer economic losses of US $20 million because of Ford Canada’s increased cost of operation. Moreover, if the variation is negated, PSCC would suffer the loss of future sales in Ontario of the Big Foot.

9If the variance decision is overturned and a variance is denied, Ford Canada’s Energy Savings Agreement would be nullified and the estimated yearly energy cost savings of US $4.5 million would be negated. If the Big Foot furnaces are closed down during the winter, to protect the health and safety of its employees, Ford Canada would have to shut down until another heating system had been installed. The shut down of production facilities would cause substantial losses to Ford Canada.

10In my view, it is beyond question that PSCC and Ford Canada each have an interest in the proceedings and may be adversely affected by the judgment in the judicial review application.

11It is also my conclusion that PSCC, as the designer and installer of the Big Foot, and Ford Canada, on whose premises the Big Foot furnaces have been installed for more than 4.5 years, each has an independent, unique perspective about the design, efficiency and health issues (if any) about the day to day operation of the Big Foot furnace. The Court will have the benefit of both the theoretical and the practical aspects of the Big Foot furnace if these Applicants are added as Respondents.

12At the moment, the situation is bizarre – the two corporations most at risk in the judicial review application are sitting on the sidelines watching others litigate their fate.

13In my view, adding PSCC and Ford Canada would not cause prejudice or undue delay to the present parties in the judicial review application.

14Rule 5.03(1) states:

Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.

15In my view, in this case, unless the order sought under rule 13.01 is made, the mandatory requirements of rule 5.03(1) would not be fulfilled.

IV. Result

16An order to go that PSCC and Ford Canada be added as Respondents in the judicial review application 275/01. As party respondents, each to have all the rights, privileges, duties and obligations of any respondent in a judicial review application.

17During the course of argument, I asked counsel for the Applicant Union and counsel for PSCC and Ford Canada if either could help me with a query: “does the Applicant Union have status to bring this judicial review application?” No definitive answer was given. However, my “job description” on this motion does not encompass answering the question posed so the query remains in limbo.

V. Costs

18When judgment was reserved at the close of argument, counsel for the Applicant Union and counsel for PSCC and Ford Canada agreed that if, upon the release of reasons for judgment, they could not agree on costs, each would file brief written submissions before costs were fixed.

19Counsel for TSSA and counsel A.G. (Ont.) do not ask for costs nor will they pay any costs.

O’Driscoll J.