DATE: 20010709 DOCKET: M27437 (C35254)

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O. (In Chambers)

B E T W E E N :

JOSEPH PATRICK AUTHORSON, by his

John Spencer and Dale Yurka

Litigation Guardian, LENORE MAJOROS

for the appellant

(Respondents)

and

THE ATTORNEY GENERAL OF CANADA

David Greenaway and

Peter Sengbrush

(Appellant)

for the respondents

Michael Koch, Clare Roughneen

and Brian Forbes

for the moving party,

The National Council of Veteran

Associations in Canada

Heard: June 27, 2001

[1] The applicant for intervenor status in this appeal, The National Council of Veteran Associations in Canada (“NCVA”) is an umbrella organization comprised of 37 associations, which represent collectively the interests of more than 200,000 military veterans across Canada. The NCVA has brought this motion under Rule 13.03(2) seeking leave to intervene in this appeal as a friend of the court.

[2] The appeal is from the judgment of Brockenshire J. granting summary judgment to a class of disabled veterans, their dependants and descendants who claimed that the Crown owed a fiduciary duty to pay them interest on surplus statutory benefits being retained and administered by Veterans Affairs Canada (formerly the Department of Veterans Affairs).

[3] The moving party has for many years played a significant role in the development of legislation that affects veterans. It is beyond dispute that the NCVA has acted as an effective advocate and lobbying voice for Canada’s veterans on Parliament Hill. It submits that because of its long-term involvement with veterans’ issues, it can put into perspective the history and nature of the relationship between veterans and the government, as well as the nature of the statutory scheme that governs that relationship, and thereby assist in understanding the issues on this appeal.

[4] The respondents oppose the motion, and submit that the NCVA does not have a useful contribution to make to the legal issues on the appeal, in that it would only support and repeat the issues that the Attorney General has raised. The respondents submit that the issues in which the NCVA proposes to intervene involve the interpretation of federal legislation and issues that are in the nature of private law, not matters of general public policy.

[5] The appellant takes no position in respect of the motion.

[6] I am guided in the exercise of my discretion on this motion by the reasons of Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.) (“Peel”) who stated the test to be applied on motions such as this, as follows, at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[7] In Peel, Chief Justice Dubin noted that in constitutional cases, including cases decided under the Canadian Charter of Rights and Freedoms, there has been a relaxation of the rules heretofore governing the disposition of motions for leave to intervene. This approach ensures that the court will have the benefit of various perspectives of the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation.

[8] In contrast, Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. (See for example, Peixeiro v. Haberman (1994), 1994 CanLII 7322 (ON SC), 20 O.R. (3d) 666 at 670 (Gen. Div.)). Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to restrict submissions.

[9] Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.

[10] The NCVA submits that this appeal “rises above” a purely private dispute because it involves the relationship between the Crown and veterans and their dependants. In this appeal, however, the NCVA does not seek to intervene in the issues relating to the impact of the Charter and the Bill of Rights on the federal legislative scheme.

[11] While the case involves a claim against funds that the Crown administers, under statute, and in the context of an action under the Class Proceedings Act, 1992, it retains significant elements of private litigation.

[12] The main issues on this appeal are matters of statutory interpretation, including the application of the Charter and the Bill of Rights, and issues of trusts and fiduciary law. The plaintiffs claim that the Crown, during the time the government administered the pensions, did not invest the funds and did not pay interest but at all times owed the plaintiffs a fiduciary duty to do both. The Crown argues that it owes no fiduciary duty to these plaintiffs and that the plaintiffs had no right in law to claim for such interest or to demand that the funds be invested for their benefit.

[13] The position of the NCVA is that an extension of the Crown’s obligation, to the descendants of veterans, goes beyond the group that was contemplated by the relevant legislation and such an obligation contravenes public policy. The practical result of the judgment would be the diversion of public funds and government resources to persons who were not intended to benefit under the statutory benefits scheme established by Parliament.

[14] The issues on which the NCVA seeks leave to intervene as stated above are not, strictly speaking, constitutional issues and do not require the sort of public-policy analysis that is called for in cases of a constitutional nature. Moreover, the NCVA has not demonstrated that it can bring any particular legal expertise to these issues.

[15] Accordingly, the second component of the Peel test does not favour NCVA’s motion.

[16] The NCVA argues that it can bring to this appeal its special knowledge and unique perspective concerning the application of the statutory scheme of pensions and other benefits to veterans. The organization and its member associations have, for example, represented the interests of veterans before parliamentary committees and in the legislative process for approximately eighty years. The NCVA has developed extensive public-policy knowledge and practical experience with respect to the administration of programs and benefits that Veterans Affairs Canada administers.

[17] However, the moving party’s assertion in relation to this appeal that the effect of the judgment on appeal would be the diversion of public funds and resources from other worthy initiatives being advanced by the NCVA on behalf of veterans, is entirely speculative.

[18] While I recognize the valuable contributions that the NCVA has made and, continues to make in the political and legislative process, in speaking for the interests of veterans and their dependants, I am not persuaded that the NCVA has any special contribution to make in relation to the interpretation of the legislation and the scope of any fiduciary duty on the federal government in the circumstances of this action.

[19] Having considered the submissions on behalf of the proposed intervenor, I am satisfied that the public interest and that of the veterans will be fully and adequately represented by counsel for the Attorney General of Canada.

[20] I therefore conclude that the National Council of Veteran Associations should not be granted leave to intervene as a friend of the court on this appeal.

[21] Given the nature of the moving party and its member associations as non-profit and mostly voluntary groups who work tirelessly for the benefit of those who have served their country, I do not think this is an appropriate case for an award of costs.

Released: July 9, 2001 “McMurtry C.J.O.” “RRM”