Reference re Workers' Compensation Act, 1983 (Nfld.) (Application to intervene), [1989] 2 S.C.R. 335

IN THE MATTER s. 13 of Part I of The Judicature Act, 1986, c. 42, S.N. 1986;

IN THE MATTER OF ss. 32 and 34 of The Workers' Compensation Act, 1983, c. 48, S.N. 1983;

AND IN THE MATTER OF a Reference of the Lieutenant-Governor in Council to the Court of Appeal for its hearing, consideration and opinion on the constitutional validity of ss. 32 and 34 of The Workers' Compensation Act, 1983.

Indexed as: Reference re Workers' Compensation Act, 1983 (Nfld.) (Application to intervene)

File No.: 20697.

1988: December 7; 1989: February 13.

Present: Sopinka J.

motion for leave to intervene

Practice -- Application to intervene -- Applicant contesting constitutionality of similar provisions in another province -- Attorney General of that province intervening as of right -- Factors to be considered in according individual right to intervene -- Supreme Court Act, R.S.C. 1970, c. S-19, s. 55(4) -- Rules of the Supreme Court of Canada, SOR/83-74, s. 18(3)(a), (c) -- Canadian Charter of Rights and Freedoms, s. 15 -- Constitution Act, 1982, s. 52(2) -- Workers' Compensation Act, 1983, S.N. 1983, c. 48, ss. 32, 34 -- Workers Compensation Act, R.S.B.C. 1979, c. 437, ss. 10, 11.

The Attorney General of Newfoundland presented a reference to the Newfoundland Court of Appeal on the issue of the constitutionality of ss. 32 and 34 of The Workers' Compensation Act, 1983 which provided that the right of compensation for injuries arising in the course of a worker's employment was limited to that specifically provided for by the Act. An injured worker, who brought a challenge of similar provisions in British Columbia, applied to intervene pursuant to Rule 18 of the Rules of the Supreme Court of Canada. At issue is whether this application satisfied the requirements of Rule 18(3)(a) and (c) that the intervener have an interest and that the intervener's submissions be useful and different from those of the other parties.

Held: The motion for leave to intervene should be allowed.

Involvement in a similar case may satisfy the criterion that there be an interest in the litigation. "Any interest" extends to an interest in the outcome of an appeal when the determination of a legal issue in that appeal will be binding on other pending litigation to which the applicant is a party. Some courts, however, have declined to exercise their discretion to grant this status on the basis of similar interest alone. Here, the aura of unfairness about a party in litigation, which involved similar issues, facing an opponent who has the right to intervene in this appeal should be remedied by granting the motion to intervene absent other criteria dictating a contrary conclusion.

That other counsel would argue the constitutional issues was not a disqualifying factor. An applicant who has a history of involvement in the issue may have an expertise which can shed fresh light or provide new information on the matter.

Cases Cited

Referred to: Piercey v. General Bakeries Ltd. (1986), 31 D.L.R. (4th) 373; Norcan Ltd. v. Lebrock, [1969] S.C.R. 665; Solosky v. The Queen, [1978] 1 F.C. 609; Re Schofield and Minister of Consumer and Commercial Relations (1980), 28 O.R. (2d) 764; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 15.

Constitution Act, 1982, s. 52(2).

Rules of the Supreme Court of Canada, SOR/83-74, s. 18(a), (c).

Supreme Court Act, R.S.C. 1970, c. S-19, s. 55(4).

Workers Compensation Act, R.S.B.C. 1979, c. 437, ss. 10, 11.

Workers' Compensation Act, 1983, S.N. 1983, c. 48, ss. 32, 34.

Authors Cited

Crane, Brian. Practice and Advocacy in the Supreme Court. Vancouver: Continuing Legal Education Society of British Columbia, 1983.

MOTION for leave to intervene in an appeal from an opinion pronounced by the Newfoundland Court of Appeal[^1] (1988), 67 Nfld. & P.E.I.R. 16, 44 D.L.R. 501, on a reference to determine the constitutional validity of ss. 32 and 34 of The Workers' Compensation Act, 1983. Motion granted.

D. Geoffrey Cowper, for the applicant.

W. G. Burke-Robertson, Q.C., for the respondent.

The following are the reasons for the Order delivered by

Sopinka J. -- This application to intervene arises in an appeal from a reference which was directed to the Newfoundland Court of Appeal by the Newfoundland Lieutenant-Governor in Council (Reference re Validity of Sections 32 and 34 of the Workers' Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.)) The reference has its roots in the case of Piercey v. General Bakeries Ltd. (1986), 31 D.L.R. (4th) 373 (Nfld. S.C.T.D.) Samuel Piercey was an employee of General Bakeries Ltd. allegedly in the course of his employment, when he was electrocuted. It was alleged by his wife, Mrs. Shirley Piercey, that her husband's death was due to the negligence of his employer, General Bakeries Ltd.

In the Trial Division of the Newfoundland Supreme Court, Mrs. Piercey argued that the employer could not rely upon ss. 32 and 34 of The Workers' Compensation Act, 1983, S.N. 1983, c. 48, which provide that the right to compensation for injuries arising in the course of a worker's employment is limited to that specifically provided for by the Act. Mrs. Piercey claimed that ss. 32 and 34 of The Workers' Compensation Act, 1983 were of no force and effect under s. 52(2) of the Constitution Act, 1982 as they violated s. 15 of the Canadian Charter of Rights and Freedoms.

The trial judge, Hickman C.J., agreed that the provisions unjustifiably denied the right of access to the courts which was held to be an element of s. 15 equality rights. However, Hickman C.J. also held that Mrs. Piercey was unable to rely upon the Charter as her husband's death occurred on July 22, 1984, prior to April 17, 1985 when s. 15 came into force. It was held that s. 15 could not apply retrospectively.

As the opinion of Hickman C.J. on the constitutionality of ss. 32 and 34 of The Workers' Compensation Act, 1983 was obiter dictum, there was no ground upon which the Crown could appeal. Mrs. Piercey did not appeal. As a result, a Reference on this issue was directed to the Newfoundland Court of Appeal.

In the Court of Appeal, the Attorney General of Newfoundland presented the Reference. Acting as interveners by original order or by subsequent leave were: the Workers' Compensation Commission of Newfoundland and Labrador; la Commission de la santé et de la sécurité au travail du Quebec; the Attorney General of Nova Scotia; the Workers' Compensation Board of New Brunswick; the Workers' Compensation Board of Manitoba; the Attorney General of British Columbia; the Workers' Compensation Board of British Columbia; the Workers' Compensation Board of Prince Edward Island; the Workers' Compensation Board of Alberta; the Workers' Compensation Board of Yukon; the Canadian Manufacturers Association; the Canadian Labour Congress; the Newfoundland and Labrador Federation of Labour; Canadian National Railways; Marine Atlantic Limited; General Bakeries Limited, and Shirley Piercey. All but Mrs. Piercey supported the legislation. The Court of Appeal held that ss. 32 and 34 of The Workers' Compensation Act, 1983 were not inconsistent with s. 15(1) of the Charter. In addition, Goodridge C.J.N. held that s. 15 does not apply to causes of action arising before April 17, 1985.

This application by Mr. Cowper is on behalf of Suzanne Côté to intervene in this case pursuant to Rule 18 of the Rules of the Supreme Court of Canada, SOR/83-74. The applicant is an injured person who has brought a challenge of similar British Columbia provisions (ss. 10 and 11 of the Workers Compensation Act, R.S.B.C. 1979, c. 437) based on the unconstitutionality of a statutory bar to private compensation. The action of Mrs. Côté has been stayed by an order of the British Columbia Supreme Court pending the outcome of this appeal. Mr. Cowper has been retained by several other plaintiffs who are in circumstances similar to Suzanne Côté and who wish to have him present argument in this appeal.

Our Rule 18 gives this Court a wide discretion in deciding whether or not to allow a person to intervene as well as the discretion to determine the terms and conditions of the intervention. As well, s. 55(4) of the Supreme Court Act, R.S.C. 1970, c. S-19, provides for submissions from persons interested in a reference.

The criteria for the exercise of this discretion were the subject of considerable argument on this motion. Counsel were understandably handicapped because these criteria have, perhaps purposely, not been commented on by this Court in recent cases. Threshold requirements are set out in Rule 18(3)(a) and (c). These criteria can be summarized as follows: (1) an interest and (2) submissions which will be useful and different from those of the other parties.

The application was resisted principally on the basis that having a similar case does not satisfy the interest requirement. It was also argued that the applicant has not demonstrated that his argument will differ from that of Mrs. Piercey's counsel.

(1) Interest

One of the few authorities in this Court on the exercise of the Court's discretion is Norcan Ltd. v. Lebrock, [1969] S.C.R. 665, in which Pigeon J. held that any interest is sufficient, subject always to the exercise of discretion. From the cases cited by Justice Pigeon, it is apparent that having a similar case can satisfy this requirement. The discretion, however, will not ordinarily be exercised in favour of an applicant just because the applicant has a similar case. Indeed it has been held in some courts that this is not a sufficient interest. See Solosky v. The Queen, [1978] 1 F.C. 609, and Re Schofield and Minister of Consumer and Commercial Relations (1980), 28 O.R. (2d) 764 (C.A.)

I agree with Pigeon J. that "any interest" extends to an interest in the outcome of an appeal when a legal issue to be determined therein will be binding on other pending litigation to which the applicant is a party. Although this is usually a tenuous basis upon which to base an application for intervention, in this appeal Mr. Cowper's client is in the unenviable position of facing an opponent in the British Columbia litigation, the Attorney General of British Columbia, who has the right to intervene in this appeal. There is an aura of unfairness about this which should be remedied by granting this application unless the other criteria dictate the contrary conclusion. This unfairness is exacerbated by the imbalance of representation in favour of those supporting the constitutionality of the legislation which would occur if the applicant were denied the right to intervene.

(2) Useful and Different Submissions

This criteria is easily satisfied by an applicant who has a history of involvement in the issue giving the applicant an expertise which can shed fresh light or provide new information on the matter. As stated by Brian Crane in Practice and Advocacy in the Supreme Court, (British Columbia Continuing Legal Education Seminar, 1983), at p. 1.1.05: "an intervention is welcomed if the intervener will provide the Court with fresh information or a fresh perspective on an important constitutional or public issue". It is more difficult for a private litigant to demonstrate that his or her argument will be different. This submission is usually met by the response that the able and experienced counsel already in the case will cover all bases.

In my opinion this is not a disqualifying factor here. The only party advancing the position taken by the applicant will be Mrs. Piercey. Her interest in the outcome is somewhat tenuous given the conclusion at trial that s. 15 could not be invoked to retroactively apply to a cause of action arising prior to April 17, 1985. Unlike Mrs. Piercey, the applicant has a definite stake in the outcome. In my view, the applicant can add to the effective adjudication of the issue by ensuring that all the issues are presented in a full adversarial context. This need for an adversarial relationship was one of the factors considered by this Court when granting applicant intervener status in Norcan, supra, and in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.

In the circumstances of this case, therefore, I grant leave to the applicant and others in similar circumstances represented by Mr. Cowper to intervene in this appeal. Pursuant to Rule 18, the applicant may file a factum and present oral argument to be limited to not more than fifteen minutes. There will be no costs of the application.

Motion granted.

Solicitors for the applicant: Russell & DuMoulin, Vancouver.

Solicitor for the respondent: The Attorney General of Newfoundland, St. John's.

[^1]: An appeal from the judgment of the Newfoundland Court of Appeal was dismissed: see [1989] 1 S.R.C. 922.