COURT FILE AND PARTIES

COURT FILE NO.: CV-11-00436848-00

DATE: 20131209

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN UNION OF POSTAL WORKERS/SYNDICAT DES TRAVAILLEURS ET TRAVAILEUSES DES POSTES, DENIS LEMELIN, RONALD HANNON and JEREMY LECLAIR, Applicants/Responding Parties

AND:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA, Respondent/Responding Party

AND:

CANADA POST CORPORATION, Intervenor/Responding Party

AND:

FEDERALLY REGULATED EMPLOYERS – TRANSPORTATION AND COMMUNICATIONS (FETCO), Proposed Intervenor/Moving Party

BEFORE: D.L. Corbett J.

COUNSEL:
Richard J. Charney and Brian Gottheil, for the Moving Party, FETCO

Fay Faraday, for the Responding Parties CUPW et al.

Kathryn Hucal, for the Responding Party A.G. Canada

Christopher Piggott, for the Responding Party Canada Post

HEARD: October 30, 2013

ENDORSEMENT

[1] In the spring of 2011, the Parliament of Canada enacted legislation compelling striking postal workers back to work. The legislation imposed some contract terms and others were referred to binding arbitration.

[2] In this application, CUPW challenges the constitutionality of the back-to-work legislation, known as the Restoring Mail Delivery for Canadians Act.[1] CUPW alleges that the Act infringes the rights and freedoms of CUPW members including freedom of association, freedom of expression and the right to equality (Charter, ss. 2(d), 2(a) and 15 respectively).

Request to Intervene

[3] FETCO seeks leave to intervene in this application to adduce evidence, cross-examine all witnesses, submit a factum of up to thirty pages, present oral argument, and related relief. FETCO would not duplicate the legal submissions of other participants, and would not repeat questions asked already on the cross-examinations.

[4] The A.G. Canada and Canada Post support FETCO’s request. CUPW opposes.

Disposition

[5] For the reasons that follow, I conclude that FETCO’s proposed intervention would not be a “useful contribution to the resolution” of this case and could disrupt the proceedings. The motion is dismissed, with costs from FETCO to CUPW.

General Principles

[6] Rule 13.02 provides that any person may, with leave, intervene in a proceeding as a friend of the court for the purpose of rendering assistance by way of argument.[2] The gravamen of the test for leave to intervene was stated by Dubin C.J.O. nearly 25 years ago:

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 [case] without causing injustice to the immediate parties.[3]

[7] FETCO argues that the intervention rules are “relaxed” in constitutional cases, which is true.[4] However this “relaxation” must be understood in context. Intervention is extremely rare in private law or criminal cases. Most of the precedents concern public law cases and most of those are constitutional cases. So it would be fair to say that leave requirements are relaxed from “almost never” in private law cases to “sometimes” in public law cases. And the principle stated by Dubin C.J.O. has full force in constitutional cases.

[8] In cases where leave to intervene is granted, the intervenor is generally limited to brief oral and written argument and has to take the record as it finds it. It is for the parties to develop the factual record. Here, FETCO seeks leave here to participate on virtually the same basis as the parties and Canada Post. An intervention of this kind is rare, even in constitutional cases. Canada Post has been given full rights of participation, but that is because it has a real identifiable interest in the subject matter of the proceedings: the impugned legislation was directed against it, not just against CUPW.

[9] It is in this context that we must read the Ontario Court of Appeal’s decision in Bedford v. A.G. Canada.[5] In Bedford, the court stated that a proposed intervenor should meet at least one of the following criteria:

(1) the intervenor has a real, substantial and identifiable interest in the subject matter of the proceedings;

(2) it has an important perspective distinct from the immediate parties; or

(3) it is a well-recognized group with a special expertise and a broadly identifiable membership base.[6]

Satisfying this test is necessary, but not sufficient: “most importantly, the over-arching principle is that laid down by Dubin C.J.O.” as quoted above.[7]

[10] Doubtless FETCO fits within category (3) of the Bedford typology: a “well-recognized group with a special expertise and a broadly identifiable membership base”. The question is whether FETCO’s proposed intervention in this case satisfies the “over-arching principle” stated by Dubin C.J.O. in Peel v. Great Atlantic & Pacific and reconfirmed by the Court of Appeal in 2009 in Bedford.

[11] CUPW opposes FETCO’s motion on the following bases:

(a) FETCO has delayed inordinately in bringing this motion and granting this motion now would prejudice the orderly conduct of these proceedings;

(b) FETCO’s position is indistinguishable from that of Canada Post and is not a “unique perspective” on the issues in this case;

(c) FETCO’s proposed intervention would prejudice CUPW by expanding the issues and the record substantially;

(d) the substance of FETCO’s proposed evidence is so superficial and argumentative as to (a) require an enormous response to rebut it; and (b) not be a “useful contribution to the resolution” of this application.

(a) Delay

[12] The application was commenced on October 11, 2011 with the A.G. Canada as respondent. About three weeks later, Canada Post advised that it would seek leave to intervene as a party.

[13] Canada Post is a member of FETCO.

[14] On January 26, 2013, counsel advised that FETCO might seek leave to intervene and requested copies of application materials as they became available.

[15] CUPW served its application materials on about March 19, 2012.

[16] A.G. Canada delivered its materials around January 15, 2013.

[17] On consent, Canada Post was granted leave to intervene on December 11, 2012. It delivered its application materials on March 19, 2013.

[18] FETCO advised that it would seek leave to intervene by letter dated April 24, 2013.

[19] CUPW has not yet delivered reply materials. These materials are nearly complete and should be served soon. Counsel advise that cross-examinations will require 1-2 weeks and will likely take place in the first quarter of 2014. After that, the parties will have to deliver factums. The parties currently estimate that the application will require 3-5 days to argue in court.

[20] Counsel advise that the Supreme Court of Canada has recently granted leave to appeal in a Saskatchewan case involving related legal issues. The parties agree that it would be prudent to defer argument of this application until the Supreme Court of Canada releases its decision in the Saskatchewan case. It was suggested that the Supreme Court could expedite that case to February 2014, when related issues will be considered in other appeals scheduled already. This would be a swift timeline from the date leave to appeal was granted to the date of hearing. If this happens, a decision could be handed down before the Supreme Court breaks for its summer recess in 2014. This seems optimistic; it places the earliest reasonable date for a decision in the Saskatchewan case in mid-2014.

[21] Hearing dates have yet to be scheduled in this application. A one-week application, scheduled today in the ordinary course would likely be heard sometime in the fall of 2014 or in early 2015.

[22] This is an important case. But, as this history suggests, it is not urgent; there is no basis on which it should “jump the queue” to obtain priority over other cases that are ready to be heard. I expect that it will be heard, at the earliest, in late 2014 or early 2015.

[23] I do not accept that FETCO has delayed inappropriately in bringing this motion. It was appropriate for FETCO to review the application materials before seeking leave to intervene. Its letter of April 24, 2013 was slightly more than a month after it received Canada Post’s materials. That delay is not material given the overall pace of the litigation.

[24] Granting FETCO leave to intervene now would not prolong this application unduly. It would be possible to devise a reasonable schedule for delivery of FETCO’s materials, responding materials from CUPW (and the other participants), cross-examinations and delivery of factums, in order for this case to be argued in late 2014 or early 2015.

(b) FETCO’s Position Indistinguishable from Canada Post’s Position

[25] FETCO, as a trade association, has, in general, a broader perspective than that of one of its members. But that is not the issue. The question here is whether there is any difference in perspective on the issues before the court in this case. Bedford, a case on which FETCO places heavy reliance, illustrates this point.

[26] In Bedford, the applicants challenged Canada’s prostitution and bawdy house laws. Canada defended on the basis that the impugned laws were within Parliament’s authority, did not discriminate, and were in any event saved by s.1 of the Charter. A group of religiously-based entities sought to intervene to support Canada’s position on the grounds that the impugned laws were congruent with fundamental moral values. Canada acknowledged that it would not advance the arguments advocated by the proposed intervenors.

[27] The proposed intervenors were not granted intervenor status because their general outlook or expertise was different from that of the Attorney General of Canada. Rather, the religiously-based groups wished to make legal arguments that would not be made (and were not supported) by any of the other parties to the case.

[28] How does FETCO’s perspective on the issues in this application differ from that of Canada Post? I asked counsel this question. The answer: Canada Post will advance arguments that will not be advanced by FETCO. That answer was not responsive. So I asked (a) how Canada Post and FETCO differed on arguments that they will both pursue; and (b) whether FETCO will advance any arguments not pursued by Canada Post. I was not told of any differences between FETCO’s and Canada Post’s positions on arguments they will both advance. I was told that FETCO intends to advance arguments based on the history of the use of back-to-work legislation in Canada and its impact on businesses in the transportation and communications sectors, topics addressed in FETCO’s proposed evidence and not included in the evidence of the parties. These are not different arguments; this is additional evidence relied on in support of existing arguments.

[29] This stands in contrast to C.N. Railways v. Seeley, where FETCO was granted leave to intervene even though one of the parties, C.N. Railway, was a member of FETCO. In C.N. Railway, as is clear from the Prothonotary’s endorsement, FETCO would not “descend into the fray” and would focus on “international jurisprudence” which had not been raised by the parties.[8]

(c) Inappropriate Expansion of the Issues and the Record

[30] This case concerns the constitutionality of the Restoring Mail Delivery to Canadians Act, assessed in the context in which that legislation was passed. The impugned law falls into the general category of “back-to-work legislation”. Assessing the propriety of the impugned legislation may involve, to some extent, considering the constitutionality of back-to-work legislation in general.

[31] As pointed out in the affidavit of John P. Farrell (part of FETCO’s proposed evidence), back-to-work legislation has been enacted many times by the Parliament of Canada. FETCO argues that its entire membership has a vested interest in the constitutionality of this kind of legislation, which it describes as necessary for the well-being of its members, and for the Canadian economy generally. The broad range of circumstances in which these issues have arisen in past, and could arise in future, may be part of the overall context in which this case will be decided.

[32] CUPW acknowledges that some history of the constitutional law that governs labour relations will assist the court in appreciating the specific issues in this case. However, that should not lead the court into a broad inquiry into the metes and bounds that will apply in all cases that might arise. This case concerns specific legislation that was enacted in a specific context.

[33] The line between contextual background and tangential evidence can be hard to draw. Here, I consider that the proposed portions of the Farrell affidavit fit into the category of contextual background. The industry-specific affidavits, on the other hand, stray too far from the central issues in the case, and invite the parties to embark on a vast fact-finding exercise that would be immaterial to the ultimate disposition of the case.

(d) FETCO’s Evidence Superficial and Partial

[34] CUPW submitted that the proposed evidence was of little utility. It argued that pre-Charter back-to-work legislation cannot be useful to a Charter analysis, and that the landscape of constitutional law relating to labour relations changed dramatically as a result of the Supreme Court of Canada decision in Health Services and Support-Facilities Subsector Bargaining Association v. British Columbia.[9] Legal history prior to this decision would be of limited or no use in deciding this application. I do not accept these arguments. The constitutional law of labour relations did not spring like Athena from the head of Zeus, fully formed from birth. Just because there have been significant legal changes does not mean that historical context should not be examined.

[35] CUPW argued that the proposed factual record should not be permitted because FETCO’s history of the use of federal back-to-work legislation is so superficial and argumentative as to not be a “useful contribution”.

[36] I agree with CUPW on this point. The substantive portion of the Farrell affidavit sets out matters of which a court may take judicial notice: the frequency of back-to-work legislation from 1950 to the present, the industries affected by this legislation, the speed with which the legislation was enacted, and the governing party that introduced the legislation. There are also statistics respecting the number of collective agreements to which federal law applies that have been filed with the federal Ministry of Labour (the argument being that the number of cases in which back-to-work legislation has been enacted is very small relative to the number of collective agreements established). These are all matters that can be put before the court without being placed in an affidavit.

[37] What is added in the affidavit is analysis that is so superficial as to be of no use. It reads more like political speech than legally significant facts. Mr Farrell speaks of the “right” of Parliament to legislate in this area (courts normally speak of the power or authority of the legislature, and the rights of persons subject to the laws enacted by the legislature). He argues, on the basis of this record, that the use of back-to-work legislation has been “extremely rare” – some 35 instances in the past 63 years. Statistically, it is undoubtedly a rare event compared to total collective agreements. But the significance of that observation eludes me. One might say, by the same token, that global war was “extremely rare” in the twentieth century, having happened only twice, over about eleven of one hundred years. If one compares this number to the number of diplomatic disputes resolved by means short of global war, the observation that global war is “extremely rare” would be statistically correct, but nonetheless meaningless.

[38] To be clear, I say nothing about whether the use of back-to-work legislation has been “extremely rare” or “far too frequent” or something else. This strikes me as political debate into which a court should enter with great reluctance. The point, here, is that the proposed evidence is superficial and argumentative.

[39] Mr Farrell deposes that the historic record supports the conclusion that Parliament must have the authority to enact “reasonable, appropriate and timely” back-to-work legislation where the situation warrants. It is hard to argue against “reasonable and appropriate” legislation. But the record does not support this analysis: there is no way in which to characterize past uses of back-to-work legislation as “reasonable, appropriate and timely” or otherwise. There is no basis on which to compare past legislation with the legislation impugned in this case. To summarize the proposed evidence: work stoppages in trans-national businesses in key sectors can damage the public interest, and Parliament should be able to intervene in order to protect the public interest. This is not evidence; it is an argument, and an argument that can be fully and effectively made by the A.G. Canada and Canada Post.

[40] Similarly, the court does not require an intervenor to tell the court that Air Canada is a national airline, or that CP Rail and CN Rail operate national railroads that are important parts of Canadian infrastructure. And to the extent that the broader public interests at stake in the case may be illuminated by some background concerning these industries (and it is not at all clear to me that it would), this information can be provided by A.G. Canada and Canada Post.

[41] In some cases, where the court is concerned that a litigant may not be able to present a complete record and argument for one side of the case, the court may exercise its discretion to allow an intervenor like FETCO to participate in assembling the factual record.[10] This case is on the other end of the spectrum. Canada Post is a member of FETCO, and is a sophisticated business with the means to litigate effectively. A.G. Canada, the respondent, has the resources and the means to place a complete record before the court on issues touching upon the broader public interests at stake.

[42] For these reasons I conclude that the proposed intervention would not likely be a useful contribution to the resolution of this case. The motion is dismissed.

Costs

[43] No costs are sought from or by A.G. Canada or Canada Post. FETCO shall pay costs of this motion to CUPW on a partial indemnity basis. If these cannot be agreed then CUPW shall provide a bill of costs and brief written submissions by December 19, 2013; FETCO shall provide brief responding submissions by January 13, 2013.

[44] I am obliged to Ms Faraday and Mr Charney for their thorough and helpful submissions.

D.L. Corbett J.

Date: December 9, 2013

Footnotes

[1] S.C. 2011, c.17.

[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R.13.02.

[3] Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 at 167 (C.A.). See also Childs v. Desmoreaux (2003), 231 D.L.R. (4th) 311 (Ont. C.A.).

[4] See, for example, Canadian Blood Services v. Freeman, [2005] O.J. No. 2159 (Master); affd. [2006] O.J. No. 1531 (S.C.J.); CanWest Media Works Inc. v. A.G. Canada, [2006] O.J. No. 4403 at para. 9.

[5] Bedford v. A.G. Canada, 2009 ONCA 669.

[6] ibid, at para. 2.

[7] ibid., at para. 2.

[8] Canadian National Railway v. Seeley and Canadian Human Rights Commission (unreported, May 20, 2011), per Prothonotary Aronovitch.

[9] 2007 SCC 27, [2007] 2 S.C.R. 391.

[10] See, for example, Canadian Blood Services v. Freeman, [2005] O.J. No. 2159 (Master); affd. [2006] O.J. No. 1531 (S.C.J.); John Doe v. Ontario (Information and Privacy Commissioner), [1991] O.J. No. 2334 (Div. Ct.).