Case: British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2021 BCCA 128 (CanLII)

Keywords: intervention; Civil Forfeiture Act, SBC 2005, c 29; Halalt First Nation v British Columbia (Environment), 2012 BCCA 191

Synopsis:

The Applicant Attorney General of Ontario applies for Leave to Intervene in four underlying appeals. These matters arise from an Order dealing with two principal issues:

  1. a claim for the forfeiture of three clubhouses belonging to the Hells Angels Motorcycle Club, and
  2. counterclaim on the constitutionality of the “past and future instruments of unlawful activity” provisions of the Civil Forfeiture Act, SBC 2005, c 29. (See para. 2).

The Order found the future instruments provisions of the Civil Forfeiture Act were ultra vires British Columbia (e.g. because they fell within the criminal law jurisdiction of the federal government). While the Applicant does not purport to have a direct interest in this matter, the Applicant argues it has a public interest in the issue raised by this appeal. In light of the Applicant’s prior experience, the Applicant submits it can make a valuable contribution and bring a different perspective. The Court of Appeal dismisses the Application for Leave to Intervene.

Importance:

This case provides a helpful summary of the burden placed on interveners at the Court of Appeal stage. The Court of Appeal quoted the test for granting intervenor status as set out in Halalt First Nation v British Columbia (Environment), 2012 BCCA 191:

[4] Section 10(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, provides that a justice may make an order granting leave to intervene as an order incidental to an appeal. Rule 36(1) of the Court of Appeal Rules provides that, “[a]ny person interested in an appeal may apply to a justice for leave to intervene on any terms and conditions that the justice may determine.”

[5] The granting of intervenor status is a discretionary order that is subject to the following principles:

    1. a) the applicant must have a direct interest in the matter; or
    2. b) the applicant must have a public interest in a public law issue in question, and
    3. c) the applicant can make a valuable contribution or bring a different perspective to a consideration of the issues on appeal that differs from that advanced by the parties.

Applying this test, the Court of Appeal was prepared to find the Applicant had a public interest in the “significant public law issue” raised herein (i.e. the vires of the future instruments provisions). (See paras. 5-7).

Ultimately, for the Court of Appeal, the question of concern is whether the Applicant “can make a valuable contribution to the appeal that differs from what can be expected from [the other parties]”. (See para. 7).

The Applicant advanced the argument that, as it was a principal party in the case of Chatterjee v Ontario (Attorney General), 2009 SCC 19 – a case that addressed the Ontario equivalent to the legislation in question before the Court of Appeal – the Court would benefit from its participation in this appeal. (See para. 8).

The Court of Appeal specifically rejected this argument:

…should this matter proceed from this Court to the Supreme Court of Canada, no doubt the AGO will intervene there. But I do not see how its participation before this Court will be of any assistance when it comes to dealing with case authorities, including Chatterjee. The relevance and application of that case are fully argued by the AGBC in its factum. What experience the AGO may have had in its progress from trial through the Supreme Court of Canada will not assist this Court in interpreting and applying what the Supreme Court of Canada had to say in the case before it. (See para. 9).

The Court of Appeal determined the Applicant’s proposed submissions would either duplicate the Attorney General of British Columbia’s submissions, or else unnecessarily expand the issues. These factors led the Court to determine the Applicant’s intervention in this case would inappropriately burden the Respondents. (See para. 14). It remains to be seen whether this matter will proceed to the Supreme Court of Canada. If (or when) this matter arrives at the Supreme Court, will the Applicant seek Leave to intervene? Qui vivra, verra.

Counsel for the Respondent, Director of Civil Forfeiture: Brent Olthuis (Hunter Litigation Chambers, Vancouver)

Counsel for the Appellant, Attorney General of British Columbia: D. Scanlan and G. Morley

Counsel for the Respondents/Appellants Angel Acres Recreation and Festival Property Ltd., R. Cameron, J., Mr. Riley, S. Gillis, K. Harmer: Alison Latimer (Alison Latimer, Barrister & Solicitor, Vancouver)

Counsel for C. Goldammer and D. Di Popolo: Daniel Song (Pringle Chivers Sparks Teskey, Edmonton)

Counsel for the Proposed Intervenor, Attorney General of Ontario: Ravi Amarnath and M. Stevenson (Attorney General (ON), Min. of, Toronto)

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