Case: Justice Centre for Constitutional Freedoms v Alberta, 2021 ABCA 295

Keywords: Interventions; Rules 14.37(2)(e) and 14.58 of the Alberta Rules of Court, AR 124/2010.

Synopsis:

The Justice Centre for Constitutional Freedoms (“JCCF”) challenges the constitutionality of two provisions of the Public Health Act, RSA 2000, c P-37, as amended by the Public Health (Emergency Powers) Amendment Act, 2020, SA 2020, c 5, on the basis that they contravene the Constitution Act, 1867, 30 & 31 Vict, c 3 (UK), the Constitution Act, 1982, Schedule B to Canada Act 1982 (UK), 1982, c 11, and unwritten constitutional principles of the rule of law, democracy, and separation of powers.

A case management judge directs the JCCF to confirm its standing to bring that constitutional challenge, then dismisses the JCCF’s application for public interest standing on the “third crierion for public interest standing”, pursuant to Rules 14.37(2)(e) and 14.58 of the Alberta Rules of Court, AR 124/2010. The “third criterion” is whether the proposed action is a “reasonable and effective way” to bring an issue before the courts. (See para. 3).

The JCCF then files a notice of appeal from the order denying public interest standing. The British Columbia Civil Liberties Association (“BCCLA”) seeks permission to intervene in that appeal. The Court of Appeal grants the BCCLA’s application, on conditions.

Importance:

This case provides a useful summary of the “Law on Interventions”. As a starting point, the Court of Appeal observed that the “purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non‑party who has a special interest or particular expertise in the subject matter of the appeal.” (See para. 7; R v Morgentaler, 1993 CanLII 158 (SCC); Orphan Well Association v Grant Thornton Limited, 2016 ABCA 238, para 10).

From a practical perspective, the Court of Appeal described the decision to grant intervenor status as a “two-step process” in which the court “first considers the subject matter of the appeal and then determines the proposed intervenor’s interest in it”. (See para. 8). The Court of Appeal also noted that, for cases involving constitutional issues or which have a constitutional dimension, the standard for intervenor status is “more relaxed”. (See para. 11; see also Papaschase Indian Band v Canada (Attorney General), 2005 ABCA 320, para. 6).

In total, the Court of Appeal identified 8 factors to be examined, as derived from a variety of appellate decisions:

  1. whether the proposed intervenor has a particular interest in, or will be directly and significantly affected by the outcome of the appeal;
  2. whether the proposed intervenor will provide some special expertise, perspective, or information that will help resolve the appeal;
  3. whether the presence of the intervenor is necessary for the court to properly decide the matter;
  4. whether the intervenor’s interest in the proceedings is fully protected by the existing parties;
  5. whether intervention will unduly delay the proceedings;
  6. whether granting intervention would result in prejudice to the parties;
  7. whether intervention would widen the dispute between the parties; and
  8. whether the intervention would transform the court into a political arena. (See paras. 9-10; see also Papaschase Indian Band v Canada (Attorney General), 2005 ABCA 320, para. 5; AC and JF v Alberta, 2020 ABCA 309, para. 9; Edmonton (City) v Edmonton (Subdivision and Development Appeal Board), 2014 ABCA 340, para. 8; UAlberta Pro-Life v Governors of the University of Alberta, 2018 ABCA 350, para. 9; Wilcox v Alberta, 2019 ABCA 385, para. 12; and Hamm v Canada (Attorney General), 2019 ABCA 389, para. 5).

In this case, the Court of Appeal determined that the BCCLA would be “directly and substantially affected by the outcome of the appeal”, and that, in light of its involvement past matters, “has expertise and a particular perspective on the issues”. (See paras. 14-16). The Court of Appeal limited the scope of the BCCLA’s participation to making submissions on the test for and application of the third criterion for public interest standing, stipulated that the BCCLA’s factum could not exceed 8 pages (exclusive of title page and index of authorities), limited its oral submissions to 15 minutes, and specifically asked that the BCCLA not “file any additional evidence, unduly expand the issues, or unreasonably delay or lengthen the hearing of this matter”. (See para. 16).

Counsel for the Applicant, BCCLA: Perry Mack, Q.C. and Elena Semenova (Peacock, Linder, Halt & Mack LLP, Calgary)

Counsel for the Respondent, JCCF: Jay Cameron (Justice Centre for Contitutional Freedoms, Calgary)

Counsel for the Respondent, Her Majesty the Queen in right of the Province of Alberta: Brooklyn Leclair and Nick Parker (Dept. of Justice and Solicitor General (AB), Edmonton)

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