Court of Appeal Decision of the Week

Applying to Intervene in an Appeal (at the C.A.)

Case: Styles v Canadian Association of Counsel to Employers, 2016 ABCA 218 (CanLII)

Keywords: Employment Law; Termination Without Cause; “Pay-for-Performance”; Bhasin v Hrynew, 2014 SCC 71 (CanLII); Pedersen v Alberta, 2008 ABCA 192 (CanLII); Re Stewart Estate, 2014 ABCA 222 (CanLII)

Synopsis:

Mr. Styles commences employment with AIMCo, who confirm his participation in AIMCo’s Long Term Incentive Plan (LTIP) – a “pay-for-performance” bonus and grant program. AIMCo later terminate Mr. Styles’ contract of employment without cause. Mr. Styles is paid three months’ salary as per notice requirements in his employment contract.

Mr. Styles sues AIMCo for entitlements under the LTIP; argues the bonus and grant structure form an “integral part” of his annual compensation. The Trial Judge accepts Mr. Styles’ submission; applies principles from Bhasin v Hrynew, 2014 SCC 71 (CanLII) to the contract of employment, including the LTIP. The Trial Judge also determines it is “unfair” for an employer to benefit from an employee’s work, and then deprive the employee of compensation for that work.

Canadian Association of Counsel to Employers (CACE) – described as “an association of management-side labour and employment lawyers” (para. 4) – brings an application to intervene in the appeal. Predictably, AIMCo consent, but opposed by Mr. Styles. The Court of Appeal is not persuaded CACE has a “unique or fresh perspective”; the application for permission to intervene is denied.

Importance:

Citing R. v Morgentaler, 1993 CanLII 158 (SCC), [1993] 1 SCR 462 at para. 1, the Court of Appeal confirmed intervenor status will be granted where an Applicant is “directly and significantly affected” by the outcome of the appeal and has “experience and a fresh perspective” on the subject of the appeal useful to its resolution (para. 14).

The following list of factors (drawn from Pedersen v Alberta, 2008 ABCA 192 (CanLII) at para. 3, 432 AR 219 and Re Stewart Estate, 2014 ABCA 222 (CanLII) at para. 5, 577 AR 57) are relevant for making this determination:

  1. Will the intervenor be directly affected by the appeal;
  2. Is the presence of the intervenor necessary for the court to properly decide the matter;
  3. Might the intervenor’s interest in the proceedings not be fully protected by the parties;
  4. Will the intervenor’s submission be useful and different or bring particular expertise to the subject matter of the appeal;
  5. Will the intervention unduly delay the proceedings;
  6. Will there possibly be prejudice to the parties if intervention is granted;
  7. Will intervention widen the lis between the parties; and
  8. Will the intervention transform the court into a political arena?

While the Court of Appeal found factors 5 through 8 “presented no difficulty” to the granting of CACE’s application, the balance of these factors were problematic.

With respect to the first 4 factors, the Court of Appeal found CACE “…has no more direct interest in the outcome of this appeal than do lawyers generally who provide advice and counsel to employers…” (para. 27). The presence of CACE was also deemed unnecessary as the “heart of this appeal” amounts to a private dispute between Mr. Styles and AIMCo. For the Court of Appeal, CACE “…does not have an interest in these proceedings” (para. 30). Finally, the Court of Appeal determined that, since counsel for AIMCo is a “senior and experienced employment lawyer” who has “also been a long standing member of CACE” itself, present counsel was “more than competent” to address CACE’s concerns (para. 31).

May the case be relevant to applying to intervene at the S.C.C.? The S.C.C. has its own jurisprudence and practice/protocol with regard to intervening in that particular Court, so probably not, but we’ll see – qui vivra, verra.

In the latter regard, (i.e. S.C.C.) see the following two articles:

  • Meehan, Intervening in the Supreme Court of Canada, Advocates’ Quarterly Volume 16, No. 2 May, 1994
  • Alarie & Green, Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance, Osgoode Hall Law Journal, Vol. 48, No. 3, pp. 381-410, 2010

(Email me if you’d like a copy of either/both).

Counsel for the Respondent David Styles: Trina Kondro (Emery Jamieson LLP, Edmonton)

Counsel for the Applicant: Kent Davidson Q.C. and Monique Petrin (Miller Thomson LLP, Edmonton)

Counsel for the Respondent Alberta Investment Management Corporation: Hugh McPhail Q.C. (McLennan Ross LLP, Edmonton)

Posted: Wednesday, August 03, 2016