Court of Appeal Decision of the Week

Modified Test for Intervening; Jurisdiction to Control Procedure Retained

Case: Suncor Energy Inc v Unifor Local 707A, 2016 ABCA 265 (CanLII)

Keywords: Leave to Intervene; Random Alcohol and Drug Testing Policy Grievance Arbitration; Rule 14.37(2)(e) and 14.58, Alberta Rules of Court, AR 124/2010; Pedersen v. Alberta, 2008 ABCA 192 (CanLII); Canada (Attorney General) v Canadian Wheat Board, 2012 FCA 114(CanLII), 432 NR 383

Synopsis:

Concerned about safety hazards posed by alcohol and drug use in the workplace (here, oil sands operations carried out north of Fort McMurray, at Mackay River and Firebag), Suncor institutes a random testing policy. The Appellant Union alleges the proposed policy is contrary to provisions of the collective agreement, common law, and the applicable legislation. The reviewing judge below finds the issue involves the tension between privacy and safety concerns.

The Applicants, Mining Association of Canada (MAC), Construction Labour Relations (CLR), Electrical Contractors Association of Alberta (ECAA), Enform Canada, and the Construction Owners Association of Alberta are involved in the promotion of work site safety in the industrial construction, mining, electrical and upstream oil and gas industries. They collectively seek leave to intervene; submit they are directly and significantly affected by the outcome of the appeal, and can provide both important and unique assistance to the Court.

Permission to intervene is granted; the applicants have leave to file one joint factum limited to 20 pages. The Applicants are not granted leave to make oral submissions unless the panel hearing the appeal determines otherwise.

Importance:

Rules 14.37(2)(e) and 14.58 of the Alberta Rules of Court, AR 124/2010, allows an Appeal Judge to grant permission to any person to intervene; impose terms and conditions on the intervention.

Citing Papaschase Indian Band (Descendants of) v Canada (Attorney General), 2005 ABCA 320 (CanLII), 380 AR 301, at para. 5 (Eugene and I were co-counsel in the main appeal: Lameman v. Canada (Attorney General), 2006 ABCA 392 (CanLII) and Canada (Attorney General) v. Lameman, [2008] 1 SCR 372, 2008 SCC 14 (CanLII)), the Court of Appeal confirmed permission is based on a consideration of the subject matter of the appeal, and determination as to whether the proposed intervenor’s interest warrants intervenor status. Further, a proposed intervenor must demonstrate an ability to provide “special expertise or fresh perspective”, which brings some benefit to the proceedings, especially where the number of potential interveners is significant.

The Court of Appeal in Pedersen v Alberta, 2008 ABCA 192 (CanLII), 432 AR 219, at paras. 10-11 summarized the relevant factors in a determination of whether to grant intervenor status, at para. 3:

  1. Will the intervener be directly affected by the appeal;
  2. Is the presence of the intervener necessary for the court to properly decide the matter;
  3. Might the intervener’s interest in the proceedings not be fully protected by the parties;
  4. Will the intervener’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 (as in lis pedens, Latin for “suit pending”) between the parties; and
  8. Will the intervention transform the court into a political arena?

Citing Canada (Attorney General) v Canadian Wheat Board, 2012 FCA 114(CanLII), 432 NR 383, the Court of Appeal expanded the list of Pedersen factors to include some consideration as to whether an Applicant has been granted intervenor status in the court below. (see paras. 18-20).

The Court of Appeal did not go so far as to say an appellate court would be required to grant permission to intervene where, absent a demonstrable error, status was granted in the court below – the Court of Appeal retains jurisdiction to control its own procedure.

Accordingly, the Court of Appeal modified the Pedersen factors as follows:

“I would add to the list of factors set out in Pedersen the following considerations where the applicants were granted intervenor status below:

  • the role taken by the intervenors in the court below;
  • whether the submissions of the intervenors were necessary or helpful in informing the decision being reviewed;
  • whether the issues on appeal are the same as in the court below, or whether the issues as framed on appeal could continue to impact the applicants’ interests;
  • whether the particular perspective of the applicants can continue to inform the discussion as now framed on appeal.” (see para. 20).

Counsel for the Applicant: Hugh McPhail, Q.C. (McLennan Ross LLP, Edmonton)

Counsel for the Respondent, Suncor Energy Inc.: Barbara Johnston (Dentons Canada LLP, Calgary)

Counsel for the Respondent, Unifor Local 707A: David Williams (Chivers Carpeneter, Edmonton)

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Posted: Wednesday, September 21, 2016