Hoechst Marion Roussel Canada v. Canada (Attorney General) (T.D.) [2002] 1 F.C. 76
Date: 20010713
Docket: T-1576-99
Docket: T-1671-00
Neutral Citation: 2001 FCT 795
BETWEEN:
HOECHST MARION ROUSSEL CANADA
Applicant
-and -
ATTORNEY GENERAL OF CANADA
Respondent
ARONOVITCH, P.:
[1] These reasons are in respect of two motions heard together in the context of the above noted applications for judicial review of two decisions rendered by the Patented Medicine Prices Review Board ("the Board").
[2] The first motion raises the interesting proposition that the staff employed by the Board may, of its own right, have standing either as a party or as an intervener, in the judicial review of the Board's decisions. The second motion deals with the issue of the scope of the participation of an administrative agency in the review of its own decision.
BACKGROUND
[3] On April 20, 1999, the Board issued a notice of hearing for the purpose of determining whether Hoechst Marion Roussel Canada, Inc. ("HMRC") had excessively priced nicotine patches, marketed by the company under the brand name "Nicoderm".
[4] HMRC filed a notice of motion to request that the Board rescind its Notice of Hearing alleging a variety of jurisdictional grounds. These jurisdictional challenges were dealt with by the Board in two segments.
[5] In its "Decision on Jurisdiction Part I", dated August 3, 1999, the Board dismissed HMRC's allegations of institutional bias, breach of the rules of natural justice, and lack of particularity in the Board's Notice of Hearing..
[6] In the second Board decision, being the "Decision on Jurisdiction Part II", issued on August 8, 2000, the Board dismissed the remainder of the applicant's allegations including that the Board was without jurisdiction to inquire into the Respondent's pricing of Nicoderm as Nicoderm was not a "medicine" under the Patent Act, R.S. 1985, c. P-4, as amended ("the Patent Act") and HRDC was not a "patentee" thereunder.
[7] The proceedings in which the staff of the Board, "the Board Staff", and the Board itself wish to participate, are HMRC's applications for judicial reviews of the Part I and Part II decisions, namely Court Files T-1576-00 and T-1671-99 respectively.
[8] In Court File T-1576-99, HMRC raises the following issues: the procedure followed by the Board for conducting a hearing does not provide for a fair and impartial tribunal contrary to the principles of natural justice; there is an impermissible overlap of investigative and adjudicative functions on the part of the Board personnel and its Chairperson, and; the Board, through its personnel and its Chairperson, reached conclusions prior to the issuance of the Notice of Hearing giving rise to a reasonable apprehension that issues for hearing had been predetermined.
[9] In Court File T-1671-00, the applicant seeks to stay the proceeding commenced by the Board's issuance of the Notice of Hearing and set aside the decision of the Board dated August 8, 2000 on the basis, as I have stated, that the Board erred in finding that Nicoderm is a "medicine" and HMRC was a "patentee" for the purposes of section 83 of the Patent Act.
[10] The within motions are brought separately. The first is brought by the Board Staff on its own behalf. The second motion is made on behalf of the Board. The Board Staff seeks to be added as a party respondent and in the alternative to intervene in the two related applications, either in its own name or in the name of the Board.
[11] If the Board Staff is granted either of its applications, the Board wishes to be added as an intervener with limited scope to its intervention. In the event the Board Staff is denied any standing, the Board seeks in the alternative to intervene with substantially broader rights of participation in the applications, including the right to appeal the decisions of the Court disposing of the applications.
The Establishment and Organization of the Board
[12] The Board was established pursuant to amendments to the Patent Act that came into force on December 7, 1987 (An Act to amend the Patent Act and to provide for certain matters in relation thereto, S.C. 1987, c. 41). The following regarding the Board's mandate is taken from a decision of the Federal Court of Appeal in ICN Pharmaceuticals, Inc. v. Canada (Patented Medicine Prices Review Board) (1996), 68 C.P.R. (3d) 417 (F.C.A.) at page 423. Substantial reference is made to this decision throughout these reasons which I refer to hereafter as ICN. The following from that judgment, is a summary of the Board's functions at its inception:
"...Between 1987 and 1993 the Board's function was to ensure that patentees of medicines did not charge excessive prices during the deferral period in which a licensee could not make use of its license: see Kuharchuk at 18 and Marusyk at 160. The Board was also charged with the responsibility of collecting information from pharmaceutical companies with respect to their research and development expenditures, in order to ascertain the industry's level of investment in Canada: Horton at 148. In time, however, even these amendments would be deemed inadequate."
[13] Further in the judgment, the Court of Appeal references the amendments to the Patent Act that enacted the NOC Regulations (Patent Act Amendment Act, 1992, S.C. 1993, c. 2, and the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133). One element of the change brought about by these amendments was to strengthen the Board's remedial and punitive powers, as summarized supra at page 424:
"...The Board's powers now include the ability to impose penalties and/or price reductions in response to excessive pricing, to better control introductory prices for new patented drugs, and to provide for fines and imprisonment for failure to comply with the Board's orders. The Board's orders carry the same force and effect as those of the Federal Court. In summary, the purpose of these changes is to empower the Board to influence the pricing of patented medicines to much the same extent that the competition fostered by compulsory licensing used to influence it [...]."
[14] The Board consists of at most five members including the Chairperson and has the authority under the Patent Act to hire staff, including, on a temporary basis, "persons with technical or specialized knowledge".
[15] The Board Staff report directly to the Chairperson of the Board who is the Board's chief executive officer pursuant to subsection 93(2) of the Patent Act. As such, the Chairperson has ultimate responsibility for supervising and directing the work of staff.
[16] The Board maintains an administrative separation of its investigative and prosecutorial functions, on the one hand, and its adjudicative function on the other. The Board Staff monitors and investigates the pricing of a patented medicine. In the course of doing so it may communicate with other experts in the field to obtain their opinions. There is an interim stage of possible voluntary compliance in accordance with Board guidelines. In the final analysis a report is prepared by the Board Staff regarding excessive pricing and submitted to the Chairperson. The Chairperson acting on the report determines whether it is in the public interest that a hearing be held. The Chairperson thereafter convenes a panel of Board members to adjudicate the matter. The panel's implication in the matter is said to be restricted solely to the hearing and determination of the substantive issue. [Ciba-Geigy Canada Ltd. v. Patented Medicine Prices Review Board (1994), 55 C.P.R. (3d) 482 (F.C.T.D.), affirmed 56 C.P.R. (3d) 377 (F.C.A.) hereafter "CIBA".]
[17] The Board Staff has standing at hearings before the Board derived under the authority of the Patented Prices Review Board Rules ("the Board Rules"). These are made pursuant to subsection 96(2) of the Patent Act which authorizes the Board to make rules to regulate practice and procedure before the Board.
[18] The Board Rules provide that the Board Staff employed by the Board may be a "party" for the purposes of Board proceedings. Ministers of the Federal and Provincial Crown may also appear as parties and are specifically provided for pursuant to subsection 86(2) of the Patent Act which identifies the Ministers in question.
[19] As a practical matter, it is the Board Staff that has carriage of prosecutions and presents the case that there has been excessive pricing before a sitting panel of the Board. For that purpose, the Board Staff retains and instructs its own counsel who presents the case on its behalf. The Board panel is simultaneously advised by its own separate counsel. The Court in ICN refers to the relationship of the Board Staff to the Board at page 450:
The relationship between the Board and its staff was described by the majority of the Board in Genentech, supra at 320 as follows:
In conducting hearings with respect to the price of a patented medicine, the Board's staff is segregated from the Board. The Board's staff, through its own counsel, adduces evidence, tests evidence of other parties, and makes submissions on procedural, jurisdictional, legal, and substantive issues during the course of the proceeding.
[20] At both of the hearings which resulted in the decisions under review in these proceedings, the Board Staff was a party, indeed the only party, other than HMRC, before the sitting panel of the Board. The Board Staff had complete carriage of the case as the proponent of the Board's jurisdiction to issue its Notice of Hearing. For that purpose, the Board Staff called factual and expert evidence, cross-examined witnesses and made extensive oral submissions to the Board panel. The Attorney General of Canada ("the Attorney General") did not participate at all in the proceedings.
The Standing of the Board Staff in Court Precedent
[21] I have already had reference to the cases involving the Board that, to date, have come before the Federal Court, namely, CIBA and ICN.
[22] The first case, CIBA, also involved a nicotine patch, in that instance, sold by Ciba-Geigy under the name "Habitrol". The case involved the judicial review of a Board decision wherein the Board had dismissed Ciba-Geigy's request for documents relating to matters in issue before an upcoming hearing before the Board. On judicial review the applicant was Ciba-Geigy. The Board was respondent and was represented by two separate counsel. On appeal the same counsel as below appeared for the Board, separately identified as counsel for the Board Staff and counsel for the Board respectively. Each counsel had separate occasion to address the Court.
[23] In ICN, supra, the applicant argued that the Board did not have jurisdiction to decide whether the prices changed by the appellants for its medicine sold under the brand name "Virazole" was excessive, inter alia, because the patentee's invention did not pertain to a "medicine" as defined in the Patent Act. At first instance, the Trial Judge, with the consent of the parties, amended the style of cause to add the Board Staff as party respondent and to re-designate the Board's status from that of respondent, to intervener.
[24] Thus, on appeal, the Board Staff was the party respondent. The Court of Appeal at the conclusion of its reasons, under the heading "Ancillary Matters" commented inter alia on the standing of the Board Staff as respondent. Having reviewed the legislative structure of the Board the Court concluded at pages 449-450:
"... Within this legislative framework the Board Staff rests its right to be added as a respondent to the judicial review application. I cannot accede to this submission
. . .
... Nonetheless, the fact is that the Board's enabling legislation is not structured so as to accord the Board Staff the same independent status on judicial review that is accorded, for example, the Director of Competition. I am not suggesting that the distinct roles being assumed by the Board and its staff are somehow legally flawed. There is no suggestion that the Board has somehow delegated its statutory obligations or fettered its discretion. I am confident that the present system is administratively efficient. What I am saying is that the Board Staff does not have a legal status independent of that of the Board." [emphasis added]
THE BOARD STAFF AS PARTY OR INTERVENER
[25] As I have already stated, the Board Staff seeks primarily to be added as a party to the proceedings pursuant to Rule 104 of the Federal Court Rules, 1998, (the "Federal Court Rules") or to have standing before the Court "in the name or under the aegis" of the Board. In the alternative, the Board Staff, pursuant to Rule 109 of the Federal Court Rules, seeks standing to intervene in these proceedings, whether under its own name or under the name of the Board, with broad powers akin to that of a party. As an intervener, it seeks standing to adduce evidence, cross-examine on affidavits, and ultimately appeal the decision of the Court.
[26] What is suggested by an appearance in the name, or under the aegis of the Board is an arrangement akin to the one in CIBA, where the Board was the named respondent but the Board Staff was separately identified, recognized and given standing to make representations in its own right, at first instance, as well as on appeal.
[27] The Board Staff argues forcefully, if it is precluded from having standing in the judicial review, that the Board will be prejudiced by not being able to bring its expertise to bear before the Court whence the ensuing harm to the public interest and the consumer. This is especially so, if, beyond this preliminary stage, the Board's eventual determination on pricing were to come before the Court for review. Indeed the Board Staff finds it unthinkable that it should be able to prepare and present the case before the Board but be precluded from doing so before this Court with the attendant consequence that the Board is thereby deprived of the counsel of its choice in defending its specialized jurisdiction.
[28] Indeed the Board Staff takes the position that it ought to have been served as party respondent, in its own right, pursuant to Rule 303(1)(a) and that the Attorney General is the second best choice in the circumstances of this case.
[29] The Board Staff argues that a sitting Board panel is the "tribunal" and adjudicator which is meant to be precluded under Rule 303. Cases such as Re: Northwestern Utilities Ltd. et al. v. Edmonton, [1979] 1 S.C.R. 684 ("Northwestern Utilities") and Canada (Human Rights Commission) v. Canada (Attorney General and Frank Bernard), [1994] 2 F.C. 447, ("Bernard"), that properly call into question the propriety of a decision maker defending its own decision can have no application to the Board Staff. The Board Staff is not the adjudicator in this instance but has carriage of the case as prosecutor. In that connection the Board Staff relies on Bernard, where the Federal Court of Appeal found that the Human Rights Commission could not be a party respondent in the judicial review of its own decision but, instead, was given leave to intervene. Counsel for the Board Staff points out that Decary J.A., in that case, left open the possibility that the Human Rights Commission might be found to be an "interested party" within the meaning of former Rule 1600 where it had initiated the complaint itself. (Bernard, supra, at page 459, footnote 21).
[30] As to the other requisite element under Rule 303, namely, that the party named as respondent must be "directly affected" by the decision of the Court. The Board Staff maintains, to the extent that the Court's decision will affect the public interest, the Board Staff, as the sole representative and protector of that interest, will be directly affected.
[31] In addition, the Board Staff takes the view that it has sufficient distinctiveness by virtue of its functions, its recognition as a party before the Board and its recognition as a distinct entity in each of the cases argued before the Federal Court to properly come within the current definition of "person" under the Federal Court Rules.
[32] Indeed the Board Staff argues that ICN, is overtaken, in that it was decided prior to the amendments to the Federal Court Rules and rests uniquely on a finding as to the Board Staff's legal personality. The definition which, prior to the 1998 amendments to the Federal Court Rules, required that a person requesting party status be a distinct legal entity has been broadened and now provided at Rule 2:
"person" includes a tribunal, an unincorporated association and a partnership.
and further:
"unincorporated association" means an organization of two or more persons, other than a partnership, that operates under a common name for a common purpose and undertaking.
[33] According to the Board Staff, the definition is not meant to be exhaustive and does not require an aspirant for standing as party or intervener to be a legal entity. Counsel for the Board Staff argues that the Board Staff does, in effect, constitute a group of persons which operates under a common name for a common purpose and therefore may be said to be an "unincorporated association" within the meaning of the rule. The Board Staff, maintains, therefore, that in addition to its historic recognition by the Court, the new rules provide sufficient scope to recognize the Board Staff's distinct personality as a "person" for the purposes of the Federal Court Rules.
[34] More specifically, with reference to its application to be made a party pursuant to Rule 104(1)(b), the Board Staff states that its presence is clearly necessary for the complete adjudication of the issues before the Court as it is the party most knowledgeable of the issues of fact and law raised in the judicial review. In support of that argument, the Board Staff in the context of this motion, adduces evidence of the extensive submissions it made before the Board and most especially, those dealing with expert evidence and the scope of the application of the five patents at issue in Court File T-1671-00.
[35] Counsel for the Board espouses the submissions of the Board Staff and takes the position that the Board Staff ought to have been served as party respondent by HMRC. It concurs with the position that Staff may be said to be "an unincorporated association" within the meaning of the Federal Court Rules. Indeed the Board suggests the Board Staff has far greater cohesion than entities such as environmental or civic groups which have been recognized as "persons" for the purposes of the Federal Court Rules. Counsel for the Board characterized the Board Staff as an identifiable group of persons whose group purpose is to prosecute. Moreover, to the extent that a finding of the Court may have the effect of staying a prosecution, the Board Staff is said to be a person "directly affected" for the purposes of Rule 303.
[36] The Board emphasizes that it does not know the position that the Attorney General will take in the judicial reviews and advocates the presence of the Board Staff as necessary to ensure that a party is present before the Court that will vigorously advocate the reasonableness of the Board's decision.
Analysis
[37] The common threshold issue in respect of the rules invoked to vest the Board Staff with the status of either party or intervener is that the proposed entity be a "person" as defined in the Federal Court Rules.
[38] Thus, Rule 303, pursuant to which the Board Staff says it ought to have been named as respondent requires the applicant to name every "person" directly affected other than a tribunal. Rule 104 allows for the addition of "a person" who ought to have been joined or whose presence before the Court is necessary to ensure that all matters in dispute in a proceeding may be completely determined. Similarly the Court may grant leave to a "person" to intervene in a proceeding pursuant to Rule 109.
[39] The new Federal Court Rules which have come into effect since ICN, have expanded the definition of "person" which I agree is not exhaustive. That said, I do not accept the proposition that the Board Staff, constituted of employees who work under the supervision of the Chairperson of the Board and are employed to support and serve the purposes of the Board, may be said to constitute an "unincorporated association operating under a common name for a common purpose and undertaking".
[40] There is a single undertaking constituted under the Patent Act. It is the Board. I find no provision of the Patent Act which either confers special status on the Board Staff or constitutes it as an entity distinct from the Board. In that regard, the Court's comments in Bernard regarding the potential status of the Human Rights Commission is of no assistance to the Board Staff. The standing of the Board Staff in the context of its enabling legislation bears no comparison to that of the Commission in its own legislative framework.
[41] The "common name", and the standing accorded to the Board Staff in presenting cases before Board panels are conferred under the Board Rules which are promulgated by the Board. These rules, in my view, do not have the statutory authority to be binding in this forum. I note, in contrast, that a statutory right to intercede before the Board is given under subsection 86(2) of the Patent Act to the Minister of Industry as well as other ministers designated by regulation. Any federal minister who seeks to intervene, moreover, would be represented by the Attorney General of Canada as would the Commission of Competition who has a statutory right to intervene pursuant to the Competition Act, R.S.1985, c. C-34.
[42] Indeed, I agree with the Attorney General and the applicant, that ICN is not overtaken. ICN notes the lack of statutory distinction of the Staff. The case essentially addresses the failure of the operative statute to arrogate to the Board Staff an identity or a purpose distinct from that of the Board. As recognized by the Court of Appeal, it is the Board that has a dual mandate.
"The reality is that the Board is required to act as both prosecutor and judge in order to fulfil its legislated mandate."
[43] Thus, the mandate to present and protect the public interest, to the extent that it is conferred by statute, is conferred on the Board and is the vocation of the Board. I therefore do not accept the Board Staff's submission that it may be said to be "a party directly affected" in its own right pursuant to Rule 303.
[44] In the same vein, and for the same reason, the Board Staff cannot be said to be a party who either "ought to have been joined" or "is necessary" to have before the Court within the meaning of Rule 104. In my view, the Board Staff has no basis to argue that the Board Staff must be bound by the determination of the judicial review or that the questions to be settled on judicial reviews cannot be effectually and completely settled unless the Board Staff is a party. (see: Stevens v. Canada Commission of Inquiry [1998] 4 F.C.R. 125 at page 126 (F.C.A.)).
[45] As to the intervention of the Board Staff, I disagree with the Attorney General who submits that the Board Staff, while not a "person" for the purposes of being added as a party may nevertheless be found to be a "person" for the purposes of intervening on the basis that its substantive expertise may be of assistance to the Court. These proceedings are judicial reviews and not hearings de novo. To the extent that the expertise and specialized jurisdiction at issue may be relevant, it is appropriately considered in the context of the Board's right to intervene and the scope of its intervention.
[46] I also find no basis to allow the Board Staff to be recognized under the name or guise of the Board. Certainly, neither the Court nor the parties would be well served by such an artifice which, moreover, must be premised on what is not otherwise suggested or conceded, namely, that the Board is a proper party to these proceedings. If it is determined that submissions relating to the Board's specialized jurisdiction would be of assistance to the Court and the Board is thereby given standing as an intervener in these proceedings, the Board will be at liberty to appoint and be represented by the counsel of its choice to speak to its expert jurisdiction as it deems appropriate.
[47] As a final point, Counsel for Staff takes the view that in the context of this motion, I must concede the distinctive character of the Board Staff as, to do otherwise, is to prejudge the question at issue in Court file T-1576-99 on its merits. In my view, the "distinct role" of the Staff and the separation of functions along adjudicative and prosecutorial lines has been duly noted by the Federal Court of Appeal in ICN. These reasons speak only to whether the Board Staff may be brought within the requirements of the relevant Federal Court Rules. Having found otherwise, I shall dismiss the Board Staff's application in its entirety.
THE BOARD AS INTERVENER
[48] The Board does not seek to be added as a party but wishes to intervene in both applications. Indeed, the effect of the evolution of the Federal Court Rules and the jurisprudence in this area is to have essentially precluded a board or tribunal from having standing as a party in the review of its own decision. The principle was codified in Federal Court Rule 303 as follows:
| 303.(1) Subject to subsection (2), an applicant shall name as a respondent every person (a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or (b) required to be named as a party under an Act of Parliament pursuant to which the application is brought.
(2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent. [emphasis mine] |
303.(1) Sous reserve du paragraphe (2), le demander désigne à titre de défendeur: (a) toute personne directement touchée par l'ordonnance recherche, autre que l'office federal visé par la demande; (b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi féderale ou de ses textes d'application qui prévoient ou autorisent la presentation de la demande. (2) Dans unde demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du paragraphe (1), le demander désigne le procurer général du Canada à ce titre. |
|
[49] In sum, the Attorney General may be named as the party respondent where there is otherwise not a party directly affected that is not the tribunal. An explicit exception to the rule that a tribunal may not be a party in the judicial review of its own decision, is found at Rule 303(3) as follows:
| (3) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), the Court may substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada. [emphasis mine] |
(3) La Cour peut, sur requête du procurer général du Canada, si elle est convaincue que celli-ci est incapable d'agir à titre de défendeur ou n'est pas dispose à le faire après avoir été ainsi désigné conformément au paragraphe (2), designer en remplacement une autre personne ou entity, y comprise l'office fédéral visé par la demande. |
|
Here, provision is made to allow the substitution of a tribunal, as party respondent, in lieu of the Attorney General, where the Attorney General_ having been named as respondent subsequently moves to disqualify himself or herself on the basis that the Attorney General is unable or unwilling to act in that capacity.
[50] Typically a board or tribunal, unless authorized by its enabling legislation, may only intervene with leave of the Court. Rule 109 is new as of the 1998 revisions to the Federal Court Rules. It requires a party seeking to intervene to describe how it wishes to participate in the proceeding and, most importantly, how that participation will assist the Court in the determination of the factual or legal issues in the proceeding. While this latter consideration is key to the Court's determination of whether a party will have leave to intervene, other factors that the Court has considered in previous jurisprudence continue to be relevant. These include the ability of the existing parties to adduce all the relevant evidence or to adequately advance the position of the proposed intervener (see: Apotex Inc. v. Canada (Minister of Health) (2000) 4 C.P.R. (4th) F.T.D. 421 at 429.)
[51] The standing of a decision maker to participate in the judicial review of its own decision and the scope of that participation has proven controversial and has been the subject of substantial judicial comment. Courts have been disinclined to hear agencies speak to the merits of their decision under review, thereby essentially allying themselves with one of the parties to the dispute. All the more so, since following the review, the impugned decision may be referred back to the agency for disposition.
[52] The Northwestern Utilities case, already referred to in these reasons, is authority for strictly limiting the participation of an administrative agency in the review of its decision. In that case, the Supreme Court of Canada heard an appeal by the Public Utilities Board and Northwestern Utilities Ltd. The Public Utilities Board by virtue of its enabling legislation had a right to participate and be heard on appeals of its decisions. Estey J., on behalf of the Court stipulated the proper bounds to be placed on the participation of the Utilities Board.
It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction... Where the right to appear and present arguments is granted, an administrative tribunal would be well advised to adhere to the principles enunciated by Aylesworth J.A. in International Association of Machinists v. Genaire Ltd.and Ontario Labour Relations Board (1958), 18 D.L.R. 588 (at pp. 589-590):
Clearly upon an appeal from the Board, counsel may appear on behalf of the Board and may present argument to the appellate tribunal. We think in all propriety, however, such argument should be addressed not to the merits of the case...but rather to the jurisdiction or lack of jurisdiction of the Board. If argument by counsel for the Board is directed to such matters as we have indicated, the impartiality of the Board will be the better emphasized and its dignity and authority the better preserved, while at the same time the appellate tribunal will have the advantage of any submissions as to jurisdiction which counsel for the Board may see fit to advance.
Where the parent or authorizing statute is silent as to the role or status of the tribunal in appeal or review proceedings, this Court has confined the tribunal strictly to the issue of its jurisdiction to make the order in question. ...jurisdiction does not include the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice...
[pages 709 and 710] [emphasis added]
[53] Northwestern Utilities was enthusiastically applied in Vancouver Wharves Ltd. v. International Longshoremen's Union Local 514 (1985) 60 N.R. 118, where Hugessen J.A. remarked at page 120 of the judgment:
"I would have thought that simple prudence, to say nothing of propriety, would have dictated extreme restraint in the Board's intervening in judicial proceedings in which the parties to proceedings before the Board itself continue to oppose one another before the courts."
Later in Canadian Pacific Airlines Ltd. v. Canadian Airline Pilots Association [1998] 2 F.C. 493 at 498 and 499 Hugessen J.A. confirmed the standing of a tribunal to make submissions, but only on its own jurisdiction, "in a narrow sense".
[54] The question was again entertained by the Supreme Court of Canada in CAIMAW v. Paccar of Canada Ltd. [1989] 2 R.C.S. 983, hereafter ("Paccar"). In that case it was argued that the Labour Relations Board, whose decision was at issue, had lost jurisdiction through a decision that was patently unreasonable. In that context, La Forest J. found that the Board had standing not only to explain the record before the Court and to make submissions to show that it had jurisdiction to embark upon the inquiry but also to make submissions in support of the reasonableness of the decision and to demonstrate that it had not lost jurisdiction through a patently unreasonable interpretation of its powers.
[55] In that regard, La Forest J. expressed his complete concurrence with the following statement of Taggart J.A.
"The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being their interest to stress them." [at page 1016] [emphasis added]
[56] The Court in Paccar noted that, unlike Northwestern Utilities, where the agency at issue had presented "elaborate argument" in support of its decision, the Labour Board, in the instance before the Court, did not argue that the Board was correct but focussed on the reasonableness of its approach and thus did not exceed the proper limits allowed to an administrative tribunal in judicial review proceedings.
[57] The Federal Court of Appeal had occasion to consider Paccar in Ferguson Bus Lines Ltd. v. ATU Loc. 1377, 68 D.L.R. (4th) 699, and construed it narrowly. The Court of Appeal concluded that any intervention, other than as would go to the specialized, primary jurisdiction, of an agency ought not to be countenanced as essentially damaging to the agency's impartiality. Mahoney J., commenting on the "unaccountable persistence" of the Labour Relations Board, when its "jurisdiction was in no way at issue" and there were no considerations rooted in the specialized jurisdiction or expertise of the Labour Board, commented as follows at pages 702 and 703:
"The decision of the Supreme Court of Canada in Paccar does not, in my opinion, vest the Board with a respectable excuse to demand to be heard in every case where one of its decisions is alleged to be patently unreasonable. As stated in Paccar, it is only when its expertise may cause some light imperceptible to ordinary mortals on the subject that participation so potentially damaging to it should be countenanced. It is to that limited extent that Paccar has qualified the criteria authoritatively established by Northwestern Utilities. Furthermore, the presence of such an issue does not open the door to the Board addressing other issues anymore than does a genuine challenge to its jurisdiction."
[58] Recent decisions of this Court have allowed very narrow scope to the intervention of a tribunal, restricting leave to intervene to submissions made in respect of the essential jurisdiction of the tribunal and firmly precluding the tribunal from addressing the merits of its decision under review. (see: Bell Canada v. Communications, Energy and Paper Workers Union of Canada, et al (1996) 121 F.T.R. 42, hereafter "Bell Canada (1966)" and Canadian Broadcasting Corp. v. Paul, 50 Admin. L.R. 2nd at 181, hereafter "Paul").
[59] Northwestern Utilities has also been vigorously applied in the most recent decision of this Court relating to the participation of a tribunal in a judicial review where the independence of the tribunal was at issue. In Bell Canada and Ecommunications Energy and Paper Workers Union of Canada (1997) 143 F.T.R. 24 T.D., McGillis J. had occasion to consider an application from the President of the Canadian Human Rights Tribunal to intervene in the judicial review of a decision of the tribunal where the tribunal's independence was at issue. The learned Judge held that even assuming that the question of independence relates to jurisdiction, it would be impossible for the President of the tribunal to make submissions on jurisdiction without becoming embroiled in the merits of the decision. McGillis J. refused leave to intervene finding that the intervention in the circumstances would adversely affect the appearance of the impartiality of the tribunal in contravention of the principles enunciated in Northwestern Utilities.
[60] The circumstances in that case bear noting, however, as McGillis J. held in the alternative that the intervention of the President would, in any case, serve no useful purpose as the evidence on the record was complete in that case. Extensive evidence had been adduced by the Registrar of the Tribunal regarding its institutional structure and practices. Moreover, the Canadian Human Rights Commission had filed detailed argument in support of the Tribunal's decision concerning its independence.
The Right to Appeal
[61] Among the right sought by the Board in intervening in the within judicial reviews, is the right to appeal the eventual decisions of the Court. While that right has historically associated with that of a party, as opposed to an intervener, Rule 109 now explicitly countenances that possibility. The right is available on leave of the Court and has been granted to interveners in appropriate circumstances (see: Merck Frosst Canada Inc. et al v. Canada (Minister of National Health and Welfare) (1997) 126 F.T.R. 209 (T.D.), Canada (Attorney General) et al v. Royal Commission of Inquiry on the Blood System in Canada et al (1996) 109 F.T.R. 144 (T.D.)). Leave to appeal the decision of the Court was declined in Bell Canada (1996), as well as in Paul.
Analysis
Court File T-1576-99
[62] For the application of these principles I now turn to the Board's application to intervene. While not seeking to adduce evidence, the Board does seek to make oral and written submissions to address the standard of review, "to draw the attention of the Board to those considerations rooted in the specialized expertise of the Board whereby the Court may find that it has met the standard of review" and to provide insight to the Court as to the roles of the Board, Chairperson and Board Staff in carrying out their statutory mandate.
[63] The Attorney General fully supports the Board in its application on the basis of Paccar. HMRC takes the position that the Board may speak to the record before the Board and to its jurisdiction but cannot address matters relating to procedural fairness including whether the Board structures give rise to an apprehension of bias.
[64] This first application raises the issue of institutional bias, impugns the internal organization, structure and process of the Board. This is an instance where the Board needs be circumspect. That said, while this Court, as we have seen, has previously had occasion to comment on the structure and organization of the Board, this application is the first opportunity for the Court to consider the institutional mandate, practice and policies of the Board purely as it relates to the independence of the Board. I am satisfied, therefore, that the Board's participation at the judicial review would assist the Court in its determination of the issues in the judicial review relating to the organizational practices and multiple policies that the Board lives with and implements pursuant to its mandate. For that purpose, I would authorize the Board to intervene for the limited purpose of making submissions, on the basis of the record before the Court, to explain the roles of the Board Chairperson and Board Staff in carrying out the Board's dual mandate under its governing legislation and pursuant to Board rules and policy, but only to the extent that such explanation is not otherwise provided by the Attorney General. In so doing, the Board may not address the applicable standard of review or the extent to which it may have said to have met that standard. (I include the latter, as it may be implied from the language of the Board's application for leave.) Finally, I find no basis in these circumstances, to grant leave to the Board to appeal the decision of the Court on the review.
Court File T-1671-00
[65] This application deals squarely with the substance of the Board's specialized jurisdiction and the Attorney General and the Board again invoke Paccar in support of the Board's application to intervene on the same basis as in T-1576-99, including the right to address the appropriate standard of review and to appeal the eventual decision of the Court.
[66] I am satisfied, in the circumstances, that the Board should have leave to intervene and that its intervention will assist the Court in determining the questions at issue in the review going to the root of the Board's area of expertise. Leave shall be granted to the Board to make submissions, having reference to the record before the Court, regarding its statutory jurisdiction pursuant to section 83 of the Patent Act, again, in a manner not to duplicate the submissions of the Attorney General. Should the Court have additional questions going to the root of the specialized jurisdiction, the Board shall be present to respond.
[67] The Board points out that it does not know what position the Attorney General will take in this judicial review. Counsel for the Attorney General concedes that his office has no particular interest in the outcome of the judicial review in the sense that the role and mandate of the Attorney General is to assist the Court in reaching a decision that accords with the law. Counsel for the Attorney General agrees that the mandate of the Attorney General is such that she could, conceivably, take the same position on judicial review as the applicant without seeking to disqualify herself pursuant to Rule 303(3).
[68] I take the Board's point that an agency or tribunal whose decision is under review is entitled to expect that there will be a party present at the judicial review to oppose the applicant and defend the reasonableness of the Board's decision. Assuming, as I must at this time, that the Attorney General will oppose the applicant on the review, undoubtedly with the necessary vigour, and that the Attorney General and the Board through its intervention, will bring to bear all those considerations rooted in the primary jurisdiction of the Board as will be of utility to the Court, I see no basis in these circumstances to further authorize the Board to address the applicable standard of review, the extent to which it has met the standard of review, or to allow the Board a right of appeal.
[69] Accordingly I will, by separate Order, dispose of these motions and give directions as to the manner of intervention consistent with these reasons. These reasons are without prejudice to the right of the Board to reapply to broaden the scope of its intervention in the event the Attorney General, while remaining a party, does not contradict the applicant in the judicial review.
COSTS
[70] The costs of the motion of the Board Staff shall be to the applicant in any event of the cause. The Attorney General has not sought costs and none shall be awarded. Each party shall bear its own costs of the Board's motion.
Signed at Ottawa
July 13th, 2001. "R. Aronovitch"
Prothonotary