BETWEEN:
THE CHINESE CANADIAN NATIONAL COUNCIL
and
FRANKLIN D. TALL
Heard at Toronto, Ontario, on January 11, 2007.
Judgment delivered from the Bench at Toronto, Ontario, on January 11, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Docket: A-645-05
Citation: 2007 FCA 18
CORAM: NADON J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
THE CHINESE CANADIAN NATIONAL COUNCIL
Appellant
and
HER MAJESTY THE QUEEN and
FRANKLIN D. TALL
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on January 11, 2007)
[1] The Chinese Canadian National Council (CCNC) is appealing the order of a Judge of the Tax Court of Canada (Tall v. Canada, 2005 TCC 765) dismissing its motion for leave to intervene in the income tax appeal of the respondent Franklin D. Tall. The intervener proposes to present evidence and submit written and oral arguments.
[2] The test for obtaining intervener status in the Tax Court is set out in section 28 of the Tax Court of Canada Rules (General Procedure), which reads as follows:
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28. (1) Where it is claimed by a person who is not a party to a proceeding (a) that such person has an interest in the subject matter of the proceeding, (b) that such person may be adversely affected by a judgment in the proceeding, or (c) that there exists between such person and any one or more parties to the proceeding a question of law or fact or mixed law and fact in common with one or more of the questions in issue in the proceeding, such person may move for leave to intervene. |
28. (1) Quiconque n'est pas partie à l'instance et prétend : a) qu'il a un intérêt dans l'objet de cette instance; b) qu'il peut subir un préjudice par suite du jugement; c) que lui-même et l'une ou plusieurs des parties à l'instance sont liés par la même question de droit, la même question de fait ou la même question de droit et de fait, peut demander, par voie de requête, l'autorisation d'intervenir dans l'instance. |
|
(2) On the motion, the Court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, and the Court may, (a) allow the person to intervene as a friend of the Court and without being a party to the proceeding, for the purpose of rendering assistance to the Court by way of evidence or argument, and (b) give such direction for pleadings, discovery or costs as is just. |
(2) Saisie de la requête, la Cour, après avoir examiné si l'intervention risque de retarder indûment ou de compromettre la décision sur les droits des parties à l'instance, peut : a) autoriser le requérant à intervenir à titre d'intervenant bénévole et sans être partie à l'instance, afin d'éclairer la Cour par son témoignage ou son argumentation; b) rendre toute directive qu'elle estime appropriée en matière d'actes de procédure, d'interrogatoire préalable ou de frais. |
[3] The CCNC is a non-profit organization. One of its objects is the promotion of equal rights for Chinese Canadians. The CCNC argued in the Tax Court, and in this Court, that the issues raised in Mr. Tall’s income tax appeal affect some of the individuals it represents.
[4] The Judge was satisfied that CCNC is an organization that is genuinely interested in the issues raised by Mr. Tall. For that reason, it is arguable that the Judge was persuaded that the test in paragraph 28(1)(a) was met. However, the Judge also concluded that if the intervention were permitted, the trial would be unduly delayed and the rights of the parties could be prejudiced.
[5] An order granting or denying leave to intervene is a discretionary one. This Court will not reverse such a decision in the absence of an error of law or a misapprehension of the facts: Eli Lilly Canada Inc. v. Canada (Minister of Health), 2001 FCA 108, C.U.P.E. v. Canadian Airlines International Limited, [2000] F.C.J. No. 220 (QL) (F.C.A.).
[6] According to section 28 of the Tax Court Rules, a Judge who is considering a motion for leave to intervene in an income tax appeal must weigh and balance a number of potentially competing factors. We will not attempt to list all of the factors that might be relevant in a particular case but, based on the words and context of section 28, the relevant factors in most cases would include the issues raised in the income tax appeal, the nature of the proposed intervener’s interest in the case, the argument that the intervener proposes to make, and the likelihood of undue delay and prejudice if this intervention is permitted.
[7] As we understand the reasons the Judge gave for his decision in this case, he took all of those considerations into account. We can discern no error of law in the Judge’s decision, and his factual conclusions were reasonably open to him. The material submitted by CCNC in support of its motion discloses the likelihood that the intervention would impose on the Crown the burden of dealing with evidence and submissions of CCNC that may be of genuine concern to CCNC, but are not relevant to Mr. Tall’s income tax appeal.
[8] For these reasons, and despite the able submissions of counsel for CCNC, this appeal will be dismissed.
FEDERAL COURT OF APPEAL
Names of Counsel and Solicitors of Record
DOCKET: A-645-05
STYLE OF CAUSE: the chinese canadian national council
Appellant
and
HER MAJESTY THE QUEEN and
FRANKLIN D. TALL
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 11, 2007
REASONS FOR JUDGMENT
APPEARANCES BY:
avvy yao-yao go
t. constance nakatsu For the Appellant
catherine letellier de st. just
bret cuddy For the Respondent
SOLICITORS OF RECORD:
metro toronto chinese &
southeast asian legal clinic
toronto, on
t. constance nakatsu
Toronto, on for the appellant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent