The decision handed down by trial judge Daniel H. Tingley in a
case pitting 21 former "Dunkin' Donut" franchisees
against their franchisor, Dunkin' Brand Canada Ltd.
("Dunkin' Brands"), was appealed by
Dunkin' Brands on July 23, 2012. Only one month before, namely
June 21, 2012, the Superior Court ordered Dunkin' Brands to pay
$16.4 million in damages for various contractual breaches.
Arguing that the matter will have a great impact on franchise
law, the Canadian Franchise Association
("CFA") petitioned the Court of Appeal
(the Honourable Clément Gascon) for authorization to
intervene, to make representations at the hearing and to file a
factum enlightening the Court on the state of franchise law in
Canada and on the impact and effects of the Tingley judgment on
Justice Gascon of the Court of Appeal chose not to exercise his
discretionary power in favour of the CFA, explaining at length why
their intervention is neither necessary nor useful.
The new regime of article 211 C.C.P. allows a party to intervene
in a more limited fashion, but under criteria that are less strict
than for voluntary conservatory interventions: the judge need only
deem the intervention expedient with regard to the questions at
issue. Even though the threshold for obtaining leave to intervene
under this provision is generally low, it remains that the Court
has assessed it differently in matters involving public law,
fundamental rights and constitutional matters.
In private disputes, notes Justice Gascon, the courts are more
reticent and tend to require the party applying for intervener
status to show that the parties to the proceeding are unable to
present all of the aspects or issues at stake. The usefulness of an
intervention lies in the fact that it is not merely a repetition of
a party's position or an amplification of its view. The judge
also believes that the Court must consider the principles of
proportionality and proper balance between the relative strength of
the parties when exercising its discretion.
In this case, the CFA is a not-for-profit organization whose
good faith is not at issue. However, upon reading the CFA's
motion, it seems rather clear that it would be supportive of the
appellant. While the appellant is a member of the CFA, this is not
the case of the respondents. Justice Gascon concludes that allowing
the motion to intervene would essentially force the respondents to
devote additional time to face another two opponents, and compel
them to compensate for the imbalance. In addition, a comparison of
the arguments of the CFA and Dunkin' Brands reveals that they
are presenting the same views.
For all of these reasons, Justice Gascon ruled that in the
context of a private commercial dispute where the parties are
represented by competent counsel who have thoroughly argued all of
the relevant issues relating to the interpretation and
implementation of franchise agreements, the CFA's intervention
would be nothing more than a repetition of the appellant's
position that would not enlighten the Court on the issues, and he
therefore dismissed the motion for leave to intervene.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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