THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 24 Date: 20070302 Between: Docket: 1273 Investment Dealers Association of Canada and Wade Douglas MacBain, Karl Edward Neufeld and Frederick Henry Smith Respondents and Saskatchewan Financial Services Commission Party (Pursuant to s. 11(5) of The Securities Act, 1988) and Mutual Fund Dealers Association of Canada Proposed Intervenor Before: Lane J.A. (in Chambers) Counsel: James S. Ehmann, Q.C. and Marc Kelly for the Appellant Gregory A. Thompson for the Respondents Hugh Corbett for the Proposed Intervenor Application: From: Saskatchewan Financial Services Commission Heard: March 1, 2007 Disposition: Application Allowed Written Reasons: March 2, 2007 By: The Honourable Mr. Justice Lane Lane J.A. [1] The Mutual Fund Dealers Association of Canada (“MFDA”, “applicant” or “respondent”) seeks leave to intervene in the above stated appeal. The appellant consents to the intervention while the respondents oppose the application. The central issue on the appeal is whether the appellant Investment Dealers Association of Canada ("IDA") has jurisdiction to discipline former representatives of one of its member firms for acts done by the representatives prior to their resignation or termination. There is second issue by way of cross-appeal raised by one respondent in regard to matters of delay and abuse of process. This second issue is not relevant to this application and the proposed intervenor has no interest in this second issue. [2] The application is made pursuant to Rule 17 of The Court of Appeal Rules which provides: 17(1) Any person interested in any proceeding before the court may, by leave of the court, intervene in the proceeding on the terms and conditions the court may direct. (2) Any intervenor before the court appealed from shall be served with notice of appeal and notice of cross-appeal, if any, but shall not have the status of an intervenor on appeal unless leave to intervene is first granted by the court. (3) An application to intervene shall be made to the court on notice to all parties and other interveners in the proceeding. [3] The factors to be considered in such an application have been addressed by this Court in Hoffman v. Monsanto Canada Inc.[1] and R. v. Latimer. [4] Turning to the application for leave to intervene, begin by noting that the framework of principle governing applications of this nature was set forth by Mr. Justice Sherstobitoff in R. v. Latimer (R.W.) (1995), 1995 CanLII 3921 (SK CA), 128 Sask. R. 195; 85 W.A.C. 195 (C.A.) at pp. 196-97: In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings; (2) possible prejudice to the parties if intervention be granted; (3) whether the intervention will widen the lis between the parties; (4) the extent to which the position of the intervener is already represented and protected by one of the parties; (5) whether the intervention will transform the court into political arena. As matter or discretion, the court is not bound by any of these factors in determining an application for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the case forward with only the persons directly involved in the lis. [3] Other criteria have been identified as referred to in para. of the Monsanto case but they are not applicable in the application before me. The parties have addressed their respective positions in reference to the factors set out in Latimer and Monsanto. It is common ground the issues of delay, possible prejudice, and the transformation of the court into political arena are not factors that need be considered in this application. The parties argued only the issue of whether the intervenor is already represented and protected by one of the parties (the appellant) and this is the factor argued before me. [4] The intervenor, in support of its application, filed material stating it is non-profit corporation and its members are mutual fund dealers. Its stated purpose is to regulate the mutual fund distribution industry and its members contractually bind themselves to submit to regulation by the Association. It is, as is the Investment Dealers Association, what is referred to in the industry as self-regulatory organization (“SRO”). It contends its purpose in bringing the application is to bring to the Court's attention “some of the broader policy and contextual considerations that have informed the development of the MFDA, and SRO’s in general...”.[4] It wishes to argue that it would be contrary to the advancement of the primary goals of security regulations investor protection, the promotion of fair and efficient capital markets and the harmonization of securities regulation across Canada to sustain the decision of the Saskatchewan Financial Services Commission (“SFSC”) which decision gave rise to the present appeal. [5] The intervenor does not wish to make representation on what it calls the legal or technical issue—that being the correct interpretation of the IDA rules and regulations. Nor does it wish to make representations on the policy arguments regarding the implications of the decision. [6] The intervenor applies to make representation on what it calls the structural arguments. These being the “broader policy and contextual considerations that have informed the development of the MFDA, and SRO’s in general…”[5] the need for its specialized expertise and the importance of avoiding fragmented regulatory system where current approved members are subject to the regulation by the respective SRO and former approved members are subject to the SFSC. It says the MFDA is in unique position because it is fairly new organization (created in 2001), and as such it is more clear as to how and why it was created as an SRO. The IDA, in contrast, developed differently and evolved over considerable period of time (since 1916) and different considerations influenced its development. [7] The intervenor concedes its arguments are not determinative of the issue on appeal but will be helpful to the Court in its deliberations. [8] The respondent to this application in turn argues the position of the IDA adequately represents the position of the applicant. It argues that if there are other policy considerations, the SFSC, which is party to the appeal, can make representations to assist the Court. In response to this latter argument the MFDA says the Commission is joined only because of statutory requirement and the Commission may choose to make no representations at the appeal. The respondent also argues the applicant should make first application to the SFSC rather than directly to the Court. Finally, it contends this is purely provincial matter which involves interpretation of provincial bylaws and the bylaws of the applicant may be different. If the applicant wishes to give any assistance to the appellant it is free to do so. [9] The mere fact the proposed intervenor has additional arguments to make is not determinative of the issue.[6] However, I see no prejudice to the respondent if the applicant’s proposed arguments are presented to the Court on the appeal. The applicant’s arguments should simply put the regulatory scheme in context and may assist the Court in its deliberations. The applicant’s arguments are confined to a relatively narrow issue. I am therefore prepared to allow the application for intervention with some strict conditions. [10] The issue of delay was not addressed and did not seem to be of concern but the appeal is scheduled to be heard on March 12, 2007 and the applicant does not want the appeal delayed. In order to accommodate this narrow timeframe, the applicant must have served and filed its factum on or before March 6, 2007. The respondent may file a reply if it chooses to do so on or before March 8, 2007. The parties may file and serve their material by fax in order to expedite matters. The applicant’s material shall not exceed 12 pages. The intervenor may make oral argument only if requested to do so by the Court. The matter of costs is left to the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of March, A.D. 2007. [1] 2006 SKCA 132 (CanLII); (2006), 289 Sask. R. 32. [2] (1995), 1995 CanLII 3921 (SK CA), 128 Sask. R. 195. [3] Supra, note 1. [4] MFDA Memorandum of Argument at p. 10. [6] Hoffman, supra, note 1.
The applicant seeks leave to intervene in this appeal. The application is made pursuant to Rule 17 of The Court of Appeal Rules. HELD: The application for intervention is allowed on condition that it meet the filing deadline, that its material not exceed 12 pages and that it may make oral argument only if requested to do so by the Court.  1) The intervenor is a non-profit corporation and its members are mutual fund dealers. Its stated purpose is to regulate the mutual fund distribution industry and its members contractually bind themselves to submit to regulation by the Association. It contends its purpose in bringing the application is to bring to the Court's attention 'some of the broader policy and contextual considerations that have informed the development of the Mutual Fund Dealers Association (MFDA) and the self-regulatory organizations (SROs) generally. 2) There is no prejudice to the respondent if the applicant's proposed arguments are presented to the Court on the appeal. The applicant's arguments should simply put the regulatory scheme in context and may assist the Court in its deliberations. The applicant's arguments are confined to a relatively narrow issue.