LeBel J.
LeBel J. – Françoise Nadon, intervener in the Superior Court, in her capacity as representative of a group that brought a class action against a number of municipalities and organizations on Montreal Island in order to obtain the eradication of ragweed and compensation for the damage its propagation causes, has filed what she calls a motion to substitute or to add parties. This motion is being filed in connection with an application for leave to appeal filed by Canadian Pacific Limited et al., from a decision of the Quebec Court of Appeal ([2001] R.J.Q. 1157) that affirmed a judgment of the Superior Court ([1998] R.J.Q. 3163). The Superior Court dismissed the action in nullity brought by the plaintiffs against municipal by-laws making the eradication of ragweed on Montreal Island mandatory.
The documentation filed in the application for leave to appeal shows that neither the municipalities nor the Attorney General of Quebec appear to want to contest the application for leave to appeal. In her motion, Mrs. Nadon argues that, at this stage, she is the only party with a real interest in the debate for purposes of the application for leave. In the Superior Court and in the Court of Appeal, she participated actively in the debate and contested the action in nullity against the by-laws. Moreover, the judgments rendered awarded her costs.
The other parties are contesting Mrs. Nadon’s motion. They argue that she cannot be substituted for a party. They argue that, in any case, her motion is premature because she can always request that she be granted intervener status, if leave to appeal is granted.
There is merit to the objection to Mrs. Nadon’s request that she be substituted as a party. A private party cannot be allowed to substitute itself for the municipal bodies that will make their own decisions regarding the conduct of this case. The latter must retain their full right to participate in the court proceedings, if they choose to exercise this right.
However, generally speaking, it is clear in this case that Mrs. Nadon is the party who presented the opposing position in the Court of Appeal and the Superior Court. She was granted intervener status. She participated aggressively in the debate in order to contest the plaintiffs’ arguments in support of their action in nullity. Legally speaking, she was a full party to the proceedings in the Superior Court and on appeal. In the context of an application for leave to appeal, where none of the respondents appears to want to debate the merits of the application for leave to appeal, her participation is justified. Indeed, I consider it necessary, in the interests of justice, in order to inform the Court fully, in particular on the appropriateness of granting leave to appeal, and to obtain her assessment of the importance of the matters in issue. If leave to appeal is then granted, the question of Mrs. Nadon’s status and participation in the appeal will be decided in accordance with the provisions of the Act and the rules of procedure of the Court, having regard also to the situation that might be created by the attitude of the other parties.
For these reasons, the motion is granted in part and the applicant Françoise Nadon is authorized to file an objection to the application for leave, as if she were a respondent in the application for leave, within 30 days following this judgment, the whole with costs in the cause.