Canada: A Little Help From Our Friends (Of The Court): Public Interest Interventions In Ontario Courts

Last Updated: February 15 2017
Article by Jacob R.W. Damstra

At the end of last year, I wrote a series of articles about public interest and environmental interventions in Federal Court proceedings: "Interventions in Federal Court: A (Nearly) New Approach", "Intervening in the 'Interests of Justice' in the Federal Courts", and "Environmental Interventions in Federal Court Proceedings". Following that series, this article will provide a concise overview of public interest interventions in Ontario proceedings. Specifically, this article considers: the applicable rules for intervention; the various factors Ontario courts consider in determining whether to grant leave to intervene; and a few areas where interventions in the public interest are most frequent - constitutional law, class actions, and environmental litigation.

Rule 13 of the Rules of Civil Procedure

Pursuant to the Rules of Civil Procedure, RRO 1990, Reg 194, Rule 13, a court may grant leave to intervene in civil proceedings to a party in two capacities: (1) as an added party (Rule 13.01); or (2) as a friend of the court (Rule 13.02). This article focuses on Rule 13.02 interventions as they are more relevant to public interest litigation.

Rule 13.02 states:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

Simple enough in its wording, the language of this rule is clearly discretionary. Accordingly, the jurisprudence has developed a number of considerations to help guide judges in the exercise of that discretion.

Elements of an Amicus Curiae1 Intervention

In Jones v Tsige,2 Watt JA described the governing principles for leave to intervene as a friend of the court as "largely uncontroversial".

The principles governing leave to intervene have been largely uncontroversial since 1990, when Dubin CJO opined that the proper matters to be considered in determining whether to grant leave to intervene are:

(a) the nature of the case;

(b) the issues which arise; and

(c) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.3

Subsequently, McMurtry CJO expanded on the first criterion, and some courts have since added the explicit consideration whether the issues are essentially private in nature or whether they involve a public interest component.4 Where the case is essentially a private dispute, "the standard to be met by the proposed intervenor is more onerous or more stringently applied".5 However, this more onerous threshold applicable to private litigation may be relaxed when public policy issues arise or matters of public interest are involved.6

It should be noted that "resolution of the appeal" in the third consideration equally applies to the resolution of the issues in non-appeal proceedings.7 In some cases, this third criterion has been expressed as two separate factors: (i) whether the applicant will make a useful contribution; and (ii) whether the applicant will cause injustice to the immediate parties.8

Regardless of how the factors are framed, the ultimate issue is whether the proposed intervenor will render "assistance to the court by way of argument." To that end, the onus is on the applicant to demonstrate the court's ability to determine the issues before it would be enhanced by the proposed intervention.9 The likelihood that intervention will be of assistance depends on numerous variables, including the experience and expertise of the proposed intervenor.10

Amicus curiae need not be neutral, abstract and objective to be of assistance to the court.11 As David Scriven and Paul Muldoon pointed out, the language of Rule 13.02 contemplates an intervenor rendering assistance "by way of argument":

While the old case law implicitly assumes that a friend of the court cannot provide "assistance" when it intends to advocate its point of view, the language of Rule 13.02 appears to deny this traditional argument. The rule states that any person may intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. The term "argument" literally means to "persuade by giving reasons" and thus directly imports the notion of advocacy in such applications.12

That said, "me too" interventions have not been viewed favourably by the courts.13 In order to render assistance, proposed intervenors must be able to offer more than repetition of a party's evidence and argument or a slightly different emphasis on arguments already made by the parties.14

This type of repetition is one type of injustice a court may cite in denying leave to intervene. Other types of injustice militating against intervention include: the late timing of the proposed intervention;15 additional evidence the proposed intervenor seeks to have added to the record;16 new arguments raised for the first time by the intervenor requiring a reply from the parties.17 However, even where injustice may result, "the likelihood of a useful contribution should exert the greater influence".18

It should be noted that different approaches and practical considerations on motions for leave to intervene will arise depending on, for example, whether the proposed intervenor has intervened in the proceedings at lower levels or is a new intervenor on appeal, or whether multiple proposed intervenors might consider forming "blocks" on various issues arising in the proceeding. Other ever-present practical considerations in interventions and other public interest litigation will involve dealing with costs, but these are topics for consideration in another article.

With those governing principles in mind, the remainder of this article considers a few examples of proposed interventions in different contexts.

Constitutional Law

Beginning with Peel, Dubin CJO recognized that in constitutional and Charter cases the stringent rules governing interventions should be somewhat relaxed. In Authorson, McMurtry CJO explained: "This approach ensures that the court will have the benefit of various perspectives of the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation."19

However, the mere fact that litigation involved constitutional issues is not an open door to intervention. Even in constitutional and Charter cases, where the issues on which a proposed intervenor seeks leave to make arguments are not constitutional in nature, the applicant will not benefit from this relaxed standard.20 On the other side of the coin, the fact that proposed intervenors are prepared to make more sweeping constitutional arguments does not mean they will be able to add or contribute to the resolution of the legal issues between the parties.21

In two public law cases currently on their way to the Supreme Court of Canada, Groia v Law Society of Upper Canada and Trinity Western University v Law Society of Upper Canada, intervenors have been deeply involved. In both Groia22 and TWU23, Nordheimer J cited the following passage from the Court of Appeal leave to intervene judgment in Bedford v Canada (Attorney General):24

[W]here the intervention is in a Charter case, usually at least one of three criteria is met by the intervener: it has a real substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base.

Justice Nordheimer confirmed the primacy of the Peel factors, stating that this passage from Bedford was simply a useful tool to determine the usefulness of a proposed intervention in Charter cases.

In TWU, Nordheimer J also pointed out that in constitutional and Charter cases, where multiple entities apply for leave to intervene making arguments on either side of the issues at bar, "the court should take into account the general desire that there should, in the end result, be some balance between the positions to be advocated when granting intervener status."25

Class Actions

Class proceedings are another context in which public interest interventions are likely to arise. The governing principles remain the same, but as Perell J suggested in Fontaine, in addition to the court's jurisdiction to add intervenors as parties or as friends of the court pursuant to Rule 13, the court has broad powers pursuant to section 12 of the Class Proceedings Act, 199226 to make any order it considers necessary to ensure the fair and expeditious determination of the class proceeding on such terms as the court considers appropriate.27 This would include the addition of intervenors in class action proceedings.

In addition to providing additional authority to grant leave to intervene, the Class Proceedings Act may also contain reasons for a court to deny intervention. For example, in Fairview Donut Inc. v The TDL Group Corp.,28 a group of franchisees banded together as the Concerned Franchisees Group, and sought leave to intervene in certification proceedings in order to oppose certification. Justice Lax denied leave to intervene, noting the opt-out mechanism provided in the Class Proceedings Act was the appropriate way for the proposed intervenors to express their concerns.29

Another interesting intervention case in the class action context can be found in Andrews v Ontario.30 In that case, Andrews had opted out of a certified class action and pursued private litigation against the Province. When Ontario brought a motion for summary judgment, the representative plaintiff in the class action, Mayotte,31 sought leave to intervene, ostensibly to bolster Andrews' position and avoid the risk of an unfavourable precedent being set which would impact the chances of success for the class action. Again, leave to intervene was denied, because, among other reasons, section 13 of the Class Proceedings Act expressly provides a mechanism by which a representative plaintiff can seek a stay of any individual actions that might adversely impact a class action.32

Environmental Litigation

As concerns for the health of the environment and environmentalism increase, so too does environmental litigation. By its very nature litigation to protect or preserve the natural environment is in the public interest; thus litigation which purports to do so falls within the category of public interest litigation. Intervenors in environmental litigation might include environmental NGOs, industry groups, or even government entities like the Environmental Commissioner of Ontario.

However, despite its prima facie expertise in environmental issues and public policy concerns, even the Environmental Commissioner of Ontario has not been successful in applications to intervene in at least two major environmental cases: Pearson v Inco and Lafarge v Ontario.33 In both, the court was concerned with the way in which the Commissioner attempted to expand the record significantly, and was skeptical about whether the Commissioner's argument would provide anything more than repetition of the parties' submissions. In Pearson v Inco, however, Doherty JA granted leave to the Commissioner to intervene on the costs order, which was said to raise public interest concerns.34 These cases demonstrate that even an apparently well-suited candidate to be amicus curiae in environmental litigation still must satisfy the criteria for intervention.

A final comment on environmental interventions is warranted, as there is a tendency in this type of litigation for entities or coalitions to be created for the sole purpose of advancing some position in litigation or political lobbying. In Lafarge, the Industry Coalition for Environmental Fairness Inc. was created for precisely that purpose – intervening in the judicial review of an Environmental Review Tribunal decision. Justice Himel was not persuaded the ICEF had any real experience in bringing a unique perspective to the court, as it was incorporated for the sole purpose of seeking to intervene. Ultimately, ICEF did not meet its onus of showing it would render assistance to the court, beyond merely repeating the arguments of Lafarge, a member of two of ICEF's constituent organizations.

Conclusions

As in Federal Court proceedings, interventions provide a unique avenue by which the courts in Ontario may be presented with broad, divergent perspectives, especially in matters of public interest. That said, as with the Federal Court rules and jurisprudence surrounding interventions, Ontario courts have not been laissez-faire in their approach to interventions. Proposed public interest intervenors would be well-advised to familiarize themselves with the jurisprudence and prudent to avoid the errors of previous failed interventions, else they waste judicial resources, the parties' efforts, and their own time.

Footnotes

1. Amicus curiae is the Latin term meaning "friend of the court".

2. Jones v Tsige (2011), 106 OR (3d) 721 (CA), at para 20.

3. Peel (Regional Municipality) v Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 OR (2d) 164 (CA), at 167.

4. Authorson (Litigation Guardian of) v Canada (Attorney General) (2001), 147 OAC 355 (CA), at paras 7-9; 1162994 Ontario Inc. v Bakker (2004), 184 OAC 157 (CA), at para 6.

5. Jones v Tsige, at para 23; Fontaine v Canada (Attorney General), 2014 ONSC 3781, at para 21.

6. Childs v Desormeaux (2003), 67 OR (3d) 385 (CA), at paras 3 and 10.

7. Fontaine, at para 23.

8. Ibid.

9. Ontario (Attorney General) v Dieleman (1993), 16 OR (3d) 32 (Gen Div); M. v H. (1994), 20 OR (3d) 70 (Gen Div).

10. Jones v Tsige, at para 25.

11. Childs, at para 13.

12. David Scriven and Paul Muldoon, "Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1986) 6 Advocates' Q. 448 at 456-57, cited with approval in Childs, at para 14.

13. Jones v Tsige, at para 29; Peel, at para 8.

14. Stadium Corp. of Ontario Ltd. v Toronto (City) (1992), 10 OR (3d) 203 (Div Ct), at 208; Fontaine, at para 21; see also R. v Finta, [1993] 1 SCR 1138, at para 5.

15. Oakwell Engineering Ltd. v EnerNorth Industries Inc., [2006] OJ No 1942 (CA), at para 13.

16. Tadros v Peel Regional Police Service, 2008 ONCA 775, at paras 8 and 10; Childs, at para 18; Bakker, at para 9.

17. Pearson v Inco Ltd., 2005 CanLII 5393 (ON CA), at para 6.

18. Jones v Tsige, at para 28; Childs, at paras 13-14; Oakwell, at para 9.

19. Authorson, at para 7; see also Dieleman.

20. Ibid, at para 14.

21. Stadium Corp., at 208.

22. Joseph Groia v Law Society of Upper Canada, 2014 ONSC 6026, at para 4.

23. Trinity Western University v Law Society of Upper Canada, 2014 ONSC 5541, at para 5.

24. Bedford v Canada (Attorney General), 2009 ONCA 669, 98 OR (3d) 792, at para 2.

25. TWU, at para 10.

26. SO 1992, c 6.

27. Fontaine, at para 24.

28. Fairview Donut Inc. v The TDL Group Corp., 2008 CanLII 60983 (ON SC).

29. Ibid, at paras 8 and 11.

30. Andrews v Ontario, 2012 ONSC 3146.

31. Mayotte v Ontario, 2010 ONSC 3765.

32. Andrews, at para 16.

33. Lafarge Canada Inc. v Ontario Environmental Review Tribunal, 2008 CanLII 6870 (ON SCDC).

34. Pearson v Inco, at paras 7-8.

www.lerners.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jacob R.W. Damstra
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions