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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.