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Administrative - Tribunal Intervention on Appeal/JR. Hutchinson v. Aviva General Insurance Company
In Hutchinson v. Aviva General Insurance Company (Div Court, 2022) the Divisional Court granted a motion to intervene in an appeal, here - interestingly - by the tribunal that heard the appeal below:The Test for Leave to Intervene
[5] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for intervention as a friend of the court, states as follows: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. [6] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations are relevant:(a) The nature of the case;
(b) The issues involved;
(c) The likelihood that the proposed intervener will make a useful and distinct contribution not otherwise offered by the parties; and
(d) Whether the intervention will cause injustice to the parties or undue delay.
Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.). [7] When considering whether the proposed intervener will make a useful contribution, the court focuses on: (i) the proposed intervener and its expertise or interest in the issues at stake and (ii) the specific contribution the intervener proposes to make. Elementary Teachers’ Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.)
[8] In deciding whether to grant a tribunal leave to intervene, the court must balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, at para. 57. In that case, the Supreme Court of Canada found, at para. 563, that “because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.” The Court identified the following factors as relevant to informing the court’s discretion in defining the role of a tribunal on appeal:(a) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing;
(b) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes;
(c) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.
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