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Appeal - Leave to Appeal - Intervention. Leon v. Dealnet Capital Corp.
In Leon v. Dealnet Capital Corp. (Ont CA, 2023) the Court of Appeal considered (and denied, essentially for prematurity) a motion to intervene by a well-respected legal clinic as a friend of the court [under R13.02], here in a motion for leave to appeal of an employment-arbitration dispute:[10] Though this motion is on the consent of Leon, and Dealnet does not oppose the motion, the parties were invited to make oral submissions about why PCLS’s intervention should be permitted at this early stage, specifically on the motion for leave to appeal.
[11] In McFarlane v. Ontario (Education), 2019 ONCA 641, at para. 3, Nordheimer J.A. made the following observation with which I agree: “[G]ranting intervener status on a motion for leave to appeal should be a rare and extraordinary event.” In making that observation, he relied on ING Canada Inc. v. Aegon Canada Inc., [2004] S.C.C.A. No. 50, at p. 601, where LeBel J. noted that interventions in support of leave to appeal applications should be “exceptional” and “should not be encouraged”.
[12] The fact is that, in meeting the threshold test for leave to appeal to this court, the moving party must address a standard test, one that extends beyond whether there has been an error of law or mixed law and fact in the decision from which leave to appeal is sought. Where applicable, the moving party should also address other issues, including whether the proposed appeal raises an issue of public importance: Re Sault Dock Co. Ltd. v. City of Sault Ste. Marie (1973), 1973 CanLII 493 (ON SC), 2 O.R. 479 (C.A.).
[13] PCLS argues that this case is more akin to 2016596 Ontario Inc. v. Ontario (Minister of Natural Resources), [2003] O.J. No. 2905 (C.A.). In that case, this court granted intervener status both on a motion for leave to appeal and, if leave to appeal were to be granted, on the appeal proper. In 2016596, O’Connor A.C.J.O. specifically noted that there was an allegation by the respondent on the leave motion that the moving party had failed to provide evidence of the public importance of the proposed appeal. There is a similar allegation here, but it is not borne out by the record. Not only does the moving party’s factum in this leave to appeal motion address the public interest, but there is also evidentiary support for the far-reaching consequences of the legal issue touching on Ontario employees that must be resolved should leave to appeal be granted. As such, with submissions of the moving party and the responding party, the panel hearing the motion for leave to intervene will be well equipped to determine if the motion meets the test for granting leave to appeal, which includes consideration of, but is not limited to, the public importance of the issue.
[14] While I would not rule out the possibility that extraordinary circumstances may arise where an intervener could assist with the question of public interest in the context of a motion for leave to appeal, this is not one of those very rare cases. Submissions on the public importance of this motion for leave to appeal are already made in the moving party’s factum. In my view, the PCLS has not met the high onus of establishing that their contribution is necessary at this stage.
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