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Intervention - Added Party [RCP 13.01(1)(a-c)]. Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance)
In Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance) (Ont CA, 2024) the Ontario Court of Appeal granted a motion to intervene as an added party:[2] Rule 13.01 imposes a two-part test for intervention as a party. Under the first part of the test, the proposed intervener must satisfy one of three conditions. It must show: (a) that it has an interest in the subject matter of the appeal; or (b) that it may be adversely affected by a judgment in the appeal; or (c) that there exists between the proposed intervener and one or more of the parties to the appeal a question of law or fact in common with one or more of the questions in issue in the appeal. The second part of the test requires consideration of “whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding”. Granting leave to intervene is discretionary; the court may “make such order as is just”. . Canada (Attorney General) v. M.C.
In Canada (Attorney General) v. M.C. (Ont CA, 2023) the Court of Appeal considered (and denied) a motion to intervene as an added party [R13.01] in a Firearms Act 'reference' appeal:ANALYSIS
[6] On a motion to intervene as an added party under r. 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the proposed party must show that they have an interest in the subject matter of the proceeding, may be adversely affected by a judgment in the proceeding, or that there is a common issue of law or fact with one of the parties, and that they will not unduly delay the proceeding or prejudice the rights of the parties.
[7] The test on this motion is discretionary, and relevant considerations include the nature of the case, the issues which arise, and the likelihood that the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
[8] I turn to address these considerations in the context of this proposed intervention.
1) Nature of the interest
[9] The rules do not require a party seeking to intervene to have a direct interest in the very issue to be decided. For example, in Butty v. Butty (2009), 2009 CanLII 92125 (ON CA), 98 O.R. (3d) 713 (C.A.), at paras. 8-10, LaForme J.A. granted a lawyer leave to intervene as a party in an appeal from a trial judge’s decision that was highly critical of the lawyer’s conduct during the trial because the lawyer had an interest in the subject matter of the appeal, and likely had no other practical remedy. That said, intervention is more likely to be granted where the appeal directly bears on the proposed party’s legal interests, and not simply a potential or parallel legal proceeding: McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (Ont. C.A.), at paras. 19-21.
[10] At first glance, the proposed intervener appears to meet the threshold set out in r. 13.01. J.P. may well be adversely affected by a judgment in the proceeding given the potential impact of this decision on his dispute with Canada. This court’s eventual decision on whether the OCJ has jurisdiction in this matter will impact his own s. 74 application. There is certainly a common issue of law or fact with the other responding parties on this appeal.
[11] However, J.P.’s interest in this proceeding is shared by many others who have brought s. 74 applications in relation to the notices sent by Canada. Many, if not all, of them will have their interests similarly affected by the outcome of this appeal. This kind of impact can be distinguished from the fact-specific way in which litigation may have a direct impact on a third party’s substantive rights. For example, in Buccilli v. Pillitteri, 2014 ONCA 337, this court allowed intervention under r. 13.01 where the outcome of a dispute over a family business would have direct impact on a third-party family member who was not part of the action.
[12] The concern in this case is not whether J.P. has an interest in this appeal, as all s. 74 applicants with applications currently before provincial courts will have an interest in this appeal; rather, the issue on this motion is whether J.P. brings any additional perspective to this appeal that merits intervention as a party.
2) Exercise of discretion
[13] The test for intervention is ultimately fact-specific and discretionary. This court has held that on both rr. 13.01 and 13.02 motions, it is relevant to consider the nature of the case, the issues which arise, and the likelihood that the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at para. 10. In Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 29, in considering applications to intervene under r. 13.02, Watt J.A. stated that, “In the end, a proposed intervenor must have more to offer than mere repetition of the position advanced by a party. The ‘me too’ intervention provides no assistance.”
[14] In Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, 148 O.R. (3d) 433, Trotter J.A. dismissed a motion to intervene by an individual whose own case, which was before the Divisional Court, raised a similar issue to that before the Court of Appeal. Trotter J.A. reasoned that granting the individual party status would effectively bypass the Divisional Court for the sake of convenience, stating, in part, at para. 17:Moreover, there is nothing unique about multiple cases with the same or similar issues traveling through the system at the same time, but at different levels of court. This, in itself, does not beget inconsistent judgments. To the extent that the issues in the Tomec and Soares cases are the same, the Divisional Court would be bound by the legal determinations made by this court, thereby avoiding inconsistent findings. Moreover, as counsel for Economical submits, there are many, many cases “in the system” that involve the same or similar issues as the one raised in Ms. Tomec’s appeal. Each will have to move through the established appeal/judicial review process in due course. [Emphasis added.] [15] Similar considerations apply in this case. While this court’s decision in this appeal will no doubt impact J.P.’s s. 74 application, I cannot conclude J.P. is in a meaningfully different position than the respondents, or the other (over 50) individuals in Ontario alone who have brought s. 74 applications at the OCJ. As in Tomec, each of these applications will have to move through the appropriate appeal or judicial review routes in due course. To the extent J.P. has had a different experience than others who are similarly situated, granting intervention on that basis would expand the record in this appeal, and present other potential, evidentiary problems.
[16] For these reasons, J.P.’s motion for intervention as a party is dismissed. . Haudenosaunee Development Institute v. HMQRO v. Sun-Canadian Pipe Line Company Limited
In Haudenosaunee Development Institute v. HMQRO v. Sun-Canadian Pipe Line Company Limited (Div Court, 2023) the Divisional Court grants, with terms, a corporation intervenor status as an added party:Analysis
[5] Rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits a party to move for leave to intervene as an added party where they have (a) an interest in the subject matter of the proceeding; (b) they may be adversely affected by a judgment in the proceeding; or (c) there exists between them and one or more of the parties a question of law or fact in common with the questions in issue in the proceeding.
[6] Pursuant to r. 13.01(2), the court must consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and may make such order as is just.
[7] I agree with SCPL that they have met all three criteria set out in r. 13.01(1). I start with the third factor, that there are issues of law and fact in common, because the commonality between the proceedings is evident in this case. Both proceedings relate to the same pipeline project by the same proponent. Both address the rights of the same Indigenous community in respect of the project. In both proceedings, the court will need to address whether the Crown met its duty to engage with HDI. In the appeal of the OEB decision, HDI alleges that the OEB erred in its assessment of the adequacy of the Crown’s engagement with HDI. In the Application, HDI challenges the process by which the Ministry arrived at the opinion that Indigenous consultation with respect to the project was sufficient. The OEB considered the opinion letter in its decision to grant SCPL leave to construct.
[8] HDI attempts to distinguish between the adequacy of the Crown’s engagement with HDI in the Appeal, which focuses in part on the failure to conduct a preliminary assessment of rights, and the process by which the Ministry arrived at the opinion letter. In its submission, the Ministry’s process leading to the opinion letter was deficient in that the Ministry failed to contact HDI when it was reviewing whether the duty to consult had been met. With respect, this is an overly fine distinction that does not persuade me, the two proceedings have no commonality. Overall, both proceedings challenge the Crown’s engagement with HDI as insufficient. One of the remedies HDI seeks on the Application is that the Ministry’s letter be quashed. If the Court concluded that the letter should be quashed because of insufficient engagement with HDI, this could impact its analysis of whether the OEB erred in finding the duty to consult had been met.
[9] Further, HDI’s position that there are no issues in common is belied by the fact that it requested to have the Application and Appeal consolidated and heard together. In an August 25, 2022 letter to the parties, counsel for HDI stated that the Application and Appeal “concern the same or substantially similar facts.”
[10] SCPL also has a direct interest in and could be adversely impacted by the Court’s decision on the Application. Although HDI frames the Application as relating only to the relationship between the Ministry and HDI, its factum on the Application implicates SCPL’s conduct. For example, in its factum, HDI impugns SCPL’s actions in discussing a draft engagement agreement with the Ministry.
[11] More importantly, on the Application, HDI is seeking an order not only quashing the opinion letter but requiring the Ministry to engage with HDI in reaching a new opinion regarding whether the duty to consult was met. If HDI is successful in obtaining this remedy, SCPL’s project could be delayed or otherwise impacted.
[12] Finally, there is no prejudice to HDI in granting SCPL intervener status. The parties have completed cross-examinations and a schedule for the exchange of materials is already in place. SCPL does not seek to alter the schedule. The Appeal and Application will be heard together over one day. SCPL’s participation in the Application will not result in any delay or expansion of the Application.
[13] Given the strength of SCPL’s direct interest in the Application, I do not need to address HDI’s submissions regarding whether SCPL will make a useful contribution to the hearing of the Application.
Disposition
[14] Therefore, SCPL is granted status as an additional party in the Application, with all the rights of a party. These include the right to file a factum and make oral submissions, with the length of the oral submissions to be discussed by the parties and ultimately in the discretion of the panel. SCPL also may seek costs or be subject to an award of costs. Both HDI and SCPL are encouraged to minimize any overlap in their submissions on the Application and Appeal. SCPL is also encouraged to avoid any duplication in its submissions on the Application with those of the Ministry. . Caledon (Town) v. Darzi Holdings Ltd.
In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered practice matters and intervenor status of former counsel when facing a civil claim for ineffective assistance of counsel:[22] The well-established practice of this court on criminal appeals in which ineffective assistance of counsel is advanced as a ground of appeal is that responding Crown counsel adduces the evidence responding to the appellant’s allegations. Typically, Crown counsel will file an affidavit from the former counsel that responds to the allegations of ineffective assistance of counsel. Either party may file the transcript of any cross-examination on that affidavit. This reflects the principle that the preparation of the materials for a motion for fresh evidence is controlled by the parties to the appeal.
[23] The same principle should apply in this civil appeal. Consequently, it will be for the Town’s counsel to file any affidavit from Former Counsel and file any necessary responding motion record regarding the fresh evidence.
[24] However, given the novelty of the appellants’ attempt to advance ineffective assistance of counsel as a ground of appeal and the obvious reputational interest of Former Counsel in the motion for fresh evidence, I grant Former Counsel leave to intervene as an added party on the appeal pursuant to r. 13.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but with his rights limited as follows:(i) Former Counsel may file a responding factum on the motion to adduce fresh evidence of no more than 10 pages, limited to the issue of whether ineffective assistance of counsel exists as a ground of appeal in civil proceedings in this province;
(ii) That factum shall be delivered on or before Friday, September 23, 2022, but following the appellants’ delivery of their formal fresh evidence motion record, with supplementary factum; and
(iii) Whether Former Counsel may make submissions at the hearing of the motion for fresh evidence is a matter to be decided by the panel hearing that motion and the appeal. . Capital Sports Management Inc. v Trinity Development
In Capital Sports Management Inc. v Trinity Development (Div Court, 2022) the Divisional Court considered a motion to intervene in a leave to appeal motion:[9] In an amended notice of motion for leave to appeal served in early July 2022, Capital Sports added grounds that directly impugned Gowlings’ conduct. Gowlings then sought leave to intervene as a party under r. 13.01 of the Rules of Civil Procedure, which provides as follows:13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. [10] In brief, Gowlings submits that it has a direct interest in the subject matter of the leave motion, which focuses on the nature and scope of its retainer. Gowlings further submits that it may be adversely affected as a result of the recent grounds challenging its conduct. Gowlings submits that it therefore meets the criteria in both r. 13.01(1)(a) and (b), only one of which is required for leave.[11] The objecting parties rely on the legal principle that granting intervener status on a motion for leave to appeal should be a rare and extraordinary event: McFarlane v. Ontario (Education), 2019 ONCA 641, at para. 3. Gowlings submits that the cases that apply that principle are distinguishable because in those cases there was an aspect of general or public importance. However, r. 62.02 also includes a requirement that there be an issue of importance or that the court find it desirable to grant leave. Those aspects of the leave test support the application of the above principle and a very limited availability of interventions on a motion for leave to appeal.
....
[18] Leave to intervene is discretionary. Even assuming that Gowlings has a sufficient interest under r. 13.01, I have these concerns about granting the requested intervention at the leave to appeal stage. The proposed factum focuses on the issues also put forward by Capital Sports regarding the nature and scope of the retainer. I am not persuaded that Gowlings’ submissions on those same issues justify an intervention at the leave to appeal stage. Further, the added challenges to Gowlings’ conduct come up for the first time in the amended notice of motion for leave to appeal. Those issues would only be adjudicated if leave to appeal is granted. They are therefore more germane if there is an appeal. . 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership
In 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership (Ont CA, 2022) the Court of Appeal considered the role of whether a case is public or private in nature in granting intervenor status:[18] Applying the criteria in r. 13.01, as interpreted by this court, although I am satisfied that the proposed interveners have an interest in the subject matter of the proceeding – i.e., the $2.063 million fund created for their benefit by the trial judge – other factors speak against allowing them to intervene as an added party.
[19] As a general matter, the nature of the dispute between the parties on appeal is crucial to this determination. In Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), Watt J.A. said, at para. 23:The nature of the case is an important factor. Where the litigation in which the intervention is sought is a private dispute, rather than a public prosecution pitting an individual against the state, the standard to be met by the proposed intervenor is more onerous or more stringently applied ... This approach has been followed in other decisions of this court: see Foxgate Development Inc. v. Jane Doe, 2021 ONCA 745, 159 O.R. (3d) 274, at paras. 7, 39; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 11. . Errol Massiah v. Justices of the Peace Review Council
In Errol Massiah v. Justices of the Peace Review Council (Div Ct, 2020) the Divisional Court considered an intervenor motion under R13.01 by former counsel to a judicial review applicant:15. The criteria for intervention as an added party are set out in Rule 13.01:13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. 16. In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), Dubin C.J.O. held that the essential matters to be considered are: the nature of the case; the issues which arise; and, 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.
17. Appellate and review courts have occasionally exercised this discretion in favour of lawyers whose conduct has been impugned, but not every lawyer whose conduct is criticized has an automatic right to party status on appeal. Rule 13.01 is discretionary and requires a consideration of all the circumstances, with a focus on the requirements of the Rule itself and those matters articulated by Dubin C.J.O. in Peel.
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