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Intervention - 'Friend of the Court' [RCP 13.01 (2)]


COMMENT

Under RCP 13.02 a 'friend of the court' (amicus curiae) may be granted intervenor status "with leave of a judge [SS: on motion for leave] or at the invitation of the presiding judge or associate judge". This latter court-appointment is the traditional amicus curiae model.


MORE CASES

Part 2 | Part 3

. Dorsey v. Canada (Attorney General)

In Dorsey v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered several amicus intervention applications in appeals of prisoner habeas corpus denials
[10] In deciding these motions, the court will typically consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167; Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755, at para. 3; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; and Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.

...

[37] In my view, each of the criteria set out in the case law on interventions favours granting intervention in this case.

a) Nature of the case

[38] The nature of the case and issue on appeal support granting intervention. The issue before the court is whether refusal of transfers to a lower security institution amounts to a deprivation of liberty such that the writ of habeas corpus is available. Habeas corpus is a constitutional right entrenched in s. 10(c) of the Charter and is a legal remedy that is fundamental to the protection from unlawful deprivations of liberty: see Canada (see Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at paras. 1 and 20-21. The issue before the court is of public importance and transcends the immediate parties.

[39] This is not a private dispute, but instead one involving the state. As such, the more onerous standard for interventions in private disputes does not apply here: Foster v. West, 2021 ONCA 263, at para. 11; Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23; and Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, at para. 5.

[40] I am not persuaded by Canada’s argument that habeas corpus applications are not well-suited for interveners because habeas corpus applications are meant to be an expeditious process. This is not a standard habeas corpus application and this appeal relates to a threshold issue regarding what constitutes a “deprivation of liberty” such that that habeas corpus is available.

b) Useful contribution

[41] The proposed interveners are well-positioned to assist the court as they are all established and reputable organizations with specialized knowledge and expertise. As discussed above, I am satisfied that the specific submissions of the proposed interveners will make a useful contribution to the court for this appeal.

[42] The last issue in these motions is whether the interveners’ contributions could cause injustice in this case.

c) Injustice to the Parties

[43] There is no injustice to the parties from the positions of the proposed interveners as they do not inappropriately weigh in on the actual merits of the appeal. Rather, the proposed interveners are advancing legal arguments that are properly the subject of an intervention: R. v. Doering, 2021 ONCA 924, at para. 22. To the extent the proposed interveners are taking a position on the outcome of the appeal, in my view, that is simply a reflection that the crux of this appeal is the legal threshold for triggering a deprivation of liberty. This appeal is not a fact-specific inquiry. It is not contested that the appellants were denied transfers to a lower security institution. Of course, the factual context and the distinct perspectives offered by the proposed interveners may be relevant to the interpretation of the legal threshold.

[44] Courts have recognized that interveners need not be disinterested in the outcome of the case and may be generally aligned with a position of one of the parties: see e.g., Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749, at para. 19. In this case, all the proposed interveners are aligned with the position of the appellants. Canada has raised the concern of injustice to Canada from having to respond to multiple interveners.

[45] In Jones v. Tsige, at para. 28, this court recognized that while the court should be cautious of the “potential injustice to an original litigant by an accumulation of intervenors”, the court should also not “be quick to dispatch those with some value to add for this reason alone” as “[a]ssistance from intervenors can come in assorted shades and from different perspectives.” It is particularly important in appeals involving the state and raising issues of public importance that the court hear from different perspectives.

[46] While being mindful of five interventions aligned with the appellants, any potential injustice to the respondent can be cured by the terms of the order granting intervention.
. Taylor v Pivotal

In Taylor v Pivotal (Div Ct, 2021) the Divisional Court considers what is essentially a request that an amicus curiae be appointed:
[19] As part of the relief sought on the motion for interim relief, Mr. Taylor also asks for the appointment of a “knowledge interpreter”. Essentially, he is asking for the appointment of amicus curiae. The Court can appoint amicus in circumstances where it needs assistance with the presentation of a case; the purpose of amicus is not to help a self-represented litigant but to assist the court and is only to be ordered in exceptional circumstances where assistance is “essential to the adequate discharge of the judicial functions in the case”: Morwald-Benevides v. Benevides, 2019 ONCA 1023, at para. 27. Even if Mr. Taylor had framed the relief sought as a request for state funded counsel, Mr. Taylor would first have to demonstrate that he meets the criteria for such an order, which include demonstrating that he has been refused by Legal Aid Ontario, that he does not have the means to pay a lawyer and that state funded counsel is “essential for a fair hearing”: R. v. Imona-Russel, 2019 ONCA 252, at para. 38. This is a civil matter involving the payment of benefits. There are no precedents for ordering state funding in such a case. Even if there were, for all the reasons above, including the apparent lack of merit, this is clearly not a case in which state funded counsel is essential to a fair hearing.
. Scaduto v Cucu

In Scaduto v. Cucu (Ont CA, 2017) the Court of Appeal makes a useful clarification on the role of amicus curiae in civil proceedings:
[10] Pursuant to r. 13.02:
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.
[11] In Oakwell Engineering Ltd. v. EnerNorth Industries Inc., 2006 CarswellOnt 9793 (C.A.), at para. 9, McMurtry C.J.O. noted that an amicus need not be "impartial", "objective" or "disinterested" in the outcome of a case. The fact that the position of a proposed intervener is generally aligned with the position of one of the parties is not a bar to intervention if the intervener can make a useful contribution to the analysis of the issues before the court.
. Martin v. Health Professions Appeal and Review Board

In Martin v. Health Professions Appeal and Review Board (Div Ct, 2022) the Divisional Court considered a successful motion to set aside leave for the appointment of an intervenor:
The Law on Intervenor Status

[45] Rule 13.02 of the Rules of Civil Procedure provides that any person may “intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument” with the leave of the court.

[46] Rule 13.03 provides that leave to intervene at the Divisional Court as a friend of the court may be granted by a panel of the court or a judge designated by either the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

[47] The relevant factors to consider upon such an application are:
1. The nature of the case;

2. The issues which arise; and

3. The likelihood of the applicant being able to make a useful contribution without causing injustice to the parties. Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 CanLII 6886 (ON CA), [1990] O.J. No. 1378 (Ont. C.A.), at para. 10.
[48] In 2003 Chief Justice McMurtry stated:
Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondent that a friend of the court must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected. Zoe Childs v. Desormeaux, 2003 CanLII 47870 (ON CA)
[49] However, in 2021 Roberts J.A. noted in Baldwin that the historical role of a friend of the court is one of a neutral person, with no interest in the proceedings, who calls the attention of the court to some point of law or fact with an element of impartiality or altruism. Baldwin v. Imperial Metals Corporation, 2021 ONCA 114.

[50] Leave will more likely be granted in matters of public importance. There has been a relaxation of the rules with respect to cases decided under the Canadian Charter of Rights and Freedoms. The burden on the party requesting leave to intervene is larger in cases that are closer to the private dispute end of the spectrum. Authorson v. Canada, 2001 CanLII 4382 (ON CA), [2001] O.J. No. 2768 (Ont. C.A.).

[51] The controlling principle is whether the proposed intervenor will make a useful contribution to the proceedings. “The likelihood of assistance is a function of many variables, including, but not only, the experience and expertise of the proposed intervenor”. Jones v. Tsige, 2011 CanLII 99894 (ON CA), at para. 25.

[52] The proposed intervenor must offer a contribution that is distinct from the contributions made by the parties to the dispute. Repetition or “me too” submissions provide no assistance to the court. Jones, at para. 9.

[53] Entities who in the past have been granted intervenor status usually meet at least one of the following criteria:
1. a substantial and identifiable interest in the subject matter of the proceeding;

2. an important perspective, distinct from the immediate parties; or

3. the intervenor is a well-recognized group with special expertise and a broad identifiable membership base. Ontario (Attorney General) v. Dieleman, 1993 CanLII 5478 (ON SC)
. Bowman v. Ontario

In Bowman v. Ontario (Ont CA, 2021) the Court of Appeal stated that an intervenor need not be disinterested in the subject case:
[7] I do not hold to the view that an intervener must have no connection to the underlying dispute or that a “true friend of the court” must be a “disinterested non-party”: see United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, at para. 15; Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, 313 N.B.R. (2d) 296, at para. 18. As McMurtry C.J.O. observed in Childs v. Desormeaux (2003), 2003 CanLII 47870 (ON CA), 67 O.R. (3d) 385, (C.A.), which has been a jurisprudential touchstone in intervention motions, the submission that “a “friend of the court” must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected”: at para. 13. Indeed, it is frequently the intervener’s “interest” and experience in the matter that enables it to make a useful contribution to the appeal by providing a perspective on the issues that differs from the immediate parties: see also Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749, at para. 19.
. Baldwin v. Imperial Metals Corporation

In Baldwin v. Imperial Metals Corporation (Ont CA, 2021) the Court of Appeal considered an intervention application under RCP R13:
[2] The test for intervention is well established. In determining whether an application for intervention should be granted, the 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”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167.

[3] What constitutes “a useful contribution” will depend on the circumstances of the case. The fact that an intervenor’s submissions reflect one or both of the parties’ positions is no bar to intervention provided the intervenor can make a useful contribution. No useful contribution can be offered by an intervenor who essentially repeats the position advanced by a party, even with a different emphasis: Jones v. Tsige, 2011 CanLII 99894 (ON CA), [2011] O.J. No. 4276 (C.A.), at para. 29; Stadium Corp. of Ontario Ltd. v. Toronto (City), 1992 CanLII 7475 (ON SCDC), [1992] O.J. No. 1574 (Div. Ct.), at para. 14, rev’d on other grounds, 1993 CanLII 8681 (ON CA), 12 O.R. (3d) 646 (C.A.).

[4] Rule 13 provides that a person may obtain leave to intervene in proceedings as an added party or as a “friend of the court”. The Clinic seeks to intervene as a friend of the court under rule 13.02 “for the purpose of rendering assistance to the court by way of argument”. The language of rule 13.02 reflects the historical role of a friend of the court as a neutral “person or bystander…who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point in law or fact which escaped its notice”: Nakonagos v. Humphrey, [1996] O.J. No. 2002 (Gen. Div.), at para. 24. A friend of the court serves the court, not the parties. The role connotes “an element of impartiality or altruism”: Peixeiro v. Haberman, 1994 CanLII 7322 (ON SC), [1994] O.J. No. 2459 (Gen. Div.), at para. 19.

....

[8] In these circumstances, granting intervenor status to the Clinic would create an imbalance or the appearance of an imbalance between the parties: Dunkin’ Brands Canada Ltd. v. Bertico inc., 2013 QCCA 867, at paras. 23-24; Raibex Canada Ltd. v. ASWR Franchising Corp., 2017 CarswellOnt 21537, at para. 34.
. Schuyler Farms Limited v. Dr. Nesathurai

In Schuyler Farms Limited v. Dr. Nesathurai (Div Ct, 2020) the Divisional Court considered intervenor applications in an interesting case where the order of the medical officer of health under the HPPA required no more than three farm workers per bunkhouse during the COVID crisis:
[11] Rule 13.02 of the Rules of Civil Procedure provides for intervention as a friend of the court:
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.
[12] The Court of Appeal and this Court have established the following considerations for deciding whether to grant leave to intervene as a friend of the court:
a. The nature of the case;

b. The issues involved;

c. The likelihood that the proposed intervenor 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.

See: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; S. (P.) v. Ontario, 2014 ONCA 160, at para. 5; and Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), at para. 8.
....

a) Nature of the case and the issues

[13] The first two factors are often considered together.

[14] The cases have held that granting leave to intervene may be warranted in cases that involve constitutional issues or issues of public interest that transcend the dispute between the parties: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 CanLII 4382 (ON CA), [2001] O.J. No. 2768 (C.A.), paras. 7-8; and Jones, paras. 23-24.

....

b) Likelihood that the proposed intervenors will make a useful and distinct contribution

[18] In Elementary Teachers' Federation, this Court described what constitutes a useful contribution:
10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers' Compensation Act 1983 (Nfld), [1989] 2 SCR 335, 1989 CanLII 23 (SCC) at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having "all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court." This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, [2003] O.J. No 3800 (QL), 2003 CanLII 47870 (OCA) at para 15.)
[19] Therefore, when considering whether the proposed intervenor will make a useful contribution, the court focuses on (i) the proposed intervenor and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervenor proposes to make.
. Minas v. Adler

In Minas v. Adler (Div Court, 2022) the Divisional Court set out the test for intervention under R13.02, and here drew a distinction between constitutional and 'private dispute' intervention:
The Applicable Test

[9] Rule 13.02 of the Rules of Civil Procedure provides for intervention as a friend of the court:
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.
[10] The Court of Appeal has established the following considerations for deciding whether to grant leave to intervene as a friend of the court:
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.).
Nature of the Case/Issues Involved

[11] Where the litigation in which the intervention is sought is a private dispute, as opposed to a constitutional case, the burden on the proposed intervener is heavier: Authorson v. Canada (Attorney General), 2001 CanLII 4382, at paras. 8 and 9; 1162994 Ontario Inc. v. Bakker, 2004 CanLII 60019 (ON CA), [2004] O.J. No. 816, 184 O.A.C. 157 (C.A.), at para. 5. This is because intervention can add to the cost and complexity of the case. A private dispute can raise considerations of public policy that transcend the dispute between the parties: Childs v. Desormeaux (2003), 2003 CanLII 47870 (ON CA), 67 O.R. (3d) 385, [2003] O.J. No. 3800 (C.A.), at paras. 3 and 10. In such cases, the standard will not be as onerous as if the dispute were a purely private one.

[12] This appeal is a private dispute between the Tenants and the Landlords. However, the dispute engages the interpretation of the RTA, a statute that has public policy objectives that include providing “protection for residential tenants from unlawful rent increases and unlawful evictions” and “[balancing] the rights and responsibilities of residential landlords and tenants[.]” The issue of when the LTB can order reinstatement is likely to have an impact that extends beyond the parties to this dispute. The jurisdictional issue would also have a broader impact.

Whether the Intervener Will Make a Useful and Distinct Contribution

[13] In Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), this court described what constitutes a useful contribution:
10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000, 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers’ Compensation Act 1983 (Nfld), 1989 CanLII 23 (SCC), [1989] 2 S.C.R. 335, at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having “all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court.” This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, 2003 CanLII 47870 (ON CA), [2003] O.J. No 3800 (QL), at para 15.)
[19 (sic)] Therefore, 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.

[14] In my view, as an organization focused on assisting low-income and vulnerable tenants, ACTO has a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. Because it is a specialized legal clinic, ACTO has expertise with respect to the interpretation and application of the RTA.

[15] Moreover, as noted above, intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. As ATCO submits, the circumstances of this case are somewhat anomalous because, unlike the vast majority of persons who are evicted, the Tenants have resources and alternatives. Under the circumstances, ATCO could assist the court in understanding the potential broader impact of a particular interpretation of the RTA. Moreover, by virtue of the tenants that it assists, ATCO will be able to offer a perspective that is distinct from that of the Tenants in this case.

Potential Injustice to the Parties or Undue Delay

[16] I find no undue delay or injustice to the Landlords from ACTO’s proposed intervention. ACTO does not propose to expand the record. ACTO will file its factum well before the scheduled hearing date. ACTO has stated that they will make no submissions on the threshold issue of whether the tenancy was converted to a commercial tenancy, such that the RTA does not apply.

[17] The Landlords submit that they will be prejudiced by ACTO’s intervention because ACTO’s goal is to expand the circumstances in which reinstatement is available as a remedy. ACTO’s submissions on the interpretation of the remedial provisions of the RTA, which the court may or may not accept, is not an injustice to the Landlords.
. Association for Reformed Political Action v. City of Hamilton

In Association for Reformed Political Action v. City of Hamilton (Div Court, 2022) the Divisional Court considered leave to intervene as a friend of the court:
The Test for Leave to Intervene

[9] 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.
[10] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations apply:
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.).
....

Whether the Intervener Will Make a Useful and Distinct Contribution

[13] In Elementary Teachers’ Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), this court described what constitutes a useful contribution:
10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000, 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers’ Compensation Act 1983 (Nfld), 1989 CanLII 23 (SCC), [1989] 2 S.C.R. 335, at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having “all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court.” This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, 2003 CanLII 47870 (ON CA), [2003] O.J. No 3800 (QL), at para 15.)
[19] (sic) Therefore, 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.
. 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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Last modified: 17-06-24
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