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Intervention - 'Friend of the Court' [RCP 13.01(2)] (2). General Manager, OHIP
In General Manager, OHIP (Div Court, 2023) the Divisional Court considered (and granted) an amicus intervention leave motion, here in an OHIP appeal from a decision of the Health Services Appeal and Review Board (HSARB) regarding transgender and nonbinary-related surgery:[3] The decision under appeal found that the respondent’s requested surgery, vaginoplasty without penectomy, was an insured service under the benefits schedule which applies to medical insurance in Ontario (the “Schedule of Benefits”). The respondent, K.S. is a nonbinary person who seeks this surgery.
[4] The issue on appeal concerns the interpretation of “vaginoplasty” in the Schedule of Benefits. In the affidavit filed in support of the motion to intervene, Helen Kennedy, the Executive Director for Egale describes the issue on the appeal as one that concerns a funding decision for gender-affirming care, an area of medical service sought by members of the trans and binary communities.
[5] Egale is a non-profit organization that advances equality and justice for 2SLGBTQI people across Canada since its establishment in 1986. In that capacity, and as set out in detail at paragraphs 8-17 of Ms. Kennedy’s affidavit, Egale has been granted intervener status in related proceedings, made policy submissions at the federal, provincial, territorial and municipal levels of government, and has provided expert evidence in matters involving issues of particular interest to these communities, including access to gender-affirming care.
[6] Egale anticipates making three submissions in this appeal:(a) There has been a long history of prejudice and discrimination against trans and nonbinary people in Canada, which have been recognized as disadvantaged groups in the country. Egale will make submissions in support of its position that these disadvantages are manifested by barriers that are experienced by trans and nonbinary people in accessing healthcare, including receiving medically necessary gender-affirming care that connected to better mental health outcomes and the reduction in rates of suicide.
(b) HSARB interpreted the Schedule of Benefits under Regulation 552 of the Health Insurance Act according to the normal principles of statutory interpretation, and in particular, it was appropriate for HSARB to inform its interpretation of the Appendix D to the Schedule of Benefits (entitled “Sex-Reassignment Surgery”) by reference to the World Professional Association for Transgender Health (“WPATH”) Standards of Care, which publishes Standards of Care for the Health of Transgender and Gender Diverse People and recognizes that gender diverse presentations may lead to individually customized surgical requests.
(c) Any ambiguity in the legislation require that the interpretive analysis be conducted in a manner aligned with human rights legislation and Charter values. [7] Egale submits that it is uniquely positioned to make useful and distinct submissions on the issues raised by the appeal. Egale’s involvement and its submissions would not expand or create new issues on the appeal but would inform the Court on the distinct challenges that trans and nonbinary people face in accessing appropriate gender-affirming care.
[8] Rule 13.02 of the Rules of Civil Procedure empowers a judge to grant leave to an intervener “as a friend of the court for the purpose of rendering assistance to the court by way of argument.” The court should consider the nature of the case, the issues involved, whether the intervening party will make a useful contribution to the resolution of the dispute and whether the intervention will cause any injustice 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.).
[9] I am satisfied that Egale has met the test to intervene as a friend of the court. It has experience and expertise on the systemic and historical disadvantages affecting access to gender-affirming care by trans and onbinary individuals in Canada. Its history of servening as an intervener is an indication that Egale has experience with the role of intervener and its function to assist the court in understanding the implications of its decision. Egale is prepared to serve and file its material in accordance with the timeline fixed by the court, thus avoiding any unnecessary delay. No party objects to the order granting leave, which indicates the parties do not believe that Egale’s intervention will cause injustice.
[10] Accordingly, I make the following order:
[11] The motion of Egale for leave to intervene as a friend of the Court is granted on the following terms:(a) Egale may file a factum not exceeding 20 pages on or before the date set by the Court;
(b) Egale may present oral argument not exceeding 30 minutes at the hearing of this Appeal;
(c) Egale shall coordinate with the parties and make best efforts to avoid duplication of submissions;
(d) Egale shall not raise new issues or adduce new evidence; and
(e) There shall be no costs awarded for or against Egale in respect of this motion for leave to intervene and the intervention. . Henry v. Zaitlen
In Henry v. Zaitlen (Ont CA, 2023) the Court of Appeal considered (and granted) a motion for intervention as a friend of the court [under R13.02] - here by the Ontario Trial Lawyers Association. See at para 23(b) where the court expressly states that "b. OTLA will take the record as it is and will not supplement the record;", which implies that supplementing the record is within the jurisdiction set out in R13:Discussion
[6] In order to determine whether OTLA should be granted intervention, I must consider the general nature of the case, the issues that arise in the case and the contribution that the intervener can make to those issues without doing injustice to the parties: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; 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.
Nature of the Case and Issues on Appeal
[7] Although interventions in appeals involving a private dispute must generally meet a more stringent standard, this standard is somewhat softened where issues of public importance arise: Tsige, at para. 23.
[8] While this case involves a private dispute, I am satisfied that the issue on appeal involves broader considerations that transcend the dispute between the parties and engage with the wider public interest. This appeal raises how trial judges should exercise their discretion when changing the statutory PJI rate for non-pecuniary loss. One of the main issues to be resolved is the extent to which this court’s decision in MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, applies in the non-pecuniary loss context. This will have potentially broad implications beyond the immediate parties, making it an appropriate appeal for intervention.
Will the Proposed Joint Interveners Make a Useful Contribution Without Doing an Injustice to the Parties?
[9] OTLA is a province-wide association of lawyers who practice personal injury and medical malpractice litigation throughout the Province of Ontario. There is no dispute that OTLA is a well-recognized group with expertise in representing injured Ontarians. Indeed, OTLA is often granted intervention status. I have no hesitation in finding that OTLA is an appropriate intervener with an expertise to contribute to this issue. The real question is whether their proposed position will contribute usefully to the appeal without causing an injustice to the parties.
[10] In their motion materials, OTLA has helpfully and appropriately prepared and filed the draft factum that they propose to file on appeal. This gives a clear view into the position that OTLA wishes to advance on appeal. OTLA seeks to make two main submissions:a. The party seeking to displace the presumptive five percent PJI rate in the Act must meet a high evidentiary threshold. This threshold is said to take into account a number of factors, including an understanding of compound versus simple interest and the legislative intent of the statutory scheme. OTLA contends that this court’s decision in MacLeod did not replace this high evidentiary threshold.
b. Adequate notice must be provided by a party seeking a rate other than the presumptive five percent PJI rate. ....
[20] The simple fact that counsel to a party is also involved in a legal organization that intervenes in an appeal runs no increased risk of duplication. It is not unusual and, indeed, expected that counsel will engage with legal organizations within their areas of legal expertise. Counsel should be applauded for contributing to legal organizations on a pro bono basis and the law should not develop in a way that would place a chill upon this type of laudable activity. This is not an unusual situation and it is one where we fall back on the strong presumption of professionalism. I have no doubt that the plaintiffs’ counsel’s involvement in OTLA will not interfere with the professional responsibilities of all counsel as they represent their independent clients at the hearing of this appeal.
Conclusion
[21] Bearing in mind the discrete single issue upon which OTLA is granted leave to intervene, they may file an eight-page factum and will be granted a maximum of ten minutes for oral argument. I am satisfied that this will not cause prejudice to Dr. Zaitlen. As OTLA has helpfully provided a draft factum, they will be able to file their finalized factum complying with the terms of intervention in short order.
[22] As OTLA is not expanding the scope or record of the appeal, there is no need for further evidence for the appeal. There is ample time for Dr. Zaitlen to provide a responding factum to OTLA’s submissions should he wish to do so. There is no need for an adjournment of the hearing as there is ample time to accomplish all that must be accomplished well in advance of the hearing.
Disposition
[23] For these reasons, OTLA’s intervention is granted on the following terms:a. OTLA is granted leave to intervene on the issue of the analytical framework, including the evidentiary threshold, for departure from the five percent statutory PJI rate. For greater certainty, OTLA is not granted leave to make submissions on adequate notice for parties seeking a PJI rate different than five percent.
b. OTLA will take the record as it is and will not supplement the record;
c. OTLA will make reasonable efforts to avoid duplicating the submissions of the parties;
d. OTLA may file a factum of no more than eight pages in length, no later than November 14, 2023;
e. The respondent, Dr. Zaitlen, may file a factum of no more than five pages in length, no later than December 11, 2023;
f. OTLA is granted a maximum of ten minutes to make oral argument at the hearing of the appeal; and
g. OTLA will not be entitled to, nor subject to, any costs of this motion or of the appeal. . 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. . M.I. v. Administrator, Ontario Works, Region of Peel
In M.I. v. Administrator, Ontario Works, Region of Peel (Div Court, 2023) the Divisional Court considered (and granted) a motion for leave to intervene in an SBT welfare appeal by a legal clinic. The case is brief and is a good illustration of the concerns that a court has in intervention motions:[1] The South Asian Legal Clinic of Ontario (SALCO) seeks leave to intervene in this appeal from a decision of the Social Benefits Tribunal under s. 36(1) of the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A, and under s. 81(3) of O. Reg. 134/98., as a friend of the court pursuant to Rules 13.02 and 13.03(1) of the Rules of Civil Procedure. The Appellant, M.I. is a person of South Asian background. Her social benefits were cancelled by the Tribunal because “she is not living as a single person.”
[2] The context of this appeal includes gender-based violence, members of racialized groups and how assessments of marital relationships in that context can be carried out in a culturally competent manner.
[3] If granted intervener status, SALCO seeks to serve and file a factum not exceeding 20 pages and leave to make oral submissions not to exceed 15 minutes in duration.
[4] The Appellant consents to the intervention order. The Respondent takes no position, nor does the Board/Panel.
[5] SALCO is a legal clinic with a mandate to provide pro bono front-line legal advice, brief services, and legal representation to low-income South Asians in Ontario, and to engage in law reform, community development, and public legal education at the municipal, provincial, and federal levels. SALCO serves vulnerable and marginalized communities and has extensive experience in advocating to advance the rights of racialized communities in Canada, including in addressing and seeking to dismantle the impact of intersecting forms of discrimination, including Islamophobia and to supporting individuals facing gender-based violence;
[6] Based on the material filed, I find that SALCO has a real, substantial, and identifiable interest in the subject matter of this appeal, particularly the impact this decision will have on other low-income, South Asian, survivors of violence. It can assist the court with a unique and distinct perspective given its specialized expertise and experience of how violence and familial and community relations look within the South Asian community. The affidavit filed by SALCO, sworn by Executive Director Shalini Konanur, describes how relative to this appeal, SALCO’s intervention can assist the court by providing context and addressing issues of the negative impact of stereotypes in determining the issues in this case.
[7] Ms. Konanur’s affidavit describes SALCO’s prior participation and assistance to other courts as an intervener and friend of the court. SALCO is an established legal clinic with broad experience in serving the South Asian community in Ontario.
[8] I conclude that SALCO can make a unique contribution to this appeal, will not cause any undue delay, cause prejudice to other parties and has expertise that will assist the court given the nature of the issues on appeal. I have also considered the positions of the parties: no party opposes the making of this order.
[9] I order that SALCO be permitted to leave to intervene in this appeal, leave to file a factum of up to 20 pages in length and leave to make oral submissions no longer than 15 minutes, at the hearing of the appeal. . Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc.
In Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc. (Div Court, 2023) the Divisional Court considered (and grants) a motion by the LAT to intervene as a friend of the court [under RCP 13.02] on an appeal of it's own decision. The extract includes the order terms as they are commonly germane in such orders: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 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.). [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.
[8] The Supreme Court of Canada has held that it is appropriate for reviewing courts to determine the scope of a tribunal’s participation in an appeal of its own decision in a manner that does not compromise tribunal impartiality or allow for bootstrapping: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 57.
Application of the Factors
[9] The nature of the case and issues involved engage the public interest because the Appellant is a regulator exercising public powers to grant a licence under a legislative regime.
[10] The LAT is an administrative tribunal created in January 2000 pursuant to the LAT Act. It is designated as a constituent tribunal of Tribunals Ontario, pursuant to s. 2 of O. Reg. 126/10 under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. The LAT hears appeals under 34 statutes regarding licencing and consumer compensation and protection matters, including the NHCLA, which deals with the licensure of vendors and builders of homes in Ontario.
[11] A tribunal’s standing on an appeal of its own decision is determined based on a balancing of “the need for fully informed adjudication against the importance of maintaining tribunal impartiality.” 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.”: Ontario Energy Board, at paras. 47, 53 and 57.
[12] The LAT’s limited submissions on the statutory and procedural context, the applicable standard of review and its scope, procedural fairness, and statutory interpretation, are consistent with the scope of a tribunal’s participation in an appeal and will provide useful a perspective to the court without compromising the principles of impartiality or finality.
[13] Given that the other parties consent to the LAT’s motion for leave to intervene, the proposed intervention would not cause injustice or prejudice to either party. In addition, O’Brien J. has directed a schedule for the delivery of further material before the hearing scheduled for September 13, 2023. As a result, the LAT’s intervention would not unduly delay the proceeding.
....
Conclusion
[14] Accordingly, I find that the LAT has met the test for leave to intervene as a friend of the court. The motion for leave to intervene is granted.
[15] The following conditions are imposed on the LAT’s intervention, subject to the discretion of the panel hearing the application for judicial review:(a) The LAT will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond those raised by the parties;
(b) The LAT will make all reasonable efforts to avoid duplicating the other parties’ submissions;
(c) The LAT will serve a factum not exceeding 20 double-spaced pages by August 7, 2023;
(d) The other parties may file reply facta to respond to the issues raised in the LAT’s factum, not to exceed 12 double-spaced pages, by August 21, 2023;
(e) The LAT will be permitted to make submissions not exceeding 15 minutes at the hearing of the appeal; and
(f) Unless the panel permits otherwise, the LAT will not seek costs. . Justice Centre for Constitutional Freedoms v. Costa
In Justice Centre for Constitutional Freedoms v. Costa (Ont CA, 2023) the Court of Appeal considered an amicus intervener motion:[1] This is a motion for leave to intervene as a friend of the court, pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in an appeal of a costs award made in a motion for an interlocutory injunction.
....
[9] In determining this motion, it is necessary to consider the nature of the case, the issues that arise in the case, and the contribution that the proposed joint interveners can make in resolving the issues before the court, without doing an injustice to the parties: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; 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.
....
[11] While there is generally a stricter onus applied to interventions in private disputes, this court has held that the “more onerous threshold may be softened somewhat where issues of public policy arise”: Tsige, at para. 23; Childs v. Desormeaux (2003), 2003 CanLII 47870 (ON CA), 67 O.R. (3d) 385 (C.A.), at para. 3; Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, at para. 5; 40 Days for Life v. Dietrich, 2023 ONCA 379, at para. 8.
[12] While the nature of this case is a private dispute, the issues raised involve broader public policy considerations, specifically, the appropriate legal standard for awarding non-party costs against non-profit and public interest organizations.
....
[19] While an intervener cannot repeat submissions of a party, there is nothing wrong with an intervener building upon those positions. This will often be the case. The proposed joint interveners have undertaken not to repeat the submissions of the JCCF. If they do, there are remedies available to Seneca and they can pursue those remedies. . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2023) the Court of Appeal considers an amicus intervention motion by the Canadian Civil Liberties Association (CCLA) in an abortion-based dispute:[8] In determining this motion, I must consider the nature of the case, the issues that arise in the case, and the contribution that the CCLA can make in resolving the issues before the court, without doing an injustice to the parties: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; 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. Typically, in an appeal involving private actors, the proposed intervener must meet a stringent standard, one that can bend somewhat where issues of public policy arise: Tsige, at para. 23.
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