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Intervention - Friend of the Court [RCP 13.01(2)] (3). Grant v. Workplace Safety and Insurance Appeals Tribunal
In Grant v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2024) the Divisional Court grants leave to intervene as a friend of the court:[8] To obtain leave to intervene, the proposed intervener must advance useful and different submissions on the issues raised by the parties and not take a position on the ultimate disposition of the application: R. v. McGregor, 2023 SCC 4, 478 D.L.R. (4th) 193. .... . Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal considered the test for intervention 'as a friend of the court', here in a hopeful Charter s.3/15 case challenging the 'first-past-the-post' [aka 'single member plurality' ('SMP')] electoral system:B. The test for leave to intervene
[8] Thirteen groups seek leave to intervene as a friend of the court. The appellant consents to all the proposed interventions. The respondent takes no position on the proposed interventions, provided that certain terms are imposed on their participation. The consent and lack of opposition communicates to the court that in the parties’ estimation, each group satisfies the test for leave to intervene. That said, the determination of that question must, of course, be made by the court.
[9] In determining motions for leave to intervene as a friend of the court, the court will generally consider “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 (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167. The test for granting motions for leave in constitutional cases is more relaxed than in litigation between private parties: Peel, p. 167. The reason is that the object of constitutional litigation is not to ascertain whether one private party owes a legal duty to another, but to invalidate legislation that was presumably enacted for the common good. The prospective invalidation of that legislation will necessarily impact a broad class of persons who were intended to benefit from that legislation; perhaps, as in this case, every member of the political community. This wide impact on the rights of others – an impact ordinarily reserved to the legislative sphere – suggests that those others should have some opportunity to be heard. Although courts are not a representative institution and do not have the same institutional capacity as Parliament to hear competing voices, interventions are in part intended to ameliorate the problem of not having a say in litigation that will potentially alter one’s legal rights and obligations, and potentially alter it in a way that puts the question outside the reach of a future Parliament.
[10] That said, there are necessary limits to the scope of intervention, limits that are set by the nature of the issues before the court and the adjudicative context: “every concerned citizen willing to devote time and resources to a matter cannot be granted a participatory role without impairing the effectiveness of the judicial process. Therefore, some line-drawing is inevitable”: Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 O.R. (3d) 32 (Gen. Div.), p. 36. Most obviously, court time is limited and this warrants limiting interventions to those groups who are likely “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, (1990) 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, at p. 167.
[11] Central to the test in Peel is whether the proposed intervener will likely make a useful contribution to the litigation. Although previous cases have identified three factors as helpful to determining whether an applicant will likely make a useful contribution, the presence or absence of any of them is not determinative: (1) the applicant has a real, substantial, and identifiable interest in the subject matter of the proceeding; (2) the applicant has an important perspective distinct from the immediate parties; or (3) the applicant has special expertise: Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, para. 2. These are non‑exclusive factors in the service of answering the ultimate question: will the applicant likely make a useful contribution.
[12] On the question of what constitutes a “useful contribution”, the Federal Court of Appeal in Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, [2016] 1 F.C.R. 686, at paras. 9-10, has provided helpful guidance:This factor really matters. Time and time again, applicants fail to address whether they will advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter. Instead, often they stress their lofty aims, good policy work and previous valuable interventions. Others raise issues that they find interesting but have nothing at all to do with the case. Some promise in one paragraph that they will take the evidentiary record as they find it but then in the next paragraph offer arguments dependent on facts absent from the evidentiary record. Still others assure us that if admitted to the proceedings they will have something important to say, but they don’t tell us what they will say. Sometimes we get words that sound nice but don’t really mean much at all. And sometimes we are confused for legislators or constitutional framers who can enshrine grand policies into law.
Applicants that are successful investigate the evidentiary record and the specific issues in the case, enabling them to offer much detail and particularity on how they will assist the Court. They know that success depends upon the extent to which they can hone into the true nature of the case, locating the particular itch in the case that needs to be scratched, and telling us specifically how they will go about scratching it. [13] Submissions that are duplicative of the submissions of others are not useful, and can in fact imperil the fairness of the hearing. The point, once again, has been well expressed by Stratas J.A. in Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67, at para. 15:[F]airness and impartiality are damaged, sometimes severely, when the Court admits too many interveners on only one side of the debate, all pushing for the same outcome. If the Court ultimately adopts that outcome, fair-minded lay observers might well believe that the imbalance of voices on one side of the courtroom and their amplification through frequent repetition—all set up by the Court’s decisions on intervention—may have carried the day. . Vento Motorcycles, Inc. v. United Mexican States [private parties]
In Vento Motorcycles, Inc. v. United Mexican States (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to intervene as a friend of the court, here in a case involving private parties:[12] In determining motions for leave to intervene as a friend of the court pursuant to r. 13.03(2), the court will generally consider “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; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.
[13] This is a private dispute, as opposed to one involving the state. As such, the standard to be met by the proposed intervener is “more onerous or more stringently applied”: Jones v. Tsige, 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
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[19] First, I am not satisfied that CIPPIC has provided a sufficient link between its expertise and the particular issue upon which it seeks to intervene. CIPPIC has not demonstrated why its advocacy work and mandate align with the arguments it intends to make as an intervener. Unlike CIPPIC’s stated mission, this case does not engage law and technology issues, or involve under-represented organizations, individuals, and consumers whose legal rights may be affected by terms in standard form contracts.
[20] CIPPIC also did not explain how its proposed arguments are informed by its unique perspectives on the issues on appeal.
[21] Second, bearing in mind the stricter onus on intervention in a private dispute, the nature of the case does not support CIPPIC’s intervention. This case involves two sophisticated parties with capable counsel in a complex international trade dispute. The appeal focuses on narrow, fact-specific issues that turn on particular findings below and certain decisions made during the arbitration process. No access to justice or constitutional issues are engaged.
[22] Mexico and Vento have advanced detailed arguments for and against the test applied by the Application Judge. Particularly without the assistance of a draft factum, I am not persuaded that CIPPIC’s intention to provide international authorities, a statutory interpretation analysis, and broad review of procedural fairness across other areas of law, will further advance the analysis.
[23] Third, I share Mexico’s concerns that CIPPIC’s intervention runs an unjustified risk of expanding the scope of the appeal, increasing cost and complexity, and causing injustice to the immediate parties. For example, if CIPPIC’s intervention “canvasses how procedural fairness protections are addressed in other contexts, such as judicial review of administrative action” and suggests the standard should be harmonized across different areas of Canadian law “in a manner that assures access to justice in the arbitral forum”, the issue on appeal will have gone well beyond the question of whether Vento’s inability to respond to a credibility challenge left it unable to present its case within the meaning of Article 34(2)(a)(ii) of the Model Law.
[24] Having balanced the nature of this appeal against the nature of CIPPIC’s proposed contribution to the issues in dispute, and considered the prejudice that could result from CIPPIC’s arguments being advanced on appeal, I conclude that the motion must be dismissed.
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