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Intervention - Friend of the Court [RCP 13.01(2)] (3). The University of Waterloo v. Human Rights Tribunal of Ontario et al.
In The University of Waterloo v. Human Rights Tribunal of Ontario et al. (Ont Divisional Ct, 2025) the Divisional Court considered an intervention leave motion by the 'Council of Ontario Universities':[7] Whether leave to intervene as a friend of the court should be granted requires the consideration of "... 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 CanLII 6886 (ON CA), [1990] O.J. No. 1378, at para. 10; Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 9.
[8] Further, whether a proposed intervenor can make a “useful contribution” turns on “… whether they will advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter.”: Canada (Minister of Citizenship and Immigration) v. Ishaq, 2015 FCA 151, at para. 9; Fair Voting BC, at para. 12. . Registrar, Motor Vehicle Dealers Act
In Registrar, Motor Vehicle Dealers Act (Ont Divisional Ct, 2025) the Divisional Court allowed leave to intervene by the LAT in an MVDA appeal:[10] Rules 13.02 and 13.03(1) of the Rules of Civil Procedure state:13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, 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.
13.03(1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. [11] Whether leave to intervene as a friend of the court should be granted turns on "… 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 CanLII 6886 (ON CA), [1990] O.J. No. 1378, at para. 10; Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 9.
[12] Further, whether a proposed intervenor can make a “useful contribution” turns on “… whether they will advance different and valuable insights and perspectives that will actually further the Court’s determination of the matter.”: Canada (Minister of Citizenship and Immigration) v. Ishaq, 2015 FCA 151, at para. 9; Fair Voting BC, at para. 12.
[13] In deciding whether to allow a tribunal to intervene as a friend of the court on an appeal from its own decision, the court is required to 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. The following factors should be considered:(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
(2) 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.
(3) 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: see Ontario (Energy Board), at para. 59. [14] This appeal is opposed. The parties appear to have the knowledge and expertise to make and respond to arguments on appeal or review. On the other hand, having read the LAT’s draft factum, I dismiss the Registrar’s suggestion that it amounts to a defence of the decisions under appeal or that it in any way strays into the merits. Rather, I find that the LAT’s draft factum provides a more nuanced and fuller analysis of the applicable standard of review. Given that LAT is taking no position on the merits of this appeal, the impartiality concerns expressed by the Registrar are avoided. I find that the LAT will make a useful contribution to the resolution of this appeal. Accordingly, the LAT is granted leave to intervene on the terms that it has proposed. As requested by the LAT, there shall be no costs of this motion. . Animal Justice v. Ontario (Attorney General)
In Animal Justice v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal considers several 'friend of the court' intervenor motions:[10] The test 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, is well established. The overarching issue is whether the applicant is likely able to make a useful contribution to the resolution of the appeal without causing injustice or prejudice 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.
[11] In order for a proposed intervener to satisfy this test, usually at least one of the following three criteria is satisfied:1) the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
2) the proposed intervener has an important perspective distinct from the immediate parties; or
3) the intervener is a well-recognized group with a special expertise and a broadly identifiable membership base. Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.
[12] The test for granting leave in constitutional cases is more relaxed than in litigation between private parties: Peel, at p. 167. This provides the court with the benefit of various perspectives on the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation: Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 2001 CanLII 4382 (ON CA), 147 O.A.C. 355 (C.A.), at para. 7. Moreover, because constitutional cases may have a wide impact on the rights of others who are not parties to the litigation, interventions provide such affected individuals and groups with an opportunity to be heard.
[13] Nevertheless, there are necessary limits to the scope of intervention even in constitutional litigation. Such limits may arise where a perspective or interest is adequately represented without the proposed intervener’s involvement (Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560, 322 D.L.R. (4th) 332, at para. 8), or where the submissions of the proposed intervener are duplicative of the submissions of others (Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 13). Moreover, the issues in the litigation are defined by the parties and an intervener must take those issues as it finds them and not transform or add to them: Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167, at para. 19.
APPLICATION OF GOVERNING PRINCIPLES
[14] I note that three of the proposed interveners, namely, Animal Alliance of Canada (“Animal Alliance”), the Centre for Free Expression (“CFE”), and Justicia for Migrant Workers (“J4MW”), sought intervener status in the court below. Chalmers J. granted the motions to intervene by Animal Alliance and CFE, but dismissed the motion from J4MW: Animal Justice et al v. Attorney General of Ontario, 2023 ONSC 3147. Intervention in the court below is a relevant consideration in determining whether to grant leave to intervene on appeal: Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, 476 C.R.R. (2d) 258, at para. 9. ... . Heegsma v. Hamilton (City)
In Heegsma v. Hamilton (City) (Ont CA, 2024) the Ontario Court of Appeal dismissed an OHRC appeal against the denial of it's friend-of-the-court intervenor application, here "for want of jurisdiction" on final versus interlocutory order grounds (ie. the appeal should have been brought in the Divisional Court with leave) - an issue which can have different outcomes depending on whether the intervention sought is as an 'added party' or as a 'friend of the court', due to their different natures:[4] The motion was heard in writing. On September 13, 2024, the application judge issued an endorsement denying all motions for leave to intervene. His reasons for dismissing the motion are as follows:The [Canadian Civil Liberties Association], [Women’s Legal Action Fund], the [British Columbia Civil Liberties Association] and the Ontario Human Rights Commission seek leave to intervene. The Applicants, who are very well-represented, propose to file expert evidence on the impact of the by-law in question and to make argument with respect to constitutional implications, the effect of international law and the particular impact of the by-law on vulnerable communities, including women. I do not think that the proposed interveners have much to add.
The applications to intervene are dismissed. [5] The OHRC appeals from the order dismissing their motion to intervene. They claim multiple errors on the part of the motion judge (who is also the application judge), including that he misapprehended and misapplied the law on intervention and failed to provide adequate reasons.
[6] I would quash this appeal for want of jurisdiction. For the reasons that follow, I conclude that this court does not have jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court.
B. The Hearing
[7] In their written submissions, the OHRC submitted that the “decision denying leave to intervene is a final order as it disposes of the OHRC’s ability to participate in the Application.” In support of this proposition, the OHRC cited to Maybank Foods Inc. Pension Plan v. Gainers Inc. (1990), 1990 CanLII 8117 (ON CA), 77 D.L.R. (4th) 236 (Ont. C.A.). In Maybank, at para. 12, this court said that “[a]n order refusing intervener status is a final order”. In that case, the appeal was ultimately dismissed because this court found that the weekly court judge had properly exercised his discretion in refusing the request for party intervener status pursuant to r. 13.01(1)(b) of the Rules of Civil Procedure.
[8] During oral submissions, the OHRC was asked for further input regarding this court’s jurisdiction to hear this appeal. The OHRC then also pointed to this court’s decision in Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792. In Bedford, this court granted an appeal from a decision denying intervener status in circumstances similar to this case, where the motion for intervener status as a friend of the court was made pursuant to r. 13.01(2) of the Rules of Civil Procedure.
C. Interlocutory vs Final Orders
[9] This court has jurisdiction to hear final, not interlocutory, orders of the Superior Court. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that an appeal to this court lies from “a final order of a judge of the Superior Court of Justice”. By contrast, s. 19(1)(b) of the Courts of Justice Act provides for an appeal to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court.”
[10] Determining the dividing line between a final and interlocutory order has attracted much attention in the jurisprudence. In my view, when the principles are properly applied, this matter falls on the side of an interlocutory order.
[11] While there has been some suggestion in the past that Smerchanski v. Lewis (1980), 1980 CanLII 1699 (ON CA), 30 O.R. (2d) 370 (C.A.), at pp. 377-78, stood for the proposition that an order finally disposing of an issue between a party and non-party or a “stranger to the action” is a final order for purposes of appeal to this court, this suggestion has since been rejected. In Royal Trust Corporation v. Fisherman (2001), 2001 CanLII 4080 (ON CA), 55 O.R. (3d) 794 (C.A.), at para. 16, this court explained: “Smerchanski was not intended to mean that all orders directed to a non-party must be final, and the principle expressed therein should not be further expanded in that way.”
[12] Since the time of Smerchanski and Royal Trust Corporation, there has been significant discussion around how to identify the dividing line between interlocutory and final orders. At its core, an interlocutory order is one that does not determine the “real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. Although an order will undoubtedly answer the question raised by the relevant motion, it remains interlocutory in nature if the substantive matters lying at the heart of the subject matter of the litigation remain undecided: Drywall Acoustic, at para. 16, citing Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678 and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.).
[13] In determining whether this test is met, one must look to the order, the reasons for the order, the nature of the proceedings from which the order has emerged, and any “contextual factors that may inform the nature of the order”: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7; Paulpillai Estate, at para. 16; and P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para. 12.
D. Party vs Friend Interventions
[14] In my view, a decision to deny intervention in a matter as a friend of the court will not have the effect of impacting the non-party’s substantive rights as they are not in play. To the contrary, the proposed intervention as a friend of the court is predicated, not on the non-party’s substantive interests, but on their expertise and how that expertise may be of assistance to the court. This stands in contrast to the denial of an intervention in a matter where the non-party seeks leave to intervene as a party. The denial of intervention status to a proposed party intervener precludes them from participating in litigation that they say will directly or indirectly impact them at some level, in accordance with the criteria set out in r. 13.01 of the Rules of Civil Procedure.
[15] Rules 13.01 and 13.02 of the Rules of Civil Procedure address leave to intervene as a party and as friend of the court:Leave to Intervene as Added Party
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.
Leave to Intervene as Friend of the Court
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, 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. [16] As can be seen, there exists a fundamental difference between motions to intervene as a party (r. 13.01(1) and (2)) and motions to intervene as a friend of the court (r. 13.01(2)). In broad strokes, and in accordance with r. 13.01(1), resolving a motion for intervention as a party to the proceedings requires the court to consider how the proceedings may impact the proposed intervener. By denying a motion for leave to intervene to a proposed party intervener, the moving party is denied the opportunity to contribute to the underlying litigation that they say will have a direct impact on their interests. This consideration is entirely absent from a r. 13.02 motion which focusses, not on how the proposed intervener might be impacted by the proceedings, but how the proposed intervener might assist the court in the proceedings.
[17] While both types of interventions – party and friend – are discretionary in nature, they serve different purposes which I conclude informs the jurisdictional question in this matter. Party interventions focus on ensuring that non-parties who may be impacted by the litigation are given an opportunity to participate in appropriate circumstances. Friends of the court intervention motions are focussed upon whether the court will be assisted by the proposed intervention, not on whether their substantive rights might be impacted by the underlying proceeding.
[18] This brings us to the question of when this court has jurisdiction to hear an appeal from a decision denying intervention.
[19] In Maybank, a decision relied upon by the OHRC to suggest that this court has jurisdiction in this appeal, the court concluded that it had such jurisdiction. But that conclusion must be read in its full context, most specifically that the proposed intervener was seeking party intervener status pursuant to r. 13.01(1)(b), claiming that they could be adversely impacted by a judgment resulting from the underlying proceedings.
[20] Similarly, in Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, 89 O.R. (3d) 721, where this court unanimously concluded that the denial of intervention status was final in nature, the matter was decided in the context of an application for party intervener status: see the decision appealed from, Hollinger Inc. v. Ravelston Corporation Ltd., 2006 CanLII 38862 (ON SC), 83 O.R. (3d) 258 (S.C.).
[21] The only decision that remains an outlier, which I must address, is Bedford, where this court allowed an appeal from the dismissal of a motion for leave to intervene as a friend of the court. As noted at the outset, in addition to Maynard, the OHRC relies upon the Bedford decision to suggest that this court has jurisdiction to hear this appeal. It is understandable why the OHRC points to Bedford in support of its position on jurisdiction as the case involved an appeal from the dismissal of a motion for leave to intervene as a friend of the court.
[22] While the OHRC is correct that this court exercised jurisdiction in that appeal, ultimately allowing the appeal and granting the intervener status requested, the issue of jurisdiction was neither raised nor decided on appeal. This is the only decision of this court that has been drawn to our attention that involves an appeal from this type of order.
[23] In my view, Bedford is not determinative of the jurisdictional question before this court. The fact that the court in Bedford exercised jurisdiction is only discernable in hindsight by necessary implication. The Bedford court did not pronounce any principle of law relating to jurisdiction and it should not be taken as such. It would create great uncertainty if the parties could impute principles of law to past decisions without any foothold in the actual reasoning of those decisions. To the contrary, where the issue of jurisdiction is neither raised nor decided on appeal, a decision of this court exercising jurisdiction does not establish that jurisdiction in a subsequent appeal: Singh v. Heft, 2022 ONCA 135, at para. 15; CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846, 342 O.A.C. 49, at para. 12. Accordingly, Bedford is not determinative of this court’s jurisdiction.
[24] In my view, this court has no jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court. Quite simply, the proposed intervener’s substantive rights are not engaged during the motion or impacted as a result of the motion. To the contrary, the dismissal of a motion for leave to intervene as a friend of the court means only one thing, that the court does not need the offered assistance of the non-party in resolving the underlying proceedings. This is not a final order and not appealable to this court. . 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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