Simon's Megalomaniacal Legal Resources

Intervention - Friend of the Court [RCP 13.01(2)] (4)

. Christian Heritage Party of Canada v. Hamilton (City)

In Christian Heritage Party of Canada v. Hamilton (City) (Ont CA, 2025) the Ontario Court of Appeal considered multiple leave to intervene applications, here in this 'municipal bus advertising expression' case:

The principles governing motions for leave to intervene

[7] 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 Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, at p. 167; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8; and Caruso v. Law Society of Ontario, 2025 ONCA 270, at para. 6.

[8] The test for granting leave to intervene is more relaxed in constitutional cases: Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, at para 12. Constitutional cases may have a wide impact on the rights of others who are not parties to the litigation. Interventions provide affected individuals and groups with an opportunity to be heard and give the court perspectives on the historical and sociological context of the issues raised.

[9] Generally, a proposed intervener in constitutional litigation meets at least one of the following criteria: (1) the applicant has a real, substantial and identifiable interest in the subject matter of the proceedings; (2) the applicant has an important perspective distinct from the immediate parties; or (3) the applicant is a well-recognized group with a special expertise and a broadly identifiable membership base: Reference re Greenhouse Gas Pollution Pricing Act, at para. 8.

[10] The overarching consideration, however, is whether a proposed intervener can be of assistance to the court in providing a different perspective that is not already addressed by the parties: Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 11; Solmar Inc. v. Hall, 2025 ONCA 570, at para. 11. Leave to intervene may be denied where the submissions of the proposed intervener are merely duplicative of the submissions of others: Fair Voting BC, at para. 13.

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[15] ... A proposed intervener’s lack of indifference to the outcome of a proceeding is not a reason to deny it the right to intervene, so long as it can make a useful contribution to the analysis of the issues before the court: Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.), at para. 9, and the caselaw cited therein. ...

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[30] It is not uncommon for counsel for an intervener to have some connection to one of the parties. In Henry v. Zaitlen, 2023 ONCA 740, the Ontario Trial Lawyers Association sought leave to intervene. The respondent objected, in part on the basis that the plaintiffs’ lead counsel sat on the Association’s Executive Committee. Fairburn A.C.J.O. rejected this argument, remarking at para. 20 that:

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.

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[35] ... A “purely jurisprudential interest, without more, is insufficient” to qualify as a friend of the court: Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67, at para. 24.

. Baker v. Van Dolder’s Home Team Inc. [intervention between private parties]

In Baker v. Van Dolder’s Home Team Inc. (Ont CA, 2025) the Ontario Court of Appeal allowed an intervenor amicus application:

[5] The test for leave to intervene is well-established. The court will consider (1) the nature of the case; (2) the issues involved; and (3) the likelihood that the proposed intervener will 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; Caruso v. Law Society of Ontario, 2025 ONCA 270, at para. 6.

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THE NATURE OF THE CASE AND THE ISSUES INVOLVED

[6] Where the litigation in which the intervention is sought is a private dispute, the standard to be met by the proposed intervener is normally more onerous: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23. That said, the issues that arise in private litigation sometimes have implications that transcend the idiosyncratic interests of the immediate parties and may engage matters of public policy. In such instances, the more onerous threshold governing intervention “may be softened somewhat”: Jones, at para. 23; Caruso, at para. 8.

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[16] The fact that a proposed intervener’s position is generally aligned with one of the parties is not a factor standing in the way of granting leave to intervene: Jones, at paras. 27-28. However, granting both of these large organizations leave to intervene in this private dispute risks creating the perception of an imbalance, given that the respondent is a private individual with limited resources. I am also concerned that, while the submissions of the Proposed Interveners are distinct from those of the appellant, they overlap to a significant extent with each other. Multiple interveners making overlapping submissions on only one side of a dispute can imperil the fairness of the hearing: Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619 at para. 13; Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67, at para 15. I am therefore of the view that only one of the two Proposed Interveners should be granted leave to intervene.

. Solmar Inc. v. Hall

In Solmar Inc. v. Hall (Ont CA, 2025) the Ontario Court of Appeal dismissed a 'friend of the court' [R13.02] leave to intervene motion:

(1) Governing principles

[8] Rule 13.02 of the Rules provides for the intervention of a person as a friend of the court:

[9] “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.”

[10] 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; Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, at para. 10. In order to meet this test, as this court recently stated in Animal Justice, at para. 11, the proposed intervener usually has to satisfy at least one of the following three criteria:

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.

[11] Limits to the scope of intervention may also arise where: a perspective or interest is adequately represented without the proposed intervener’s involvement; or where the submissions of the proposed intervener are duplicative of the submissions of others: Animal Justice, at para. 13. The overarching consideration is whether the proposed intervener can be of assistance to the court in providing a different perspective that is not already addressed by the parties: Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 11.

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[16] Intervention, however, is to be granted sparingly and only where it can be of real assistance to the court: Fair Voting, at para. 10; Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 246, at para. 5. While constitutional cases may provide a larger scope for intervention, this is not the case for private disputes, even disputes that have public interest components, like the present one: Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (ON CA), at para. 10. To permit otherwise would run the risk of unnecessarily expanding the focus of every civil, private dispute beyond the issues that the parties have chosen to frame their dispute. Every s. 137.1 motion involves issues of freedom of expression; however, they are determined on the particular facts of each case. As I noted in Baldwin v. Imperial Metals Corporation, 2021 ONCA 114, at para. 3, “[w]hat constitutes “a useful contribution” will depend on the circumstances of the case”.

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[19] Similarly, although CFE submits that its perspective is different, many of its submissions essentially repeat Mr. Hall’s submissions: namely, they take issue with the way the motion judge applied the s. 137.1 test, for example, that he failed to give proper weight to certain factors and made findings without a proper evidentiary basis. These submissions are thus unhelpful to the resolution of the appeal: Oakwell Engineering Limited, at para. 11, citing Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 1992 CanLII 7475 (ON SCDC), 10 O.R. (3d) 203 (Div. Ct.), at p. 208.

. Caruso v. Law Society of Ontario

In Caruso v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a combined motion for intervention by several paralegal-related entities, here in an appeal from a JR dismissing the appellant's "application challenging the Law Society of Ontario’s restrictions on the permitted scope of practice for paralegals in immigration matters":

A. Relevant Principles

[6] In determining whether to grant leave to intervene as a friend of the court pursuant to r. 13.03(2), the court will 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); Foster v. West, 2021 ONCA 263 at para. 10; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29 at para. 8.

[7] 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) (Jones) at para. 25.

[8] Where the litigation in which the intervention is sought is a private dispute, the standard to be met by the proposed intervenor is more onerous or more stringently applied. While this dispute is between an individual and the LSO, the court’s decision on the appeal will impact the interests of paralegals and the public as it relates to the provision of immigration services. As such, in my view, this is a public policy case with broader implications in which a “softened’ threshold applies: Jones, at para. 23.

[9] The appeal has been perfected but has not yet been listed for hearing. Accordingly, the addition of any intervenors will not prejudice the parties by jeopardizing a previously scheduled hearing date.

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[19] CILA submitted a draft of the factum that it would file if granted leave to intervene, a practice that, while not mandatory, is of considerable assistance to the court on intervention motions and should be encouraged. Its submissions clearly focus on the statutory interpretation principle of the presumption of constitutionality, which CILA in turn applies to the interpretation of s. 91 of the IRPA. This line of argument is distinct from those made by the parties and other proposed intervenors.

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[43] A friend of the court serves the court, not the parties. The role connotes an element of impartiality or altruism: Baldwin v. Imperial Metals Corporation, 2021 ONCA 114 (Baldwin) at para. 4.

[44] I am mindful of this Court’s decision in Henry v. Zaitlen, 2023 ONCA 740 in which counsel to one of the parties also sat on the executive committee of a legal organization (Ontario Trial Lawyers Association) that was granted leave to intervene in an appeal. In that case, however, there was no dispute that OTLA was a well-recognized group who had often been granted intervenor status in previous cases. There was no suggestion of actual conflict, or evidence consistent with the organization being the appellant in disguise. The landscape is not so straightforward here. The CPA submits that the appellant (its president and one of its four directors) has recused himself – yet he has filed evidence and made submissions on its behalf. This is not a case where “the strong presumption of professionalism” (para 20) can be relied upon. The CPA’s connection with the appellant undermines the appearance of impartiality needed to act as a friend of the court.