|
Intervention - Appellate [RCP 13.03]. Dorsey v. Canada (Attorney General)
In Dorsey v. Canada (Attorney General) (Ont CA, 2022) the Court of Appeal (sitting as a single case management judge) considered the interesting issue of whether a party granted intervenor status below [under R13] had the same status on an appeal (it also touched on the more interesting issue of whether an intervenor had a direct right of appeal):[4] While the outcome of the JHSC’s status in the court is no longer in dispute, the parties take differing positions on how the court should treat parties who were granted status as a party in the proceeding under appeal.
[5] The parties agree that r. 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs the question of interveners being added as parties to a proceeding.
[6] Rule 13 provides,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.
Leave to Intervene in Divisional Court or Court of Appeal
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.
(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of them. [7] The JHSC’s position is that having been added as a party intervener to the proceeding in the court below, the JHSC remains an added-party intervener in the appeal, without need to re-apply for leave. In its view, the JHSC was granted status as an added party to this proceeding, not just a stage of it. The Rules define and use “proceeding” to refer to the continuity of an action or application’s process through the courts, including any appeals. Under r. 13.01 of the Rules of Civil Procedure, courts may add a person “as a party to the proceeding”, which is in contrast to r. 13.02, which expressly states that a person may, “and without becoming a party to the proceeding”, intervene as a friend of the court.
[8] The JHSC also submits that the jurisprudence supports JHSC’s status as a continuing party on appeal. Nordheimer J. (as he then was) in North American Financial Group Inc. v Ontario (Securities Commission), 2017 ONSC 2965 (Div. Ct.), declined to make an order that would prohibit the added party interveners from appealing or seeking leave to appeal any order of the Divisional Court, and held at para. 10:It seems to me that, in the normal course, where an intervener is given leave to intervene as a party, the intervener should enjoy the same rights of appeal as any other party does, again restricted to the issues in which their interests are engaged. While there may be cases where an intervener should not be afforded those rights of appeal, in my view, that would be the unusual result, not the normal one. [9] However, in Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, an added-party intervener was denied status as a party on appeal. The respondent relies on this precedent to argue that leave must be sought afresh where an added party to a matter wishes to continue that status on appeal.
[10] In Hearn, the appeal was uncontested, and the intervener did not respond to a letter inquiring whether it intended to participate, did not meet the filing deadlines, and made a late adjournment request. The court held, at para. 9:On April 1, 2019, Mr. Panacci wrote to this court requesting an adjournment, and effectively asserted that intervenor status in the court below gave him the rights of a party in this matter. The panel refused the adjournment request. On April 8, 2019, Mr. Panacci requested leave to file a factum, which we refused on the basis that his clients were not parties. [Emphasis added.] [11] The court in Hearn did not refer to the Rules of Civil Procedure or the basis for its decision and the treatment of the intervening parties in that case should be viewed as arising from and limited to the factual matrix before the court in that case.
[12] Generally, interveners who were added as parties in a proceeding being appealed from should expect to continue as parties on appeal, and to have this confirmed through the appeal management process, without having to make a fresh motion under r. 13.03(2).
[13] However, this is not a right of participation on the appeal. Rather, interveners may consider that, pursuant to the discretion afforded to the court under r. 13.03(2), they will be granted leave to continue as an added party unless there are intervening events or exceptional circumstances which justify the court declining to grant their continuing intervention as a party. In cases where such grounds are raised and this issue is contested, the intervening party should make a motion under r. 13.03(2) to have their status determined.
[14] The status of the JHSC as an added party intervener in this court is confirmed. The terms of the JHSC’s participation in the appeal will be determined at a case management conference. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2022) the Court of Appeal considered the test for R13 intervention:[3] In determining motions for leave to intervene as a friend of the court pursuant to r. 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 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; 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. . Capital Sports Management Inc. v Trinity Development
In Capital Sports Management Inc. v Trinity Development (Div Court, 2022) the Divisional Court considered a motion to intervene in a leave to appeal motion:[9] In an amended notice of motion for leave to appeal served in early July 2022, Capital Sports added grounds that directly impugned Gowlings’ conduct. Gowlings then sought leave to intervene as a party under r. 13.01 of the Rules of Civil Procedure, which provides as follows: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. [10] In brief, Gowlings submits that it has a direct interest in the subject matter of the leave motion, which focuses on the nature and scope of its retainer. Gowlings further submits that it may be adversely affected as a result of the recent grounds challenging its conduct. Gowlings submits that it therefore meets the criteria in both r. 13.01(1)(a) and (b), only one of which is required for leave.[11] The objecting parties rely on the legal principle that granting intervener status on a motion for leave to appeal should be a rare and extraordinary event: McFarlane v. Ontario (Education), 2019 ONCA 641, at para. 3. Gowlings submits that the cases that apply that principle are distinguishable because in those cases there was an aspect of general or public importance. However, r. 62.02 also includes a requirement that there be an issue of importance or that the court find it desirable to grant leave. Those aspects of the leave test support the application of the above principle and a very limited availability of interventions on a motion for leave to appeal.
....
[18] Leave to intervene is discretionary. Even assuming that Gowlings has a sufficient interest under r. 13.01, I have these concerns about granting the requested intervention at the leave to appeal stage. The proposed factum focuses on the issues also put forward by Capital Sports regarding the nature and scope of the retainer. I am not persuaded that Gowlings’ submissions on those same issues justify an intervention at the leave to appeal stage. Further, the added challenges to Gowlings’ conduct come up for the first time in the amended notice of motion for leave to appeal. Those issues would only be adjudicated if leave to appeal is granted. They are therefore more germane if there is an appeal. . Caledon (Town) v. Darzi Holdings Ltd.
In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered practice matters and intervenor status of former counsel when facing a civil claim for ineffective assistance of counsel:[22] The well-established practice of this court on criminal appeals in which ineffective assistance of counsel is advanced as a ground of appeal is that responding Crown counsel adduces the evidence responding to the appellant’s allegations. Typically, Crown counsel will file an affidavit from the former counsel that responds to the allegations of ineffective assistance of counsel. Either party may file the transcript of any cross-examination on that affidavit. This reflects the principle that the preparation of the materials for a motion for fresh evidence is controlled by the parties to the appeal.
[23] The same principle should apply in this civil appeal. Consequently, it will be for the Town’s counsel to file any affidavit from Former Counsel and file any necessary responding motion record regarding the fresh evidence.
[24] However, given the novelty of the appellants’ attempt to advance ineffective assistance of counsel as a ground of appeal and the obvious reputational interest of Former Counsel in the motion for fresh evidence, I grant Former Counsel leave to intervene as an added party on the appeal pursuant to r. 13.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but with his rights limited as follows:(i) Former Counsel may file a responding factum on the motion to adduce fresh evidence of no more than 10 pages, limited to the issue of whether ineffective assistance of counsel exists as a ground of appeal in civil proceedings in this province;
(ii) That factum shall be delivered on or before Friday, September 23, 2022, but following the appellants’ delivery of their formal fresh evidence motion record, with supplementary factum; and
(iii) Whether Former Counsel may make submissions at the hearing of the motion for fresh evidence is a matter to be decided by the panel hearing that motion and the appeal. . Foxgate Developments Inc. v. Jane Doe
In Foxgate Developments Inc. v. Jane Doe (Ont CA, 2021) the Court of Appeal set out some issues to consider on an intervention motion (here on an appeal): [6] In determining these [SS: intervention] motions, I must 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: 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.
[7] I am also mindful that where an appeal involves a private dispute rather than public law, the proposed intervener must meet a stringent standard: Tsige, at para. 23. . 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.
|
