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Intervention - Charter-HR Issues. 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. ... . Ministry of Community and Social Services v. Robinson-Cooke
In Ministry of Community and Social Services v. Robinson-Cooke (Div Court, 2024) the Divisional Court considers an amicus intervention motion by ISAC (Income Security Advocacy Clinic), here on a human rights JR issue:[7] Rule 13.02 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, provides that any person may apply to intervene in a proceeding as a friend of the court for the purpose of rendering assistance to the court by way of argument.
[8] ISAC submits that given the quasi-constitutional status of human rights legislation, the court should apply the criteria outlined in Bedford v. Canada (Attorney General), 2009 ONCA 669, at para. 2 which apply to motions to intervene in constitutional matter. These criteria are:(a) that the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
(b) that it has an important perspective distinct from the immediate parties; or
(c) that it is a well-recognized group with a special expertise and a broadly identifiable membership base [9] I am also guided by three criteria, as set out in Peel (Regional Municipality) v. Great Atlantic and Pacific Co of Canada, (1990) 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at para. 10.:(a) the nature of the case;
(b) the issues that arise in the case; and
(c) the likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. [10] I am satisfied that ISAC meets the criteria in Peel and in Bedford and I make the order sought for the following reasons.
[11] ISAC has extensive experience and expertise with respect to social assistance including ODSP benefits, ODSP Policy Directives, and the Human Rights Code. This application involves all of these policies and legislation.
[12] Since 2001, ISAC has successfully litigated numerous cases on behalf of vulnerable and low-income individuals before all levels of Court. This is the population which may be affected by the findings in this application for judicial review. I am satisfied that ISAC has the necessary experience and expertise and has a connection to the issues on behalf of the populations that is serves.
[13] Further, the Court of Appeal has recognized the “unique expertise of ISAC” to assist in a case involving issues of adverse-impact discrimination and substantive equality in the context of low income individuals living with disabilities: Jacob v. Canada (Attorney General), 2024 ONCA 195, at para. 10.
[14] In support of the application to intervene, ISAC taken steps to demonstrate to the parties that its submissions will not duplicate those of the other parties. In March of 2024, ISAC provided all parties with an outline of its proposed submissions and detailed these in its materials in support of this application.
[15] Given that the parties are not opposing the order sought, I will merely note that I have read the motion record and factum and agree on the strength of the material filed, that ISAC will be a helpful addition to the hearing and bring its experience and expertise to the arguments. Its policy and advocacy role beyond the concerns of the immediate parties will make a useful contribution and will not prejudice any of the parties. ISAC does not seek to expand the record. ISAC proposes to work within the court’s timetable and not delay the hearing of the application.
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