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Intervention - General. Law Society of Ontario v. A.A.
In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court allowed an intervention motion:[1] In 2019, AA applied to be licensed as a lawyer by the Law Society of Ontario. The Law Society launched an investigation into AA’s good character because it had evidence that AA sexually abused several children in 2009.
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[6] To obtain leave to intervene JFCY must demonstrate it willa. make useful submissions on the issues before the court on the Law Society’s judicial review application that do not duplicate the submissions of the parties; and
b. respect the limits on the role of interveners: R. v. Finta, 1993 CanLII 132 (SCC), [1993] 1 SCR 1138, R. v. McGregor, 2023 SCC 4. [7] An Intervener must be able to either present a different perspective than the parties on the legal issues or address the broader implications of the Court’s decision. An Intervener must not raise new issues or supplement the record without leave of the Court. Finally, an Intervener should not take a position on the outcome of the proceedings. When considering whether to exercise my discretion to grant JFCY intervener status, I must also consider whether permitting JFCY to intervene will prejudice the parties.
[8] AA makes four arguments in opposition to JFCY’s motion. First, AA argues that JFCY has not demonstrated that it will bring a unique perspective to the case that is different than the Law Society’s position. Second, AA argues that JFCY is attempting to augment the record with social science evidence. Third, AA argues that permitting JFCY to intervene will prejudice him. Finally, AA argues that JFCY is in a conflict because JFCY has been assisting him over the past few years.
[9] I am satisfied that JFCY should be granted intervener status to make submissions about whether the condition placed on AA’s licence is consistent with the rights of children and young people.
[10] JFCY is a legal aid clinic that focusses on protecting and promoting the rights of children and young people. It has extensive experience and expertise on the rights of children and how legal systems affect children and young people. JFCY has repeatedly been granted intervener status at all levels of court in Ontario as well as the Supreme Court of Canada.
[11] I am satisfied that JFCY will bring a unique perspective to this case. One of the issues raised by the Law Society in its notice of application for judicial review is that the Appeal Division erred in upholding the Tribunal’s decision to impose a condition on AA’s licence that is “contrary to public policy, Charter values and the established principles of human rights and equality law.” JFCY proposes to address whether a condition requiring a licensee to be supervised in the presence of children is consistent with Charter values or international law. JFCY also proposes to address whether the Law Society’s duty to regulate in the public interest includes a duty to protect children and their meaningful access to justice and legal services. I am satisfied that JFCY will bring an additional perspective to this issue consistent with its expertise in the rights of children domestically and internationally. As an experienced intervener, I am satisfied JFCY will make submissions that do not duplicate the Law Society’s position.
[12] JFCY does not, however, have special expertise on the issue of whether AA is or should have been found to be of good character. That issue will be fully canvassed by the Law Society. JFCY shall not make submissions on the good character requirement under the Law Society Act and shall not take a position on the disposition of this application for judicial review.
[13] JFCY is also not permitted to adduce evidence or augment the evidentiary record. JFCY may refer to Canada’s obligations under international law and relevant Canadian jurisprudence. It may not, however, augment the record in any way, including, for example, with social science evidence.
[14] I appreciate that granting JFCY leave to intervene will increase the complexity of this case and will require AA to respond to two sets of submissions. Nonetheless, I am not satisfied the added complexity will cause AA significant prejudice. A full day has already been set aside for the application, so granting JFCY leave to intervene will not necessitate an adjournment.
[15] Finally, I reject AA’s argument that JFCY lacks impartiality or is in a conflict of interest because JFCY has been “assisting” him with his efforts to protect the identity of his children. There is no dispute that AA’s spouse, CC, was in touch with JFCY several times throughout these proceedings. I do not, however, accept AA’s submission that JFCY was assisting him.
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[19] Legal clinics are required to avoid conflicts of interest: Legal Aid Services Rules, s. 92. I am not satisfied JFCY is in a conflict of interest. JFCY did not receive any confidential information from AA or CC. JFCY did not agree to represent AA or his children. JFCY did not provide legal advice to AA. Other than forwarding CC publicly available materials, JFCY did nothing to assist AA in any way, either directly or indirectly. JFCY’s decision to intervene at this stage is consistent with its mandate to advance and protect the legal rights and dignity of children and youth. The fact that JFCY learned about this case from AA’s spouse and now intends to take a position that may conflict with his interests is not a basis to find that JFCY is in a conflict of interest or lacks impartiality.
[20] JFCY is granted leave to intervene under on two issues: (a) whether a condition requiring a licensee to be supervised in the presence of children is consistent with Charter values or international law; and (b) whether the Law Society’s duty to regulate in the public interest includes a duty to protect children and their meaningful access to justice and legal services. . London District Catholic School Board v. Weilgosh
In London District Catholic School Board v. Weilgosh (Div Court, 2023) the Divisional Court considered several intervenor status applications respecting a pending JR of an interlocutory matter, here a labour arbitrator versus HRTO human rights jurisdiction issue:Test for Intervener Status
[9] Rules 13.01 and 13.02 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 allow the court to grant leave to intervene as an added party or friend of the court. A proposed intervener seeking status as an added party must first meet one of the criteria set out in Rule 13.01(1):(a) the person claims an interest in the subject matter of the proceeding;
(b) the person claims they may be adversely affected by a judgment in the proceeding; or
(c) the person claims 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. [10] Rule 13.01(2) provides that the court shall consider whether the intervention will unduly delay or prejudice the existing parties:13.01(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 make such order as is just. [11] Rule 13.02 addresses intervening as a friend of the court. Pursuant to r. 13.02, “[a]ny 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.”
[12] In determining whether to grant leave, particularly where leave is sought to intervene as a friend of the court, 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 (Ltd.), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.). Intervener status will be more readily granted in cases raising public interest issues: John Doe v. Ontario (Information and Privacy Commissioner), 1991 CanLII 8373 (ON SCDC), 87 D.L.R. (4th) 348 (Ont. Div. Ct.).
[13] Rule 13.03 addresses the situation where leave is sought in this court or the Court of Appeal. It provides in relevant part: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. [14] I am designated by the Associate Chief Justice of Ontario to hear this motion.
[15] The Court of Appeal has recently addressed the treatment under r. 13.03 (2) of parties who were added as parties in the proceeding appealed from. In Dorsey v. Canada (Attorney General), 2022 ONCA 762, at para. 12, Sossin J.A. states that generally interveners who were added as parties in the proceeding below should expect to continue as parties on appeal, with their status to be confirmed during the case management process. However, this is not a right of participation on the appeal. Where there are intervening events or exceptional circumstances that might justify declining to grant their continuing intervention as a party, the issue will be decided on a r. 13.03 motion.
[16] In Trinity Western University v. The Law Society of Upper Canada, 2014 ONSC 5541 (Div. Ct.), 122 O.R. (3d) 553, at para. 10, Nordheimer J. (as he then was) observed that where there are multiple applicants for leave to intervene, with some favouring the applicant and others favouring the respondent, there should be some balance in the positions to be advocated when granting intervener status. This factor is not determinative but should be taken into account together with other relevant considerations. Each situation must be considered on its own facts. In R. v. Doering, 2021 ONCA 924, Fairburn A.C.J.O. granted intervener status to three police associations in spite of the absence of other public interest groups raising countervailing policy-based considerations. She did so in a context where no such countervailing groups had sought status. . Duff-Foley v. TD General Insurance Company
In Duff-Foley v. TD General Insurance Company (Div Court, 2023) the Divisional Court sets out factors and facts involved in a simple intervention application:[5] On a motion to intervene, the court must consider whether the proposed intervener will likely make useful contributions 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 (ONCA). The proposed intervener must show that it will provide a different and distinct perspective on the case that will be of assistance to the court, and is not simply a repetition of the issues and argument made by the parties. Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (ON CA) at paras. 10-11.
[6] The rigour of the test varies depending on the issues raised. In cases raising constitutional issues the test is lower given the broader implications of the outcome. In purely private disputes, the test is stricter because of the concern for prejudice to the parties in having to address additional submissions.
[7] This case, although a private dispute, raises issues that may have a broader impact on settlements of personal injury claims arising from motor vehicle accidents, and structured settlements in particular, which are governed by the Automobile Insurance Regulation, RRO, 1990, Reg 664, ss. 9.1 and 9.2. The case also implicates the application of s. 267.4 of the Insurance Act, RSO 1990, c. I.8, which, among other things, requires that tort damages awarded at trial be reduced by corresponding collateral benefits, including accident benefits, among other things.
[8] In my view, therefore, this case does not simply involve a private dispute between two parties to which the law must simply be applied. The appeal raises public law issues and policy concerns that may have a wider impact on personal injury cases generally.
[9] I am satisfied that OTLA will bring a different and distinct perspective that may assist the court, as it proposes to address the broader implications of the issues and the application of the Automobile Insurance Regulation and the Insurance Act which are not directly addressed by the respondent.
[10] OTLA is an organization with special knowledge and expertise in personal injury and motor vehicle litigation claims which in my view can make a useful contribution to this appeal. Although, as is often the case, OTLA’s position may be aligned with the respondent’s interests, OTLA will address issues more broadly and can provide a useful contribution to the court. I see little prejudice to TD if OTLA is permitted to intervene, and any prejudice in the form of additional expense or effort is necessitated by the issues raised by TD’s appeal. OTLA’s involvement will not, in any event, significantly expand the issues or the hearing of the appeal. . Canadian Federation of Students v. Ontario (Colleges and Universities)
In Canadian Federation of Students v. Ontario (Colleges and Universities) (Ont CA, 2020) the Court of Appeal considers factors to be assessed on a motion to intervene:[10] Turning to the balance of the proposed interventions, multiple criteria are considered when deciding whether to grant leave to intervene as a friend of the court. These considerations include the general nature of the case, the issues that arise in the case, and the contribution that the intervener can make to 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. As Dubin C.J.O. put it in 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:Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, 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.
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