CITATION: Bhajan v. Ontario (Children's Lawyer), 2010 ONCA 560
DATE: 20100820
DOCKETS: C52167, C51316, M39100, M39098, M39099; C51316, M39098; C51832; C52167, M39099; C52133 , M39100; C52169
COURT OF APPEAL FOR ONTARIO
Weiler J.A. (in-chambers)
BETWEEN
DOCKET: C52167, C51316, M39100, M39098, M39099
Daveanand Bhajan
Applicant (Respondent in Appeal)
and
Sandora Bhajan
Respondent (Respondent in Appeal)
and
The Children’s Lawyer
Appellant in Appeal
AND BETWEEN
DOCKET: C51316, M39098
Vathany Vaseekaran
Applicant (Respondent)
and
Manickam Vaseekaran
Respondent (Respondent)
and
The Children’s Lawyer
Appellant (Respondent on Motion)
AND BETWEEN
DOCKET: C51832
Djeane MacDonald
Applicant (Respondent)
and
Brian MacDonald
Respondent (Respondent)
and
The Children’s Lawyer
Appellant (Respondent on Motion)
AND BETWEEN
DOCKET:C52167, M39099
Ana Crisina Bonadonna
Applicant (Respondent)
and
Roy Bonadonna
Respondent (Respondent)
and
The Children’s Lawyer
Appellant (Respondent on Motion)
AND BETWEEN
DOCKET: C52133 , M39100
Seng Hock Goh
Applicant (Respondent)
and
Chao-Hsia Linda Wen
Respondent (Respondent)
and
The Children’s Lawyer
Appellant (Respondent on Motion)
AND BETWEEN
DOCKET: C52169
Wendy Feldman
Applicant (Respondent in Appeal)
and
Jean-Pierre Boue
(Respondent (Respondent in Appeal)
and
The Children’s Lawyer
Appellant in Appeal
Martha Mackinnon and Andrea Gatti, for Justice for Children and Youth
Martha Heder, for The Children’s Lawyer
Heard: August 17, 2010
Weiler J.A. (in-chambers):
[1] This is a motion brought by Justice for Children and Youth (JCY) for leave to intervene as a friend of the court in a series of appeals brought by the Office of the Children’s Lawyer. Paisley J., in the purported exercise of the Superior Court’s parens patriae jurisdiction, ordered the Children’s Lawyer to represent the children whose parents are engaged in certain matrimonial litigation on the basis of exigent circumstances. No responding material to the appeals of the Children’s Lawyer has been filed. The appeals have been listed for hearing on September 3, 2010.
[2] The Children’s Lawyer opposes the application of JCY to intervene on the basis that JCY does not meet the test for intervention under r. 13.02 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 as amended. In addition, the Children’s Lawyer submits that JCY’s application is brought too late.
[3] Rule 13.02 provides:
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.
[4] The appointment of amicus curiae is in the discretion of the court. The role of amicus curiae has not been defined by legislation but has evolved in the jurisprudence.
[5] In Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada Limited (1990), 1990 CanLII 6886 (ON CA), 74 O.R.(2d) 164, at p. 167, Dubin C.J.O. succinctly stated:
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.
[6] Insofar as the nature of the case is concerned, in Childs v. Desormeaux (2003), 2003 CanLII 47870 (ON CA), 67 O.R. (3d) 385, Chief Justice McMurtry explained that much litigation falls in between the private and constitutional or public spectrum. The closer a case is to the purely private end of the spectrum the higher the burden will be on those seeking to intervene as amicus. Although in that case the litigation was private in nature, it raised the policy issue of whether the social hosts of a bring your own booze New Year`s Eve party owed a duty of care towards a guest to see that he did not become intoxicated and subsequently drive.
[7] Chief Justice McMurtry also observed that the role of amicus curiae has evolved from that of a neutral, objective person making submissions to the court, to that of an advocate on behalf of a particular person or point of view in many cases. The word “argument” in r. 13.02 imports the notion of advocacy and reasoned persuasion. Accordingly, he granted intervener status to Mothers Against Drunk Driving (MADD) to intervene, although they would be arguing in support of Childs’ position, because he was of the opinion they could make a useful contribution.
[8] An additional consideration in deciding whether to appoint amicus curiae is whether there will be a party responding to the appeal. One of the roles of amicus curiae is to help the court if no one responds to an appeal or a party is unrepresented. See e.g. R. v. Lariviere (2001), 35 S.C.R. 1013.
[9] I am satisfied that JCY should be permitted to intervene as a friend of the court. In this case, as I have indicated, no one has responded to the appeal and, unless amicus curiae is appointed, the children whose interests are affected in these appeals will have no voice. The Children’s Lawyer concedes the expertise of JCY in representing children.
[10] Insofar as the issues on appeal are concerned, I am of the opinion that JCY can provide assistance to the court on how the adoption of the United Nations Convention on the Rights of the Child (the Convention) impacts on the interpretation to be afforded ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and the court’s parens patriae jurisdiction. Recently, in Novoa v. Molero, [2007] O.J. No. 4591 (C.A.), this court affirmed earlier decisions to the effect that the Children’s Lawyer has a discretion to decide whether cause an investigation to be made pursuant to the Courts of Justice Act, ss. 89(3.1), and 112 and to issue an updated report. To date, however, this court has not considered the impact of the Convention on the interpretation of the legislation nor its impact on the parens patriae jurisdiction of a Superior Court judge.
[11] It may be that JCY will support the submission of the Children’s Lawyer that, even in exigent circumstances, a judge of the Superior Court ought to first request the Children’s Lawyer to represent a child, and, if that request is refused, request reconsideration by the Children’s Lawyer. If the Children’s Lawyer maintains its refusal to act, I understand that the JCY may wish to submit that a gap exists in that the child is entitled to representation but, unless the court exercises its parens patriae jurisdiction to appoint counsel, there is no means of realizing that entitlement. JCY may also wish to make submissions as to whether the court, in the exercise of its parens patriae jurisdiction, is entitled to appoint the Children’s Lawyer or JCY or an individual lawyer to act.
[12] The issues I have described involve broad public considerations.
[13] Accordingly, I grant leave to JCY to intervene as a friend of the court on the following conditions:
(a) that it take the record as is but that it be permitted to introduce the Convention and material pertaining to its effect on local law;
(b) that it will not seek costs of the appeals;
(c) that it will deliver its factum, not to exceed 20 pages in length on or before August 25, 2010;
(d) that the Children’s Lawyer may deliver a supplementary factum, if necessary, to respond to matters raised by the intervener no later than September 1, 2010;
(e) that if, owing to the short timelines imposed, the Children’s Lawyer wishes to adjourn the hearing of the appeal to a later date, it may make an application to the president of the panel scheduled to hear these appeals on September 3, 2010;
(f) that the time allocated for the intervener’s oral submissions be fixed at 30 minutes.
[14] There will be no order as to costs of this motion.
“Karen M. Weiler J.A.”