Halpern v. Wong, Clerk of the City of Toronto [Indexed as: Halpern v. Toronto (City) Clerk]
51 O.R. (3d) 742
[2000] O.J. No. 4514
Court File No. 684/2000
Ontario Superior Court of Justice
Divisional Court
Lang J.
November 28, 2000
Civil procedure--Parties--Intervention--Same-sex couples bringing application for order directing city clerk to issue them marriage licences and for declaration that any law prohibiting same-sex marriages offends Charter--Gay and lesbian organization granted intervenor status under rule 13.01 of Rules of Civil Procedure--Organization could bring different perspective to proceeding--Organization's participation to be limited to issues touching on that perspective--Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.01.
The applicants were same-sex couples who wished to marry. They brought an application for an order directing the city clerk to issue them marriage licences and for a declaration that any law prohibiting same-sex marriage offends the Canadian Charter of Rights and Freedoms. The moving party ("EGALE"), a national organization dedicated to achieving legal equality for gays and lesbians, moved for intervenor status under rule 13.01 of the Rules of Civil Procedure as an added party.
Held, the motion should be granted.
EGALE met the requirement in rule 13.01(1)(a) that it have an "interest in the subject matter of the proceeding". It had developed its institutional legal knowledge and expertise on equality rights for gays and lesbians over many years, at both a national and international level. EGALE had conducted extensive legal research on the relevant issues and had canvassed the views of its members in depth. It could give factual context and could present legal argument on the issues. In addition to its own longstanding, demonstrated interest in and acquisition of knowledge about equal marriage rights, EGALE represented a broad-based spectrum of gays and lesbians across Canada. Those members would be directly affected by the outcome of this proceeding in one manner or another. EGALE had shown appreciation for diverse perspectives of gays and lesbians on equality issues. It was positioned to speak about the denial of marriage rights to its members who would be personally affected by the results of this proceeding.
For the above reasons, EGALE could make a useful contribution to the proceeding. It would not simply be repeating the perspectives of the applicants. While the applicants were all couples seeking marriage licences, EGALE could bring the perspective of those gays and lesbians who are not seeking the right to marry, but are seeking the right to be able to choose whether to marry. The perspective of a gay or lesbian person who expresses a feeling of diminishment due to his or her limited options in relationships, as compared to options for heterosexuals, was not a perspective brought by the couples seeking marriage licences.
EGALE's intervention could be structured to permit it to advance its perspective without undue delay or prejudice to the Attorney General of Canada. EGALE's role should be limited to those issues to which it could bring a unique perspective.
MOTION for intervenor status.
Cases referred to Adler v. Ontario (1992), 1992 7415 (ON SC), 8 O.R. (3d) 200, 88 D.L.R. (4th) 632, 7 C.P.C. (3d) 180 (Gen. Div.); Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 149 N.R. 1, 13 C.R.R. (2d) D-5, 46 C.C.E.L. 1, 93 C.L.L.C. 17,006; Canadian Foundation for Children v. Canada (Attorney General), 2000 22397 (ON SC), [2000] O.J. No. 2535 (S.C.J.); Chamberlain v. Surrey School District No. 36, [1999] B.C.J. No. 2056 (C.A.); Christian Horizons v. Ontario Human Rights Commission (1993), 1993 8563 (ON SC), 14 O.R. (3d) 374, 17 C.R.R. (2d) D-6 (Div. Ct.); Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609, 182 N.R. 161, 29 C.R.R. (2d) 79, 95 C.L.L.C. 210-025, 12 R.F.L. (4th) 201; Ethyl Canada Inc. v. Canada (Attorney General), [1997] O.J. No. 4225 (Gen. Div.); Gould Outdoor Advertising v. London (City) (1997), 1997 12101 (ON SC), 32 O.R. (3d) 355, 38 M.P.L.R. (2d) 81, 7 C.P.C. (4th) 103 (Gen. Div.); John Doe v. Ontario (Information & Privacy Commissioner) (1991), 1991 8373 (ON SCDC), 87 D.L.R. (4th) 348 (Ont. Div. Ct.); Little Sisters Book and Art Emporium v. Canada, [1998] S.C.C.A. No. 448; M. v. H. (1994), 1994 7324 (ON SC), 20 O.R. (3d) 70, 33 C.P.C. (3d) 337, 9 R.F.L. (4th) 94 (Gen. Div.); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; Ontario (Attorney General) v. Dieleman (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32, 108 D.L.R. (4th) 458 (Gen. Div.); Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (1999), 1999 14789 (ON SC), 43 O.R. (3d) 760, 62 C.R.R. (2d) 303 (Gen. Div.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, 2 C.R.R. (2d) 327, 45 C.P.C. (2d) 1 (C.A.); Rosenberg v. Canada (Attorney General) (1998), 1998 3243 (ON CA), 38 O.R. (3d) 577, 158 D.L.R. (4th) 664, 51 C.R.R. (2d) 1, 37 C.C.E.L. (2d) 259, 98 DTC 6286 (C.A.); Schofield v. Ontario (Minister of Consumer and Commercial Affairs) (1980), 1980 1726 (ON CA), 28 O.R. (2d) 764, 19 C.P.C. 245 (C.A.); Stadium Corp. of Ontario Ltd. v. Toronto (City) (1993), 1993 8681 (ON CA), 12 O.R. (3d) 646, 101 D.L.R. (4th) 614, 14 M.P.L.R. (2d) 229 (C.A.), revg (1992), 1992 7475 (ON SCDC), 10 O.R. (3d) 203, 11 M.P.L.R. (2d) 68 (Div. Ct.); Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, 50 C.R.R. (2d) 1, 98 CLLC 230-021; Ward v. Canada (Attorney General) (1997), 1997 16051 (NL SC), 153 Nfld. & P.E.I.R. 135, 475 A.P.R. 135 (Nfld. T.D.) Statutes referred to Canadian Charter of Rights and Freedoms Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.01, 13.02, 13.03(1)
Martha A. McCarthy, for applicants. Robert Charney, for Attorney General of Ontario Roslyn J. Levine, and Andrea Horton, for Attorney General of Canada. Steven Barrett, for moving party.
1LANG J.: ---
The Motion
EGALE Canada Inc. (EGALE) moves for intervenor status in this proceeding, which concerns the issuance of marriage licences to same-sex couples. The applicants support the motion. The Attorney General of Canada opposes the motion. Neither the Clerk of the City of Toronto (Clerk), nor the Attorney General of Ontario, takes a position with respect to the motion.
2EGALE is an acronym for Equality for Gays and Lesbians Everywhere. Founded in 1986 and incorporated in 1995, EGALE is a national organization with membership in every province and territory.
Background
3The main proceeding began after the Clerk of the City of Toronto did not issue marriage licences to the couples listed above as applicants. Instead, the Clerk "held their applications in abeyance" and seeks judicial guidance on the issue. The applicants seek an order directing the Clerk to issue them marriage licences and a declaration that any law prohibiting same-sex marriages offends the Canadian Charter of Rights and Freedoms. The Attorney General of Ontario takes the position that the matter is exclusively within federal jurisdiction. The Attorney General of Canada opposes the application. I earlier transferred this judicial review from the family team to Divisional Court: Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213.
The Rule
4Intervenor applications are governed by the following:
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.
13.02 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.
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.
(Rules of Civil Procedure, R.R.O. 1990, Reg. 194)
I am so designated in this case.
5EGALE seeks intervenor status under rule 13.01(1) as an added party with rights to file material, to cross-examine, to submit a factum and to present argument and to otherwise conduct the proceeding as a full party. While the Attorney General of Canada opposes the motion, it submits that, if EGALE is granted intervenor status, it should be as a "friend of the court" under rule 13.02, with the permitted intervention limited to presenting legal argument to the court.
6The onus rests on EGALE to establish that it has met the requirements of the rule and should therefore be permitted to intervene in this proceeding: Ontario (Attorney General) v. Dieleman (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32, 108 D.L.R. (4th) 458 (Gen. Div.) at p. 38; M. v. H. (1994), 1994 7324 (ON SC), 20 O.R. (3d) 70, 9 R.F.L. (4th) 94 (Gen. Div.) at p. 79.
Intervention Precedents
7In its material, EGALE notes that it has been granted intervenor status on many previous occasions. EGALE was granted intervenor status by the Supreme Court of Canada as a "friend of the court" in Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, 29 C.R.R. (2d) 79 (Charter challenge to the definition of spouse in the Old Age Security Act [R.S.C. 1985, c. O-9]); Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658 (Charter challenge to the denial of bereavement leave); Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1 (Charter challenge to Alberta's Individual's Rights Protection Act [R.S.A. 1980, c. I-2]); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, 62 C.R.R. (2d) 1 (Charter challenge to the definition of spouse in the Family Law Act [R.S.O. 1990, c. F.3]); and Little Sisters Book and Art Emporium v. Canada, [1998] S.C.C.A. No. 448 (Charter challenge to the prohibition of materials deemed to be "obscene"). Counsel for EGALE also advises that EGALE was granted intervenor status by the Supreme Court of Canada on April 28, 2000 in B.C. College of Teachers v. Trinity Western University. EGALE was granted intervenor status by courts of appeal in Rosenberg v. Canada (Attorney General) (1998), 1998 3243 (ON CA), 38 O.R. (3d) 577, 51 C.R.R. (2d) 1 (C.A.) (Charter challenge to the definition of spouse in the Income Tax Act [R.S.C. 1985 (5th Supp.), c. 1]), and Chamberlain v. Surrey School District No. 36, [1999] B.C.J. No. 2056 (C.A.) (the right of the school to decide not to include books dealing with gay and lesbian relationships in classrooms).
8EGALE's material did not include cases where it was granted intervenor status in this court, although EGALE's counsel referred in argument to certain cases without citations. However, organizations have been granted such intervenor status in, for example, Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (1999), 1999 14789 (ON SC), 43 O.R. (3d) 760, 62 C.R.R. (2d) 303 (Gen. Div.); Adler v. Ontario (1992), 1992 7415 (ON SC), 8 O.R. (3d) 200, 88 D.L.R. (4th) 632 (Gen. Div.); and Christian Horizons v. Ontario Human Rights Commission (1993), 1993 8563 (ON SC), 14 O.R. (3d) 374, 17 C.R.R. (2d) D-6 (Div. Ct.). Of course, the fact that EGALE or others were granted intervenor status in other cases does not automatically indicate that EGALE should be granted such status in this case.
9It is important to note the different consequences between intervenor status at an appeal level, and intervenor status before a court of first instance. When a proceeding reaches the appellate level, the record before the court is set. Intervention is generally limited to the preparation of facta and to the presentation of argument. Even then, the appellate court usually limits the length of the intervenor's factum and the duration of argument. See M. v. H. and Little Sisters, supra.
10At this level and in this case, the proposed intervenor is asking for substantial input into the formation of the record, including the unrestricted ability to file affidavits and to cross-examine all affidavits. The potential scope of intervention is far greater where the intervenor wishes to participate fully in setting the record. Such an intervention would potentially result in a dramatic increase in delay and expense for all parties.
11The Attorney General of Canada appended to its factum a chart of intervention decisions in Charter cases generally. That chart was not challenged by EGALE, although its counsel, as mentioned earlier, did refer in oral argument to other cases, but without citations. The Attorney General of Canada's chart, limited to intervention motions in a court of first instance, is attached to these reasons as Appendix A.
Criteria of the Rule
12A distinction must be made between rules 13.01 and 13.02. Under rule 13.01, an intervenor as added party has the rights of a party to participate fully in the litigation. Under rule 13.02, the intervenor is a "friend of the court" who renders "assistance to the court by way of argument".
13As EGALE is seeking added party status under rule 13.01(1), I begin with the criteria set out in that rule, which permit a party to move for leave to intervene if the party claims any one of the following:
(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.
(Emphasis added)
14If the moving party establishes that it meets any of these criteria, the court must then consider, under rule 13.01(2)"whether the intervention will unduly delay or prejudice the determination of the rights of the parties". If the court is satisfied that any such delay or prejudice will not be undue, it may then exercise its discretion to add the party "and may make such order as is just". Such an order will usually specify conditions of added party status.
The Cases
15The rule 13.01(1)(a) criterion of an "interest in the subject matter of the proceeding" has been interpreted to include a public interest in the proceeding, to the extent that the party's interest is over and above that of the general public. The party's interest must also be a genuine and direct interest in the outcome of the proceeding: Gould Outdoor Advertising v. London (City) (1997), 1997 12101 (ON SC), 32 O.R. (3d) 355, 38 M.P.L.R. (2d) 81 (Gen. Div.); John Doe v. Ontario (Information & Privacy Commissioner) (1991), 1991 8373 (ON SCDC), 87 D.L.R. (4th) 348 at p. 351 (Ont. Div. Ct.); Ethyl Canada Inc. v. Canada (Attorney General), [1997] O.J. No. 4225 (Gen. Div.).
16Greater latitude is given to intervenor motions in cases involving Charter challenges because such challenges generally involve a greater public interest. However, the proposed intervenor in a Charter challenge case is not excused from satisfying the court that it has a direct interest and could make a useful contribution to the proceeding. See Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (1999), 1999 14789 (ON SC), 43 O.R. (3d) 760 at p. 764 (Gen. Div.); Ethyl Canada Inc. v. Canada (Attorney General), supra.
17In considering an intervenor motion in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 at p. 167, 2 C.R.R. (2d) 327 (C.A.), Dubin C.J.O. gave guidance on the relevant considerations to be applied:
. . . 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.
18In considering whether the added party would make a useful contribution to the proceeding, it is not a useful contribution if the intervenor simply proposes to repeat the issues put forward by the main parties, although some overlap may be permissible. See Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 1992 7475 (ON SCDC), 10 O.R. (3d) 203, 11 M.P.L.R. (2d) 68 (Div. Ct.), reversed on other grounds (1993), 1993 8681 (ON CA), 12 O.R. (3d) 646, 14 M.P.L.R. (2d) 229 (C.A.); Schofield v. Ontario (Ministry of Consumer and Commercial Affairs) (1980), 1980 1726 (ON CA), 28 O.R. (2d) 764, 19 C.P.C. 245 (C.A.) as per Wilson J.A.; Canadian Foundation for Children v. Canada (Attorney General), 2000 22397 (ON SC), [2000] O.J. No. 2535 (S.C.J.) (Endorsement).
19It has been put this way by A. Campbell J. in Stadium Corp. v. Toronto (City), supra at p. 208:
Proposed intervenors must be able to offer something more than the repetition of another party's evidence and argument or a slightly different emphasis on arguments squarely by the parties. The fact that the intervenors are prepared to make somewhat more sweeping constitutional arguments does not mean they will be able to add or contribute to the resolution of the legal issues between the parties.
20When considering the criteria of whether the proposed intervenor will make a useful contribution to the proceeding, the court must balance any such contribution against any resulting delay or prejudice to the other parties. In M. v. H., infra, Epstein J. helpfully put the balancing of the tension between contribution and delay as follows:
Regardless of whether the proposed intervention is sought under rule 13.01 or rule 13.02, the court's focus should be on determining whether the contribution that might be made by the intervenors is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action.
(M. v. H. (1994), 1994 7324 (ON SC), 20 O.R. (3d) 70 (Gen. Div.) at p. 77.)
21Accordingly, I must, in the context of the nature of this case and the context of the issues raised, determine the following:
(1) Does the proposed intervenor have sufficient, direct "interest" in this Charter challenge judicial review?
(2) What useful contribution could the proposed intervenor make to the proceeding?
(3) If such interest and useful contribution are established, would the intervenor's involvement either prejudice or delay the determination of the rights of the parties to the proceeding?
(4) Is any such prejudice or delay counterbalanced by the useful contribution of the proposed intervenor?
(5) What terms or conditions might be imposed on the intervention to ensure that the goals are met of useful contribution without undue delay or prejudice?
"Interest"
22The application of the above principles to the facts of this case will determine the success of the motion. Does EGALE have sufficient interest in the subject matter of this proceeding to satisfy rule 13.01(1)(a)? In this case, the supporting affidavit, the factum and the oral argument all contribute to the answer.
23Under the above principles, EGALE must do more than satisfy the court that it is an equal rights organization with national membership, representative of gays and lesbians across Canada. It is insufficient that it agrees with and supports the application of the couples in this proceeding. It must do more to satisfy the requirement of "interest in the subject matter" of the proceeding.
24In both its factum and its affidavit, EGALE makes extensive reference to its lobbying experience, including many appearances before such bodies as Royal Commissions, Senate committees, House of Commons committees [and] legislative reviews, and to its government consultations and community involvement. EGALE's stated experience as an interest group and lobbyist is insufficient to meet the test. I would go further and say that lobbyists should not be given access to the courts. Lobbyists seek to persuade governments to change or to implement laws. Courts do not change or implement laws. Courts interpret the laws given them by government, although such interpretation is sometimes done, as it will be here, with the backdrop of protected rights given to us by the Charter.
25A similar view was taken in Ward v. Canada (Attorney General) (1997), 1997 16051 (NL SC), 153 Nfld. & P.E.I.R. 135 at p. 143, 475 A.P.R. 135 (Nfld. T.D.):
While courts in considering the "public interest" in applications of this kind are somewhat less restrictive than before the Charter came into being, the court must be ever vigilant to ensure that public interest groups not be allowed to use the courtroom as a forum to advocate a particular cause or to draw public attention to their pursuits. It is only where a person or group can assist the Court in its determination of the constitutional issue before it that intervention should be allowed under the umbrella of "public interest".
An intervenor's interest must not be that of a lobbyist.
26As part of its supporting material, EGALE's Executive Director says he has been a witness in sexual discrimination cases based on his "knowledge, information and expertise" developed through EGALE. Witness experience is not helpful in intervenor applications. If EGALE wishes simply to give expert evidence on gay and lesbian matters, and if it is qualified to do so, that activity can be more appropriately undertaken by providing expert testimony on behalf of the applicants.
27However, EGALE's interests do extend beyond its involvement as lobbyist or witness. EGALE has developed its institutional legal knowledge and expertise on equality rights for gays and lesbians over many years, at both a national and an international level. EGALE has conducted extensive legal research on the relevant issues and has canvassed the views of its members in depth. It can give factual context and can present legal argument on the issues. I am satisfied that in addition to its own longstanding, demonstrated interest in and acquisition of knowledge about equal marriage rights, EGALE represents a broad-based spectrum of gays and lesbians across Canada. Those members will be directly affected by the outcome of this proceeding in one manner or another. It has also shown appreciation for diverse perspectives of gays and lesbians on equality issues. It is positioned to speak about the denial of marriage rights to its members who will be personally impacted by the results of this proceeding. EGALE has met the "interest in the subject matter" qualification under rule 13.01(1)(a).
Useful Contribution
28Given the institutional knowledge of EGALE in same-sex equality issues and the impact this litigation will have on its members, what useful contribution can EGALE make to the proceeding beyond that which can be made by the applicants? In EGALE's supporting affidavit and factum, it sets out the arguments it would make as intervenor as follows:
(a) that the legal issues in this case must be analyzed within the context and framework of the social reality of lesbians, gays, and bisexuals;
(b) that same-sex relationships need not satisfy an idealized notion of the "perfect" spousal relationship in order for same-sex partners to be accorded equal recognition and respect, including the right to marry;
(c) that the freedom to choose marriage, or not to choose marriage, as the case may be, is a fundamental freedom, the denial of which constitutes an affront to the dignity of every lesbian, gay, and bisexual person in Canada;
(d) that an opposite-sex restriction on marriage stems from and reinforces prejudicial views that same-sex relationships are less worthy of recognition, respect, and consideration than heterosexual relationships;
(e) that the institution of marriage is sufficiently flexible to evolve, as it has in the past, to accommodate the requirements of equality (just as, for example, anti- miscegenation statutes in the United States were eventually repealed in response to the advancement of equality rights for people of colour); and
(f) that the purported justifications for an opposite-sex restriction on marriage are founded on the assumption that same-sex relationships have inherently less social worth than heterosexual relationships, and these justifications are insufficient to satisfy the governments' onus under s. 1 of the Charter.
29As already noted, EGALE has established a considerable history of expertise and legal knowledge in this area of same- sex equality rights in terms of the breadth of its legal research through its legal publications and through its relationship with its members. It is undoubtedly qualified to bring those qualifications to bear on any unique or different perspectives from those of the applicants.
30I wish at this point to refer to the applicants' support of the intervention. Reference was made in oral argument (although not in the written argument) to the applicants' lack of resources in such a proceeding. This factor cannot advance an intervenor application. Intervention is not granted simply to provide help to a party. If a party has difficulty with resources, such a difficulty must be addressed in other ways. Of course, nothing in these reasons would preclude EGALE's counsel or other like-minded counsel from rendering assistance to counsel for the applicants if they so choose.
31In argument, counsel for EGALE also pointed out that he could simply bring a separate proceeding in the names of certain EGALE members. That is certainly an option open to him if he so chooses. It does not influence the question of whether intervention is appropriate in this case. I am merely making a decision to advance this proceeding for a determination of the applicants' case in the interests of justice for all those affected by its implications.
32The proposed perspectives must be considered in light of the broad, factual and expert foundation already being laid by the applicants. If the proposed intervenor arguments are no more than those to be presented by the applicants, the intervenor is merely repeating the same perspectives, without adding anything useful to the submissions. The couple applicants represent a broad perspective of issues, including gays and lesbians with diverse experiences. The applicants were specifically chosen to present a wide variety of circumstances for the court's consideration of the legal issues. All 16 individual applicants may be cross-examined so as to present more fully their perspectives to the court. A breadth of material will be available for the panel hearing the judicial review. EGALE in its material has not specifically distinguished its perspective from the perspectives of the applicants.
33As well, between them, the applicants propose to submit affidavits from a variety of 10 experts to form the record in this proceeding. Those experts will undoubtedly examine the issues from the many perspectives of the applicants, although the motion material before me does not include any detail as to the anticipated content of those affidavits. This is perhaps because this proceeding is still at an early stage. However, it is a challenge to know what added perspective the proposed intervenor will bring when it is not clear what perspectives the applicants will address.
34The proposed intervenor notes that this litigation's determination of same-sex marriage issues will apply beyond the couples named in this application. Its effect will apply to all gays and lesbians and not just the applicants. While the applicants here are all couples seeking marriage licences, EGALE can bring the perspective of those gays and lesbians who are not seeking the right to marry, but seeking the right to be able to choose whether to marry. This is referred to in the material as a relationship option. The perspective of a gay or lesbian person who expresses a feeling of diminishment due to their limited options in relationships, as compared to options for heterosexuals, is not and cannot be a perspective brought by the couples seeking marriage licences.
35In addition, EGALE notes that in M. v. H., supra, the Ontario government "sought to justify discriminatory treatment of same-sex couples by arguing that not all gay and lesbian couples wanted to be recognized as `spouses' for the purpose of the support provisions in the Family Law Act". While that argument was rejected in M. v. H., supra, EGALE will bring the perspective that denial of marriage rights equally impacts in a discriminatory manner on those gays and lesbians who choose not to marry. Again, this is a different perspective from the applicants in this proceeding, who are all choosing to marry, albeit for an assortment of reasons.
36Further, the applications for marriage licences in this case were made in Toronto. It may be helpful, as set out in the supporting affidavit, if EGALE adds membership experience showing the different experiences of gays and lesbians from different regions across Canada, in different sizes of communities and in different local and social environments. EGALE can present a different perspective from the applicants on these issues.
Delay or Prejudice
37EGALE is the first intervenor proposed in this proceeding. It has undertaken in the supporting affidavit, in its factum and to the court in oral argument, to work cooperatively to avoid "repetition of submissions or duplication of evidence". It appreciates its obligation as an intervenor to add to the proceeding and not simply to repeat.
38The proposed intervenor is seeking status at the stage of the proceeding where the record is being developed. Care must be taken to ensure that undue delay is not caused to the other parties as a result of any permitted intervention. Although the resulting delay might ordinarily be thought to be a matter of greater concern to the applicants than it would be to the respondents, the applicants support the proposed intervenor; opposition comes from the Attorney General of Canada.
39EGALE's intervention can be structured to permit EGALE to advance its perspective without undue delay or prejudice to the Attorney General of Canada.
Conditions of Intervenor Status
40I turn then to consider what conditions should be imposed under the rule 13.01(2) rubric of "may make such order as is just".
41In doing so, I reiterate that EGALE is being granted intervenor status because it can bring a different perspective to the proceeding. To be specific, I am satisfied that it can do so from the perspective of relationship options or choices and from the national perspective of gays and lesbians in diverse communities and environments across Canada. I am not persuaded, at this early stage, that EGALE can usefully add more to the contextual and expert record being created by the applicants.
42It is important that this proceeding advance to determination without undue delay and I am satisfied that this can be done if EGALE's role is limited to those issues and its participation is restricted so that it does not unduly prolong cross-examinations. Accordingly, subject to what I will shortly say about variation of these terms, EGALE will have leave to file affidavits in reference to the different perspectives I have set out above. EGALE's role in cross-examination will be sharply limited to control any delay that might otherwise result.
43On the argument before the Divisional Court panel, EGALE could add to the proceeding with a factum outlining its different perspectives. At this stage, it is too early to know whether or not oral submissions by the intervenor will usefully contribute to the argument. That will be left for later consideration as the application approaches readiness for hearing and a better informed decision can be made.
44Subject to further order by me or by the panel hearing the application for judicial review, EGALE is added as a party under rule 13.01(1) on the following terms:
(1) EGALE undertakes not to repeat perspectives and arguments advanced by the applicants;
(2) EGALE will adhere to all timetables set by the judge case- managing this proceeding;
(3) EGALE may represent perspectives on the issues of limited relationship options for gays and lesbians and any resulting stigma from such limitation, and on a non-Toronto contextual perspective in relation to same-sex marriage issues;
(4) EGALE is limited to filing two affidavits touching on these issues;
(5) EGALE may participate in cross-examinations only to the extent that affidavits touch on these designated issues;
(6) EGALE may file a factum on these designated issues limited to 20 pages in length and to be filed within three weeks after the applicants have served their factum; and
(7) EGALE may present oral argument at the judicial review if so ordered by me or by the panel hearing the judicial review.
5I impose these terms appreciating that different considerations may well apply at a later stage of this proceeding, or at the appellate levels. When intervenor status is granted at this early stage of the proceeding, it is important to maintain flexibility. As this proceeding matures, affidavits are filed and cross-examinations progress, any party, including EGALE, may move before me to vary these intervenor terms as changes in circumstances might warrant.
Costs
46With respect to costs of this motion, I believe all parties have agreed there will be no costs. I also believe that the parties have agreed as a term of the intervention that EGALE will not have costs of the proceeding awarded against it, nor can it seek costs of the proceeding. If I have erred in this regard, counsel may speak to me about costs.
Motion granted.
APPENDIX A
Attorney General of Canada
Intervention in Charter cases generally
Case Citation
- Canadian Foundation for Children v. Canada (Attorney General), 2000 22397 (ON SC), [2000] O.J. No. 2535 (S.C.J.). (Endorsements)
Type of Case
Constitutional challenge to s. 43 of the Criminal Code.
Applicants for Intervention
Motion 1: Canadian Teachers Federation (CTF)
Case Specifics
Section 7 and s. 12 Charter violations were alleged with respect to s. 43. The section provides a justification for the use of force, in reasonable circumstances, by a schoolteacher, parent or person in the place of a parent, for corrective purposes.
Decision on Motion to Intervene
Motion 1: Added party status granted to CTF. Conditions on CTF:
(a) it must rely on affidavit evidence;
(b) it is not to cross-examine without further motion to the court or the agreement of the parties;
(c) it must abide by any timetable set by court or agreed to by the parties;
(d) it can file a factum and participate in oral argument, as ordered by trial judge;
(e) no automatic right of appeal.
Case Citation
- Canadian Foundation for Children v. Canada (Attorney General), 2000 22397 (ON SC), [2000] O.J. No. 2535 (S.C.J.). (Endorsements)
Type of Case
Applicants for Intervention
Motion 2: Canadian Assn. of Social Workers; Child Welfare League of Canada; Ontario Assn. of Children's Aid Societies; Canadian Council of Prov. Children's Advocates; Defense for Children International; Repeal 43 Committee; National Youth in Care Network; Society for Children and Youth B.C.; Canadian Nurses' Assn.
Case Specifics
All nine parties sought to intervene as a friend of the court.
Decision on Motion to Intervene
Motion 2: Leave to intervene granted to the Ontario Assn. of Children's Aid Societies, as a friend of the court.
Motion denied for the remaining eight parties: none of the eight had shown that they would be directly affected by the outcome of the decision; they had failed to show in any detail that they had a perspective different from the applicant and how they could assist the court in the determination of the legal issues.
Case Citation
- Layland v. Ontario, [1992] O.J. No. 1963 (Gen. Div.).
Type of Case
Judicial review, with Charter argument, of the refusal of the city clerk to issue the applicants a marriage licence.
Applicants for Intervention
Universal Fellowship of the Metropolitan Community Churches; The Metro Community Church of Ottawa.
Case Specifics
The couple wishing to marry were of the same sex.
Decision on Motion to Intervene
The Metro Community Church was granted intervenor status as a friend of the court. Leave was limited to making arguments on the record as produced by the parties.
Intervention was refused to the Universal Fellowship Church as it was unincorporated and therefore not a "person" under Rule 13 and its expertise would be duplicative of that of MCC.
Case Citation
- Adler v. Ontario (1992), 1992 7415 (ON SC), 8 O.R. (3d) 200 (Gen. Div.).
Type of Case
Constitutional challenge to the province's non-funding of Jewish day school education.
Applicants for Intervention
Metropolitan Toronto School Board (MTSB); Ontario Public School Boards Assn. (OPSBA); Canadian Civil Liberties Assn. (CCLA); the Multi-Faith Coalition for Equity in Education (MFCEE) and the Ontario Federation of Independent Schools (OFIS) and Reverend Morris.
Case Specifics
The applicants argued that it was unconstitutional for the Ontario government to provide funding to Roman Catholic schools, but to no other religious schools, and it was a violation of their s. 2(a) and s. 15 Charter rights.
Decision on Motion to Intervene
MTSB granted leave to intervene as a party, on the s. 1 Charter issue only, to submit a factum and make oral argument and to supplement the Record on the s. 1 issue only.
OPSBA, CCLA and OFIS were granted leave to intervene as friends of the court.
MFCEE's motion was dismissed as it is not an incorporated body.
The motion of Rev. Morris was dismissed as he had not demonstrated an interest in the subject matter or that he may be adversely affected by any judgment.
Case Citation
- Ontario (Attorney General) v. Dieleman (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32 (Gen. Div.).
Type of Case
It was alleged by the defendants that an injunction would violate their Charter rights to freedom of expression, religion and peaceful assembly.
Applicants for Intervention
Canadian Centre for Law and Justice. (Its objects: the promotion of pro-family and pro-life causes.)
Case Specifics
The plaintiffs were seeking an injunction against the defendants restraining them from protesting at the homes and offices of abortion service providers. In response, the defendants raised the Charter issues.
Decision on Motion to Intervene
Motion for added party or friend of the court status dismissed. There was every reason to believe that the issues, from both the pro-life and the pro-family perspective, would be adequately canvassed by the existing parties.
Case Citation
- Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 1992 7475 (ON SCDC), 10 O.R. (3d) 203 (Div. Ct.), reversed on other grounds (1993), 1993 8681 (ON CA), 12 O.R. (3d) 646 (C.A.).
Type of Case
Judicial review application to quash a municipal by-law as unconstitutional.
Applicants for Intervention
Ontario Society for the Prevention of Cruelty to Animals; Zoocheck Canada; Animal Alliance of Canada; Canadian Federation of Humane Societies. The parties sought to intervene as friends of the court.
Case Specifics
The by-law in question prohibited the keeping of listed exotic animals. It was challenged as being contrary to s. 2(b) of the Charter, freedom of expression.
Decision of Motion to Intervene
Motion denied. The intervenors have no evidence and no legal arguments that are substantially different from those of the City of Toronto and the Attorney General. Therefore, it is unlikely they will make any useful contribution to the application.
Case Citation
- Borowski v. Canada (Minister of Justice) (1983), 1983 2022 (SK QB), 144 D.L.R. (3d) 657 (Sask. Q.B.).
Type of Case
Charter challenge to the performance of abortions, as being against s. 7 of the Charter.
Applicants for Intervention
Canadian Civil Liberties Assn.; Campaign for Life; and Canadian Abortion Rights Action League ("CARAL").
Case Specifics
CARAL sought to intervene as a party. The objective of CARAL is to decriminalize abortion.
The CCLA and the CLC sought to intervene as friends of the court.
Decision on Motion to Intervene
Motions dismissed. CARAL: It would be presumptuous to grant leave before the trial. It is the trial judge's prerogative to decide whether evidence is relevant and admissible. To grant the motion would allow CARAL to adduce evidence in its own interest, which may not be relevant to the trial. It would also presume that the party it is bolstering is incapable of effectively arguing its case.
The CCLA's and CLC's motions were dismissed as they would not be offering anything new to the court.
Case Citation
- Rothmans, Benson & Hedges Inc., v. Canada (Attorney General), 1989 199 (NS CA), [1990] 1 F.C. 74 & 84 (T.D.); appealed, order varied in part, 1989 9432 (FCA), [1990] 1 F.C. 90 (C.A.)
Type of Case
Section 2(b) Charter challenge to legislation prohibiting advertising of tobacco products.
Applicants for Intervention
The Canadian Cancer Society; the Institute of Canadian Advertising.
Both parties sought to intervene as added parties.
Case Specifics
The plaintiff was challenging the legislation on the basis that it had a right to advertise its product and that its ads are directed towards the choice the consumer had between different tobacco products and are not geared towards encouraging smoking.
Decision on Motion to Intervene
(1) CCS was granted leave at trial to intervene as an added party.
The court noted the importance in this case of offsetting any public perception that the interests of justice were not being served in light of the strong lobby power of the tobacco industry.
On appeal, the intervention was restricted: CCS could intervene on s. 1 Charter issues only; its pleadings were to be delivered within 10 days; it was permitted to call evidence and present argument; the issue of its participation in discoveries is to be determined by agreement between parties or by subsequent motion.
(2) ICA was not granted intervention. Although the outcome of the case would have a direct financial impact on ICA, its arguments would basically be those of the plaintiff. (Upheld on appeal.)
Case Citation
- Ethyl Canada Inc. v. Canada (Attorney General), [1997] O.J. No. 4225 (Gen. Div.).
Type of Case
Constitutional challenge to the Manganese-based Fuel Additives Act as being ultra vires the powers of the federal government.
Applicants for Intervention
Pollution Probe; Canada Vehicle Manufacturers' Assn.; Assn. of International Automobile Manufacturers of Canada.
The parties sought to intervene as added parties. Pollution Probe sought to be added as a friend of the court, in the alternative.
Case Specifics
The Plaintiff was the producer of a substance banned for import for commercial purposes and for interprovincial trade under MBFAA.
Decision on Motion to Intervene
(1) Pollution Probe's motion to intervene as an added party was denied. While it has a well-established reputation and expertise in the area of air pollution, it did not establish either a direct interest or the likelihood that it could make a useful contribution to the proceedings. It was allowed to intervene as a friend of the court.
(2) CVMA [was] granted leave to intervene as an added party, but on terms. Its expertise was on the impact of the banned substance on emission systems, on-board diagnostic systems and automobile performance. It could lead evidence and cross- examine on these points and could file a factum.
(3) AIAMC -- motion denied. Not incorporated and its interests are identical to CVMA.
Case Citation
- Re K (1995), 1995 10080 (ON CJ), 23 O.R. (3d) 679 (Prov. Div.).
Type of Case
Charter challenge to the definition of "spouse" in the Child and Family Services Act.
Applicants for Intervention
The Attorney General of Ontario.
Case Specifics
The applicants, four lesbian couples, wished to adopt the biological child or children of their partner.
Decision on Motion to Intervene
Intervention granted; terms unknown.
Case Citation
- R. v. LePage (1994), 1994 7394 (ON SC), 21 C.R.R. (2d) 67 (Gen. Div.)
Type of Case
Sentencing hearing for four counts of uttering threats in 1993.
Applicants for Intervention
Canadian Police Assn. (CPA); Victims of Violence; Canadians Against Violence Everywhere Advocating its Termination ("CAVEAT"); Jim and Anna Stephenson; Queen Street Patients; Penetanguishene Mental Health Centre; Ministry of Health for Ontario.
Each of the parties sought to intervene as an added party or, in the alternative, as a friend of the court.
Case Specifics
The applicant alleged that he had spent more time in a mental health institution, for a 1978 offence committed while insane, than the maximum custodial sentence for his crime. It was argued that this breached his s. 12 and s. 15 Charter rights.
Decision on Motion to Intervene
The CPA was granted party status, limited to leading evidence on the s. 1 Charter issues and evidence not brought forth by the Crown on the s. 15 issues. * Note: the court stated that, without the CPA present, there would likely not be a party present to argue against "capping" the number of years: The Min. of the A-G for Ontario stated it was in favour of capping and the Dept. of Justice stated it would not participate.
Penetanguishene Mental Health Centre was added as a party as it was already party to the habeas corpus application and the issues were in common. The Queen Street Patients Council was added as a party to produce s. 12 and s. 1 Charter evidence supplementary to that presented by the accused.
CAVEAT and Victims of Violence were granted friends of the court status.
For others, motion denied.
Case Citation
- Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (1999), 1999 14789 (ON SC), 43 O.R. (3d) 760 (Gen. Div.) (interlocutory motion); [2000] O.J. No. 115 (S.C.J. - Divisional Court).
Type of Case
Judicial review application with Charter claim and interim injunction sought.
Applicants for Intervention
Schad Foundation and the International Fund for Animal Welfare (IFAW).
(Both groups are involved in the conservation and preservation of wildlife in Ontario.)
The parties sought intervention as added parties.
Case Specifics
The applicants opposed the province's cancellation of the spring bear hunt in Ontario. They argued that it breached their s. 7 and s. 2(b) Charter rights.
Decision on Motion to Intervene
On the interlocutory motion, Schad Foundation was granted added party status. The court stated that, while both groups made a strong case for added party status, only one should be granted status in order not to delay or prejudice the proceedings.
IFAW made a second motion before the Divisional Court. Leave to intervene as an added party was granted, on conditions: (a) the affidavits of two of IFAW's affiants could be filed; (b) IFAW can only cross-examine on affidavits filed in response to its two affidavits; (c) IFAW's participation is otherwise limited to s. 1 of the Charter; and (d) IFAW can file a factum, a book of authorities and make submissions on the s. 1 issue.
