CITATION: Cusimano v. Toronto (City), 2011 ONSC 4768
COURT FILE NOs: 260/11 & 259/11
DATE: 20110817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Court file no: 260/11
Agustine G. Cusimano
Applicant (Respondent in Appeal)
- and -
City of Toronto
Respondent (Appellant)
- And Between -
Michael Sullivan
Applicant (Respondent in Appeal)
- and -
City of Toronto and Stephanie Payne
Respondents (Appellants)
Proposed Intervenors
Lorne Honickman, for the /Applicant (Respondent in Appeal), Agustine G. Cusimano
Tim Carre, for the Respondent (Appellant), City of Toronto
Court file no: 259/11
Julian D. Heller and Neil Foley, for the Moving Party, Maria Augimeri
Caroline Jones and Michael Fenrick, for the Moving Party, Gloria Saccon
Andrea Wilson-Peebles, for the Moving Party, the City of Mississauga
Heard At Toronto: August 5, 2011
LEDERMAN J:
Nature of Motions
[1] There are two appeals pending in the Divisional Court – the “Cusimano proceeding” and the “Sullivan proceeding”.
[2] The appeals are from the judgment of Justice Hoy in which she declared invalid the election of Maria Augimeri (“Augimeri”) as a city councillor in the City of Toronto’s election for Ward 9, and the election of a Toronto School Board trustee, Stephanie Payne, in a neighbouring ward.
[3] Augimeri and Gloria Saccon (“Saccon”) move under Rule 13 to intervene in the appeal in the Cusimano proceeding. The City of Mississauga (“Mississauga”) seeks to intervene in both proceedings.
[4] The City of Toronto, an appellant in both appeals, consents to and supports these motions. The respondent, Michael Sullivan, takes no position with respect to Mississauga’s motion to intervene in the Sullivan proceeding.
Principles of Intervention under Rule 13
[5] The relevant provision is Rule 13 of the Rules of Civil Procedure. Rule 13.01 contemplates added parties, while rule 13.02 contemplates friends of the court. Those provisions read:
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.
[6] The components of rule 13.01 are disjunctive (“or”), and as such, the party moving for leave to intervene need only establish one of the three elements.
[7] The relevant elements of rule 13.01(1) must (“shall”) be balanced against the relevant elements of rule 13.01(2). That is, the interests of the party seeking intervenor status must be balanced against the impact the intervention would have on the proceeding. Specifically, the court shall consider whether the intervention will:
a) unduly delay, or
b) prejudice
the determination of the rights of the parties to the proceeding.
[8] The factors to consider in respect of party intervention were framed as a series of questions by Lang J. (as she then was) in Halpern v. Toronto (City) (2000), 51 O.R. (3d) 742 (Div. Ct.), at para. 21, in which the court was considering whether to allow EGALE (Equality for Gays and Lesbians Everywhere) to intervene in a case concerning the issuance of marriage licences to same-sex couples.
[9] Lang J. held that:
I must, in the context of the nature of this case and the context of the issues raised, determine the following:
Does the proposed intervener have sufficient, direct “interest” in this Charter challenge judicial review?
What useful contribution could the proposed intervener make to the proceeding? 3) If such interest and useful contribution are established, would the intervener's involvement either prejudice or delay the determination of the rights of the parties to the proceeding?
Is any such prejudice or delay counterbalanced by the useful contribution of the proposed intervener?
What terms or conditions might be imposed on the intervention to ensure that the goals are met of useful contribution without undue delay or prejudiced?
[10] Whereas parties may intervene to protect their own interests, friends intervene in order to assist the court by way of argument. In fact, friend status is not appropriate for parties with a private interest in a proceeding: Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) (2008), 234 O.A.C. 312. The focus of the test for friend status is whether the applicant’s contribution will be useful to the court, offering even a slightly different perspective than that of the parties, while not causing an injustice to the parties: R. v. LePage (1994), 21 C.R.R. (2d) 67 (Ont. Gen. Div.), at para. 26.
[11] For both manners of intervention, the onus is on the proposed intervenor to demonstrate that its contribution will be useful to the court: M. v. H. (1994), 20 O.R. (3d) 70 (Gen. Div.).
[12] In Peel (Regional Municipality v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at para. 10, Dubin C.J.O. held that:
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. [Emphasis added.]
[13] Accordingly, these are the factors that should guide the analysis and determination of whether and to what degree Mississauga, Saccon, and Augimeri may intervene in the present case.
[14] Although the present case is not a constitutional one, the case law on intervention in constitutional cases should be applicable in the present case, because “constitutional” tends to be used as a proxy for “public,” which this case is. Rule 13 is applied more liberally in cases that are of interest to the public.
[15] The present appeals are public in nature. The issues raised engage fundamental democratic values of participation and enfranchisement and, as such, a more liberal approach to interventions is warranted.
The Augimeri Motion
[16] Although she was the sitting city councillor and winning candidate in the Ward 9 election, she was not named as a party by the losing candidate, Agustine Cusimano (“Cusimano”), who brought the application before Justice Hoy to contest the election.
[17] Cusimano, the respondent in appeal, opposes the addition of Augimeri as a party at this stage because:
a) there was no obligation under the Municipal Elections Act, 1996, S.O. 1996, c. 32 (the “MEA”), to serve the application to contest the validity of an election upon the winning candidate, Augimeri. Section 83(3.1) expressly states that service is to be on the clerk of the appropriate municipality;
b) the legal issues on the applications and appeals turn on the administration of the election by the City of Toronto and its officials. Augimeri’s conduct is not in question. The focus is solely on the integrity of the election. Augimeri had no role or responsibility associated with the administration of the Voters’ List Change Request Form (“VLCRF”) which is in question;
c) Augimeri learned of the application immediately after it was commenced. She knew of the requested relief that the election be declared invalid and a by-election ordered. She spoke and consulted with the City solicitors and was “satisfied” that the City represented her interests. She received a copy of the Application Record from Cusimano’s solicitors as a “courtesy only” and was advised to contact them if she had any questions or concerns. She always had the ability to retain counsel and seek joinder as a party to the application, but instead, accepted the City’s view that she did not need to do so;
d) that for the first time on this appeal, she now seeks to intervene because of speculative and unfounded concern over alleged influence by the Mayor’s office on the City Clerk’s decision first announcing that the City would not appeal and then reversing its position;
e) if allowed to intervene, Augimeri’s position would be exactly the same as the City and she can make no useful additional contribution;
f) Augimeri does not meet the necessary tests to be permitted to intervene under Rule 13.
Analysis
[18] Section 83 of the MEA only speaks to service of the application on the municipality. It does not state that the successful candidate should not be a party. In fact, the process of disclaimer by a winning candidate whose election is questioned under section 84(7) to avoid liability for the costs of the application contemplates that the successful individual be a party, who could otherwise be potentially liable for costs.
[19] Cusimano’s counsel made a decision to exclude Augimeri as a party even though paragraph 1(b) of his Notice of Application specifically refers to her as “the respondent”.
[20] Further, Augimeri has provided an explanation for not seeking party status in the initial application. She received comforting advice from the City’s legal staff that she did not have to take any steps to protect her interests. She was told that the application has “nothing to do with you” and that the City would be defending the application.
[21] With that assurance and the short time span available for Augimeri to retain and have her own solicitor prepare for the hearing, it is understandable that she did not seek to become involved personally as a party.
[22] Because of the City’s initial decision to not appeal and then its about-face, she now seeks to protect her interest as the winning candidate in the election.
[23] Augimeri clearly comes within rule 13.01(1)(a) and (b) in that, as the winning candidate in the election, she has an interest in the subject matter of the proceeding and would be adversely affected by a judgment in the proceeding. In fact, Cusimano’s counsel expressly acknowledged this fact when he stated in his “courtesy” letter to Augimeri that she is “an individual who is potentially affected by the outcome of this application”.
[24] In the Sullivan proceeding involving the election for school trustee, the winning candidate, Stephanie Payne, is named as a party in the application and did participate in the hearing. She is a party to that appeal. Augimeri should similarly be a party in the Cusimano appeal proceeding even though she was not named or involved in the initial hearing.
[25] Augimeri’s addition as a party, with appropriate terms and conditions, will not cause an injustice to Cusimano nor delay the hearing of the appeal.
[26] Therefore, Augimeri should be added under Rule 13 as a party on the appeal, as her presence would be necessary to enable the court to adjudicate effectively and completely on the issues.
The Saccon Motion
[27] The moving party, Saccon, was a person entitled to vote in the general election and, specifically, Ward 9. She has resided in Ward 9 since 2000 and voted in the municipal elections in 2000, 2003, 2006 and 2010.
[28] In the 2010 election, she attended at her local polling station to cast her ballot. She was advised that her name had not been included on the voters list. Saccon provided her driver’s licence and the election official used the information therein to complete the main part of the VLCRF. Saccon signed the declaration on the form. She was then provided with a ballot and marked her ballot accordingly, and assumed that her vote would be counted.
[29] Saccon learned that her vote had been discounted following the release of Hoy J.’s decision. There were 287 VLCRFs that were intended to add individuals to the voters list in Ward 9 that were not signed by an election official. One of them was Saccon’s.
[30] Cusimano opposes Saccon’s intervention because:
a) although Saccon’s vote was discounted, her contribution to the appeal offers no unique position;
b) as the election was won with a plurality of 89 votes, her particular experience with her VLCRF is not relevant so as to have any meaningful significance.
c) Saccon’s proposed intervention does not meet the tests under Rule 13.
Analysis
[31] Saccon is the only person seeking leave to intervene whose vote was discounted by Hoy J.’s decision.
[32] Hoy J. stated in her Reasons at paragraph 59 that this is precisely the kind of evidence she would have found helpful had it been presented. Hoy J. even considered whether it was open to her on the application to order that the evidence be obtained to possibly avoid declaring the elections invalid and ordering by-elections.
[33] As stated earlier, the appeal is public in nature and greater latitude for intervention is permitted.
[34] Saccon’s participation provides a context of a voter’s actual experience with the VLCRF and interaction with election officials at the polling station. It is a perspective different than offered by other parties.
[35] Therefore, she is granted leave to intervene under Rule 13 as a friend of the court.
The City of Mississauga Motion
[36] The City of Mississauga seeks to intervene because of a concern that Hoy J.’s decision sets a standard of practice for municipal elections that is impossible to meet and that will adversely impact not just the City of Toronto, but all municipalities across Ontario.
[37] Mississauga has a by-election scheduled for September 19, 2011, which is expected to cost over $445,000 in city resources, and is causing instability and disruption to the day-to-day governance of the city.
[38] Cusimano opposes Mississauga’s intervention because:
a) while it may have an interest in how a court interprets the MEA, such an interest is no greater than any other municipality in Ontario and its position is entirely repetitive of that put forward by the appellant, the City of Toronto;
b) Mississauga has no relation to the actual facts that took place in Ward 9 in the City of Toronto;
c) to allow Mississauga to intervene will turn the appeal into a form of judicial reference.
Analysis
[39] Mississauga meets the test under rule 13.02 as it can provide information that may be useful to the court because it runs municipal elections under the MEA. In particular, Mississauga can address the extent of irregularities in elections and the potential impact of the standard that Hoy J. has required of municipalities in conducting elections. It can offer a slightly different perspective, since Mississauga has a by-election planned for September 19, 2011, and can explain how this upcoming election is impacting the municipality’s resources and stability of governance. Mississauga has experience with the manner in which holding elections invalid by reason of irregularities has ramifications for municipalities’ budgets and operations. Mississauga’s participation, if it is appropriately limited, will not cause an injustice to the parties. Accordingly, leave is granted to Mississauga to intervene as a friend of the court.
Terms of Intervention
[40] The intervenors seek to augment the record with evidence of their own to serve as a basis for their argument.
[41] On whether friends of the court can adduce fresh evidence, in R. v. M.(A.), [2005] O.J. No. 4017 (C.A.), at para. 4, McMurtry C.J.O. held that:
In most cases, an intervenor who participates as a friend of the court is required, as a term of intervention, to take the record as it exists and not seek to augment the record. This condition is imposed to ensure economy and fairness to the parties and to prevent an intervenor from changing the focus, scope or nature of the proceedings by changing the record. (Emphasis added).
One implication from this statement is that there will be some cases where an intervenor is not required to take the record as it exists. A second implication is that if an intervenor is allowed to adduce fresh evidence, that evidence should not change the focus, scope, or nature of the proceedings.
[42] In Carsons’ Camp Ltd. v. Municipal Property Assessment Corp. 2007 CarswellOnt 9463 (C.A.), Winkler C.J.O. granted party status as well as leave to the intervenors to augment the record with fresh affidavit evidence. He left it for the panel hearing the appeal to decide whether to admit and how to treat the evidence. At para. 3, Winkler C.J.O. held that
I grant leave to the 17 municipalities listed in schedule 1 of the notice of motion to be added as party intervenors in these proceedings. Additionally, I grant leave to the intervenors to seek to augment the record with fresh evidence in the form of the affidavit of Carla Nell. It will be for the panel hearing the appeal to consider whether it will admit the evidence and determine what weight, if any, is to be given to the affidavit.
[43] An intervenor was added as a party and allowed to file two affidavits in Ontario Human Rights Commission v. Christian Horizons (2008), 245 O.A.C. 193. One affidavit, which was included as part of the motion record, was held to be “essential to the perspective that the [intervenor] will bring to the court in its submissions” (at para. 18). The Court also granted permission for a further affidavit of not more than two pages to be filed.
[44] On these motions, in order to allow meaningful participation on the appeals and to ensure that essential evidence is not omitted, and with a view to not unduly widening the focus, scope or nature of the appeals, the following terms and limits are imposed on the intervenors:
Augimeri Terms
She is added as a party to the Cusimano proceeding and may file her own Notice of Appeal by August 19, 2011.
She did not have an opportunity to deliver evidence on the initial application. She may deliver an affidavit by August 26, 2011, limited to the matters set out in paragraph 40(a), (b) and (d) of her affidavit sworn July 6, 2011. The new affidavit is to be limited to matters not addressed by the City of Toronto. No evidence of alleged misconduct by Cusimano is to be submitted.
Cusimano may deliver a responding affidavit by August 31, 2011.
Her factum is to be delivered by September 8, 2011.
Saccon Terms
She is allowed to intervene as a friend of the court in the Cusimano proceeding.
She may file her affidavit sworn July 26, 2011 upon which Cusimano has decided not to cross-examine.
Factum of no more than 20 pages to be delivered by September 8, 2011.
Oral argument is to be no more than 30 minutes.
She shall not seek costs nor will costs be awarded against her.
Mississauga Terms
It is allowed to intervene as a friend of the court in the Cusimano and Sullivan proceedings.
It may file the affidavit of Giuseppina Mancuso, sworn July 22, 2011, upon which Cusimano has decided not to cross-examine.
Factum of no more than 20 pages to be delivered by September 8, 2011.
Oral argument to be no more than 30 minutes.
It will not seek costs nor will costs be awarded against it.
[45] I reiterate that it is for the panel to determine ultimate admissibility and the weight of the intervenors’ evidence.
Costs
[46] I trust the parties can come to an agreement as to the costs of these motions. If unable to do so, they may make written submissions within 30 days.
Lederman J.
Released: August 17, 2011
CITATION: Cusimano v. Toronto (City), 2011 ONSC 4768
COURT FILE NOs: 260/11 & 259/11
DATE: 20110817
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Agustine G. Cusimano
Applicant (Respondent in Appeal)
- and -
City of Toronto
Respondent (Appellant)
- And Between -
Michael Sullivan
Applicant (Respondent in Appeal)
- and -
City of Toronto and Stephanie Payne
Respondents (Appellants)
Proposed Intervenors
REASONS FOR JUDGMENT
LEDERMAN J.
Released: August 17, 2011