CITATION: Berge v. College of Audiologists, 2016 ONSC 3261
DIVISIONAL COURT FILE NO.: 219/15 DATE: 20160512
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BRENDA BERGE
Appellant
(Responding Party on Motion
– and –
COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO and THE ATTORNEY GENERAL OF ONTARIO
Respondents
(Responding Parties on Motion)
-and-
CANADIAN DOCTORS OF AUDIOLOGY ASSOCIATION
Proposed Intervenor
(Moving Party)
Morris Manning, Q.C., for the Appellant (Responding Party on Motion)
Bernard LeBlanc, for the Respondents, College of Audiologists and Speech-Language Pathologists of Ontario
Daniel Guttman and Emily Bala, for the Respondent, (Responding Party on Motion), the Attorney General of Ontario
Colleen Hoey, for the Proposed Intervenor (Moving Party)
HEARD at Toronto: May 12, 2016
DAMBROT J. (ORALLY)
[1] Brenda Berge is appealing the March 31, 2015 decision of the Discipline Committee of the College of Audiologists and Speech-Language Pathologists of Ontario, finding her guilty of professional misconduct in relation of the use of the title “Doctor” to the Divisional Court.
[2] A central issue in the appeal is a constitutional challenge to s. 33 of the Regulated Health Professions Act, 1991 which limits the use of the title “Doctor”. The hearing is set for June 8, 2016 for one day (in about four weeks’ time). Factums have already been filed.
[3] The Canadian Doctors of Audiology Association (“CDAA”) seeks leave to intervene in this appeal to support the appellant’s argument that s. 33 of the Act infringes s. 2(b) of the Charter of Rights and Freedoms, and that this infringement cannot be justified under s. 1.
[4] The CDAA was incorporated approximately one year ago, just less than a month after the decision of the Discipline Committee of the College in this proceeding. The CDAA’s interest in participating in this litigation was a factor in the timing of their incorporation.
[5] The CDAA is a not-for-profit organization established by Canadian audiologists holding clinical doctoral degrees in the discipline of audiology. The CDAA’s membership is made up of audiologists from across Canada who hold a Doctor of Audiology degree. Across Canada there are approximately one hundred and forty people who have obtained their Doctor of Audiology degrees. Since CDAA’s inception one year ago, forty-nine of those individuals have joined as members with an additional two members from the United States, for a total of fifty-one members.
[6] The CDAA has never held a conference, published an on-line journal, intervened in a legal proceeding, testified before the Ontario Legislature or Parliament or written to the Ministry of Health and Long-Term Care or the College. The CDAA’s website cannot be found in a Google search for “Canadian Doctors of Audiology Association”.
[7] The appellant supports this intervention; the Attorney General opposes it. While much has been written about interventions in public law cases, having regard to the principles in those cases, I note the following. This Association has a real identifiable interest in the subject matter of these proceedings. Its perspective is very similar to that of the appellant. It is not a well-recognized group of special expertise. Although these are important considerations, in the end however, the fundamental consideration in an intervention application is found in the decision of Nordheimer J. in Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541 at paras. 6 – 7 where he said:
[6] I do not view the criteria set out in Bedford, though, as overriding the fundamental requirements set out in Peel. In other words, it is not sufficient to be granted status as an intervener for a proposed intervener to just satisfy one of the Bedford criteria. I reach that conclusion because if the criteria in Bedford were to be read literally, since they are stated to be disjunctive as opposed to conjunctive, an organization that was, for example, a well-recognized group with a special expertise and broadly identifiable membership base would gain status as an intervener even though they did not offer a perspective different from that of the parties. That would not be an acceptable result and thus it should be self-evident that something more than just satisfying that one criterion is necessary.
[7] I conclude, therefore, that even under the principles set out in Bedford, a proposed intervener must still satisfy the basic requirement that their participation will result in them making a useful and distinct contribution not otherwise offered by the parties.
[8] Similarly, in M. v. H., 1994 7324 (ON SC), [1994] O.J. No. 2000, Epstein J. (then of the Ontario Court (General Division)), stated at para. 37:
With all due respect to the detailed analyses contained in other decisions concerning proposed intervenors, I agree with this decision of the Chief Justice. 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.
[9] A concern about disruption is further emphasized by Watt J.A. in Jones v. Tsige, (2011) 2011 99894 (ON CA), 106 O.R. (3d) 721 at paras. 36 and 37, where he stated:
[36] Third, and most importantly, I’m not satisfied that to permit the interventions can be achieved without causing an injustice to the respondent.
[37] The appeal has been perfected and listed for argument. The times for oral argument have been assigned. To permit the interventions, which would support the appellant’s position, would require the respondent to file a new or revised factum to answer the intervenors’ submissions. Further, the times already assigned for oral argument would require revision to add time for oral argument by the intervenors, as well, to award the respondent more time to respond to those arguments. An adjournment of the hearing would seem almost inevitable.
[10] In the end, I find the analysis of O’Connor A.C.J.O. in Cochrane v. The Queen, (unreported, August 5, 2008) most helpful in the circumstances of this case. He stated the following in para. 2 of his endorsement:
I am not prepared to allow the intervention based on the following four factors. First, I am not persuaded that the intervenor will make a useful contribution to the argument of the appeal as it is now constituted. By that I mean I am not persuaded that she will add anything to the argument that will be made by the appellant. Her position and interest are identical with those of the appellant on all of the issues raised in the appeal. The appellant is represented by senior counsel and has filed a very comprehensive factum – 60 pages in length. There is no reason to expect that the appellant’s counsel will not present the appeal in a capable and thorough manner. Nor is there a suggestion that the proposed intervenor will bring a special expertise that would not otherwise be available on the argument of the appeal.
[11] He further stated at para. 6:
Finally, this is not a case in which it can be said that allowing the intervention would not make any difference to the Crown respondent. The appeal is ready to be argued. The record is complete. The appellant has filed a lengthy factum, the Crown has filed a responding factum. The appeal is scheduled to be heard in six weeks. If intervention is granted, the Crown will likely have to prepare another factum in response. While that would no doubt be possible, given my conclusion that the proposed intervenor will not make an additional contribution to the argument of the appeal as presently constituted, I see no reason to burden the Crown at this late point in the appeal proceedings by having to prepare another factum.
[12] In this case, it is very late in the day to be asking to intervene. The proposed intervenor has provided no explanation for waiting one year before bringing this motion. The factums have been filed and time allocated for arguments in the appeal. The argument proposed to be made by the proposed intervenor substantially echoes the argument of the appellant. The small extent to which it may add to the argument of the appellant does not justify the interruption of the proceedings at this late date. Notwithstanding the careful submissions of counsel for the proposed intervenor, the application is dismissed.
COSTS
[13] I have endorsed the Motion Record, “Application dismissed for recorded reasons delivered in Court. No costs sought or granted.”
___________________________ DAMBROT J.
Date of Reasons for Judgment: May 12, 2016
Date of Release: May 19, 2016
CITATION: Berge v. College of Audiologists, 2016 ONSC 3261
DIVISIONAL COURT FILE NO.: 219/15 DATE: 20160512
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BRENDA BERGE
Appellant
(Responding Party on Motion
– and –
COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO and THE ATTORNEY GENERAL OF ONTARIO
Respondents
(Responding Parties on Motion)
-and-
CANADIAN DOCTORS OF AUDIOLOGY ASSOCIATION
Proposed Intervenor
(Moving Party)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: May 12, 2016
Date of Release: May 19, 2016