2017 ONSC 2965
DIVISIONAL COURT FILE NO.: 495/14
DATE: 20170515
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: NORTH AMERICAN FINANCIAL GROUP INC. and others v. ONTARIO SECURITIES COMMISSION
BEFORE: NORDHEIMER J.
COUNSEL: S. Dewar & M. Bélanger, for the proposed interveners, Ian Smith, Scott Fenton Professional Corporation and Fenton, Smith
R. Chapman, for the appellants/respondents on the motion
M. Vaillancourt, for the respondent, Ontario Securities Commission
HEARD at Toronto: May 12, 2017
E N D O R S E M E N T
[1] Ian Smith, Scott Fenton Professional Corporation and Fenton, Smith bring this motion for leave to intervene in this appeal, brought by North American Financial Group Inc., North American Capital Inc., Alexander Flavio Arconti and Luigino Arconti, from a decision of the Ontario Securities Commission.[^1] By the time of the hearing, the parties had reached an agreement allowing the proposed interveners to intervene, subject to a couple of unresolved issues, only one of which needs to be addressed in this endorsement.
[2] The appellants asked that there be a term of the order that would prohibit the interveners from appealing (or seeking leave to appeal) from any order that the Panel might make on the appeal. The interveners opposed any such term.
[3] The appellants point to the decision in Gligorevic v. McMaster, [2010] O.J. No. 2848 (S.C.J.) where D. Brown J. imposed such a term. It is not clear from the reasons in that case why the term was imposed. However, one factor may be the fact, as I am advised by counsel, that, unlike the situation here, there were no parallel civil proceedings advancing negligence claims against the lawyer involved. In this case, there are two outstanding civil claims for solicitor’s negligence being advanced by the appellants.
[4] It is important in this situation to remember that the interveners are being granted leave to intervene as parties under r. 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and not as a friend of the court under r. 13.02. In my view, that is an important distinction for the purposes of the issue that is raised before me.
[5] Rule 13.01(1) reads:
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.
[6] In this case, the appellants contend that the adverse findings of the O.S.C. were made, at least in part, due to the ineffective assistance of counsel. It should be easily seen from that allegation that the proposed interveners satisfy each of the three criteria set out in r. 13.01(1), although satisfaction of only one of the criteria is sufficient.
[7] It is typical where parties intervene as friends of the court to greatly restrict their participation in the proceeding, including limiting the length of their facta, limiting the length of their oral submissions, and making them immune from any costs awards, whether favourable or unfavourable.
[8] Where a person intervenes as a party, it seems to me that very different considerations apply. An intervener, in that situation, should have the same rights as any other party. The only usual restriction would be that they may only participate in the issues that directly affect them. In this case, the alleged ineffective assistance of counsel issue will be argued as a discreet part of the overall appeal. That said, given that they are added as party interveners, I do not see any reason in principle why they ought to be prohibited from appealing (or seeking leave to appeal) from an adverse determination of the issue in which they have the interest. In this case, for example, the interveners would clearly be adversely affected if it should transpire that a decision was made allowing the appeal on the basis of ineffective assistance of counsel. Among other reasons, it is possible that such a determination might give rise to res judicata or issue estoppel arguments in the solicitor’s negligence proceedings.
[9] Further, it is clear that the appellants could appeal (or seek leave to appeal) from a dismissal of their appeal, including a determination that ineffective assistance of counsel was not made out. If that were to happen, the interveners should not have to rely on the O.S.C. to respond to that appeal, given the interest that the interveners have in that determination. It would also appear to be counterproductive, in that situation, to require the interveners to bring yet another motion for leave to intervene in the Court of Appeal.
[10] It seems to me that, in the normal course, where an intervener is given leave to intervene as a party, the intervener should enjoy the same rights of appeal as any other party does, again restricted to the issues in which their interests are engaged. While there may be cases where an intervener should not be afforded those rights of appeal, in my view, that would be the unusual result, not the normal one. I note, in passing, that in Trempe v. Reybroek (2002), 2002 49410 (ON SC), 57 O.R. (3d) 786 (S.C.J.), Molloy J. permitted the former solicitor for the defendants to be added as a party on a motion for judgment brought by the plaintiffs “with all the same rights of participation as any other party” (para. 27).
[11] It is for these reasons that I declined to impose a term, in the order granting leave to intervene, that the interveners would not be allowed to appeal the ultimate decision on the appeal.
NORDHEIMER J.
DATE: May 15, 2017
[^1]: Associate Chief Justice Marrocco made an order, pursuant to r. 13.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, designating me as the judge to hear and determine any motion for leave to intervene in this proceeding.