Court of Appeal for Ontario

Date: July 31, 2019

Docket: M50264 (M50629)

Motion Judge: Nordheimer J.A.

Between

Becky McFarlane, in her personal capacity and as litigation guardian for L.M. and the Corporation of the Canadian Civil Liberties Association

Applicants (Moving parties on Motion for Leave to Appeal)

and

Minister of Education (Ontario)

Respondent (Responding Party on Motion for Leave to Appeal)

Counsel

Reema Khawja, Insiya Essajee and Lisa Bush, for the moving party, Ontario Human Rights Commission

Brendan Brammall, for the applicants

Andrea Bolieiro, for the respondent

Heard: July 30, 2019

Endorsement

[1] The Ontario Human Rights Commission ("OHRC") seeks leave to intervene in the pending motion for leave to appeal brought by the applicants from the decision of the Divisional Court in Elementary Teachers' Federation of Ontario v. Ontario (Minister of Education), 2019 ONSC 1308, 144 O.R. (3d) 347 (Div. Ct.). The OHRC also seeks an order granting it intervener status on the appeal, if leave to appeal is granted. For the following reasons, I would dismiss the first part of the OHRC's motion and adjourn the second part.

[2] The underlying proceeding involves a challenge to the provincial government's directive dated August 22, 2018 (the "Directive") requiring teachers in Ontario's publicly funded elementary schools to teach the sex education curriculum in place from 2010 to 2015. The applicants contend that the Directive, and the events surrounding it, infringe the Charter rights of teachers, students, and/or parents. The Divisional Court dismissed that challenge, along with a companion challenge brought by other parties. The applicants have sought leave to appeal from the decision of the Divisional Court. The OHRC seeks to intervene on the applicants' motion for leave to appeal, to support the applicants' position that leave ought to be granted.

[3] I begin with the proposition that granting intervener status on a motion for leave to appeal should be a rare and extraordinary event. On that point, I adopt the following observation made by LeBel J. in ING Canada Inc. v. Aegon Canada Inc., [2004] S.C.C.A. No. 50:

Interventions in support of a leave application are exceptional and should not be encouraged. There is no need for interventions which purport to draw the attention of the Court to the importance of the application for leave to appeal. The application for leave to appeal should itself include material relevant to the general importance of the case. [Citations omitted.]

[4] The OHRC says that it would make unique contributions to the motion for leave to appeal by submitting: (1) that the issues on the motion engage the public interest and (2) that the Divisional Court erred in its analysis of discrimination.

[5] In terms of the first point, the respondent Minister of Education does not dispute that the issues raised in this case involve matters of public interest. Even without that acknowledgment, I believe it would be self-evident from the reasons of the Divisional Court that the issues raised by this litigation involve matters of public interest. Indeed, the Divisional Court says as much at para. 57 of its reasons. And even without either of those factors at play, I believe that the Canadian Civil Liberties Association, as one of the applicants for leave to appeal, would be quite capable of drawing the public interest element of the case to the attention of the panel hearing the motion for leave to appeal.

[6] In terms of the second point, again I believe that the Canadian Civil Liberties Association is quite capable of outlining any errors that it says the Divisional Court made in the course of its reasons. While the OHRC might be able to assist, in that regard, in terms of identifying particular arguments or variations on existing arguments but from its own particular expertise, that is not a requirement on a motion for leave to appeal. I am prepared to accept that the OHRC might be able to provide a separate perspective on the issues raised by the substance of the appeal – but that is a matter for the appeal itself, if leave is granted. It is not a requirement on the motion for leave to appeal, which simply requires that the applicant show that there is an arguable question of law or mixed fact and law: Sault Dock Co Ltd v. City of Sault Ste Marie, [1973] 2 O.R. 479 (C.A.). An arguable question does not require that every possible error be delineated.

[7] In support of its motion, the OHRC relies heavily on the decision in 2016596 Ontario Inc. v. Ontario (Minister of Natural Resources), [2003] O.J. No. 2905 (C.A.), where O'Connor A.C.J.O. granted intervener status on a motion for leave to appeal. In my view, that case is distinguishable from the case at bar because in 2016596 the public interest component of the proposed appeal was not evident and was not advanced by an applicant organization with expertise in such matters, as the Canadian Civil Liberties Association does here. No other case is proffered by the OHRC that reveals intervention status being accorded on a motion for leave to appeal in this province.

[8] In my view, the OHRC has not established that this case is one where the extraordinary remedy of granting intervener status on a motion for leave to appeal is required. I am also concerned that, if such status were to become easily obtainable, this court might become flooded with such applications, with various interested individuals and organizations seeking to line up on one side or the other to attempt to tip the balance in favour of, or in opposition to, leave to appeal being granted. That result would, in my view, undermine the fundamental process that this court adopts in considering whether to grant leave to appeal. I believe that is what LeBel J. was referring to when he said that such motions should be discouraged.

[9] In terms of the OHRC's request that it be granted intervener status if leave to appeal is granted, in my view that request is premature. If leave to appeal is granted, there will be the opportunity for any number of interested parties to seek intervener status. I note, on that point, that three interveners (the OHRC was not one of them) appeared before the Divisional Court. Given that one of the considerations in granting intervener status is whether the proposed intervener will make a distinct contribution, it would be helpful in deciding those requests to know all of the persons who seek to intervene: Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.

[10] As a result, I would dismiss the OHRC's motion for intervener status on the motion for leave to appeal. I would adjourn the OHRC's motion for intervener status on the appeal if leave to appeal is granted. In reaching those conclusions, I am not making any comment or determination as to whether the OHRC should be granted intervener status on any appeal.

[11] None of the parties sought costs of the motion and no costs are awarded.

I.V.B. Nordheimer J.A.