Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 2024-12-23 DOCKET: M55589, M55593, M55598, M55606, M55611, M55612, M55633 (COA-24-CV-0553)

BEFORE: Monahan J.A. (Motion Judge)

BETWEEN: Animal Justice, Jessica Scott-Reid and Louise Jorgensen Applicants (Respondents)

AND: Attorney General of Ontario Respondent (Appellant)

AND: Animal Alliance of Canada*, Centre for Free Expression* and Regan Russell Foundation Interveners (Proposed Interveners*)

COUNSEL: Robin Basu, Yashoda Ranganathan and Elizabeth Guilbault, for the appellant/responding party Andrea Gonsalves, Frederick Schumann, Kaitlyn Mitchell, and Alexandra Pester, for the respondent/responding party Animal Justice Arden Beddoes, for the respondents/responding parties Louise Jorgensen and Jessica Scott Reid Kira Berkeley and Kirsten Marsh, for the proposed intervener Animal Environmental Legal Advocacy (M55589) M. Philip Tunley, for the proposed intervener Canadian Journalists for Free Expression (M55593) Alexi N. Wood, Abigail Deshman, and Emma Corber, for the proposed intervener Centre for Free Expression (M55598) Christopher Pigott and Gillian Round, for the proposed intervener Labour Issues Coordinating Committee (M55606) Nicolas M. Rouleau and Vibhu Sharma, for the proposed intervener Animal Alliance of Canada (M55611) Jackie Esmonde, Danielle Bisnar, and Sydney Lang, for the proposed intervener Justicia for Migrant Workers (M55612) Ankita Gupta and David Rankin, for the proposed intervener Canadian Civil Liberties Association (M55633)

HEARD: In writing

Endorsement

[1] Seven groups seek leave to intervene in Ontario’s appeal of an order that found that certain provisions of Regulation 701/20 (the “Regulation”), enacted under the Security from Trespass and Protecting Food Safety Act, 2020, S.O. 2020, c. 9 (the “Act”), violate the Canadian Charter of Rights and Freedoms in a manner that is not justified under s. 1.

[2] The Act limits access to certain types of agricultural premises where animals are kept, raised, or slaughtered. Sections 9 and 10 of the Regulation seek to prevent people gaining access to prescribed premises such as a farm or animal processing facility and engaging in otherwise prohibited activities either through a false statement to obtain consent of the owner or through a false statement regarding the person’s employment qualifications. The application judge found that ss. 9 and 10 of the Regulation (discussed further below) violate s. 2(b) of the Charter and that, while s. 10 is justified under s. 1, s. 9 is not.

[3] The application judge further held that certain parts of ss. 11 and 12 of the Regulation, [1] exempting journalists and whistleblowers from the application of ss. 9 and 10, violate s. 2(b) of the Charter in a manner that is not justified by s. 1.

[4] Ontario appeals only from the invalidation of ss. 9 and 12(1)(d) of the Regulation. [2]

Nature of the Appeal

[5] Section 9 of the Regulation, in combination with s. 5(6) of the Act, provides that if a person makes a false statement to gain entry onto prescribed agricultural premises, and then carries out an act that would otherwise be prohibited under the Act, any consent from the premises’ owner is considered to have been obtained through false pretenses and is deemed never to have been given. The person would therefore be a trespasser, and subject to penalties under the Act.

[6] The application judge found that s. 9 targets people who understate their qualifications or deny affiliations with animal-rights groups in order to gain access to places where animals are raised or slaughtered. In the application judge’s view, the provision went further than necessary to advance the purposes of the Act since a person could be found to be a trespasser even though they were a model employee who had adhered to all biosecurity protocols, treated animals with the highest degree of care, and ensured the safety of their co-workers.

[7] Ontario intends to argue, inter alia, that the application judge erred because s. 2(b) of the Charter does not insulate persons from penal sanctions in circumstances where they privately make false statements that cause other people to waive legal rights enacted for their protection. Ontario will also argue that s. 2(b) does not provide a right to access private property to gather information, even for animal welfare exposés.

[8] Subsection 12(1)(d) of the Regulation creates an exemption from the prohibition in s. 9 for whistleblowers who are employees and who meet certain conditions, including that they have not caused harm to an animal. While s. 12(1)(d) has subsequently been amended, at the time of the application it provided that a person who obtains information or evidence of harm to a farm animal, or with respect to food safety or harm to an individual, and discloses the information to a police officer or other authority “as soon as practicable”, would not be in violation of s. 9 of the Regulation. [3] The application judge found that this provision compelled speech of the sort that infringes s. 2(b) since the requirement to report harm “as soon as practicable” may subject a person to prosecution if they do not disclose illegal conduct. He further found that this requirement likely requires the reporting of a single incident, thus preventing the person from observing and reporting further incidents of harm.

[9] Ontario intends to argue that s. 12(1)(d) does not impact expression to a degree that would constitute compelled speech. Rather, the requirement to report abuse to an authority is intended to ensure that harm done to animals or humans, or a threat to food safety is promptly addressed. Ontario also submits that whistleblowers could report anonymously and are not required to report a single incident.

Relevant Governing Principles

[10] The test for leave to intervene as a friend of the court pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is well established. The overarching issue is whether the applicant is likely able to make a useful contribution to the resolution of the appeal without causing injustice or prejudice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167.

[11] In order for a proposed intervener to satisfy this test, usually at least one of the following three criteria is satisfied:

1. the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;
2. the proposed intervener has an important perspective distinct from the immediate parties; or
3. the intervener is a well-recognized group with a special expertise and a broadly identifiable membership base.

Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.

[12] The test for granting leave in constitutional cases is more relaxed than in litigation between private parties: Peel, at p. 167. This provides the court with the benefit of various perspectives on the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation: Authorson (Litigation Guardian of) v. Canada (Attorney General) (2001), 147 O.A.C. 355 (C.A.), at para. 7. Moreover, because constitutional cases may have a wide impact on the rights of others who are not parties to the litigation, interventions provide such affected individuals and groups with an opportunity to be heard.

[13] Nevertheless, there are necessary limits to the scope of intervention even in constitutional litigation. Such limits may arise where a perspective or interest is adequately represented without the proposed intervener’s involvement (Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560, 322 D.L.R. (4th) 332, at para. 8), or where the submissions of the proposed intervener are duplicative of the submissions of others (Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 13). Moreover, the issues in the litigation are defined by the parties and an intervener must take those issues as it finds them and not transform or add to them: Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167, at para. 19.

Application of Governing Principles

[14] I note that three of the proposed interveners, namely, Animal Alliance of Canada (“Animal Alliance”), the Centre for Free Expression (“CFE”), and Justicia for Migrant Workers (“J4MW”), sought intervener status in the court below. Chalmers J. granted the motions to intervene by Animal Alliance and CFE, but dismissed the motion from J4MW: Animal Justice et al v. Attorney General of Ontario, 2023 ONSC 3147. Intervention in the court below is a relevant consideration in determining whether to grant leave to intervene on appeal: Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, 476 C.R.R. (2d) 258, at para. 9. I therefore begin by considering the motions of these three proposed interveners, followed by a consideration of the four new proposed interveners who did not participate in the application below.

(1) Animal Alliance

[15] Animal Alliance is a non-profit organization, founded in 1990, committed to the protection of all animals and to the promotion of a harmonious relationship between humans, non-humans, and the environment. It advocates for animal and environmental rights, ethical treatment of animals, and informing the public about animal conditions.

[16] It proposes to advance two distinct arguments: first, that the purpose of s. 9 of the Regulation is to limit undercover exposés and delegitimize the expression and activities of animal advocates by wrongly branding them as dangerous to animals, farmers, food security, and bio-security protocols; and second, that the effect of s. 9 of the Regulation is to infringe the rights of animal advocates who use deception in their efforts to promote democratic discourse, truth-seeking, and personal fulfilment.

[17] As noted above, Chalmers J. granted Animal Alliance’s motion to intervene in the court below on the basis that it would offer useful and distinct submissions in the application. Ontario does not oppose Animal Alliance’s motion and the respondents support it.

[18] For the reasons set out by Chalmers J., I am satisfied that Animal Alliance has specialized expertise and can make a useful contribution to the issues on appeal. Its motion to intervene is granted.

(2) CFE

[19] The CFE is based in the Faculty of Communication and Design at Toronto Metropolitan University. It works collaboratively with academic and civil society organizations to advance expressive freedom rights in Canada and internationally. The CFE is particularly interested in protecting the rights of whistleblowers, which it considers to be a critical tool in ensuring a functioning democracy, a corruption-free political environment, and an informed public. The distinct focus of the CFE’s contribution will be the impact of the Act and Regulation on employee whistleblowers in Ontario. Employee whistleblowers are individuals who may already be in the employ of an agricultural facility (as opposed to animal protection advocates who attempt to become employees in order to expose animal abuse) and become aware of misconduct that the employee feels compelled to share with the public.

[20] I note that Chalmers J. granted the CFE leave to intervene in the court below, but only with respect to the impact of the legislation on s. 2(b) Charter rights, and not in relation to the impact on freedom of conscience and religion under s. 2(a). Its present motion is limited to issues arising in relation to s. 2(b). Ontario does not oppose the CFE’s motion, and the respondents support it.

[21] I am in agreement with Chalmers J., and I am satisfied that the CFE has specialized expertise with respect to the issue of whistleblower rights. The CFE will bring a useful and distinct perspective to the issues on appeal. Its motion for leave to intervene is granted.

(3) J4MW

[22] J4MW is a grassroots community organization with decades of experience advocating for safe, healthy, and equitable working conditions for migrant agricultural workers. It strives to promote the rights of migrant agricultural workers and farmworkers without formal immigration status. It argues that it has a substantial interest in the appeal as there may be circumstances where the impugned legislation would apply to migrant workers and limit their expressive activities.

[23] Chalmers J. denied J4MW’s motion to intervene in the court below on two separate bases. First, there was nothing in the legislation that would prevent a temporary foreign worker who is legally on a farm with the consent of their employer from documenting animal abuse that they observe in their employment. Second, the proposed intervention by J4MW would expand the issues in the proceeding since labour and employment laws governing foreign workers, including any rights of migrant worker whistleblowers, were beyond the scope of the application.

[24] Ontario opposes the motion by J4MW, arguing that its intervention would improperly expand the issues on appeal and, moreover, that there is no evidence in the record regarding the circumstances of seasonal agricultural workers that would permit the court to properly adjudicate the issues that J4MW proposes to raise.

[25] The respondents support J4MW’s motion to intervene.

[26] I would dismiss J4MW’s motion on essentially the same grounds identified by Chalmers J. Seasonal agricultural workers are hired as employees under a federal government program coordinated with the sponsoring countries. They are not hired under false pretenses. It is therefore difficult to see how they would be deemed trespassers by virtue of any false pretense, as defined by the impugned legislation. Speculative arguments as to how migrant agricultural workers might nonetheless be caught by the impugned legislation is unsupported by any evidence in the record. Moreover, consideration of such matters would improperly expand the issues in the appeal.

(4) Canadian Civil Liberties Association (CCLA)

[27] The CCLA is a national organization founded in 1964 that has long been recognized by this court as well as others as having “substantial experience in promoting and defending the civil liberties of Canadians”: Tadros v. Peel Regional Police Service, 2008 ONCA 775, at para. 3.

[28] The CCLA’s interest is distinct from the parties and the other proposed interveners since the CCLA’s mission does not revolve around animal welfare or investigative journalism. The CCLA is principally concerned about the development of the law as it affects fundamental freedoms in general. The CCLA seeks to intervene to defend the public interest in free and open expression and discussion on matters of public interest, rather than in relation to its own activities.

[29] If granted leave to intervene, the CCLA intends to raise the issue of whether the location of expression can exempt state-imposed limits from Charter scrutiny. The CCLA will argue that there is no place that is categorically excluded from the protective scope of the Charter. The CCLA will also argue that while the particular legislation at issue in the appeal concerns the animal agricultural industry, its potential implications are broader. It argues that the framework of this legislation could be used to create “Charter-free zones” in other private properties where undercover work and exposés contribute to public transparency. The CCLA further intends to raise the issue of whether conduct that constitutes a tort is necessarily excluded from Charter protection under s. 2(b).

[30] I am satisfied that the CCLA can provide a unique perspective on the relevant issues that is distinct from that of the parties or the other proposed interveners. Moreover, the CCLA’s participation will not expand the scope of the appeal. I find that it would make a useful contribution to the appeal and grant leave for it to intervene.

(5) Canadian Journalists for Free Expression (CJFE)

[31] The CJFE is a non-profit organization whose core purpose is to defend the right of journalists and to contribute to the development of media freedom.

[32] If granted leave to intervene, it will present submissions on the interpretation of the journalist and whistleblower exceptions to liability under ss. 11 and 12 of the Regulation. It will argue that these exceptions are underinclusive and vague and hence infringe s. 2(b) of the Charter.

[33] Ontario opposes the CJFE’s intervener motion on the basis that its intervention would expand the issues on the appeal. Ontario is not appealing the application judge’s decision on the journalist or whistleblower exceptions and has amended s. 11 in an effort to address the shortcomings identified by the application judge. As such, Ontario argues that the issues that would be addressed by the CJFE are now moot.

[34] The respondents support the CJFE’s motion.

[35] The CJFE’s proposed intervention will focus on ss. 11 and 12 of the Regulation. Because Ontario has not appealed the application judge’s ruling on the constitutionality of ss. 11 and 12 (apart from the requirement to report as soon as practicable under s. 12(1)(d)), the submissions of the CJFE would deal with matters that are no longer at issue. Moreover, the CJFE’s proposed submissions on the whistleblower exemption also appear to be significantly duplicative of arguments that will be advanced by the CFE.

[36] I am therefore not satisfied that the CJFE would make a useful contribution to the appeal. Its motion for leave to intervene is accordingly dismissed.

(6) Labour Issues Coordinating Committee (LICC)

[37] The LICC is the principal representative of Ontario’s farm employers, including livestock, poultry, and other animal farm employers. It argues that the outcome of the appeal will have a significant and direct impact on Ontario farm employers’ interests. The LICC submits that it is uniquely situated to provide the perspective of a broad range of Ontario farm employers, which none of the other parties is in a position to provide.

[38] Ontario supports the LICC motion for leave to intervene, while the respondents do not take a position. However, the respondents argue that if LICC is permitted to intervene, its written submissions should be limited to 10 pages rather than the 20 pages that the LICC requests.

[39] I am satisfied that the LICC has a real, substantial, and identifiable interest in the subject matter of the proceedings. It also has an important perspective distinct from the parties or other interveners. I therefore grant its motion to intervene.

(7) Animal Environmental Legal Advocacy (AEL Advocacy)

[40] AEL Advocacy is a non-profit organization dedicated to the protection of animals and the environments where they live. It is regularly involved in utilizing existing laws and regulations to expose environmental harms, including those occurring in agricultural premises.

[41] AEL Advocacy proposes to make submissions about the impact of the legislation on environmental advocates seeking to promote transparency about environmental harms caused by the animal agricultural industry, through remedies such as the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 (the “EBR”). It argues that the EBR is a vital tool for environmental advocacy, enabling residents to play an active role in protecting their environment. Additionally, exposing polluters to public scrutiny through the media can act as a deterrent and prompt important corrective actions. The right to speak out against environmental harms under the EBR is unique to Ontario. AEL Advocacy will present submissions highlighting the historical significance of the EBR, and how it is fundamentally aligned with Ontarians’ freedom of expression rights and must be protected.

[42] Ontario opposes AEL Advocacy’s motion to intervene. It argues that AEL Advocacy would improperly expand the issues beyond the scope of the appeal. Ontario points out that AEL Advocacy’s stated interest in the appeal is in protecting the right of environmental advocates to access agricultural premises. It submits that there is no evidence in the record about the ability or inability of environmental advocates to access agricultural premises. Ontario also submits that the ability of individuals to rely on mechanisms in the EBR has not been raised by the parties and is not an issue in this proceeding. There is no evidence in the record to provide a factual basis for arguments about how the impugned legislation might interact with the EBR.

[43] The respondents support AEL Advocacy’s application to intervene.

[44] Having carefully reviewed AEL Advocacy’s application to intervene, it is apparent that a principal focus of its proposed submissions will be the impact of the impugned legislation on rights set out in the EBR. The interaction between the impugned legislation and the EBR was not addressed in the court below and goes beyond the issues raised in the appeal. Moreover, there is no evidentiary basis upon which this court could properly adjudicate the issues which AEL Advocacy proposes to raise. Its motion for leave to intervene is therefore dismissed.

(8) Length of facta, oral submissions, and responding facta

[45] The four interveners granted leave to intervene have requested a variety of page lengths for their facta and time for oral argument. [4] Although I agree that each of them will make a useful contribution to the appeal, I see no reason why their respective contributions require more than a 10-page factum and 10 minutes for oral submissions.

[46] Ontario requests the right to file one factum responding to all opposing interveners with a maximum length of 20 pages and 4600 words. The respondents did not make any submissions as to the length of their responding factum in the event that the LICC was granted leave to intervene.

[47] Given that Ontario will be responding to three interveners, each of whom will be filing a 10-page factum, their request for a 20-page responding factum is reasonable.

[48] The respondents specifically requested that the LICC be limited to a 10-page factum, a request to which I have acceded. It is only reasonable that the respondents’ factum responding to the interveners be similarly limited.

Disposition

[49] The motions for leave to intervene under r. 13.02 by Animal Alliance, the CFE, the CCLA, and the LICC are granted. They will each have the right to file a 10-page factum and be entitled to 10 minutes for oral submissions.

[50] In accordance with my November 8, 2024 appeal management direction, the facta of the interveners will be served and filed on or before February 21, 2025. The interveners who are aligned in interest will attempt to avoid duplication in their submissions.

[51] The motions to intervene by J4MW, the CJFE, and AEL Advocacy are dismissed.

[52] Ontario will have the right to file a factum responding to the interveners of no more than 20 pages and 4600 words. The respondents will have the right to file a factum responding to the interveners of no more than 10 pages and 2300 words. The facta responding to the interveners will be served and filed by March 14, 2025.

[53] I make no order as to costs.

“Monahan J.A.”

Footnotes

[1] The provisions found to be inconsistent with the Charter were ss. 11(1)(d)-(e), 12(1)(c)-(d), 12(2)(a)(i)-(ii), and 12(2)(c) of the Regulation.

[2] In September 2024, Ontario amended ss. 11 and 12 of the Regulation in an effort to address the deficiencies identified by the application judge.

[3] Subsection 12(1)(d) has subsequently been amended to require that the reporting be “as soon as reasonably practicable”. Nevertheless, Ontario’s appeal is with respect to the application judge's ruling that the then-current version of the Regulation violated the Charter.

[4] The CFE and CCLA request a 10-page factum and 10 minutes for oral submissions; Animal Alliance requests a 15-page factum and 15 minutes for oral submissions; the LICC requests a 20-page factum and 20 minutes for oral submissions.