DATE: 20030305
DOCKET: M29541
(C39172, C39174)
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O. (IN CHAMBERS)
B E T W E E N : )
HEDY HALPERN ET AL. ) Ed Morgan for Rabbi Irwin
) Zeplowitz and Canadian Coalition
(Applicant/Respondent) ) of Liberal Rabbis for Same-Sex
) Marriage (Moving Party)
and )
) Gail Sinclair for the Attorney
ATTORNEY GENERAL OF CANADA ) General of Canada (Appellant)
(Appellant) ) Martha McCarthy for the
) applicant couples (Respondents)
) Victoria Paris for The
) Metropolitan Community Church
) of Toronto (Respondent/Cross-
) Appellant)
) Bradley Miller for The Interfaith
) Coalition on Marriage and Family
) (Intervenor)
) Linda Chen for Egale Canada Inc.
) (Intervenor)
) Heard: March 3, 2003
McMURTRY C.J.O.:
[1] This is a motion brought on behalf of Rabbi Irwin Zeplowitz and the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage (the “Coalition”) for leave to intervene in these appeals as a friend of the court. The appellant, the Attorney General of Canada, opposes the application while the respondents and other intervenors either support the applicant or take no position on the application. This matter was originally before me on February 20th, 2003 but was adjourned to permit cross-examination of Rabbi Zeplowitz. As a result of certain objections raised today the transcript of the cross-examination was withdrawn by counsel for the Attorney General of Canada. For other reasons, a supplementary motion record filed by the Attorney General was also withdrawn.
[2] Some of my observations with respect to this application, will of necessity, be similar to those made in the application of the Canadian Human Rights Commission to be an amicus curiae in this appeal.
[3] At their core, the issues in these appeals were succinctly summarised by Blair R.S.J. in his reasons of the Divisional Court when he posed the following question:
“Are same-sex couples entitled under Canadian Law to marry?”
[4] This question is one of significant public interest and importance. The decision of this court must take into consideration and weigh a continuum of the secular and religious values within our community. The reasons of Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Canada Limited (1990), 74 OR 2nd 164 (C.A.) set out the test to be applied on motions such as this as follows, at page 167:
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, 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.
As pointed out by Chief Justice Dubin in that case, the court is more receptive to the participation of intervenors in cases of constitutional or societal importance so as to have the benefit of various perspectives of the historical and sociological context, as well as, policy and other considerations that bear on the validity of legislation. As the issues in this case are of great public and social concern, a number of other intervenors were permitted to participate in the court below and in this court. The existing intervenors were permitted to participate, at least in part, so as to bring to bear their expertise and varying perspectives to the important issues to be decided.
[5] The proposed intervenor is an association of self described liberal rabbis who, for many years, have been actively involved in the theological discussion of same-sex unions and who have dealt with the practical reality of the difficulties encountered by gay and lesbian congregants in participating in Jewish religious life. The actual Coalition, however, was formed only recently in order to participate in legal proceedings considering same-sex marriages. Given the long term involvement of its individual members in the discussion of the issues at the core of this appeal, I do not believe in these circumstances that the fact that the Coalition is recently formed and unincorporated should be a bar to its application.
[6] The record for these appeals is substantial and contains significant amounts of evidence in relation to the nature of “marriage” in our society and the impact that an expansion of the definition of marriage to include same-sex couples would have on our society, from both religious and secular perspectives. The proposed intervenor is not asking to add to the existing record or to enhance the evidentiary basis for its argument. Nevertheless I am satisfied that, in relation to the existing record, the proposed intervenor has a unique perspective from which to address the issues on this appeal which will enable it to “make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.”
[7] Counsel for the Attorney General takes the position that, as an unincorporated entity, the Coalition does not have the capacity to participate as an intervenor. The proposed intervenor responds that, if necessary, I could appoint Rabbi Zeplowitz as an intervenor in his own right or as nominee on behalf of the Coalition. Given my conclusion that the Coalition could make a useful contribution to the argument of this appeal, it is my view, that this objection is one more of form than of substance. As stated by Dubin C.J.O. in Layland v. Ontario (Ministry of Consumer and Commercial Relations) (1994) 47 ACWS (3d) 68):
I do not give the word “person” in Rule 13 the same importance as if the rights of the applicant were being determined. By analogy, I could have made a representation order but I do not think it necessary to do so in this case.
Two of the existing intervenors are unincorporated associations of interested “corporate persons”. In all of the circumstances I do not think it is either necessary or appropriate to make a representation order here.
[8] Counsel for the Attorney General has also argued that to permit intervention at this late stage would prejudice or cause an injustice to the parties. Nevertheless, I believe the comments of Morden, J.A., in Louis v. Lastman (2001), 208 DLR (4th) 380, at paragraph 13, are appropriate to this application when he stated, “the intervention will expand the number of submissions to which the responding party will be obliged to reply but this, which is for the potential benefit of the court, is not an injustice”. The concerns of the Attorney General of Canada can be largely alleviated by the conditions that I impose. Accordingly I grant leave to the Coalition of Canadian Liberal Rabbis for Same-Sex Marriages, to intervene as a friend of the court on the following conditions:
That it takes the record as it is and will not be permitted to introduce further material;
That it will not seek costs on the appeal but that costs may be awarded against it;
That it deliver its factum, which will not duplicate the argument of other parties, and is not to exceed 15 pages, on or before March 13th, 2003, and
That the time allocated for its oral submissions be 15 minutes.
[9] There will be no costs of this motion.
“R. Roy McMurtry C.J.O.”