DATE: 20030916

DOCKET: M30321 (C39869)

COURT OF APPEAL FOR ONTARIO

RE: ARTEMESIA WATERS LTD. and DOUGLAS HATCH IN TRUST Appellants (Responding Party)

V. GREY ASSOCIATION FOR BETTER PLANNING

Respondent (Moving Party)

BEFORE: MCMURTRY, C.J.O.

COUNSEL: Rodney V. Northey

For the moving party/Intervenor, The Municipality of Grey Highlands and for the respondent party/ moving party Grey Association for Better Planning

Terrence O’Sullivan and Nathaniel Carnegie

For the respondent party/appellants, Artemesia Waters Ltd. and Douglas Hatch in Trust

HEARD: Monday September 15th, 2003

E N D O R S E M E N T

[1] This is an application by the Municipality of Grey Highlands (“the Municipality”) to intervene as an added party in this appeal. The respondent Grey Association for Better Planning (GABP) supports the application while the appellants oppose the application.

[1] Artemesia Waters Ltd. (“Artemesia”) obtained a permit to take water, pursuant to the Ontario Water Resources Act, from property it owned within the Municipality. Artemesia subsequently applied for amendments to the official plan and zoning by-law of the Municipality in order to permit this activity. The matter proceeded to a hearing before the Ontario Municipal Board (“OMB”). Both the respondent GABP and the Municipality were parties to the proceedings before the OMB. Ultimately, the OMB ruled in favour of Artemesia.

[2] Subsequently, GABP obtained leave and successfully appealed the decision of the OMB in Divisional Court. The Municipality did not participate in that appeal. As a result of this decision, Artemesia sought and obtained leave to appeal and now appeals the decision of Divisional Court. It is against this background that the Municipality now seeks to be restored as a party to these proceedings.

[3] Typically, the applicant in a motion for intervention seeks to be added as a “friend of the court” on the basis that, while not actually involved in the matter in dispute, it does have an interest and expertise in the subject area so that it can “make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 CA at page 167.

[4] In my view, however, the Municipality stands in a position different from those who intervene as a friend of the court. The Municipality was a party to the proceedings before the OMB. The subject matter of the appeal deals, inter alia, with the Municipality’s official plan, zoning by-law and its right, if any, to control the proposed activity of the appellant. It has an “immediate” interest in the subject matter of the proceeding and was one of the “immediate parties” at an earlier stage of the proceedings. Not only may it be adversely affected by the decision of this court but it may well be explicitly bound by the order of the court.

[5] The addition of the Municipality will not delay or prejudice the appellant. The Municipality and the respondent GABP propose to be represented by the same counsel, file a joint factum and make a single argument on the appeal. Additionally, the Municipality agrees that it will be subject to such order for costs as made by the court on the appeal. As a party, the Municipality unquestionably will be bound by the decision of the court.

[6] In these circumstances, I am satisfied that it is appropriate to add the Municipality of Grey Highlands as a party/respondent to this appeal and I so order. While I have received submissions as to costs, there will be no costs of this motion.

_____ “R. Roy McMurtry C.J.O.”