DATE: 20030304
DOCKET: M29540
(C39172, C39174)
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O. (IN CHAMBERS)
B E T W E E N : )
HEDY HALPERN ET AL ) Leslie A. Reaume and
) Elizabeth Kikuchi for the
(Respondent) ) Canadian Human Rights
) Commission (Moving Party)
and )
) Gail Sinclair and Andrea Horton
ATTORNEY GENERAL OF CANADA ) for the Attorney General of
) Canada (Appellant)
(Appellant) )
) Victoria Paris and
) Joanna Radbord for
) The Metropolitan Community
) Church of Toronto
) (Respondents/Cross-Appellants)
) Bradley Miller
) for The Interfaith Coalition on
) Marriage and Family (Intervenor)
) Linda Chen
) for Egale Canada Inc. (Intervenor)
) Heard: February 20, 2003
McMURTRY C.J.O.:
[1] This motion is brought by the Canadian Human Rights Commission (the “Commission”) 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 application or take no position on the application.
[2] At their core, the issues in these appeals were succinctly summarized by Blair R.S.J., in his reasons in the Divisional Court when he posed the following question:
Are same-sex couples entitled under Canadian Law to marry?
[3] While the question was simply put by Blair R.S.J. its resolution involved analysis of traditional constitutional issues relating to the division of powers under sections 91 and 92 of the Constitution Act 1867 (UK) 30 & 31 Vict. c.3 and of Charter challenges to both legislation and the Common Law. Constitutionally, various aspects of “marriage” fall within the powers of each of the federal or provincial governments. In this case, the issues engaged both the federal and provincial jurisdictions although it was the government of Canada that was directed by the Divisional Court to take certain legislative steps and that government now appeals the decision.
[4] The reasons of Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Canada Limited (1990), 1990 6886 (ON CA), 74 OR (2d) 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.
[5] 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.
[6] The Commission was created under the Canadian Human Rights Act, R.S., 1985 c. H-6, as amended. The purpose of the Act, as set out in s. 2, is to:
extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligation as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offense for which a pardon has been granted.
[7] The Commission has a long history of promoting equality and combating discrimination based on the prohibited grounds enumerated above. Indeed, as long ago as 1979 the Commission recommended the addition of sexual orientation as one of the prohibited grounds of discrimination in the Act. It has intervened, at all levels of court and across the country, in matters raising human rights issues, including, in particular, matters relating to discrimination arising out of sexual orientation. I find that the Commission has both the experience and expertise to enable it to provide assistance to the court in analysing the many issues under appeal.
[8] In my view, it would prejudge a case such as this, brought within the broad mosaic of societal considerations, federal and provincial legislation and the Common Law, to attempt to characterise the issues under appeal, at this time, as ones within solely federal or solely provincial jurisdiction. Accordingly, at least at this preliminary stage, I am satisfied that there is sufficient nexus between the decision of Divisional Court; the issues under appeal; the positions taken by the appellant and other parties on those issues; the relief sought and the statutory jurisdiction of the Commission to accept, for the purposes of this appeal, that the proposed intervention falls within its statutory mandate.
[9] I am also satisfied that the Commission can present a unique perspective on the issues. The Commission has undertaken that its written and oral arguments will not duplicate those made by others. I am not persuaded that the public interest would be served if the intervention as an amicus curiae in a case of constitutional or societal importance was limited to parties that can show a direct interest in the appeal. In this case the proposed intervenor’s participation is directed towards assisting the court in considering the interplay of the competing interests, rather than advocating a position from the perspective of a party. I find its proposed participation meets the principle articulated in the Peel case, supra in relation to “the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”.
[10] 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), 2001 2843 (ON CA), 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 alleviated by the conditions that I impose. Accordingly I grant leave to the Canadian Human Rights Commission 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 20 pages, on or before March 13th, 2003, and
That the time allocated for its oral submissions be 15 minutes.
[11] There will be no costs of this motion.
_____ “R. Roy McMurtry C.J.O.”