DATE: 20040304

DOCKET: M30965 (C40655)

COURT OF APPEAL FOR ONTARIO

RE: 1162994 Ontario Inc., Landlord (Respondent in Appeal)

v. Bakker, Tim et al, Tenants (Appellant in Appeal)

BEFORE: MCMURTRY C.J.O.

COUNSEL: Bruce M. R. Best

For the Moving Party/Intervenor, The Advocacy Centre for Tenants Ontario

Antonin I. Pribetic

For the Respondent/Appellant in Appeal

Robert A. Haas

For the Respondent/Respondent in Appeal

HEARD: Tuesday March 2^nd^, 2004

[1] This is a motion brought by the Advocacy Centre for Tenants Ontario (“ACTO”) seeking to intervene in this appeal as a friend of the court.

[2] The appellant, Tim Bakker and three friends, all students of the University of Western Ontario, leased a house from the respondent. Eventually Mr. Bakker, Mr. Crane and Mr. Klemos moved away leaving the fourth tenant, Mr. Holmes in occupation of the home. At some point Mr. Holmes ceased to pay rent and ultimately was found to be about $8.000.00 in arrears. The Landlord applied to the Ontario Rental Housing Tribunal to recover these arrears as against the four individuals. The Tribunal ruled that as Bakker, Crane and Kelmos were not tenants occupying the rental unit at the time the application was filed, they were not liable to pay the arrears of rent. The Tribunal made an order against Holmes, alone, for the payment of the arrears. The Landlord appealed this decision to Divisional Court, which held that as the premises had been leased by all four co-tenants, occupation and possession by one co-tenant constituted occupation and possession by all four tenants for the purposes of the Tenant Protection Act, 1997, S.O. 1997 c.24 . It held therefore that judgment for arrears should be granted against all four tenants. Mr. Bakker, one of the successful “tenants” before the Ontario Rental Housing Tribunal obtained leave to appeal the decision of Divisional Court which had made him liable for arrears incurred after he had vacated possession of the premises.

[3] ACTO is a clinic funded by Legal Aid Ontario whose mandate is to represent low-income persons with housing and residential tenancy difficulties. It is has been permitted to intervene as a friend of the court in both the Superior Court of Justice and in this court. I am satisfied that ACTO has expertise in dealing with issues arising from situations involving multiple tenants of residential housing.

[4] The respondent Landlord opposed the intervention by ACTO on two bases. The first is that Rule 13 of the Rules of Civil Procedure providing for intervention does not apply to proceedings under the Tenant Protection Act, 1997. While it is true that the provisions of the Tenant Protection Act, 1997 set out a detailed procedure for proceedings before the Ontario Rental Housing Tribunal, the Act does not articulate the procedure to be followed on appeal. Accordingly, the Rules of Civil Procedure have application to appeals originating from the Tribunal. Counsel for the respondent urged that Rule 61 of the Rules of Civil Procedure provides a comprehensive and complete code of procedure for the conduct of appeals in the Court of Appeal. He has submitted that as Rule 61 makes no provision for intervention, such is not permitted. I do not accept this submission for two reasons. The first is that Rule 61 does not, on its face, address or even purport to address all procedural and substantive matters ancillary to the conduct of an appeal. Secondly, other rules within the Rules of Civil Procedure do explicitly deal with matters relevant to the conduct of appeals in the Court of Appeal. In particular, and most importantly, Rule 13.03(2) explicitly provides for intervention in the Court of Appeal. Accordingly, there is no basis for the submission that the conduct of an appeal must be governed exclusively by and only by the provisions of Rule 61.

[5] Counsel’s second argument was that, on the basis of my decision in Authorson (Litigation Guardian) et al. v. Attorney General of Canada (2001) 2001 4382 (ON CA), 147 O.A.C. 355 intervention should be denied. As I pointed out in the Authorson case, intervention in private litigation should be carefully scrutinized in order to ensure that such intervention does not unnecessarily complicate the litigation or unduly add to the expense to the parties. However, as articulated in that decision, the private nature of a case, although an important factor, is only one of the matters to be considered in determining whether intervention should be granted. Also to be considered are the issues that arise and the likelihood that the proposed intervenor can make a useful contribution to the resolution of the appeal without causing injustice the immediate parties. See Authorson (Litigation Guardian) et al. v. Attorney General of Canada, (supra); Childs v. Desormeaux 2003 47870 (ON CA), 231 D.L.R. (4^th^) 311 and Peel (Regional Municipality) v. Great Atlantic & Pacific Co. (1990) 1990 6886 (ON CA), 74 O.R. (2d) 164.

[6] In Authorson, although the litigation was substantially private in nature, it did contain elements of public importance. However it was not because the litigation was private in nature that the intervention was refused. Rather, the proposed intervenor in that case, which had made valuable contributions to the advancement of the interests of veterans in other forums, was not in a position to demonstrate that it could contribute to the analysis of the rather technical legal concepts of trusts and fiduciary duties that formed the core issues of that appeal.

[7] That is not the case here and I am satisfied that although this litigation is substantially private in nature it could well have a broader impact than merely deciding the case between the two parties. The appeal may well determine the nature of the relationship between co-tenants, between co-tenants and landlords and the effect of the departure of a co-tenant with respect to these relationships. From its expertise in dealing with difficulties arising out of the wide variety of factual situations giving rise to disputes between co-tenants and between tenants and landlords, ACTO will be able to bring to bear an analysis of the issues in this appeal from a perspective that is different from that of the individual tenant/appellant in this case. ACTO could assist the court in understanding the dimensions of the legal issues that arise in this case.

[8] I also recognize the private nature of this litigation and the need to avoid unnecessarily complicating issues before the court, or unduly adding to the costs to the respondent. The proposed intervenor will therefore not be permitted to add to the record and will be potentially subject to an adverse costs award should the court hearing the appeal determine such is appropriate.

[9] Accordingly I grant leave to ACTO to intervene as a friend of the court of the following conditions:

(a) It take the record as it is and it will not be permitted to adduce further material;

(b) That it will not seek costs on the appeal but that costs may be awarded against it;

(c) That it deliver its factum, not to exceed 15 pages in length on or before March 10^th^, 2004;

(d) That the respondent may deliver a supplementary factum, if necessary, to respond to matters raised by the intervenor no later than March 22^nd^, 2004’

(e) That the time allocated for its oral submission be fixed at 20 minutes.

There will be no costs of this motion.