DATE: 20050202
DOCKET: M32165 (C42005)
COURT OF APPEAL FOR ONTARIO
B E T W E E N :
TECHHI HOLDINGS LIMITED
Peter Jervis and
Pamela Foy
for the appellant/moving party
Plaintiff(Appellant/
Moving Party)
Gary Petker
for Gale and Robert Blackburn
- and -
Joel Wiesenfeld
for Levesque Securities Inc.
MERRILL LYNCH CANADA INC.,
David Di Paolo and
LEVESQUE SECURITIES INC. and GEORGE GEORGIOU
Christina Litt
for Merrill Lynch Canada Inc.
John Phillips and
Defendants(Respondents/
Responding Parties)
Richard Finn
for George Georgiou
Heard: February 1, 2005
WEILER J.A. (In Chambers):
[1] This is a motion brought by Techhi Holdings Ltd. (Techhi) for leave to intervene as a friend of the court pursuant to rule 13.03 in the appeal brought by the defendants from the decision of Gordon J. in Blackburn v. Midland Walwyn Capital Inc. (now Merrill Lynch Canada Inc. et al), rendered on January 22, 2003 (2003 41421 (ON SC), [2003] O.J. No. 621). On January 12, 2005 Juriansz J.A. (in chambers) dismissed Techhi’s motion for an order that its appeal be heard together with the Blackburn appeals. He adjourned Techhi’s request for alternative relief, for intervenor status, to the Chief Justice who has appointed me to hear this motion.
[2] The considerations that govern this motion are set forth in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 at 167 (C.A.), particularly, “the 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.”
[3] Because I am not satisfied that Techhi’s proposed intervention will make a useful contribution to the resolution of the appeal I would not grant Techhi leave to intervene.
[4] In cases where non‑party interest groups and individuals have been granted intervenor status in private litigation the litigation has raised issues of public policy or potential novel issues of law that have transcended the litigation. See e.g. Childs v. Desormeaux (2003) 2003 47870 (ON CA), 67 O.R. (3d) 385 per McMurtry C.J.O. in chambers, Louie v. Lastman (2001), 2001 2843 (ON CA), 208 D.L.R. (4th) 380, per Morden J.A. in chambers, and Bouzari v. Islamic Republic of Iran, per O’Connor A.C.J.O. in chambers. Although Techhi submits its submissions would be of assistance respecting the interpretation of the regulatory structure and the application of industry standards respecting stock brokers, the trial judge characterized the issues in Blackburn as “essentially fact driven.”
[5] Further, in Childs v. Desormeaux, supra, and Louie v. Lastman, supra, the party with whom the intervenor’s position was aligned supported the application for intervenor status. In Bouzari the intervenor Arar’s submissions were restricted to s. 7 of the Charter and his intervention was not opposed. That is not the situation here. Although the decision in the Blackburn action will likely have some precedential value in Techhi’s pending appeal against the same defendants, its contribution in this litigation to the creation of that precedent is not supported by any of the parties.
[6] The application of Techhi for intervenor status is dismissed. Costs are to the responding parties on the motion. As agreed between the parties, those costs are fixed at $1500 for Blackburn plus $750 for each of the institutional respondents and George Georgiou all inclusive.
RELEASED: February 2, 2005 (“KMW”)
“Karen M. Weiler J.A.”