DATE: 20050228

DOCKET: M32177

COURT OF APPEAL FOR ONTARIO

RE:

WILFRED ROBERT PEARSON (Plaintiff/Appellant) v. INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA, THE DISTRICT SCHOOL BOARD OF NIAGARA and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD (Defendants/Respondent)

BEFORE:

DOHERTY J.A.

COUNSEL:

David Estrin, Laura Young

and David McRobert

for the Environmental Commissioner of Ontario

Kirk Baert, Celeste Poltak

and Eric Gillespie

for the Plaintiff/Appellant

Alan Lenczner and

Larry Lowenstein

for the Defendants/Respondent

HEARD:

February 24, 2005

E N D O R S E M E N T

[1] The motion for leave to intervene as an added party brought by the Environmental Commissioner of Ontario (the “Commissioner”) is dismissed.

[2] As Osborne A.C.J.O. said in McIntyre Estate v. Ontario (2001), 14 C.C.L.T. (3d) 223 at 228:

An intervener will rarely be permitted to expand the evidentiary record on appeal.

[3] I have read the affidavit of the Commissioner. It is not clear to me that his affidavit would add anything to the record that could assist in the resolution of the issues raised by the appellant on the appeal. In any event, if the Commissioner, who has tracked this litigation closely, believed that his material should properly be part of the record, the Commissioner should have moved to intervene as a party on the motion for certification, and not waited until the second level of appeal.

[4] I would, however, grant leave to the Commissioner to intervene as a friend of the court on certain terms and conditions.

[5] In deciding whether to grant intervener status as a friend of the court, the court must consider:

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.

See Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 at 167 (C.A.); Arthorson v. Canada (2001), 2001 4382 (ON CA), 147 O.A.C. 355 at 356.

[6] I am not satisfied that the Commissioner can make a “useful contribution to the resolution of the appeal” as it relates to the substantive issues raised by the appellant on the certification issue. It seems to me that the position of the Commissioner tracks exactly the position of the appellant. There is no suggestion that the appellant cannot forcefully and skilfully make the salient points. Allowing the Commissioner to intervene would at best add an echo to the appellant’s submissions and at worst lead the appeal into areas and issues not raised by the appellant and not addressed in the courts below.

[7] I am, however, satisfied that the Commissioner may bring a broader perspective to the issue raised by the appellant on the appeal from the costs order. That perspective may well assist in the resolution of that part of the appeal. I see no danger of prejudice to the respondent if the Commissioner is allowed to intervene on the costs issue and address the broader “public interest” concerns said to be generated by the costs order made on the certification motion and affirmed in the Divisional Court.

[8] The Commissioner shares the same position on the costs issue as the other two parties seeking leave to intervene on this appeal (The Canadian Environmental Law Association and The Friends of the Earth). There is no need for three facta addressing the costs issue, or for oral argument by three different counsel. I would grant the Commissioner, The Canadian Environmental Law Association, and The Friends of the Earth leave to intervene on the costs issue on the condition that they prepare and file a single consolidated factum of no more than 20 pages, and on the condition that one counsel make submissions of no more than 15 minutes on behalf of all three parties.

[9] The respondent is granted leave to file a response to the interveners’ factum of no more than 15 pages. The respondent should have an additional 10 minutes of oral argument to respond to the interveners’ submissions.

[10] There will be no costs for or against the interveners on the appeal.

[11] There will be no costs on this motion.

“Doherty J.A.”