CITATION: Fraser v. Ontario (Attorney General), 2008 ONCA 222
DATE: 20080402
DOCKET: M35990 (C44886)
COURT OF APPEAL FOR ONTARIO
WATT J.A. (In Chambers)
BETWEEN:
MICHAEL J. FRASER on his own behalf and on behalf of the UNITED FOOD AND COMMERCIAL WORKERS UNION CANADA, XIN YUAN LIU, JULIA McGORMAN and BILLIE-JO CHURCH
Appellant (Responding Parties)
and
ATTORNEY GENERAL OF ONTARIO
Respondent (Responding Party)
John D.R. Craig and Charlotte Willson for the moving party, Ontario Federation of Agriculture
Paul J.J. Cavaluzzo for the responding parties, Michael Fraser, United Food and Commercial Workers Union Canada, Xin Yauan Liu, Julia McGorman and Billie-Jo Church
Robin Basu for the responding party, Attorney General of Ontario
Heard: March 17, 2008
On appeal from the order of Justice James M. Farley of the Superior Court of Justice, dated January 10, 2006, on a motion for directions.
ENDORSEMENT
[1] The Ontario Federation of Agriculture (OFA) is an intervening party in an appeal by Michael J. Fraser from the decision of Farley J. in Fraser v. Ontario (Attorney General) (2006), 2006 CanLII 121 (ON SC), 79 O.R. (3d) 219. The appeal has to do with constitutional validity of the provincial legislative response to the decision in Dunmore v. Ontario (Attorney General), [2001] 2 S.C.R. 1016 that held that the exclusion of agricultural workers from the Labour Relations Act, 1995, S.O. 1995, c.1, as amended, violated the rights of those workers to freedom of association under s. 2(d) of the Charter.
[2] The OFA intervened before Farley J. in accordance with terms established on an application before Cameron J., but made no application under Rule 13.03(2) to continue or establish equivalent participatory status here. Discussions with the Senior Legal Officer of the court ultimately convinced the original parties that the OFA was an intervening party on the appeal.
[3] The OFA, flexing its status as an intervening party, not merely a friend of the court, asked for an order permitting it to file a factum that exceeds thirty pages in length.
[4] The appellants, an original party and already the beneficiary of an order of the kind the intervening party seeks by this motion, oppose the application. The respondent, armed with the consent of both the appellants and the intervening party, will later seek the same order and consents to this application.
[5] The OFA advances several reasons why it should be relieved from the practice direction statement of the general rule about factum length for the parties to an appeal.
[6] To begin, the OFA says, the issues raised in the appeal are several and significant, likewise their implications for labour relations in the agricultural sector. The court will be required to confront the extent to which provincial legislation, the Agricultural Employees Protection Act, complies not only with the mandate of Dunmore, but more generally with the guarantees put in place by ss. 2(d) and 15 of the Charter. Further, for the first time, the court will be invited to consider the implications of Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, [2007] S.C.C. 27 on the decision under appeal.
[7] The OFA contends that, by their mutual agreement to consent to filing facta greater than thirty pages long, the original parties plainly recognize the inadequacies of thirty page facta to presentation of their respective positions. The OFA, an intervening party, should receive equal treatment. After all, the intervenor’s role extends beyond mere support of the Attorney General’s submissions on constitutionality, as the requirement that the facta of the intervening party and respondents be filed on the same day would seem implicitly to recognize.
[8] The appellants resist the application. Mr. Cavalluzzo points to the usual practice, albeit not a rule or practice direction, about participation by an intervenor. Paradigmatic of the intervenor’s participation are restrictions on factum length and oral argument, not expansions. After all, an intervenor is nonetheless an intervenor, a stranger to the litigation of the original parties.
[9] This case involves a constitutional challenge to a legislative scheme enacted as a response to the decision in Dunmore, above. The adequacy of the legislative response, as well its constitutional integrity, is the core of the controversy. The subject-matter is labour relations in the agricultural sector. The workers are represented. Likewise, the enacting legislative authority. The intervenor represents agricultural employers, for whom the consequences of the decision may have profound effects. The original parties concede the necessity of more expansive facta to advance their positions.
[10] It would be inimical to the best interest of the administration of justice to grant the intervening party the indulgence sought on the simple ground of parity, or to preserve symmetry in the length of facta. Equally, it would be unjust to do so simply to permit a regurgitation, with syntactical but not substantive difference, of the respondents’ position.
[11] The appeal in this case raises and requires resolution of issues of signal importance in the law of labour relations. The implications of the decision for labour relations in the agricultural sector are likely to be significant. The perspective advanced by the intervenor does not otherwise make its way into the appellate forum. The draft factum of the OFA provides added value to the appellate process and may well be of assistance to the panel hearing the appeal. The intervenor should be permitted to file a factum that exceeds thirty pages in length.
[12] The intervenor shall have leave to file a factum that shall not exceed forty-five pages in length. The factum is to be served and filed on or before May 2, 2008.
[13] Costs of this motion are reserved to the panel hearing the appeal.
“David Watt J.A.”