Court File and Parties
Citation: Issasi v. Rosenzweig, 2011 ONCA 198 Date: 2011-03-11 Docket: M39807, M39812, M39818 (C52822)
Court of Appeal for Ontario
Before: Winkler C.J.O. (In Chambers)
Between:
Amparo Marlen Rodriguez Issasi Applicant (Respondent on Appeal)
and
Kenneth Espinal Rosenzweig Respondent (Appellant on Appeal)
Counsel: Jeffery Wilson, for the respondent and appellant on appeal Philip Epstein, for the applicant and respondent on appeal Lorne Waldman, for the proposed intervener, the United Nations High Commissioner for Refugees Jacqueline Swaisland, for the proposed intervener, the Canadian Civil Liberties Association Angus Grant, for the proposed intervener, the Canadian Council for Refugees Sean Hanley, for the Attorney General of Ontario
Heard: March 10, 2011
Endorsement
[1] Three motions for leave to intervene were brought in this appeal. The United Nations High Commissioner for Refugees (the “UNHCR”), the Canadian Council for Refugees (the “CCR”) and the Canadian Civil Liberties Association (the “CCLA”) have all brought motions to intervene as friends of the court. The motions were heard together.
The Underlying Appeal
[2] The underlying appeal is of an order of Justice Czutrin of the Superior Court of Justice, in which he granted an application under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) to have a then thirteen year old girl returned to her purported habitual residence with her mother in Mexico. The parties to the appeal are the girl’s parents. The applicant and respondent on appeal is the girl’s mother (the “mother”). The respondent and appellant on appeal is the girl’s father (the “father”).
[3] Pursuant to Justice Czutrin’s order the child was returned to Mexico where she is currently living.
[4] At the time of the Superior Court hearing, the child was a Convention refugee living in Canada. She did not testify at the Superior Court hearing.
[5] The appeal raises questions about the proper relationship between the Hague Convention, which is incorporated into Ontario’s Children’s Law Reform Act, and the federal Immigration and Refugee Protection Act, which incorporates provisions of international law that prohibit the refoulement of refugees.
[6] In addition, constitutional issues have been raised on appeal. The father, on appeal, has asserted that his section 7 rights under the Charter of Rights and Freedoms have been contravened because he did not receive adequate notice of the Superior Court application. He further asserts that his daughter’s section 7 and section 12 rights under the Charter have been contravened because her liberty and security interests were affected without giving her notice or an opportunity to be heard.
[7] There are two pending motions in this appeal scheduled for March 30, 2011. The appeal itself is scheduled to be heard on April 13, 2011. The mother has brought a motion to quash the appeal as an abuse of process. The father has brought a motion to have the Office of the Children’s Lawyer assign counsel to represent the child.
[8] The Attorney General of Ontario has also exercised his right to intervene in this matter.
Request for Adjournment
[9] The mother’s first position is that the motions to intervene should themselves be adjourned. Her counsel asserts that the dates for these motions to intervene should be set by the panel for a date to occur sometime after the March 30 motion to quash is heard and determined. Counsel for the mother asserts that the mother is indigent and that his firm is working pro bono on this case. He asserts that he should not be required to devote considerable resources to respond to three motions to intervene, and then potentially three intervener factums, until after his motion to quash is heard and it is determined that the appeal is going to proceed.
[10] I am not prepared to adjourn this motion. The appeal is scheduled to be heard on April 13, 2011. Both parties recognize the importance of dealing with this matter expeditiously and in oral argument both asserted that the hearing should proceed on the scheduled day. There would not be enough time between March 30 and April 13 for these motions to intervene to be heard and determined, for the interveners to file their factums, and for the parties to reply to these factums if necessary. Despite counsel for the mother’s submission in oral argument that he thought the appeal hearing should continue to go ahead on April 13, 2011, his submissions in his factum were that the hearing of the appeal should also be adjourned to a date to be set by the panel. Realistically, this would be the necessary consequence of delaying these motions. I am not prepared to cause such a delay in a case of this nature.
The Test for Intervention
[11] Dubin C.J.O. is frequently cited as succinctly articulating the test for determining a motion to intervene in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164: “[T]he matters to be considered are the nature of the case, 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.”
The Proposed Interveners
[12] The UNHCR was established in 1950 and is entrusted with the mandate to provide international protection to refugees and, together with governments, to seek solutions to the problem of refugees. One of its roles under its enacting statute is “supervising [the] application” of international conventions for the protection of refugees.
[13] Counsel for the UNHCR asserts that it only selectively intervenes in domestic cases, but that the interaction between the Hague Convention and the principle of non-refoulement raised in this case is of high importance and has not previously been addressed by an appellate level court. Given the unique role and expertise of the UNHCR in addressing refugee related matters, I am content that it can make a useful contribution to the consideration of the issues raised in this appeal.
[14] The CCR is a national, non-profit organization founded in 1978. It is an umbrella organization comprising approximately 170 member agencies that work with and on behalf of refugees and immigrants in Canada. Its mandate is to promote, protect and advance the rights of refugees and immigrants in Canada. It asserts that it has intervened in every major refugee case in Canada over the last 20 years.
[15] There is likely some overlap between the expertise of the CCR and the UNHCR, but given that the CCR represents Canadian organizations that advocate for refugees in Canada, I am satisfied that its perspective is different than that of the UNHCR and that they both can make useful contributions in this appeal.
[16] The CCLA’s mandate is to promote and protect fundamental rights and liberties. The CCLA has been granted intervener or party status in many cases relating to civil liberties. They cite 139 such cases in an exhibit to their factum. Its work includes advocacy and education concerning human rights in the immigration context.
[17] Counsel for the mother asserts that section 7 was not raised at the application stage and that an insufficient factual record has been established to argue constitutional issues. The fact is, however, that the father has raised section 7 and asserts that there is an adequate record to address these issues. The question of whether section 7 should or should not be considered in this matter is better left for the panel hearing the appeal to decide.
[18] The CCLA has an established interest and expertise in matters relating to civil liberties. I am satisfied that the CCLA can make a useful contribution in speaking to the section 7 issues that are raised in this appeal.
Will injustice be caused to the parties?
[19] Counsel for the mother opposes all the motions to intervene, but has not asserted any arguments that demonstrate that their presence will cause injustice. Conditions can be placed on the interveners’ participation such that their submissions are limited to their areas of expertise and their submissions are contained. Furthermore, a timeline can be established such that any response the mother may want to make to the factums of the interveners would not be due until after the motion to quash has been heard.
[20] While this is a private dispute between two parents regarding their daughter, it raises public interest issues that have widespread domestic and international importance. In such cases it is appropriate to allow public interest interveners, who can make a useful contribution, to be permitted to intervene unless their presence causes an injustice: Childs v. Desormeaux (2003), 2003 CanLII 47870 (ON CA), 67 O.R. (3d) 385. I do not see how the presence of the proposed interveners would cause an injustice.
[21] Accordingly, I grant the motions for leave to intervene, subject to the following conditions, which apply to all interveners, including the Attorney General.
The interveners must accept the record as it exists and not seek to augment the record.
The interveners shall not duplicate the written or oral arguments of the other parties.
The UNHCR will be restricted to making submissions related to the areas stated in section 12 of its factum which are the following:
a. The scope and content of the principle of non-refoulement under international law.
b. The interpretation and application of the prohibition of expulsion of refugees lawful in the territory of a Contracting State.
c. The interaction between the 1951 Convention relating to the Status of Refugees (the “Refugee Convention”) and the Hague Convention.
d. A child-sensitive application of the Refugee Convention and the Hague Convention consistent with the Convention on the Rights of the Child.
e. Application of the Convention on the Rights of the Child in the context of refugee children.
- The CCR will be restricted to making submissions on issues raised in paragraphs 38- 42 of its factum which, in summary, are as follows:
a. The appropriate application of Canadian and international law to refugees and refugee claimants in Canada in general and in this case specifically.
b. The analysis and role of the Immigration and Refugee Board in assessing refugee claims of child victims of abuse.
c. The appropriate role and expertise of the Immigration and Refugee Board.
d. The appropriate interaction of the Hague Convention and the Refugee Convention.
The CCLA will be restricted to making submissions on issues reflected in paragraphs 21 and 22 of the affidavit it has submitted from Noa Mendelsohn Aviv in this motion which, in summary, are issues related to the application of section 7 of the Charter to this case.
Each intervener may file a factum not to exceed 12 pages in length on or before March 21, 2011.
Each intervener may have up to 10 minutes in oral argument at the discretion of the panel.
The mother may deliver a supplementary factum, if necessary, on or before April 6, 2011.
The mother will be given 30 minutes in addition to the current 50 minutes that is currently allotted to her to make submissions.
The interveners will not be able to intervene in either of the motions that are currently scheduled for March 30, 2011.
The interveners will not seek costs nor be subject to costs awarded against it.
“W. Winkler CJO”