Court of Appeal for Ontario

Date: 2018-03-20

Docket: M48763 (C63576 & C63592)

Motion Judge: Strathy C.J.O.

Between

Eddy Huang Plaintiff (Appellant/Respondent)

and

Fraser Hillary's Limited and David Hillary Defendants (Respondents/Appellants)

Counsel

Sarah McDonald and Kaitlyn Mitchell, for the proposed intervener Ecojustice

Michael S. Hebert, for the appellant Eddy Huang

Jeremy R. Rubenstein, for the respondent David Hillary

Michael S. Rankin and Jonathan O'Hara, for the respondent Fraser Hillary's Limited

Heard: March 13, 2018 (via videoconference and teleconference)

Endorsement

Motion for Intervention

[1] Ecojustice moves for leave to intervene in this appeal as a friend of the court pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The judgment appealed against held Fraser Hillary's Limited liable in nuisance and under the Environmental Protection Act, R.S.O. 1990, c. E19 ("EPA") for approximately $1.8 million in damages arising from the contamination of Mr. Huang's land by pollutants from the corporation's dry cleaning business. Claims in trespass, negligence and under the rule in Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (U.K. H.L.), were dismissed. The claims against Mr. Hillary were also dismissed.

[3] Ecojustice says that it has a unique perspective on some of the legal questions at issue on the appeal and a genuine interest in the court's interpretation and application of the legal principles. It claims that its perspective would be of assistance to the court in understanding the environmental law implications of its decision.

Test for Intervention

[4] The considerations on a motion of this kind are set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167. They are: (a) the nature of the case; (b) the issues that arise; and (c) the likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

(a) The Nature of the Case

[5] The nature of the case is an important factor, as Watt J.A. noted in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A., in Chambers), at para. 23. The standard to be met by the proposed intervener is more onerous where the litigation is a private dispute as opposed to a public prosecution.

[6] This case falls into the former category. It is fundamentally private litigation in which one of the parties, Mr. Huang, claimed that the other parties polluted his property.

(b) The Issues That Arise

[7] The issues concern the application of well-settled, one might say ancient, causes of action: trespass, negligence and nuisance. While each party suggests that the trial judge erred in his interpretation or application of some of those causes of action, the legal issues are not complex.

[8] There is also an issue concerning the application of a statutory provision: s. 99(2) of the EPA.

[9] Intervention may be warranted in some cases where the construction or application of important legislation – particularly a provision such as this, which has received little judicial interpretation – is at issue.

[10] Significantly, however, this provision is not a major focus of the proposed intervention. Ecojustice proposes to make "brief submissions" about the appropriateness of rebutting the presumption against the retrospective application of the provision. It says that its submissions will "differ from those of the parties" and will "be of use to the Court in the event that it finds that retrospective application is at issue in the appeal."

[11] Ecojustice says it will bring additional case law and authorities to the court's attention, but does not elaborate on how its submissions will be different or how they will be of use to the court. In the absence of a draft factum setting out what those submissions will be, I can only speculate. In this case, the responding factum filed by Mr. Huang in response to Fraser Hillary's Limited's appeal contains approximately 30 paragraphs on the issue of retrospectivity. I am not satisfied that Ecojustice's participation on this issue will materially assist the court.

(c) Useful Contribution Without Causing Injustice

[12] As to the third factor, I am prepared to assume, without deciding, that Ecojustice has the requisite experience and expertise to assist the court on the hearing of this appeal.

[13] However, I am not satisfied that the proposed intervention would assist the court in any meaningful way. As Fraser Hillary's Limited demonstrates in its responding factum on the motion to intervene, many of Ecojustice's submissions on the common law causes of action simply recast the submissions made by the parties themselves. For the reasons set out above, the submissions of Ecojustice on the retrospective application of s. 99(2) of the EPA will not materially assist the court.

[14] It seems to me that it would be unfair to require the respondents on the appeal to address the intervener's perspectives on the issue, without a demonstration that the perspective will materially assist the court.

[15] There is an additional concern about injustice. The appeal is scheduled to be heard in approximately seven weeks. The proposed intervener has not filed a draft factum outlining the submissions it would make if permitted to intervene, but says it will file its factum within the next two weeks. I cannot judge how long it will take the respondents to respond, but they will clearly be required to respond to new arguments going beyond the fairly narrow scope of the appeal. It could be necessary to adjourn the appeal, something that has already occurred once. This would cause additional prejudice to the parties.

Order

[16] For these reasons, I dismiss the motion. This is not an appropriate case for the award of costs.

"G.R. Strathy C.J.O."