Court of Appeal for Ontario

Date: 2019-05-01 Docket: M50373 (C66402) Motions Judge: Strathy C.J.O.

Between

ClubLink Corporation ULC and ClubLink Holdings Limited Respondents/Applicants

and

The Corporation of the Town of Oakville Appellant/Respondent

Counsel

Shantona Chaudhury and Cristina Senese, for the proposed intervener, Architectural Conservancy of Ontario Inc.

Derek Knoke, for the appellant

Cynthia B. Kuehl and Lindsay A. Woods, for the respondents

Heard and released orally: May 1, 2019

Reasons for Decision

[1] The motion for leave to intervene is dismissed.

[2] While I do not doubt the proposed intervener's expertise and interest in the matters at issue, I am not satisfied that it will make a useful contribution to the appeal without unfairness to the opposing party.

[3] There are two reasons. First, the proposed intervener's factum on this motion does not set out in any detail or with clarity what submissions it will make if granted leave to intervene, how those submissions will differ from the submissions made by the appellant, or how its unique perspective on the issues will assist the court. Having heard the submissions of counsel for the proposed intervener, I am not satisfied that there is any material difference between the submissions it proposes to make, and the submissions that will be made by the appellant on the appeal: see, in particular, the submissions in the factum of The Corporation of the Town of Oakville, at pp. 18-23. Nor am I satisfied that the respondents have been given any clear indication of what case they will be required to meet if leave to intervene is granted.

[4] In a case such as this, I would expect to see in the intervener's factum a clear summary of what its arguments will be on the appeal, and how those arguments are informed by its unique perspectives on the issues. In some cases, an intervener should file on the motion a draft of the factum it proposes to file on the appeal, if granted leave. Doing so will permit the court to assess both the uniqueness of the submissions made by the proposed intervener, as well as any issues of redundancy with respect to the submissions made by the other party.

[5] The second reason why I would dismiss the motion is that an intervention motion should generally be brought with dispatch in order to avoid unfairness to the opposing party. I realize that this case is unusual in the sense that the appeal has been perfected and scheduled on an expedited basis. Nevertheless, I am concerned that granting leave to intervene would cause unfairness to the respondents.

[6] I do not attribute any responsibility to counsel for the proposed intervener. However, the decision in the court below was a matter of some notoriety in the community of the appellant, and the intention to seek leave to intervene should have been expressed at a much earlier date. As it is, the appeal is only three weeks away, and together with a related appeal will take up two days of court time. Preparing for the appeals is a complicated and time-consuming matter. The respondents have already filed their materials on the appeal and permitting the intervention at this late date would be unfair to them.

[7] For these reasons, the motion is dismissed.

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