COURT OF APPEAL FOR ONTARIO

CITATION: Shortt (Re), 2020 ONCA 482

DATE: 20200723

DOCKET: M51620 & M51622 (C67425)

Strathy C.J.O. (Motions Judge)

IN THE MATTER OF: Wesley Shortt

AN APPEAL UNDER PART XX.1 OF THE CODE

Jeff Marshman, for the appellant Wesley Shortt

Dena Bonnet, for the respondent the Attorney General of Ontario

Janice E. Blackburn and Andrew W. MacDonald, for the respondent the Person in Charge of St. Joseph’s Healthcare Hamilton

Anita Szigeti, Maya Kotob, Michael Davies and Meaghan McMahon, for the proposed intervener the Empowerment Council

Jill R. Presser and Cassandra DeMelo, for the proposed intervener The Criminal Lawyers’ Association

Heard: In writing

REASONS FOR DECISION

[1] These reasons address motions by the Empowerment Council (EC) and the Criminal Lawyers’ Association (CLA) for leave to intervene in an appeal from a decision of the Ontario Review Board (the “Board”).

[2] The appeal is scheduled to be heard on September 11, 2020. In the interests of expediency, these reasons will be brief.

[3] I observe at the outset that there is no dispute about the suitability of either of the proposed interveners, both of which have a history of engagement and assistance to the courts in the matters at issue.

[4] In considering the proposed interventions, however, it is important to consider the nature of the case and the issues that arise. The focus of the appellant’s appeal from the Board’s disposition is the dismissal of his Charter application. As the CLA puts it, the issue whether “the failure to provide resources in the community represents a breach of Mr. Shortt’s rights under section 7 of the Charter, and if so, what the appropriate remedy would be.”

[5] The order sought on appeal is a direction that funding be made available to facilitate Mr. Shortt’s transition into supportive community housing.

[6] It is also important to note that the appellant makes no complaint about the exercise of the Board’s inquisitorial powers at his Board hearing on July 18, 2019, as directed by this court in its reasons in relation to the 2018 disposition: see Shortt (Re), 2019 ONCA 232.

[7] It is apparent that, with the active involvement of the appellant’s counsel, considerable effort took place, during several pre-hearing conferences and at the hearing itself, to ensure that appropriate evidence was available to enable the Board to discharge its responsibilities. The appellant makes no complaint about the adequacy of that evidence. His complaint is about the lack of funding to enable him to transition to a suitable community facility.

[8] In this context, I am not satisfied that the proposed intervention by the EC would make a useful contribution to the resolution of the appeal, without causing unfairness to the other parties. The focus of its proposed intervention is the interpretation and application of the Board’s inquisitorial role, including the scope of its inquisitorial powers and duties. While that issue may be peripherally in play on the appeal, granting leave to intervene on the issue would not assist the court and would be unfair to the other parties. While I recognize that this is not the only ground on which the EC seeks leave to intervene, I do not see that it adds any greater perspective on the other issues than will be provided by the appellant or the CLA.

[9] The CLA seeks leave to intervene on two issues: (a) the need for the Board to consider systemic issues in fashioning appropriate individualized remedies even if it cannot grant systemic remedies; and (b) whether the Board has remedial Charter jurisdiction to make funding orders.

[10] The first issue is peripheral in my view. The Board clearly considered systemic issues and made a finding, at para. 51, that “the path to successful community integration has been unavailable due to systemic challenges [Board’s emphasis] that are both bureaucratic and fiscal.”

[11] The second issue, however, is central to the appeal. On this issue, the CLA’s broad experience with Charter issues would provide a perspective that may assist the panel hearing the appeal in a manner that will not cause unfairness to the other parties.

[12] I therefore order as follows:

(a) the motion of the EC is dismissed;

(b) the motion of the CLA is granted, but only with respect to the second issue identified above;

(c) the CLA may file a factum of up to 15 pages and may make oral submissions of up to 15 minutes, in the discretion of the panel hearing the appeal;

(d) the CLA shall file its factum within 10 days of the release of these reasons or such greater time as the parties may agree;

(e) the CLA shall accept the record as is and shall not augment the record; and

(f) the CLA shall not seek costs and shall not be liable for costs.

[13] The time allocations for the appeal are revised as follows:

(a) Appellant (including reply): 60 minutes

(b) Respondents, jointly: 45 minutes; and

(c) Intervener: 15 minutes.

[14] I do not see any need to increase the length of the respondents’ factums, given the narrow scope of the intervention.

“G.R. Strathy C.J.O.”