Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210222 DOCKET: M52162 (C68768)

Roberts J.A. (Motions Judge)

BETWEEN

Claire Baldwin Plaintiff (Appellant)

and

Imperial Metals Corporation, J. Brian Kynoch, Andrew Deepwell, Larry G. Moeller, Laurie Pare, N. Murray Edwards, Edco Financial Holdings Ltd. and Edco Capital Corporation Defendants (Respondents)

Counsel: Garth Myers, for the moving party/proposed intervenor, Osgoode Investor Protection Clinic Michael G. Robb and Garett Hunter, for the appellant Lawrence E. Thacker and Aoife Quinn, for the respondents

Heard: February 8, 2021 by video conference

Reasons for Decision

[1] The Osgoode Investor Protection Clinic (“the Clinic”) seeks leave to intervene as a friend of the court in this appeal pursuant to rr. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appeal concerns the interpretation of various provisions of the Securities Act, R.S.O. 1990, c. S.5, including the meaning of “public corrections” and the test for leave to bring a statutory claim for secondary market misrepresentation under ss. 138.3(1) and 138.8(1). The appellant takes no position with respect to this motion. The respondents are opposed.

[2] The test for intervention is well established. In determining whether an application for intervention should be granted, the 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”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167.

[3] What constitutes “a useful contribution” will depend on the circumstances of the case. The fact that an intervenor’s submissions reflect one or both of the parties’ positions is no bar to intervention provided the intervenor can make a useful contribution. No useful contribution can be offered by an intervenor who essentially repeats the position advanced by a party, even with a different emphasis: Jones v. Tsige, [2011] O.J. No. 4276 (C.A.), at para. 29; Stadium Corp. of Ontario Ltd. v. Toronto (City), [1992] O.J. No. 1574 (Div. Ct.), at para. 14, rev’d on other grounds, , 12 O.R. (3d) 646 (C.A.).

[4] Rule 13 provides that a person may obtain leave to intervene in proceedings as an added party or as a “friend of the court”. The Clinic seeks to intervene as a friend of the court under rule 13.02 “for the purpose of rendering assistance to the court by way of argument”. The language of rule 13.02 reflects the historical role of a friend of the court as a neutral “person or bystander…who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point in law or fact which escaped its notice”: Nakonagos v. Humphrey, [1996] O.J. No. 2002 (Gen. Div.), at para. 24. A friend of the court serves the court, not the parties. The role connotes “an element of impartiality or altruism”: Peixeiro v. Haberman, [1994] O.J. No. 2459 (Gen. Div.), at para. 19.

[5] In this case, the Clinic’s expertise in Securities Act matters is not disputed, and its interest in the subject matter of the appeal is legitimate. However, I am not persuaded that it will make the kind of useful contribution that is required of an intervenor, nor that it will be seen to have the requisite independence to act as a friend of the court.

[6] The principal issues under appeal are matters of statutory interpretation that will be fully canvassed by the parties’ skilled and experienced counsel, all with substantial expertise in securities law. The Clinic’s proposed arguments essentially mirror those of the appellant, as reflected in the appellant’s notice of appeal and appeal factum. Appellant’s counsel acknowledged that none of the Clinic’s proposed submissions contradicted or undermined the appellant’s position, and he agreed that the appellant could make any of the submissions that the Clinic proposes to advance.

[7] The likelihood that the Clinic will simply echo or amplify the appellant’s arguments is compounded by the close relationship between the Clinic and appellant’s counsel. One of the Clinic’s named counsel on this motion previously acted for the appellant in these proceedings when he was an associate lawyer with Siskinds. In that role, he provided affidavit evidence in support of the appellant’s application for leave to commence an action under the Securities Act. I also note that the two firms representing the appellant on appeal (as well as the firm representing the Clinic on this motion) are among ten law firms which the Clinic refers to as “partners” for the provision of pro bono services. While undoubtedly acting with altruistic intentions in accordance with its mandate, the Clinic’s connections with the appellant undermine the appearance of impartiality needed to act as a friend of the court.

[8] In these circumstances, granting intervenor status to the Clinic would create an imbalance or the appearance of an imbalance between the parties: Dunkin’ Brands Canada Ltd. v. Bertico inc., 2013 QCCA 867, at paras. 23-24; Raibex Canada Ltd. v. ASWR Franchising Corp., 2017 CarswellOnt 21537, at para. 34.

[9] Accordingly, the motion for leave to intervene is dismissed.

[10] There shall be no costs of this motion.

“L.B. Roberts J.A.”