Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211105 DOCKET: M52851 & M52778 (C68939)

Strathy C.J.O. (Motion Judge)

BETWEEN

Dana Bowman, Grace Marie Doyle Hillion, Susan Lindsay and Tracey Mechefske Plaintiffs (Appellants)

and

Her Majesty the Queen in Right of Ontario Defendant (Respondent)

Counsel: Stephen J. Moreau and Kaley Duff, for the appellants Christopher Thompson, Chantelle Blom, Ravi Amarnath and Adam Mortimer, for the respondent Jennifer L. Hunter, Jennifer O’Dell and Jacqueline Palef, for the proposed intervener, Canadian Civil Liberties Association (M52851) Anu Bakshi and Nabila F. Qureshi, for the proposed intervener, Income Security Advocacy Centre (M52778)

Heard: October 27, 2021 by video conference

Endorsement

[1] After hearing motions for leave to intervene by the Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC), I advised counsel that I would grant the motion in respect of the former and I reserved judgment on the latter.

[2] In respect of the CCLA motion, which is unopposed, I am satisfied that the proposed intervention meets the requirements set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), and that the CCLA will make a useful contribution to the resolution of the appeal without causing injustice to the parties. The following terms will apply: (a) the CCLA may file a factum of up to 15 pages in length by November 30, 2021 or such other date as the parties agree upon; (b) the Crown may file a responding factum of up to 15 pages in length by December 15, 2021 or such other date as the parties agree upon; (c) the CCLA may have up to 15 minutes for oral argument on the appeal, such time to be deducted from the appellant’s allotted time of two and one half hours; (d) the Crown’s time for oral argument in reply shall be contained within its existing allotment of one and one half hours; (e) the CCLA shall take the record as it finds it and shall not augment the record; and (f) the CCLA shall not seek costs and will not be liable for costs.

[3] Having considered the submissions of the ISAC and the additional authorities submitted by the parties, and with some regret, I dismiss the ISAC’s motion without costs.

[4] The issues in this appeal, a class action on behalf of low-income individuals, fall in the middle of the private/public spectrum. The appeal involves issues of public interest which fall squarely within the ISAC’s wheelhouse. I do not have any doubt that the ISAC has the expertise and experience to make a useful contribution to the appeal.

[5] The ISAC seeks to intervene with respect to the issue of whether there is a contract between the class members and the Province of Ontario with respect to the Basic Income Pilot Project (the “Project”). It proposes to address the legal principles that would guide the determination of whether a contract was formed.

[6] In opposing the ISAC’s motion for leave to intervene, the Province raised the issue of the ISAC’s engagement with the Project at the government and community levels.

[7] I do not hold to the view that an intervener must have no connection to the underlying dispute or that a “true friend of the court” must be a “disinterested non-party”: see United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, at para. 15; Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, 313 N.B.R. (2d) 296, at para. 18. As McMurtry C.J.O. observed in Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), which has been a jurisprudential touchstone in intervention motions, the submission that “a “friend of the court” must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected”: at para. 13. Indeed, it is frequently the intervener’s “interest” and experience in the matter that enables it to make a useful contribution to the appeal by providing a perspective on the issues that differs from the immediate parties: see also Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749, at para. 19.

[8] I accept, therefore, that having an “interest” in the Project does not automatically disqualify the ISAC from intervening – indeed, advocacy for income security through basic income or other means is the ISAC’s raison d’être.

[9] My overriding concern, however, is that the ISAC is much more than “interested” in the subject of this appeal. It has been directly involved in the underlying process, including, in its own words, participating “in government consultations to develop the Basic Income Pilot Project that is the subject of this Appeal” and developing “public legal education presentations and materials on basic income” for the purpose of the Project. The ISAC’s work included making recommendations to senior government officials concerning communications with the participants in the program (that is, the members of the proposed class). The ISAC also provided advice, directly or indirectly, to those who participated in the Project.

[10] One of the fundamental issues before the court in the underlying appeal will be whether a contractual relationship existed between the Province and the members of the class and, if so, the terms of that contract. The resolution of those questions will require an examination of the factual matrix – a matrix that the ISAC was a part of and helped shape. The involvement of the ISAC in that factual matrix could well become a matter of evidence, should the matter proceed to trial.

[11] Put another way, and more colloquially, the ISAC has “skin in the game”. At a minimum, it has a reputational issue at stake on the appeal, because of its direct involvement in the Project. In my view, the ISAC is simply too close to the underlying factual issues and too closely associated with the potential class members to permit it to take on the role of intervener. As well, it would be unfair to require the respondent to respond to an additional voice which is so closely allied with the appellants.

[12] I am satisfied, moreover, that any perspective that the ISAC might be able to provide on the appeal will be reflected in the submissions of counsel for the appellants.

[13] For these reasons, the ISAC’s motion is dismissed, without costs.

“G.R. Strathy C.J.O.”