Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220408 DOCKET: M53236 (C69879) Lauwers J.A. (Motion Judge)

BETWEEN

M. Janice Henderson and James A. Henderson Plaintiffs (Appellants)

and

Kenora-Rainy River Districts Child & Family Services and the Estate of Betty Zimmerman by Estate Trustees Bernard Martin Zimmerman and Elisabeth Forrester, and the Estate of Mike Zimmerman by Estate Trustees Bernard Martin Zimmerman and Elisabeth Forrester Defendants (Respondents/Responding Parties)

and

Her Majesty the Queen in Right of Ontario and Attorney General of Canada Third Parties (Respondents)

Counsel: Jeff Van Bakel, for the appellants [1] Harvey Stone, for the responding party Kenora-Rainy River Districts Child & Family Services Robert Sinding, for the responding parties the Estates of Betty Zimmerman and Mike Zimmerman Diane Fernandes, for the third party the Attorney General of Canada [2] Rina Li and Nadia Laeeque, for the third party Her Majesty the Queen in Right of Ontario [3] Loretta P. Merritt and Erin Ellis, for the proposed intervener Ontario Trial Lawyers Association

Heard: April 7, 2022 by video conference

Reasons for Decision

Overview

[1] The Ontario Trial Lawyers Association (“OTLA”) moves for leave to intervene as a friend of the court under r. 13.03(2) to render assistance to the court by way of argument in the appeal of the decision of Fregeau J. of the Superior Court of Justice, dated August 23, 2021, reported at 2021 ONSC 5631. The hearing of the appeal is scheduled for April 26, 2022.

[2] Between 1966 and 1974, the appellants, who are siblings, were under the care of Kenora-Rainy River Districts Child & Family Services (“KRRDCFS”) and were placed in the foster home of Betty Zimmerman and Mike Zimmerman. The appellants claim that they were abused while in the care of Betty Zimmerman and Mike Zimmerman, who are now deceased. Their estates are respondents.

[3] In the appeal, the appellants ask this court to set aside the status hearing order of Fregeau J., in which he dismissed their action under r. 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because they had not provided an acceptable explanation for their delay in prosecuting the action.

OTLA’s Argument

[4] The principles governing interventions are well known and were most recently summarized by Coroza J.A. in Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745. I will not repeat them.

[5] OTLA proposes to make a two-step argument if given leave to intervene. The first step is to argue that there is an “absurdity” in the Rules of Civil Procedure that works to the prejudice of those like the appellants whose claims are dismissed after a status hearing. An action can be dismissed for delay in three ways: on a defendant’s motion, under r. 24.01(2); by the registrar, under r. 48.14(1); or by a judge at a status hearing, under r. 48.14(5).

[6] OTLA argues that the absurdity arises because certain plaintiffs whose actions are dismissed may start another similar action but not others, such as these appellants. The distinction arbitrarily depends on the manner in which the action was dismissed. OTLA submits that plaintiffs whose actions are dismissed by a judge on a defendant’s motion or by the registrar may bring another similar action, as a result of rr. 24.05 and r. 48.14(9). But plaintiffs whose actions are dismissed at a status hearing do not have similar recourse. This outcome is especially absurd for plaintiffs whose claims for historical sexual and physical abuse are not subject to a limitation defence under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, such as the appellants in this case.

[7] Assuming the first step of the argument prevails, OTLA proposes, as the second step argument, that this court should purge the absurdity by reformulating the test for dismissal by a status hearing judge. While the two-part test prescribed by this court in Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at para. 32 would apply in most cases, it would not apply in cases advancing a claim for historical sexual and physical abuse for which there is no limitation defence. OTLA proposes that an action should only be dismissed at a status hearing if the plaintiff’s delay is contumelious or if the action is frivolous and vexatious.

[8] This proposed new test was expressed in oral argument but not in OTLA’s motion factum. The new test represents an advance on the policy argument in its factum:

In light of the amendments to the Ontario rules governing limitation periods for cases based on sexual assault, it appears irreconcilable that no time constraints apply to the commencing of an action but will apply to the procedural progress of the action.

When removing limitation periods for cases based on sexual assault, it was acknowledged that many survivors find the strength to come forward, but then recoil before they gather enough strength to come forward again to pursue their case. Recognition of this fact, and the desire to not force a survivor to explain their behaviour, was a large consideration when removing timelines for cases based on sexual assault.

[9] OTLA does not seek to file new evidence to support the policy argument just quoted but instead seeks to rely on the factual findings in abuse cases such as K.M. v H.M., 1992 SCC 31, [1992] 3 S.C.R. 6.

Discussion

[10] I dismiss OTLA’s motion for leave to intervene for four reasons:

[11] First, in this appeal the appellants did not make the argument that OTLA now advances. There is no evidence that the appellants’ actions can be explained on the basis that OTLA asserts and the appellants do not seek to do so.

[12] Second, and relatedly, this would be a new issue and an entirely new argument on appeal, something this court rarely allows. Not only is there no relevant factual evidence, there is no lower court decision on the issue.

[13] Third, the OTLA intervention would radically expand the scope of the appeal and would likely require an adjournment so that the respondents could marshal a response. A tardy motion for leave to intervene should not be permitted to derail a scheduled appeal.

[14] Fourth, this is a private dispute. This court’s determination on the issue OTLA raises could well result in a further appeal, which the parties to this appeal are in no position to fund.

[15] Fifth, as an experienced and competent intervener, OTLA knows that this court discourages late intervention motions because of their impact on a scheduled appeal. In this case OTLA made no effort to mitigate this impact by following the best practice of providing a draft factum for the appeal with its Notice of Motion. It did not even articulate its oral argument in its motion factum, including the new test that it now proposes to propound, leaving the responding parties in the dark about the argument to which they were required to respond.

Disposition

[16] The motion is dismissed. Although it is unusual in motions for leave to intervene, I award costs in the amount of $1,500 each, all-inclusive, to KRRDCFS and to the Betty Zimmerman and Mike Zimmerman Estates, which will make only a modest contribution to the considerable work that was required to respond to this late-breaking motion.

“P. Lauwers J.A.”

[1] Mr. Van Bakel appeared but made no written or oral submissions on behalf of the appellants.

[2] Ms. Fernandes appeared but made no written or oral submissions on behalf of the Attorney General of Canada.

[3] Ms. Li and Ms. Laeeque appeared but made no written or oral submissions on behalf of Her Majesty the Queen in right of Ontario.