Court File and Parties

Ontario Court of Justice

Date: 2016-12-05

Court File No.: Chatham-Kent POA #16-28

In the Matter of an Application under Part IX of the Provincial Offences Act, pursuant to s. 4(1) of the Dog Owners' Liability Act

Between:

Her Majesty the Queen (Applicant)

— AND —

John Jacob Robert, Kim Thu Thi Robert and Michel Conrad Gagnon (Defendants)

— AND —

Animal Justice and B&D Love Inc. O/A Dog Tales (Applicants for Intervener Status)

Before: Regional Senior Justice of the Peace Thomas Stinson

Heard on: November 3, 2016

Reasons for Judgment on the Application for Intervener Status

Released on: December 5, 2016

Counsel

James Boonstra — counsel for the prosecution

Kenneth Marley — counsel for the defendants

Marc McLaren-Caux — counsel for Animal Justice

John Nunziata — counsel for B&D Love Inc., o/a Dog Tales

REGIONAL SENIOR JUSTICE OF THE PEACE STINSON:

Background

[1] John Jacob Robert, Kim Thu Thi Robert and Michel Conrad Gagnon (collectively the "Defendants") all face numerous charges of cruelty to animals, dog fighting and owning prohibited pit-bull type dogs, pursuant both to the Criminal Code, R.S.C. 1985, c. C-46, as amended, and the Dog Owners' Liability Act, R.S.O. 1990, c. D.16, as amended (the "DOLA").

[2] These charges were laid after search warrants were executed on a property in the Municipality of Chatham-Kent on October 9, 2015. During the execution of these search warrants, 31 dogs were seized by the Ontario Society for the Prevention of Cruelty to Animals (the "OSPCA").

[3] The OSPCA alleges that all the dogs are pit-bull type dogs, prohibited in Ontario pursuant to section 6 of the DOLA. Of these dogs, 24 have been categorized by the OSPCA as exhibiting potential behavioural issues, and in fact, three have already been destroyed.

[4] The OSPCA now seeks an order pursuant to section 4 of the DOLA for the destruction of the remaining 21 dogs. Animal Justice and B&D Love Inc., operating as Dog Tales (collectively the "Applicants") are both seeking some form of standing during the proceedings when the OSPCA's application for such an order is heard. In due course, I will grant or deny the OSPCA's application for the section 4 order. But that is not the decision I am making at this time. At this time, I am only ruling on the issue on whether to grant some form of intervener or amicus status to either or both of the Applicants. I note that a third potential intervener, an organization called Bullies In Need, had filed materials asking to be added as an intervener, but no one from that organization attended this hearing, and I was advised by counsel for one of the Applicants that Bullies In Need has, in effect, withdrawn its application.

[5] There are therefore two questions I must answer. First, can I grant some form of intervener status? And if the answer to my first question is yes, I must then ask myself a second question: Should I grant some form of intervener status to either or both of the Applicants?

Can I grant Intervener Status?

The Position of the Crown:

[6] According to the Crown, who is prosecuting the criminal charges against the Defendants and has also assumed carriage of the DOLA application on behalf of the OSPCA, the answer to this question is straightforward and simple. It is the Crown's opinion that I have no such power to grant intervener status.

[7] As a justice of the peace, I am a member of the Ontario Court of Justice (the "OCJ"), a statutory court, created pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (the "CJA"). Section 38(2) of the CJA gives me jurisdiction to deal with matters arising under the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (the "POA").

[8] The Crown asserts, therefore, that my powers are limited to those set out within the CJA and the POA. In its opinion, those statutes, along with the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200 (the "POA Rules") comprise a complete and discrete framework within which I can deal with POA matters. In the Crown's opinion, the OCJ, as a statutory court, does not have any inherent jurisdiction and can only derive its jurisdiction from the relevant statutes.

The Position of the Applicants

[9] The Applicants, between them, present four distinct paths for me to follow, any or all of which could allow me, in their opinion, to get to their desired result of granting intervener status to one or both of them. These are as follows:

i. Section 146 of the CJA;

ii. Rule 7(6) of the POA Rules made under the CJA;

iii. Rules 13.01 and 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Civil Rules") made under the CJA;

iv. case law.

[10] I will summarize the Applicants' position on each of these at this time.

1: Section 146 of the CJA

[11] The Applicants are both of the opinion that I have the authority to grant intervener status by virtue of section 146 of the CJA, which reads as follows:

"Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice."

[12] It is their position that this provision, when read together with subsections 4(1) and 4(1.2) of the DOLA and subsection 95(3) of the CJA, does not prevent me from exercising jurisdiction in the absence of any express provision for procedures concerning interveners. Section 4(1.2) of the DOLA states that Part IX of the POA applies to proceedings under section 4. As stated earlier, this proceeding will eventually result in a hearing pursuant to section 4 of the DOLA. Subsection 95(3) of the CJA states that:

"Sections…146 (where procedures not provided) also apply to proceedings under the Provincial Offences Act and, for the purpose, a reference in one of those sections to a judge includes a justice of the peace presiding in the Ontario Court of Justice."

[13] The Applicants have provided me with several cases in which OCJ courts have, expressly or otherwise, availed themselves of section 146 of the CJA and allowed interveners to fill procedural gaps.

[14] In R. v. Dare Foods Ltd., [2004] O.J. No. 3949 (O.C.J.), Kowarsky J.P. relied on section 146 of the CJA to import the procedure set out by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411 to provide him with a framework for ordering that third-party medical records of a deceased victim be provided.

[15] Both counsel for the Applicants draw my attention to R. v. Chemama, [2008] O.J. No. 1124, in which an amicus was appointed by M. Green J., as stated in paragraph 1 of the decision, "as one of a number of measures intended to assure a fair trial". This occurred after Justice Green dismissed Mr. Chemama's application for court-appointed counsel, the procedure for which is set out in the case of R. v. Rowbotham, 41 C.C.C. (3d) 1 (Ont. C.A.). In the Chemama decision, especially in paragraphs 4 to 7, His Honour justifies the decision to grant amicus status as an exercise of a power necessarily incidental to the exercise by a provincial court of its general jurisdiction. Specifically, in paragraph 6, Justice Green states:

"I do not read the near-complete silence in this court's Rules as to the granting of intervener status as a bar to the exercise of such power so long as that exercise, as here, is pursuant to this court's inherent, ancillary or incidental power to control its own process. Absent an express or necessarily implied prohibition, a court's rules must be read as servants rather than masters of the court's jurisdiction."

[16] In summary, the position of the Applicants is thus: There is nothing in the DOLA, the POA or the POA Rules that makes any express provision for granting intervener status. Therefore, in the absence of any such procedural provisions, the CJA provides me with the ability to make my own path, as long as I exercise my jurisdiction, pursuant to the court's inherent process to control its own process, as section 146 states, "in any manner consistent with the due administration of justice".

2: Rule 7(6) of the POA Rules

[17] Both the Applicants urge me to consider using Rule 7(6) of the POA Rules as a way of arriving at a decision to grant intervener status. It reads as follows:

"Upon the hearing of an application or motion and whether or not other evidence is given on the application or motion, the justice may receive and base his or her decision upon information the justice considers credible or trustworthy in the circumstances."

[18] It is the Applicants' conclusion, therefore, that Rule 7(6) permits me, when I eventually hear the section 4 DOLA application, to accept any other information that I deem credible or trustworthy, such as, they suggest, that which would be provided by one or both of the Applicants, either as intervener or amicus.

[19] Mr. McLaren-Caux, counsel for Animal Justice, also draws my attention to Rule 3 of the POA Rules, which states that:

"These rules shall be construed liberally so as to obtain as expeditious a conclusion of every proceeding as is consistent with a just determination of the proceeding."

[20] In the opinion of the Applicants, these provisions of the POA Rules provide me with a broad, discretionary power to grant intervener or amicus status to either or both of the Applicants.

3: The Rules of Civil Procedure

[21] Mr. Nunziata, counsel for Dog Tales, also asks me to consider Rule 13 of the Civil Rules as a method by which I could find the authority to grant intervener status to the Applicants.

[22] Rule 13.01 of the Civil Rules states that a person who is not a party to a proceeding may move for leave to intervene if that person claims either an interest in the proceeding, that the person may be adversely affected by a judgment in the proceeding, or that there exists between the proposed intervener and one of the existing parties a question of law or fact in common with one or more questions at issue in the proceeding.

[23] Rule 13.02 of the Civil Rules provides that a person, with leave of a judge or at the invitation of the presiding judge or master, may intervene as a friend or amicus of the court for the purpose of rendering assistance to the court.

[24] The Civil Rules can be used by me, the Applicants argue, on the basis that they would assist me by providing a means by which I could grant intervener or amicus status, following the principles and considering the factors as set out in Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792 (C.A.) and Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, 74 O.R. (2d) 164 (C.A.).

4: Case Law

[25] In addition to the previously referenced cases cited by the Applicants, which they suggest I use, often in conjunction with one or the other of the grounds, they do provide me with other case law.

[26] The Supreme Court of Canada has recently commented, in obiter, on the power of statutory courts to appoint amici. In Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, both Karakatsanis J., writing for the majority, and Fish J., writing for the minority, affirm that it is possible for statutory courts to do so.

The Position of the Defendants

[27] The Defendants are supportive of the Applicants and agree that the Applicants should be permitted to intervene in the manner as set out by counsel for the Applicants. The Defendants also stressed that the Applicants would provide them with additional expertise and financial resources that are beyond the scope of the Defendants. Counsel for the Defendants also advised me that his clients' ability to make full answer and defence would be significantly strengthened if the Applicants were more active participants in this matter.

Analysis of the Crown's position

[28] There are sufficient examples of statutory courts granting requests for intervener status. Therefore, I am not banned from granting such requests solely on the basis of a lack of any overt statutory provision to do so.

Analysis of the Applicants' position

[29] As indicated earlier, the Applicants put forth four different paths for me to consider following. I will now review each of these four proposed paths in turn.

1: Section 146 of the CJA

[30] Notwithstanding the able arguments presented by counsel for both the Applicants, I am not persuaded that any of the cases they provided to me in which OCJ courts relied on section 146 of the CJA lead me to the conclusion that, on the basis of anything contained with section 146 itself, I should grant intervener status to either or both of the Applicants.

[31] In the Dare case, Kowarsky J.P. is only dealing with the narrow issue of third-party medical records. He therefore imports the specific statutory and common law procedures with respect to the production of third-party medical records that are set out in O'Connor. In so doing, he acknowledges, in paragraph 4, that "the [Provincial Offences] Act's origins lie in summary conviction procedure, and the nature of provincial offences is quasi-criminal and not civil."

[32] In the Chemama case, the key point is that M. Green J. felt it necessary to appoint interveners because, as stated earlier, it was a measure intended to assure a fair trial. With respect, this is not the situation in the case before me here. Unlike Mr. Chemama, who would otherwise have been self-represented, having failed in his Rowbotham application, the Defendants in this case have counsel, who appears to have developed a supportive and cooperative working relationship with counsel for the Applicants.

[33] Finally, in his submissions to me, Mr. McLaren-Caux, counsel for Animal Justice, very carefully and appropriately made the point that section 146 of the CJA does not, in and of itself, confer me with any jurisdiction. This is clear from the Ontario Court of Appeal's decision in R. v. Sztuke, 16 O.R. (3d) 559 where the court states:

"Section 146 does not confer jurisdiction, but refers to procedural lacunae where jurisdiction has been otherwise conferred. The absence of any statutory authority permitting a trial judge to decline to enter a conviction and instead impose a discharge, is not a matter of procedure. Section 146 cannot create a jurisdiction to provide a disposition or impose a sentence which is not contemplated by the relevant legislation. The section is of no assistance to the respondent."

[34] This is an extremely important point. Within the context of this case, section 146 of the CJA does not endow me with the power to appoint interveners. It simply permits me to attempt to overcome any roadblocks that may be caused by a lack of any specified procedure of how to make any such appointments, assuming I otherwise have such power. But it does not itself inherently provide me with such a power.

[35] Such a power would have to be implied. Higher courts have acknowledged the possibility of such implied powers. As well as in the Criminal Lawyers' Association case, the Supreme Court of Canada, in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, makes it clear, in paragraph 70, that a statutory court such as the OCJ has both the powers expressly conferred upon it as well as, by implication, any powers that are reasonably necessary to accomplish its mandate. The Ontario Court of Appeal has also considered what it refers to as the doctrine of jurisdiction by necessary implication in the case of Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321. While that case dealt with coroners' inquests and other statutory tribunals, I see no reason why the doctrine cannot be extended to apply to statutory courts.

[36] I will further discuss the possibility of case law providing me with an implied power to appoint interveners or amici later in this decision. But I conclude that section 146 of the CJA does not itself provide me with any such power to so appoint.

2: The POA Rules

[37] In order to understand the context in which I can apply Rule 7(6) of the POA Rules, I need to review Rule 7(1). It clearly limits the "applications" and "motions" which I may consider under Rule 7(6) to those which, in Rule 7(1) "are provided for by the Act". Rule 1 of the POA Rules states that the "Act" means the POA.

[38] Part IV of the POA is the governing, procedural code for this court with respect to trials, hearings and sentencing. It is in this Part where I will find which applications and motions I may consider pursuant to it. The list is not long. Section 29(4) of the POA provides for motions for changes of venue. Section 33(1) of the POA provides for motions for dividing counts. Section 34 of the POA deals with what a justice of the peace must consider if an amendment to an information or a certificate is sought. Section 35 of the POA similarly deals with requests for particulars. Section 36 of the POA governs the procedure when there is a motion to quash an information or a certificate. Nowhere in Part IV of the POA, or anywhere else in the POA, is there any mention of a motion or an application for intervener status. None are provided for in the POA. Therefore, Rule 7(6) of the POA Rules cannot give me any authority to deal with other applications or motions, such as applications for intervener status, which are not so mentioned within the POA itself.

3: The Civil Rules

[39] Throughout my reasons, I have used the image of paths that could lead me to the result of granting intervener status to the Applicants. To continue that analogy, the Civil Rules path is so winding, narrow and convoluted that it simply cannot lead me to that result. It is a dead end.

[40] It is primarily the statutory construction of the Civil Rules themselves that lead me to this conclusion.

[41] First, at the very beginning of the Civil Rules, Rule 1.02(1) clearly states that the Civil Rules apply to all civil proceedings in the Court of Appeal and the Superior Court of Justice. The matter I am dealing with here is not in either the Court of Appeal or the Superior Court of Justice. This is a proceeding pursuant to the DOLA, section 4 of which outlines that such proceedings are to be in the OCJ and pursuant to Part IX of the POA. I simply cannot ignore the clear wording of Rule 1.02 that limits the application of the Civil Rules to the Court of Appeal and the Superior Court.

[42] Second, Rule 1.02 also limits the application of the Civil Rules to civil proceedings. I note the comments of Kukurin J., referring to proceedings under the DOLA, in R. v. Solomon, [2005] O.J. No. 3317 (O.C.J.) at paragraph 3:

"Although this procedure is very criminal in its orientation, proceedings like the present one, for an order as a result of a breach of a provincial statute are more civil in nature."

Notwithstanding this comment that such matters are "more civil in nature", Kukurin J. does correctly state that the procedure under the DOLA is in fact criminal, or at least quasi-criminal. This accords with the earlier comments of Kowarsky, J.P. in Dare. The procedure outlined in the DOLA is not civil, and I cannot factually conclude that this is a civil proceeding that would in any way make it subject to the Civil Rules.

[43] Third, specifically with respect to Rule 13.02, there is yet another reason why I cannot use it. Its wording is clear. Only a judge or a master can add someone as an amicus or a friend of the court. Nowhere in the Civil Rules does it state that a justice of the peace has such powers. In Rule 1.03(1) of the Civil Rules, judge is defined as "a judge of the Court". Now, I acknowledge that the preamble to all the definitions contained in Rule 1.03(1) are all subject to the proviso "unless the context requires otherwise". I am not, however, prepared to stretch the definition of "judge" to include a justice of the peace for two reasons. First, Rule 13.01 of the Civil Rules simply refers only to "the Court" not specifically only to a judge or master, as does Rule 13.02. To ignore this precision contained in Rule 13.02 would be inappropriate. Secondly, both sections 95(3) and 146 of the CJA specifically refer to justices of the peace. The Civil Rules are a regulation made pursuant to the CJA. When the governing legislation itself, the CJA, contains specific references to justices of the peace, I cannot conclude that, in the absence of any such specific references in the Civil Rules, I have the liberty to import them.

[44] The Civil Rules do not provide me with any authority to appoint an intervener or amicus.

4: Case law

[45] While the Supreme Court of Canada's decision in the Criminal Lawyers' Association case, referred to earlier, certainly allows for statutory courts such as the OCJ to appoint an amicus, the following comments of Karakatsanis J. at paragraph 47 must be noted:

"First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second…the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances."

Analysis of the Defendant's Position

[46] As well as adopting the legal positions taken by counsel for the Applicants in this matter, the Defendants, as indicated earlier, are urging me to appoint interveners to assist the Defendants in defending themselves and their dogs in the section 4 DOLA hearing. The Defendants are specifically urging me to appoint interveners in order to aid in obtaining a further independent assessment of the behaviour of the dogs. In this way, I would not be solely relying on the existing assessment, completed on behalf of the OSPCA, which occurred back in November 2015.

[47] With respect, this is not an argument that I find persuasive at this stage of the proceedings. To appoint the Applicants as interveners now, in order to aid the Defendants in obtaining evidence, when those Applicants might well be able to assist the Defendants without formally being so appointed, would be an inappropriate intervention on my part. It is not the court's job to assist the Defendants in mounting their defence by means of appointing interveners, if the court otherwise does not find it necessary for those interveners to be included in the proceedings.

[48] In due course, whether I am eventually considering section 4(3) or section 4(8) of the DOLA, I will need to make a determination as to whether or not "the dog has bitten or attacked a person or a domestic animal" or that "the dog's behaviour is such that the dog is a menace to the safety of persons or domestic animals." If the Crown wishes me to make such a determination by only considering the existing assessment, which by then will be well over a year old, the Crown can advance that position at the hearing and argue that it is sufficient evidence upon which I can decide to make the order. If it wishes to bolster its argument by presenting me with an updated assessment for me to consider as I make my determinations under section 4(3) or 4(8), the Crown can certainly do so. But if it chooses to re-evaluate the dogs, and also chooses not to permit the Defendants, with or without the assistance of the Applicants, to have their own independent assessment, I would expect to hear arguments from the Defendants that this would be an inherently unfair tactic on the part of the Crown.

[49] Nevertheless, as I have indicated earlier, the Defendants' submissions on this point do not lead me to the conclusion that appointing one or more of the Applicants as an intervener or amicus is practically necessary in order for me to carry out my duties and obligations effectively and efficiently.

Can I grant Intervener Status?: Conclusion

[50] I do not find the arguments of either the Crown or the Defendants persuade me one way or another in coming to my decision as to whether to grant intervener status.

[51] Of the four grounds enumerated by the Applicants, the only one which would permit me to grant intervener or amicus status is through the common law, using cases such as Criminal Lawyers' Association and the doctrine of jurisdiction through necessary implication set out in Pierre v. McRae. None of the other paths suggested by the Applicants, namely section 146 of the CJA, the POA Rules or the Civil Rules, can lead me to the destination which the Applicants wish me to reach.

[52] I will now move on to my second question and examine it through the lens of the relevant case law.

Should I grant Intervener Status?

[53] Virtually all the cases on the topic of intervener status are of the opinion that it is a remedy that should be granted rarely and cautiously. It is also important to note that, in cases where intervener status is granted, it is often because the matter has constitutional implications such as allegations of infringement of Charter rights.

[54] In the Peel case, Dubin C.J.O. granted amicus status to an applicant, and specifically made reference, in paragraph 6, to a different standard with respect to appointing interveners in Charter cases:

"In constitutional cases, including cases under the Canadian Charter of Rights and Freedoms, which is the case here, the judgment has a great impact on others who are not immediate parties to the proceedings and, for that reason, there has been a relaxation of the rules heretofore governing the disposition of applications for leave to intervene and has increased the desirability of permitting some such interventions."

[55] Similarly, Anderson J. held in the case of Adler v. Ontario, 8 O.R. (3d) 200 (Gen.Div.), affirmed, [1996] 3 S.C.R. 609, that greater scope for intervention exists in Charter cases. The Bedford case, which the Applicants urge me to consider, is also a Charter case.

[56] There are no constitutional implications in this case which I am deciding and therefore no need for the relaxing of any rules or standards. The Ontario Court of Appeal in Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321 ruled that the pit bull provisions of the DOLA do not violate any rights guaranteed by the Charter.

[57] There are two common law tests that set out when it is appropriate for the OCJ to grant intervener status in criminal matters. Due to the quasi-criminal nature of DOLA proceedings, it is appropriate to consider these tests. One of these requires me to identify the subject matter of the proceeding and determine whether the proposed intervener has a direct interest in the matter, or whether its participation will be necessary because of the intervener's particular expertise: R. v. Eurocopter Canada Limited, [2004] O.J. No. 2195 (S.C.J.) at paragraph 28. The other test requires me to determine whether the proposed intervener has a unique interest in the application, and can make useful and distinctive submissions without prejudicing the existing parties: R. v. Toronto Humane Society, 213 C.R.R. (2d) 161 (Ont. S.C.J.) at paragraph 30.

[58] The Eurocopter test requires the Applicants to demonstrate a direct interest in the subject matter. This is not the case here. Neither Applicant owns the dogs in question. No member of either Applicant was a direct witness to any of the alleged events that have resulted in the charges now pending against the Defendants.

[59] Nor is the participation of either Applicant necessary because of any particular expertise. I keep in mind that the standard is not that the Applicant's intervention be absolutely necessary, but only practically necessary: See the decision of LaForme, J.A. in R. v. Fercan Developments Inc., 2016 ONCA 269, 130 O.R. (3d) 321, at paragraph 48. But even on this lower standard, I do not find the proposed intervention of the Applicants to be practically necessary.

[60] With respect to the Toronto Humane Society test, I fail to see how either Applicant has a unique interest in this matter. From both a legal and practical perspective, the Applicants' interests appear to be quite similar to those of the Defendants. While the Applicants are certainly passionate about the good work they do, I cannot conclude that this makes either of them or their perspective "unique" with respect to this case, nor would their submissions be particularly "distinctive".

[61] While this case has certainly garnered publicity, in the absence of the most unusual of circumstances, an intervener application ought not be granted: R. v. Atkinson, 2005 Man.R. (2d) 161, at paragraphs 9–20. Similarly, in the absence of exceptional circumstances, the application should not succeed: United States of America v. Levy, 71 O.R. (3d) 141, 184 C.C.C. (3d) 427 (S.C.J.), at paragraphs 19–22. I note, as well, the decision of the Alberta Court of Queen's Bench, in Ahyasou v. Lund, 1998 ABQB 875, [1999] 6 W.W.R. 20 where Medhurst J. stated, at paragraph 4:

"The test developed in the common law is essentially that a party should only be granted intervenor status if the party will be directly affected by the ultimate decision of the case and/or where the presence of the party is necessary for the Court to properly decide the matter."

[62] Under neither the Eurocopter nor the Toronto Humane Society formulas do the Applicants meet the test. There is no basis for permitting intervention.

[63] I have earlier alluded to the fact that the apparent close cooperation between the Defendants and the Applicants may make it less necessary to appoint either of the Applicants as amicus or intervener because it lessens the likelihood of the Applicants bringing some form of unique perspective to this matter that could not otherwise be advanced by the Defendants. I acknowledge the fact that if the position of a proposed intervener is generally aligned with position of one of the existing parties, that is not a bar to intervention: Oakwell Engineering Limited v. Enernorth Industries Inc., 148 A.C.W.S. (3d) 39 (Ont. C.A.). This is so as long as the intervener can make a useful contribution to the analysis of the issues before the Court. However, I also keep in mind the court's comment in Bedford that the intervener should bring "an important perspective distinct from the immediate parties." Similarly, in Vancouver Aquarium Marine Science Centre v. Charbonneau, (Oct. 12, 2016) (B.C.C.A., in chambers), Justice Savage stated, at paragraph 24, that:

"…the Court will general avoid 'me-too' interventions, as well as ones that simply serve to underline the importance of the issues on appeal."

[64] In considering the issue of necessity when deciding whether to grant intervener or amicus status, I am drawn to the fact that a similar review of the principle of necessity is required under the analysis set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 when considering whether to admit expert evidence into a case. At paragraph 22, Sopinka J. states:

"[T]he evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature."

[65] In coming to this conclusion, Sopinka J. rejects the previous standard of helpfulness and replaces it with that of necessity.

[66] With respect, the legal issues I will eventually face in the section 4 DOLA hearing are not particularly complex, and the decision I make will not specifically affect any future DOLA cases that come before the courts. If I make a finding of fact that the dogs are pit bulls, and if I make a further finding of fact that they have bitten or attacked another domestic animal or person or they have behaved in a manner that poses a menace to the safety of a person or a domestic animal, the destruction order is mandatory: R. v. Huggins, 2010 ONCA 746, [2010] O.J. No. 4671 (C.A.).

[67] Whatever decision that I am ultimately compelled in law to make after hearing all the evidence as well as counsels' submissions, it is one that other justices of the peace and judges have had to confront on numerous occasions since the DOLA was enacted. To the best of my knowledge, all have done so without the need for interveners or amici to be appointed. Certainly, counsel for the Applicants have not provided me with any case law in which an intervener or an amicus was appointed in a DOLA hearing.

[68] I see no need to make this the first such case.

[69] In coming to this decision, I do not in any way wish to imply that the Applicants are not worthy organizations who provide important services to our society. I fully acknowledge that both are responsible, respected organizations who are genuinely and deeply concerned with animal welfare.

Should I grant Intervener Status?: Conclusion

[70] For the reasons outlined above, I am therefore denying the application to grant any form of intervener or amicus status to either of the Applicants, as I do not conclude that their participation is practically necessary for me to carry out, effectively and efficiently, the decision that I will make in due course with respect to the hearing for the application for the section 4 DOLA order. The matter will return for the already scheduled further judicial pretrial at which time I expect the pretrial justice of the peace to set the dates for the hearing of the section 4 application.

[71] I want to thank all counsel for their interesting and thoughtful presentations.

Released: December 5, 2016

Signed: "Regional Senior Justice of the Peace Thomas Stinson"