Registrar, Motor Vehicle Dealers Act v. J.G.C. [Indexed as: Ontario (Registrar, Motor Vehicle Dealers Act) v. C. (J.G.)]

73 O.R. (3d) 141

Superior Court of Justice, Divisional Court,

Benotto S.J.

October 8, 2004

Administrative law -- Appeal from decision of tribunal -- Intervenor -- Licence Appeal Tribunal seeking leave to intervene in appeal of one of its decisions -- Motion dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.01, 13.02, 13.03.

Civil procedure -- Appeal from decision of tribunal -- Intervenor -- Licence Appeal Tribunal seeking leave to intervene in appeal of one of its decisions -- Motion dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.01, 13.02, 13.03.

C, who had a youth offence record under the Young Offenders Act, R.S.C. 1985, c. Y-1, applied under the Motor Vehicles Dealers Act, 2002, S.O. 2002, c. 30, for registration as a salesperson. The Registrar referred to his record and registration was refused. C appealed to the Licence Appeal Tribunal ("LAT"), which allowed the appeal. The member hearing the appeal held that the Youth Court record was not relevant and would not be considered. The Registrar appealed. The LAT moved pursuant to rule 13.03 for leave to intervene to make submissions on whether a youth offence record is admissible or relevant without an order of a Youth Court judge pursuant to the Young Offenders Act and what evidence is admissible or relevant before LAT in connection with an offence for which there had been a conditional discharge.

Held, the motion should be dismissed.

The factors in rule 13.01 did not apply. LAT did not have an interest in the subject matter of the proceeding. Indeed, as an independent arbiter, it could not have an interest in the outcome. It would not be "adversely affected" by a decision and did not have a common issue with the party. The provisions of rule 13.02 also did not apply because there was no special expertise that LAT can offer by way of argument. It had no special expertise in the issue of Youth Court records or conditional discharges.

British Columbia (Securities Commission) v. Pacific International Securities Inc. (2002), 215 D.L.R. (4th) 58, 2002 BCCA 421, 2 B.C.L.R. (4th) 114 (C.A.); Louie v. Lastman, 2001 2843 (ON CA), [2001] O.J. No. 4941, 208 D.L.R. (4th) 380 (C.A.); Northwestern Utilities Ltd. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161

MOTION for leave to intervene pursuant to rule 13.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [page142]

Cases referred toStatutes referred to Young Offenders Act, R.S.C. 1985, c. Y-1 Motor Vehicles Dealers Act, 2002, S.O. 2002, c. 30 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.01, 13.02, 13.03

Larry Banack, for Motor Vehicle Dealers Act. J.G.C., self-represented (did not appear). Leah Price, for Licence Appeal Tribunal.

[1] BENOTTO S.J.: -- The Licence Appeal Tribunal ("LAT") seeks leave pursuant to rule 13.03 [Rule of Civil Procedure, R.R.O. 1990, Reg. 194] to intervene in this appeal from the decision of one of LAT's members. Leave to intervene is sought in order to permit LAT to make submissions to the court on the following issues: (a) whether a youth offence record is admissible or relevant as evidence before the tribunal without an order of a Youth Court judge pursuant to the Young Offenders Act, R.S.C. 1985, c. Y-1; and (b) what evidence is admissible or relevant before LAT in connection with an offence for which there has been a conditional discharge.

[2] Mr. C. applied under the Motor Vehicles Dealers Act, 2002, S.O. 2002, c. 30, for registration as a salesperson. The Registrar referred to his Youth Court record and to an offence for which he had received a discharge. The registration was refused. Mr. C. appealed to LAT.

[3] The LAT hearing was before a member who is not a lawyer. The Registrar was represented by counsel. Mr. C. was self- represented. The appeal was allowed. The member held that the Youth Court record would "not be considered" and was "simply not relevant". She likewise did not consider the absolute discharge.

[4] The Registrar appealed to this court.

[5] LAT seeks to intervene in the appeal either as a party or as a friend of the court. It wishes to support the decision of its member regarding the Youth Court record and the discharge. Also, it seeks the direction of the court concerning the admissibility of such evidence. LAT is concerned that if it is unable to participate, the court will not have the benefit of legal submissions on these points because Mr. C. is unrepresented.

[6] LAT states that a consideration of the factors set out in rule 13.03 support this application. Those factors are: the nature of the case, the issues that arise, and the likelihood of the moving party being able to make a useful contribution without causing injustice to the immediate parties.

[7] LAT argues that Mr. C.'s position may go unanswered if intervention is not granted. It refers to cases which show an increasingly [page143] broader interpretation of rule 13.03. It states that there is nothing to prevent a tribunal from being a party before the court if it otherwise satisfies the test that it be allowed to do so. There is no case law that states that a tribunal can never intervene.

[8] The respondent states that Rule 13 is not applicable, and that it is entirely inappropriate to allow a tribunal to intervene in the hearing of the appeal.

[9] Neither party could find a single case where Rule 13 was interpreted to allow a tribunal to intervene in the hearing of an appeal from one of its decisions. The issue here does not go to the jurisdiction of the tribunal.

[10] It has long been the law that, even where the tribunal is given a statutory right to participate, the role is limited:

. . . active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties. The Board is given a clear opportunity to make its point in its reasons for its decision and it abuses one's notion of propriety to countenance its participation . . . Northwestern Utilities Ltd. v. City of Edmonton, 1978 17 (SCC), [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161, at p. 709 S.C.R.

[11] More recently:

. . . this proceeding is a statutory appeal, not a judicial review, and there is no common law principle that can be invoked to confer standing on an administrative tribunal in a statutory appeal from one of its decisions . . . British Columbia (Securites Commission) v. Pacific International Securities Inc. (2002), 2002 BCCA 421, 215 D.L.R. (4th) 58, 2 B.C.L.R. (4th) 114, at para. 45

[12] LAT has no special expertise in the issue of Youth Court records or conditional discharges. It is therefore distinguishable from cases such as Louie v. Lastman, 2001 2843 (ON CA), [2001] O.J. No. 4941, 208 D.L.R. (4th) 380 (C.A.) on which the moving party relies.

[13] In any event, the factors in rule 13.01 do not apply. LAT does not have an interest in the subject matter of the proceeding. Indeed, as an independent arbiter, it cannot have an interest in the outcome. It will not be "adversely affected" by a decision and does not have a common issue with the party. LAT has the right to develop its own processes.

[14] The provisions of rule 13.02 do not apply here for there is no special expertise that LAT can offer by way of argument.

[15] The motion is dismissed. The costs of the respondent in the motion are fixed in the amount of $3,000. @@WMotion dismissed with costs. @@W[page144]