CITATION: Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4454

DIVISIONAL COURT FILE NO.: CVD-TOR-22-AP DATE: 20200721

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

Dr. Shanker Nesathurai, Medical Officer of Health, Haldimand-Norfolk Health and Social Services

Appellant

– and –

Schuyler Farms Limited

Respondent

Jill Dougherty and Lara Kinkartz for the Appellant

Andrea Plumb and Natalie E. Carrothers for the Respondent

David P. Jaccobs For the Health Services Appeal and Review Board

Heather Mackay for the Minister of Health

Danielle Bisnar and Aminah Hanif for the proposed intervenor Canadian Lawyers for International Human Rights

Ian Aitken, Dora Chan, Shane Martinez and Maleeka Mohamed for the proposed intervenors The Community Legal Clinic – Brant, Haldimand, Norfolk, Industrial Accident Victims Group of Ontario, and Justicia for Migrant Workers

Sean Carter for the proposed intervenor, the Roman Catholic Episcopal Corporation of the Diocese of Hamilton

HEARD at Toronto in writing

FAVREAU J.:

Introduction

[1] This decision addresses three motions for leave to intervene as a friend of the Court in an appeal to this Court from a decision of the Health Services Appeal and Review Board (the “HSARB” or the “Board”).

[2] There are three sets of proposed intervenors:

a. Canadian Lawyers for International Human Rights (“CLIHR”);

b. The Community Legal Clinic – Brant, Haldimand, Norfolk, Industrial Accident Victims Group of Ontario, and Justicia for Migrant Workers (“CIJ”); and

c. The Roman Catholic Episcopal Corporation of the Diocese of Hamilton (the “Diocese”).

[3] For the reasons below, CLIHR and CIJ are granted leave to intervene as friends of the court on the terms set out below, but the Diocese’s motion is dismissed.

Background to the appeal

[4] Section 22(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, gives medical officers of health in Ontario the power to “require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease”. The balance of section 22 sets out the pre-conditions for making such an order and the scope of the medical officers’ powers.

[5] On March 24, 2020, Dr. Shanker Nesathurai, the Medical Officer of Health for Haldimand-Norfolk Health and Social Services, made an order setting out self-isolation requirements for migrant farm workers in Haldimand and Norfolk Counties. A few days later, the health unit released a Self-Isolation Checklist that set out a requirement to “Ensure only a max of 3 seasonal workers to a bunkhouse”.

[6] The respondent, Schuyler Farms Limited, appealed the order, specifically focusing on the three person per bunkhouse requirement, to the HSARB.

[7] In a decision released on June 12, 2020, the Board found that the three person limit was arbitrary and deleted this requirement from the Self-Isolation Checklist while confirming the balance of the Medical Officer of Health’s order.

[8] The Medical Officer of Health appeals the Board’s decision to this Court pursuant to section 46 of the HPPA. The grounds of appeal listed in the notice of appeal include a claim that the Board misapplied section 22 of the HPPA and that the Board failed to have regard to the fact that the order was a “class order”.

[9] Further to a case management conference held on June 17, 2020, the appeal is scheduled to proceed on an expedited basis on July 29, 2020.

[10] Counsel for two of the proposed intervenors, CIJ and the Diocese, participated in the case conference. At that time, deadlines were set for the intervenors’ materials and for the parties to then provide their positions on the proposed interventions and whether they wished to make oral submissions on the issue. The Court received motions from the three proposed intervenors, after which counsel for the appellant advised that their client consented to the proposed interventions and counsel for the Board and the Minister of Health advised that their clients take no position on the proposed interventions. The respondent filed materials opposing the interventions but stating that it was not seeking an oral hearing. The court subsequently received motion materials in support of the motions for intervention from the appellant and reply facta from two of the proposed intervenors. In the circumstances, I determined that this motion would proceed in writing, and the parties were advised accordingly.

Analysis

[11] Rule 13.02 of the Rules of Civil Procedure provides for intervention as a friend of the court:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[12] The Court of Appeal and this Court have established the following considerations for deciding whether to grant leave to intervene as a friend of the court:

a. The nature of the case;

b. The issues involved;

c. The likelihood that the proposed intervenor will make a useful and distinct contribution not otherwise offered by the parties; and

d. Whether the intervention will cause injustice to the parties or undue delay.

See: Jones v. Tsige (2011), 2011 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; S. (P.) v. Ontario, 2014 ONCA 160, at para. 5; and Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), at para. 8.

a) Nature of the case and the issues

[13] The first two factors are often considered together.

[14] The cases have held that granting leave to intervene may be warranted in cases that involve constitutional issues or issues of public interest that transcend the dispute between the parties: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 4382 (ON CA), [2001] O.J. No. 2768 (C.A.), paras. 7-8; and Jones, paras. 23-24.

[15] The appellant and the proposed intervenors argue that the case raises issues that transcend the dispute between the parties because it affects migrant farm workers in Ontario who are a vulnerable group and because it raises issues about the proper approach to interpreting section 22 of the HPPA when vulnerable groups are at issue.

[16] In contrast, the respondent argues that the issues on the appeal are narrow and do not raise matters of public interest. Specifically, they argue that the HSARB’s decision was based on an evidentiary finding, and therefore does not raise issues on which the proposed intervenors can make a useful contribution.

[17] I agree with the appellant and the proposed intervenors that this case transcends the interests of the parties. The medical officer of health is not like other litigants and the exercise of his powers are public in nature. In addition, the dispute in this particular case relates to the exercise of those powers in a manner that not only affects the respondent, but also affects migrant farm workers and the public more broadly. These powers are being exercised in the context of a global pandemic, which again serve as an indication that the issues at stake here have far reaching consequences, well beyond the private interests of the respondent. The scope of the Medical Officer of Health’s powers and the HSARB’s authority to review those powers is of broad public interest in this context.

b) Likelihood that the proposed intervenors will make a useful and distinct contribution

[18] In Elementary Teachers' Federation, this Court described what constitutes a useful contribution:

10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers' Compensation Act 1983 (Nfld), [1989] 2 SCR 335, 1989 23 (SCC) at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having "all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court." This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, [2003] O.J. No 3800 (QL), 2003 47870 (OCA) at para 15.)

[19] Therefore, when considering whether the proposed intervenor will make a useful contribution, the court focuses on (i) the proposed intervenor and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervenor proposes to make.

[20] I will consider these factors as they relate to each of the proposed intervenors.

Proposed intervention by the Canadian Lawyers for International Human Rights

[21] The CLIHR is a national non-governmental organization that advocates for international human rights through legal education, advocacy and proposed law reform. It has been granted intervenor status in many cases involving issues of international human rights, including most recently in India v. Badesha, 2017 SCC 44 and Canada (Attorney General) v. Kattenburg, 2019 FC 1003.

[22] If granted leave to intervene, the CLIHR says that it will limit its submissions to issues regarding the interpretation of section 22 of the HPPA, arguing that the interpretation must recognize the vulnerability of migrant workers and must be consistent with Canada’s obligations under the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and other international legal instruments.

[23] The respondent on the appeal argues that, while the CLIHR has experience as an intervenor, it does not have experience on issues relating to migrant workers and the requirements for their safe housing. The respondent also argues that the issue of the applicability of international human rights instruments is a new issue not raised by the appellants.

[24] These two objections are intertwined. The CLIHR has expertise in the area of international human rights instruments and their applicability in the context of Canadian legal proceedings, including administrative proceedings. The issue at the core of the respondent’s objection is therefore whether the arguments this proposed intervenor seeks to make raises new issues.

[25] The case law does suggest that it is inappropriate for an intervenor to raise a new issue. For example, in Elementary Teachers' Federation, at para. 7, this Court held that “[a]n intervener is not an applicant. An intervener cannot therefore introduce new issues or claim new relief; it is limited to addressing issues already contained in the pleadings”.

[26] In arguing that this proposed intervenor seeks to raise a new issue, the respondent relies on the Court of Appeal for Ontario’s decision in Bedford v. Canada (Attorney General), 2011 ONCA 209, in which the Court dismissed a motion for leave to intervene where the proposed intervenor sought to argue that the provisions of the Criminal Code that prohibited sex work were contrary to section 15 of the Charter. In the Court below, the applicants had challenged the Criminal Code provisions on the basis of sections 2(b) and 7 of the Charter, but not section 15. The Court dismissed the motion on the basis that the record below had not been developed from the perspective of a section 15 challenge, finding at para. 16 that “it would be a disservice to the parties, to the court and, indeed, the public interest to litigate a s. 15 challenge on the basis of this record”.

[27] I do not read the Bedford decision as a blanket statement that an intervenor is precluded from raising an alternative legal argument in all situations. Whether it is appropriate to allow an intervenor to do so in any given case will depend on the circumstances.

[28] In this case, the CHIRL does not seek to expand the record, but to bring a different perspective on the considerations that should apply in interpreting a medical officer’s powers in a context such as this one, where the order has an impact on migrant farm workers.

[29] In my view, the proposed intervenor will make a useful contribution to the argument without raising a new issue.

Proposed intervention by The Community Legal Clinic – Brant, Haldimand, Norfolk, Industrial Accident Victims Group of Ontario, and Justicia for Migrant Workers

[30] The CIJ proposed intervenors seek to intervene as a coalition, based on their common experience serving migrant farm workers in Ontario. Their respective areas of experience and expertise as follows:

a. The Community Legal Clinic – Brant, Haldimand, Norfolk is a legal clinic based in the County of Haldimand Norfolk. It has extensive experience advocating for low income earners in that area, including migrant workers.

b. Industrial Accident Victims Group of Ontario is a legal aid clinic that specializes in representing injured works in Ontario, with an emphasis on low income earners and vulnerable workers. Some of its work has focused specifically on migrant farm workers.

c. Justicia for Migrant Workers describes itself as a non-profit, grassroots collective that advocates on behalf of migrant agricultural workers in Ontario. It was founded in 2002 and has advocated for migrant farm workers since then.

[31] If granted leave to intervene, these proposed intervenors say that the arguments they intend to make include the following:

a. The Board made an error in applying too stringent an analysis to the Medical Officer of Health’s order, which resulted in not considering the circumstances of migrant farm workers;

b. The Federal government’s Seasonal Agricultural Worker Program (“SAWP”) places migrant farm workers at a disadvantage in terms of access to medical care, and the Board should have taken these circumstances into consideration when making the order; and

c. The Medical Officer of Health’s Order was not arbitrary and was essential for the protection of migrant farm workers who are not able to advocate for themselves.

[32] The respondent argues that these proposed intervenors will generally not offer a unique perspective and that they also raise a new issue with respect to the impact of the SAWP on migrant farm workers.

[33] I am satisfied that CIJ should be granted leave to intervene.

[34] Their extensive collective experience working with migrant farm workers will allow them to bring the perspective of this group before the Court, a perspective that is not directly represented by the parties to the appeal. I do not consider that the argument they propose to make with respect to the impact of the SAWP raises a new issue. Rather, it is part of the context that they intend to present to the Court.

[35] I do have concerns that some of the issues raised by these intervenors may be duplicative of the appellant’s arguments, especially with respect to their intention to argue that the Medical Officer of Health’s order was not arbitrary. However, this can be addressed by the directions given below about ensuring that their submissions are not duplicative of the appellant’s submissions.

Proposed intervention by the Diocese of Hamilton

[36] The Diocese of Hamilton filed a motion record, including an affidavit in which the affiant states that the Diocese serves the region affected by the order under appeal and that it ministers to many migrant farm workers. The affiant also gives some evidence about the vulnerable status of migrant farm workers.

[37] The affiant describes the Diocese of Hamilton’s proposed contribution as being able to “render assistance to the Court by way of argument” and providing “pointed and direct submissions highlighting arguments that will assist the Court”. The affiant goes on to say that:

The Diocese of Hamilton is concerned that important issues regarding the health and safety of Migrant Farm Workers may be argued in the context of the party’s special interests without the advantage of argument from the broader perspective of the wider community, and specifically the Roman Catholic community who has direct contact and has provided assistance to Migrant Farm Workers, particularly in light of the decision which is now under appeal.

[38] The respondent argues that leave to intervene should not be granted to the Diocese because it has not demonstrated that it has experience that would assist the Court, nor has it demonstrated that its argument will be unique or offer a useful perspective.

[39] I agree.

[40] While I appreciate that the Diocese provides important assistance to migrant farm workers in its jurisdiction and may thereby have knowledge of their circumstances, I am not satisfied that this is sufficient for granting leave to intervene as a friend of the court. Unfortunately, it is not clear from the materials what, if any, unique contribution the Diocese would make to the legal arguments to be made to the Court. In addition, the Diocese’s materials do not speak to its experience or expertise on the legal issues raised on the appeal.

Accordingly, the motion for leave to intervene brought by the Diocese is dismissed.

c) Whether the intervention will cause injustice to the parties

[41] The injustice identified by the respondent on the appeal is that the appeal has been scheduled on an expedited basis which may make it challenging to respond to the issues raised by the intervenors. In addition, all intervenors support the appellant and allowing them to intervene will therefore create an imbalance on the appeal.

[42] As set out below in the terms I have set for the intervention, I am placing significant limits on the length of the intervenors’ facta and oral submissions. I am also giving the respondent an opportunity to file a factum in response to the intervenor’s facta. I am satisfied that these procedural safeguards will address the respondent’s concerns about potential delay.

[43] With respect to the lack of balance, the case law on this issue does not require perfect balance between the positions of the intervenors but just that there be “some balance between the positions to be advocated when granting intervenor status” in circumstances where there are multiple applications for leave to intervene: Craft et al. v. City of Toronto et al, 2019 ONSC 1151 (Div. Ct.), at para. 65. In this case, as indicated above, I am only granting leave to two of the proposed intervenors. There were no requests for intervention made by intervenors proposing to support the respondent’s perspective. This should not form a basis for refusing leave to intervene to the CLIHR and CIJ, which, as I found above, can make a useful contribution on the appeal.

Conclusion

[44] Based on the reasons above, the CLIHR and the CIJ are granted leave to intervene as friends of the Court and the motion by the Diocese is dismissed.

[45] The intervenors are to abide by the following terms:

a. The intervenors will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond the arguments identified in their notices of motion and facta on this motion;

b. The intervenors are to serve a factum not exceeding 10 pages by no later than noon on Friday, July 24, 2020. The factums are to be uploaded to the drop box and the Court is to be notified that this has been done;

c. Each intervenor will be permitted to make submissions not exceeding 10 minutes at the hearing of the appeal;

d. The intervenors will make all reasonable efforts to avoid duplicating the appellant’s and each other’s submissions;

e. The intervenors will not seek costs nor will costs be awarded against them, unless the panel orders otherwise; and

f. The respondent is permitted to file a supplementary factum not exceeding 10 pages in response to the issues raised by the intervenors. The factum is to be served by no later than noon on Tuesday, July 28, 2020. The factum is to be uploaded to the drop box and the Court is to be notified that this has been done.

[46] There will be no costs of this motion.

FAVREAU J.

RELEASED: July 21, 2020

CITATION: Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4454

DIVISIONAL COURT FILE NO.: CVD-TOR-22-AP DATE: 20200721

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Dr. Shanker Nesathurai, Medical Officer of Health, Haldimand-Norfolk Health and Social Services

Appellant

– and –

Schuyler Farms Limited

Respondent

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: July 21, 2020