CITATION: Minas v. Adler, 2022 ONSC 5579

DIVISIONAL COURT FILE NO.: 073/22

DATE: 20221003

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Victor Minas and Janet Minas, Appellants

AND:

Kerry Evan Adler and Eagle Capital Corporation, Respondents

BEFORE: Nishikawa J.

COUNSEL: James P. McReynolds, for the Appellants/Responding Parties

Karen Andrews, for the Moving Party, Advocacy Centre for Tenants Ontario

HEARD at Toronto: September 27, 2022

ENDORSEMENT

Overview

[1] The Appellants, Victor Minas and Janet Minas (the “Landlords”), are the owners of a house (the “Premises”) that they leased to the Respondents, Kerry Evan Adler and Eagle Capital Corporation (the “Tenants”).

[2] In his decision dated January 24, 2022, Member Shea of the Landlord Tenant Board (“LTB”) ordered that the Tenants recover possession of the Premises (the “Order”). Member Shea also dismissed the Landlords’ application for an order that the Residential Tenancies Act, S.O. 2006, c. 17 (the “RTA”), did not apply to the Premises. The Landlords have appealed the decision to this court. The appeal is scheduled to be heard by this Court on November 22, 2022.

[3] In this motion, the proposed intervener, Advocacy Centre for Tenants Ontario (ACTO) seeks leave to intervene in the appeal. The Tenants support ACTO’s motion but did not appear or make submissions. The LTB takes no position on ACTO’s motion.

Background to the Appeal

[4] The factual background is detailed in my endorsement dismissing the Tenants motion to lift the stay of the Order: Minas v. Adler, 2022 ONSC 3053.

[5] In brief, after discovering that the Tenants no longer appeared to be residing at the Premises, the Landlords took possession of the Premises, changed the locks and moved in. The Tenants, who were living in Dubai during the COVID-19 pandemic, continued to pay rent. The Landlords did not accept the payments. The Tenants take the position that they were unlawfully evicted from the Premises. In the meantime, the Landlords have severed the property and made renovations to the house.

[6] The proposed intervener, ACTO, is a non-partisan, non-governmental housing advocacy organization funded by Legal Aid Ontario. ACTO is the only legal clinic in Canada devoted to systemic advocacy on housing issues. It carries out its mandate through law reform, test case litigation, policy advocacy, training, community development and public legal education. ACTO coordinates the provincial tenant duty counsel program, assisting tenants before the LTB. It thus has significant expertise in the operation of the RTA.

[7] If granted leave, ACTO proposes to make the following submissions on the appeal:

• An illegally evicted tenant continues to possess their unit and maintains a right to physically re-occupy their home;

• Any third parties installed in their units are not “tenants” within the meaning of the legislation;

• The LTB has the jurisdiction to reinstate an illegally evicted tenant to their home; and

• The Superior Court has the jurisdiction to reinstate an illegally evicted tenant to their home.[^1]

[8] The Landlords take the position that the appeal is a private dispute to which ACTO has nothing to add, given that the Tenants are represented by capable counsel with expertise in the area. The Landlords submit that ACTO’s submissions on jurisdiction would not be helpful because the Landlord takes no issue with the jurisdiction of both the LTB and the courts to order damages or reinstatement.

Analysis

The Applicable Test

[9] 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.

[10] The Court of Appeal has 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 intervener 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.

Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada ltd. (1990), 74 O.R. (2d) 164 (C.A.).

Nature of the Case/Issues Involved

[11] Where the litigation in which the intervention is sought is a private dispute, as opposed to a constitutional case, the burden on the proposed intervener is heavier: Authorson v. Canada (Attorney General), at paras. 8 and 9; 1162994 Ontario Inc. v. Bakker, [2004] O.J. No. 816, 184 O.A.C. 157 (C.A.), at para. 5. This is because intervention can add to the cost and complexity of the case. A private dispute can raise considerations of public policy that transcend the dispute between the parties: Childs v. Desormeaux (2003), 67 O.R. (3d) 385, [2003] O.J. No. 3800 (C.A.), at paras. 3 and 10. In such cases, the standard will not be as onerous as if the dispute were a purely private one.

[12] This appeal is a private dispute between the Tenants and the Landlords. However, the dispute engages the interpretation of the RTA, a statute that has public policy objectives that include providing “protection for residential tenants from unlawful rent increases and unlawful evictions” and “[balancing] the rights and responsibilities of residential landlords and tenants[.]” The issue of when the LTB can order reinstatement is likely to have an impact that extends beyond the parties to this dispute. The jurisdictional issue would also have a broader impact.

Whether the Intervener Will Make a Useful and Distinct Contribution

[13] In Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), 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), 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 S.C.R. 335, 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), at para 15.)

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

[14] In my view, as an organization focused on assisting low-income and vulnerable tenants, ACTO has 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. Because it is a specialized legal clinic, ACTO has expertise with respect to the interpretation and application of the RTA.

[15] Moreover, as noted above, 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. As ATCO submits, the circumstances of this case are somewhat anomalous because, unlike the vast majority of persons who are evicted, the Tenants have resources and alternatives. Under the circumstances, ATCO could assist the court in understanding the potential broader impact of a particular interpretation of the RTA. Moreover, by virtue of the tenants that it assists, ATCO will be able to offer a perspective that is distinct from that of the Tenants in this case.

Potential Injustice to the Parties or Undue Delay

[16] I find no undue delay or injustice to the Landlords from ACTO’s proposed intervention. ACTO does not propose to expand the record. ACTO will file its factum well before the scheduled hearing date. ACTO has stated that they will make no submissions on the threshold issue of whether the tenancy was converted to a commercial tenancy, such that the RTA does not apply.

[17] The Landlords submit that they will be prejudiced by ACTO’s intervention because ACTO’s goal is to expand the circumstances in which reinstatement is available as a remedy. ACTO’s submissions on the interpretation of the remedial provisions of the RTA, which the court may or may not accept, is not an injustice to the Landlords.

Conclusion

[18] Accordingly, I find that ACTO has met the test for leave to intervene as a friend of the court. The motion for leave to intervene is granted.

[19] The Landlords submit that in the event that ATCO is granted leave to intervene, they ought to be able to seek costs against ATCO on the appeal because ATCO’s intervention will have caused additional time and expense. This matter is reserved to the panel hearing the appeal.

[20] The intervener is to abide by the following terms:

(a) ACTO 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 affidavit and factum on this motion;

(b) ACTO is to serve a factum not exceeding 10 double-spaced pages by no later than noon on October 24, 2022;

(c) ACTO will be permitted to make submissions not exceeding 15 minutes at the hearing of the appeal;

(d) ACTO will make all reasonable efforts to avoid duplicating the Tenants’ submissions;

(e) ACTO will not seek costs, unless the panel permits otherwise; and

(f) The Landlords are permitted to file a supplementary factum not exceeding 10 pages in response to the issues raised by the interveners. The factum is to be served by no later than November 10, 2022.

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

“Nishikawa J.”

Date: October 3, 2022

[^1]: The jurisdictional issue arises because one of the grounds of appeal is that the LTB erred in failing to find that the Tenants’ application to the LTB was an abuse of process when the Tenants had already brought an action for similar relief in the Superior Court.