Court File and Parties

CITATION: Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc., 2023 ONSC 4113

DIVISIONAL COURT FILE NO.: 523/22

DATE: 20230710

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Registrar, Home Construction Regulatory Authority, Appellant

AND:

Yarco Developments Inc., Respondent

BEFORE: Nishikawa J.

COUNSEL: Emtiaz Bala and Shayna Levine-Poch, for the Moving Party, the Attorney General of Ontario

No one appearing for the Appellant or Respondent

HEARD at Toronto: July 10, 2023 (in writing)

MOTION FOR LEAVE TO INTERVENE ENDORSEMENT

Overview and Background

[1] The Appellant, the Registrar, Home Construction Regulatory Authority (the “Registrar”) appeals the decision of the Licence Appeals Tribunal (the “Tribunal”) dated September 6, 2022 and reconsideration decision dated December 14, 2022 directing the Registrar to renew the licence of the Respondent, Yarco Developments Inc., as a vendor and builder under the New Home Construction Licensing Act, 2017, S.O. 2017, c. 33, Sched. 1 (the “NHCLA”). Contrary to the Registrar’s position, the Tribunal was not satisfied that the Respondent’s business would not be conducted in accordance with the law and with integrity and honesty.

[2] The Attorney General of Ontario (the “AG”) brings a motion for leave to intervene to provide submissions on the correct interpretation of the relevant statutory provision, namely, s. 38(1)(b)(iii) of the NHCLA. Under that provision, an applicant is entitled to a licence or renewal if, in the registrar’s opinion, the past and present conduct of its officers and directors, among others, “affords reasonable grounds for belief that its business will be carried on in accordance with the law and with the integrity and honesty[.]”

[3] Both the Appellant and Respondent consent to the AG’s motion for leave to intervene.

[4] For the reasons given below, the motion for leave to intervene is granted.

Analysis

The Test for Leave to Intervene

[5] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides for intervention as a friend of the court, states as follows:

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.

[6] The Court of Appeal has established that when deciding whether to grant leave to intervene as a friend of the court, the following considerations apply:

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), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).

The Attorney General’s Proposed Submissions

[7] If granted leave, the AG proposes to make submissions on the proper interpretation of the integrity and honesty provision of the NHCLA, including that contrary to the Tribunal’s interpretation, positive and negative iterations of “integrity and honesty” provisions in other statutes have been interpreted interchangeably. The AG does not propose to make submissions on the issues of: (i) whether the Tribunal improperly reversed the burden of proof and (ii) whether or not Yarco qualifies for a licence renewal.

Application of the Factors

Nature of the Case/Issues Involved

[8] The nature of the case and issues involved engage the public interest because the Appellant is a regulator exercising public powers to grant a licence under a legislative regime. In addition, the AG submits that the interpretation of the “integrity and honesty” provision in the NHCLA will impact the interpretation of similar provisions in 70 other statutes and regulations that govern a wide range of professions, businesses and products used by the public. As a result, specific issue on which the AG seeks to intervene transcends the dispute between the immediate parties.

Whether the Intervener Will Make a Useful and Distinct Contribution

[9] 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), 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 23 (SCC), [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 47870 (ON CA), [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.

[10] The AG is uniquely positioned to assist the court on the potential impact of its decision because of its general statutory duties to “superintend all matters connected with the administration of justice” and to “advise the Government on all matters of a legislative nature and superintend all Government measures of a legislative nature[.]” Ministry of the Attorney General Act, R.S.O. 1990, M.17, s. 5. By virtue of this role, the AG is regularly granted leave to intervene where the interpretation of a statute is at issue. See, e.g.: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 400; S.C. v. N.S., 2017 ONSC 566 (Div. Ct.).

[11] In this case, the AG would be able to provide assistance to this court on the potential broader implications of its interpretation of the “integrity and honesty” provision of the NCHLA.

Potential Injustice to the Parties or Undue Delay

[12] Given that the other parties consent to the AG’s motion for leave to intervene, it does not appear that the proposed intervention would cause injustice or prejudice to either party. O’Brien J. has directed a schedule for the delivery of further material before the hearing scheduled for September 13, 2023. As a result, the AG’s intervention would not unduly delay the proceeding.

Conclusion

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

[14] The following conditions are imposed on the AG’s intervention, subject to the discretion of the panel hearing the application for judicial review:

(a) The AG will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond those raised by the parties;

(b) The AG will make all reasonable efforts to avoid duplicating the other parties’ submissions;

(c) The AG will serve a factum not exceeding 20 double-spaced pages by August 7, 2023;

(d) The other parties may file reply facta to respond to the issues raised in the AG’s factum, not to exceed 12 double-spaced pages, by August 21, 2023;

(e) The AG will be permitted to make submissions not exceeding 15 minutes at the hearing of the appeal; and

(f) Unless the panel permits otherwise, the AG will not seek costs.

[15] No costs of the motion were sought; no costs are ordered.

“Nishikawa J.”

Date: July 10, 2023