CITATION: Registrar, Home Construction Regulatory Authority v. Yarco Developments Inc., 2023 ONSC 4346

DIVISIONAL COURT FILE NO.: 523/22

DATE: 20230726

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Registrar, Home Construction Regulatory Authority, Appellant

AND:

Yarco Developments Inc., Respondent

BEFORE: Nishikawa J.

COUNSEL: Brian Blumenthal and Douglas Lee, for the Moving Party, Licence Appeal Tribunal

No one appearing for the Appellant or Respondent

HEARD at Toronto: July 25, 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 “LAT”) 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 LAT was not satisfied that the Respondent’s business would not be conducted in accordance with the law and with integrity and honesty.

[2] The LAT brings a motion for leave to intervene to provide submissions on:

(a) The scope of the appeal right in s. 11 of the Licence Appeal Tribunal Act, 1999 (the“LAT Act”);

(b) The standard of review of correctness and its scope;

(c) Procedural fairness; and

(d) Statutory interpretation.

[3] The LAT does not propose to make submissions on the merits of its decision or the outcome of the appeal. The LAT has provided its proposed factum to the parties, who consent to the LAT’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.).

[7] 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.

[8] The Supreme Court of Canada has held that it is appropriate for reviewing courts to determine the scope of a tribunal’s participation in an appeal of its own decision in a manner that does not compromise tribunal impartiality or allow for bootstrapping: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at para. 57.

Application of the Factors

[9] 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.

[10] The LAT is an administrative tribunal created in January 2000 pursuant to the LAT Act. It is designated as a constituent tribunal of Tribunals Ontario, pursuant to s. 2 of O. Reg. 126/10 under the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009. The LAT hears appeals under 34 statutes regarding licencing and consumer compensation and protection matters, including the NHCLA, which deals with the licensure of vendors and builders of homes in Ontario.

[11] A tribunal’s standing on an appeal of its own decision is determined based on a balancing of “the need for fully informed adjudication against the importance of maintaining tribunal impartiality.” Because of their “expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.”: Ontario Energy Board, at paras. 47, 53 and 57.

[12] The LAT’s limited submissions on the statutory and procedural context, the applicable standard of review and its scope, procedural fairness, and statutory interpretation, are consistent with the scope of a tribunal’s participation in an appeal and will provide useful a perspective to the court without compromising the principles of impartiality or finality.

[13] Given that the other parties consent to the LAT’s motion for leave to intervene, the proposed intervention would not cause injustice or prejudice to either party. In addition, 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 LAT’s intervention would not unduly delay the proceeding.

Conclusion

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

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

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

(c) The LAT 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 LAT’s factum, not to exceed 12 double-spaced pages, by August 21, 2023;

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

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

[16] No costs of the motion were sought; there will be no costs of this motion.

“Nishikawa J.”

Date: July 26, 2023