Court File and Parties

CITATION: Grant v. Workplace Safety and Insurance Appeals Tribunal, 2024 ONSC 5278

DIVISIONAL COURT FILE NO.: 079/24

DATE: 20240925

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GLEN GRANT, Applicant

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, Respondent

BEFORE: Lococo, Matheson and Sheard JJ.

COUNSEL: Maryth Yachnin and Aleks Ivoviv, for the Applicant Rebecca Woodrow and Kayla Seyler, for the Respondent Illija Dimeski and Taneeta Doma, for the proposed Interveners

HEARD at Toronto: September 24, 2024 (in writing)

Endorsement

[1] The Migrant Farmworker Legal Clinic and Justicia for Migrant Workers, together, seek leave to intervene in this application for judicial review. This motion was not served on the parties until August 30, 2024, very shortly before the hearing date, even though the hearing date for the application was set in March 2024.

[2] The interveners sought leave to intervene as a friend of the court, seeking the right to submit a factum, make oral submissions and asking that no costs be awarded against them. The respondent Tribunal objected to the motion, submitting that the moving parties did not offer a distinct perspective and were seeking to supplement the evidentiary record.

[3] Given the very late notice of the motion and the objection, the motion was placed before the panel hearing the application. The moving parties were also required to deliver their proposed factum on the application by September 19, 2024. As a result, the parties would have some, albeit short, notice of what the interveners would say in their submissions if leave to intervene was granted.

[4] The moving parties did not deliver the proposed factum setting out their submissions on the application as required by the Court’s directions. They did put forward a factum for their leave motion, which is otherwise required.

[5] At the outset of the application hearing, the panel delivered its decision on the leave motion. Leave to intervene was granted on the following terms: The interveners were permitted five minutes of oral submissions and directed not to repeat the applicant’s submissions. The interveners were not permitted to supplement the evidence on the application and were not permitted to take a position on the ultimate disposition of the application. Lastly, the respondent was permitted, after hearing the intervener’s oral submissions, to make submissions about the interveners’ position.

[6] The above order was made with reasons to follow. These are those reasons.

[7] The respondent does not dispute that two of the prerequisites to obtaining leave are met. Specifically, the interveners have a sufficient interest in the subject matter of this application and are sufficiently recognized. Their work is focused on the fair and just treatment of migrant agricultural workers. We are satisfied on these two issues.

[8] To obtain leave to intervene, the proposed intervener must advance useful and different submissions on the issues raised by the parties and not take a position on the ultimate disposition of the application: R. v. McGregor, 2023 SCC 4, 478 D.L.R. (4th) 193. The Tribunal submits that the proposed interveners do not have a distinct perspective. While it does appear that the moving parties support the position of the applicant, we have addressed this concern through our terms.

[9] There is then the question of whether the intervention would cause injustice or delay. In this case, the motion was very late and the moving parties failed to comply with this Court’s directions about uploading their proposed application factum. It appears that they may have wrongly concluded that it was their motion factum that was required.

[10] The Tribunal’s other objection was made on the basis that it appeared that the interveners were attempting to supplement the evidentiary record. An intervener as a friend of the court normally takes the facts as presented by the parties, although they may seek leave to supplement the evidentiary record. In their motion, the moving parties did not seek leave to do so. In their factum, they expressly said that they did not seek to add material to the evidentiary record. In addition, the applicant had the opportunity to put evidence about the broader perspective of migrant workers before the Tribunal and, except for the applicant’s own history, did not do so. If done at the Tribunal, there would have been a fair opportunity to respond to the evidence.

[11] In summary, the moving parties did not seek leave to supplement the evidentiary record. The Tribunal’s objection on that basis did not stand in the way of granting the motion.

[12] We therefore granted leave to intervene on the above terms.

[13] During the oral argument of the interveners, it became apparent that they did seek to rely on additional evidence that was not in the application record. In particular, they wanted to rely on the affidavits filed in support of their motion for leave to intervene. That motion material does not automatically supplement the evidence in the application record and, as set out above, the interveners did not have leave to supplement the evidence. In oral argument, the interveners changed their position and asked to rely on the affidavits. That would be procedurally unfair. The interveners would have to first meet the threshold to supplement the record and there would then need to be a fair procedure available to the parties to respond to the evidence, none of which should have been requested by an intervener during the hearing of the application. To do so would be unjust and prejudicial to the parties.

[14] The motion for leave to intervene was therefore granted, on terms, and those terms were not amended during oral argument.

Lococo J.

Matheson J.

Sheard J.

Date: September 25, 2024