M.(K.) v. M.(H.), [1992] 3 S.C.R. 3

K. M. Appellant

v.

H. M. Respondent

Indexed as: M.(K.) v. M.(H.)

File No.: 21763.

1991: February 14.

Present: Sopinka J.

application for intervention

Headnote

Practice ‑‑ Intervention ‑‑ Applicant raising new Charter argument in Supreme Court of Canada ‑‑ Applicant having sufficient interest and bringing special perspective to appeal ‑‑ Charter issue to be decided on the appeal and not on the application to intervene ‑‑ Admission of material applicant proposing to file to be on consent of respondent and, absent consent, with leave of the Court ‑‑ Application allowed.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms.

Limitations Act, R.S.O. 1980, c. 240.

History and Counsel

APPLICATION FOR LEAVE TO INTERVENE on an appeal from a judgment of the Ontario Court of Appeal (1989), 18 A.C.W.S. (3d) 490, dismissing an appeal from a judgment of Maloney J. Application allowed.

Elizabeth J. McIntyre, for the applicant.

Murray McGee, for the respondent.

Judgment

//Sopinka J.//

The following is the judgment delivered by

Sopinka J. ‑‑ This is an application by the Women's Legal Education and Action Fund (LEAF) to intervene in this appeal.

This case concerns the treatment of the tort of incest, in particular, whether incest is a separate tort for which the Ontario Limitations Act, R.S.O. 1980, c. 240, does not prescribe a time within which an action shall be commenced and alternatively, whether the doctrine of reasonable discoverability applies. The applicant was awarded damages by the jury but the trial judge found that her claim was statute‑barred. The Court of Appeal upheld this decision.

The appellant consents to the application but it is opposed by the respondent. The respondent objects principally on the ground that the Canadian Charter of Rights and Freedoms is being raised as an interpretive tool with respect to the Limitations Act. The respondent submits that the Charter does not apply and, in any event, was not raised at trial or in the Court of Appeal and is therefore a new issue.

In my opinion, LEAF has a sufficient interest to intervene and will bring a special perspective to the appeal. I am concerned, however, about two matters: first, whether or not the respondent will be prejudiced by having the Charter raised for the first time in this Court. The applicant points out that it is not challenging the Limitations Act but will rely on the Charter solely as an interpretive tool. It also proposes to file material consisting of studies and reports of experts in the field. The respondent objects to these on the ground that expert evidence was led at trial on the issues addressed by these studies and reports and that there has been no opportunity and will be no opportunity to challenge this evidence.

It is difficult to determine on an application whether the proposed Charter argument will occasion prejudice to the respondent. Prejudice would be occasioned if the Charter argument would have been affected by additional evidence at trial. If the respondent might have adduced other evidence material to the Charter argument, there would be prejudice in allowing the Charter to be raised for the first time in this Court.

It is also impossible to decide in a definitive way whether the proposed material which LEAF intends to file is additional evidence or whether it is material in respect of which the Court could take judicial notice. If it is the former, it should not be filed unless received as fresh evidence. An application to adduce fresh evidence by an intervener is not usually favourably entertained.

In the circumstances, I have decided to grant the application to intervene. The respondent will be free to submit on the hearing of the appeal that the Charter does not apply and furthermore that it should not be raised at this stage because it will occasion prejudice. The Court on the appeal will be in a position to decide whether the Charter should be considered in the circumstances. With respect to the material proposed to be filed by LEAF, it should be submitted to counsel for the respondent prior to filing. If counsel for the respondent objects on the grounds that it constitutes fresh evidence, it should not be filed without leave of the Court on the hearing of the appeal.

In the result, the applicant will be entitled to intervene, file a factum and argue orally, limited to twenty minutes.

Application allowed.

Solicitors for the applicant: Cavalluzo, Hayes & Lennon, Toronto.

Solicitors for the respondent: Mollison, McCormick, McIntyre, McGee, Kitchener.