Norberg v. Wynrib, [1992] 2 S.C.R. 224

Laura Norberg Appellant

v.

Morris Wynrib Respondent

Indexed as: Norberg v. Wynrib

File No.: 21924.

1991: February 14.

Present: Sopinka J.

application for intervention

Practice ‑‑ Intervention ‑‑ Applicant raising new Charter argument in this Court ‑‑ Applicant bringing new perspective to appeal ‑‑ Charter issue to be decided on the appeal and not on the application to intervene ‑‑ Application allowed.

APPLICATION FOR LEAVE TO INTERVENE on an appeal from a judgment of the British Columbia Court of Appeal (1990), 1990 CanLII 5399 (BC CA), 44 B.C.L.R. (2d) 47, 66 D.L.R. (4th) 553, [1990] 4 W.W.R. 193, dismissing an appeal from a judgment of Oppal J. (1988), 1988 CanLII 2863 (BC SC), 27 B.C.L.R. (2d) 240, 50 D.L.R. (4th) 167, [1988] 6 W.W.R. 305, 44 C.C.L.T. 184, dismissing the action. Application allowed.

Helena Orton, for the applicant Women's Legal Education and Action Fund.

M. Van Dusen, for the respondent.

//Sopinka J.//

The following are the reasons delivered by

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

The issue is the legal remedy, if any, which a woman has against a doctor with whom she engaged in sexual intercourse in exchange for a drug to which she was addicted. The issues include whether an action for sexual assault or breach of fiduciary duty lie and, in particular, whether the appellant's alleged consent and illegal activity provide defenses to her claim; and further whether any damages lie for breach of the fiduciary duty.

The appellant consents to the application but it is opposed by the respondent. The respondent opposes the application principally on the ground that the applicant will add nothing new to the argument in the appeal and that the Canadian Charter of Rights and Freedoms should not be raised for the first time in this Court. I am satisfied that the applicant can present argument from a different perspective with respect to some of the issues and should be allowed to intervene. The respondent will be free to argue on the appeal that the Charter should not be raised on the ground that it will occasion prejudice. Whether it can be raised should be decided on the appeal and not on this motion.

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: Women's Legal Education and Action Fund, Toronto.

Solicitors for the respondent: Epstein Wood Logie & Wexler, Vancouver.