COURT FILE NO.: CV-05-299815

MOTION HEARD: May 24, 2012

ONTARIO – SUPERIOR COURT OF JUSTICE

Margaret Elizabeth Ann Andrews, Barbara Norine Charlton and David Clark, plaintiffs

v.

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Transportation, defendant

David Sterns for the proposed intervener, Michel Mayotte

Eunice Machado for the defendant

Ted R. Laan for the plaintiffs

ENDORSEMENT

Master R.A. Muir -

[ 1 ] Michel Mayotte (“Mayotte”) brings this motion pursuant to Rule 13.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order granting him leave to intervene as an added party to the defendant’s motion for summary judgment. The defendant’s motion for summary judgment has not yet been scheduled, although the defendant has served its motion materials. The plaintiffs take no position on this motion. The defendant opposes Mayotte’s request.

[ 2 ] Mayotte is the representative plaintiff in a certified class proceeding bearing court file number CV-09-389686-CP00 (the “Class Action”). The defendant in this action is also the defendant in the Class Action. Although the plaintiffs in this action are part of the class as defined in the Class Action, they have chosen to opt out of that proceeding and pursue their own claims on an individual basis.

[ 3 ] The origins and background to the claims of the plaintiffs in both actions was succinctly summarized by Justice Perell in his decision certifying the Class Action. At paragraph 2 of that decision Justice Perell stated as follows:

2 The proposed members of the class are approximately 370 current and former independent contractors who have or had contracts with the Defendant Province of Ontario to issue driver's licences and vehicle registrations and to provide certain other services to the public. Under the contracts with Ontario, the proposed class members are or were paid for their services in accordance with a compensation formula that is unilaterally set by Ontario. The central grievance of the proposed class members and the alleged wrongdoing of Ontario is the allegation that it has unfairly and unreasonably under-compensated the private issuers since August 2003. [1]

[ 4 ] The two claims would appear to be based on many of the same facts. Both claims essentially allege that the defendant under-compensated the plaintiffs and class members in breach its obligations. However, the parties have framed their legal arguments somewhat differently. This action is based largely on breach of contract whereas the Class Action relies mostly on an alleged breach by the defendant of its common law duty of good faith.

[ 5 ] The principles to be considered by the court on a motion under Rule 13.01 are set out in Justice Himel’s decision in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) , [2008] O.J. No. 702 (S.C.J.) . At paragraphs 7-9 of that decision Justice Himel states as follows:

7 Rule 13.01(1) of the Rules of Civil Procedure provides that a court may grant leave to intervene as an added party to a person who is not a party to a proceeding if the person can demonstrate:

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

8 The onus is on the applicant to demonstrate that the requirements of the rule are met. Where an applicant meets any of the criteria, the court is to consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. If there will be no such delay or prejudice, the court may exercise its discretion and add the applicant as a party on such terms as it considers just: Rule 13.01(2). In the case of Regional Municipality of Peel and Attorney General of Ontario v. Great Atlantic & Pacific Co. of Canada Ltd., (1990), 1990 6886 (ON CA) , 74 O.R. (2d) 164 (C.A.) at 167, the court outlined a number of factors to be considered on an application for intervention including: the nature of the case, the issues which arise and the likelihood that the applicant will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

9 In Re Schofield and Ministry of Consumer and Commercial Relations (1980), 1980 1726 (ON CA) , 28 O.R. (2d) 764 (Ont.C.A.) , the court held on a motion for leave to intervene that even where there is no direct interest in the case, a party without an interest in the outcome can provide an advantageous and perhaps unique position to the court. Other decisions have held that where the party's interest is no greater and will not be affected in any greater way than any other member of the general public, that is not a sufficient interest to support intervention: see Gould Outdoor Advertising v. London (City) (1997), 1997 12101 (ON SC) , 32 O.R. (3d) 355 (Gen.Div.) . To be a party adversely affected by a judgment in the proceeding, the party must show it will be affected in a greater way than any member of the general public but the party need not show that the adverse effect is direct: see John Doe v. Ontario (Information & Privacy Commissioner ), 1991 8373 (ON SCDC) , 7 C.P.C. (3d) 33 at 3 (Div.Ct.) ; United Parcel Service Can. Ltd. v. Ontario (Highway Transport Board ), [1989] O.J. No. 1707 at 2 . In deciding whether the proposed intervener would make a useful contribution, simply repeating the issues put forward by the main parties is not a useful contribution: Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 1992 7475 (ON SCDC) , 10 O.R. (3d) 203 (Div.Ct.) reversed on other grounds, 1993 8681 (ON CA) , 12 O.R. (3d) 646 (C.A.) . The court must be satisfied that the applicant brings some special expertise to the issues and can show that it can make a useful contribution to the proceedings: Ethyl Canada Inc. v. Canada (Attorney-General) [1997] O.J. No. 4225 (Gen.Div.) .

[ 6 ] These are the principles I have considered and applied in determining the issues on this motion.

[ 7 ] In my view, Mayotte has met the initial requirement of Rule 13.01(1) . It is clear that there exist common issues of fact between the two actions despite the fact that they may be proceeding on largely different legal theories. In fact, the defendant expressly acknowledges this reality at paragraph 48 of the affidavit it has filed in support of its motion for summary judgment. While the summary judgment motion may focus, for the most part, on issues unique to this action, I do not see how they can be completely separated from the overall factual matrix.

[ 8 ] In my opinion, however, Mayotte, although not required to do so, has not satisfied either of the first two tests under Rule 13.01(1) . Mayotte and the other class members have no interest in the subject matter of this action and they would not be affected by any judgment in this action. This action is a private contractual dispute between the plaintiffs and the defendant. It is true that some of the factual and legal issues overlap with the Class Action. However, any findings and conclusions made by the judge hearing the summary judgment motion in this action can only be of persuasive value, as a precedent. The trial judge in the Class Action will not be bound by any of those findings or conclusions. They will not prejudice Mayotte, or any of the other members of the class, in any way. The mere fact that the decision on the summary judgment motion may establish a precedent the class members may not like is not a sufficient basis to justify intervention. See M. v. H. , 1994 7324 (ON SC) at paragraph 34 .

[ 9 ] Nevertheless, Mayotte need only satisfy one of the three tests set out in Rule 13.01(1) and, in my view, he has met this onus.

[ 10 ] Once a proposed intervener has met at least one of the tests under Rule 13.01(1) , the analysis then turns to a consideration of the discretionary factors as required by Rule 13.01(2). My consideration of those factors leads me to the conclusion that Mayotte has not satisfied the court that he should be granted leave to intervene.

[ 11 ] First, I note that the two proceedings involve purely private disputes. Although the Crown is the defendant in both actions, the claims being made are commercial in nature based largely on an alleged breach of contract. I can see no public interest element to either action that would transcend the litigation. The simple fact that one of the actions is a certified class action does not elevate that proceeding to a matter of importance to the general public, regardless of the policy objectives of the Class Proceedings Act , 1992 , S.O. 1992, c.6 (the “CPA”). Leave to intervene in purely private disputes should rarely be exercised. There is a heavy burden on the proposed intervener to justify the intervention. See Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd. , [2002] O.J. No. 378 (S.C.J.) at paragraph 17 ; Authorson (Guardian of) v. Canada (Attorney General) , 2001 4382 (ON CA) at paragraphs 8 and 9 ; and, Lafarge at paragraph 11.

[ 12 ] Second, I am not satisfied that Mayotte would make a useful contribution to the summary judgment motion. As was stated by the Divisional Court in Stadium Corp. of Ontario Ltd. v. Toronto (City) , 1992 CarswellONT 491 (Div. Ct.), reversed on other grounds, 1993 8681 (ON CA) , 12 O.R. (3d) 646 (C.A.) at paragraphs 14 and 15 :

14 Proposed intervenors must be able to offer something more than the repetition of another party's evidence and argument or a slightly different emphasis on arguments squarely by the parties. The fact that the intervenors are prepared to make somewhat more sweeping constitutional arguments does not mean they will be able to add or contribute to the resolution of the legal issues between the parties.

15 Because the proposed intervenors have no evidence and no really different legal arguments to add to the position of the City of Toronto and the Attorney General, it is unlikely that they would be able to add any useful contribution to the resolution of this application. The motion to add the proposed intervenors is therefore dismissed.

[ 13 ] Mayotte argues that given his position as the representative plaintiff in a certified class proceeding, he can bring something extra to the argument of the summary judgment motion. Mr. Sterns submitted that Mayotte and his firm have a “very deep understanding” of the underlying facts. He also argued that Mr. Laan is a busy sole practitioner and that Mr. Stern’s firm has “greater assets” to apply to the argument of the motion. Finally, he argued that Mayotte can assist the judge hearing the summary judgment motion to understand the limitation issues raised by the defendant in the Class Action and “delineate where this action stops and the Class Action starts”.

[ 14 ] All of this strikes me as nothing more than the “repetition of another party's evidence and argument” which will undoubtedly be advanced by the parties to this action in any event. I have no doubt that Mr. Sterns and his colleagues are experienced and effective advocates. However, there is nothing to suggest that Mr. Laan and the plaintiffs in this action are not also perfectly capable of marshalling the resources and arguments necessary to respond to the defendant’s motion. Moreover, any limitations issues that may obtain in the Class Action are simply irrelevant to this action. The same can also be said for delineating where this action stops and the Class Action starts.

[ 15 ] In my view, the involvement of Mayotte and his counsel in the summary judgment motion will add very little to the argument of the issues on the summary judgment motion while unnecessarily expanding its scope into areas relevant only to the Class Action. This will only result in delay and greater expense to the parties to this action.

[ 16 ] I also reject the argument that the fact that the Class Action has been certified should militate in favour of intervention. Justice Perell may have determined that the Class Action was the preferable procedure, but it should also be noted that the CPA expressly allows class members the right to opt out of a class proceeding and pursue their claims on an individual basis. The parties to those individual actions should not have to be constantly looking over their shoulders to see if what they are doing is agreeable to a representative plaintiff in a parallel class proceeding. They should not be put to additional time and expense because a representative plaintiff in a class proceeding wishes to make his or her views known to the court hearing those individual actions. If Mayotte believes that this action or any other individual actions are adversely affecting the Class Action, he can seek a stay under section 13 of the CPA. This is the express remedy provided by the CPA. If anything, it is my view that this factor militates against granting Mayotte leave to intervene.

[ 17 ] Finally, given my finding above that Mayotte and the class members have no interest in the subject matter of this action, and that they would not be affected by any judgment in this action, it is my view that an order denying Mayotte leave to intervene will not result in an injustice to him or to the other class members.

[ 18 ] I have therefore concluded that it is just in the circumstances that leave to intervene be denied. Mayotte’s motion is dismissed.

[ 19 ] At the conclusion of argument, the parties agreed that the successful party should receive its partial indemnity costs fixed in the amount of $2,000.00. I therefore order that Mayotte pay the defendant’s costs of this motion in the amount of $2,000.00, inclusive of applicable taxes and disbursements, payable within 30 days.

Master R.A. Muir

DATE: May 29, 2012

[1] Mayotte v. Ontario , 2010 ONSC 3765 .