Court File and Parties
COURT FILE NO.: CV-19-81809 DATE: 2019/12/23
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: City of Ottawa, Applicant (Responding Party on Motion) AND: Clublink Corporation ULC, Respondent (Responding Party on Motion) AND: Kanata Greenspace Protection Coalition, Proposed Intervenor (Moving Party)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Alyssa Tomkins and Charles Daoust, for the Proposed Intervenor Matthew Gottlieb and James Renihan, for the Respondent Clublink
HEARD: December 19, 2019
DECISION AND REASONS
[1] This is a motion in connection with a pending Application between City of Ottawa (“the City”) and Clublink Corporation ULC (“Clublink”). In the Application, the City alleges that the proposal by Clublink to convert the Kanata Golf and Country Club and other lands into residential housing is a violation of a series of agreements originally signed between Campeau Corporation and the former City of Kanata (“the 40% agreements”). The City seeks enforcement of the agreements.
[2] Kanata Greenspace Protection Coalition (“the Coalition”) is a corporation established as a vehicle for residents of the community who are opposed to the proposed redevelopment and are said to be beneficiaries of the 40% agreements. The Coalition seeks to intervene in the Application and brings this motion pursuant to Rule 13 of the Rules of Civil Procedure.[^1] The City takes no position on intervention. Clublink opposes it. This was the point of the motion.
[3] As I explained to the members of the public who attended the hearing, the question before me is a procedural one. In simplest terms, I have to decide whether it will assist the process to have three sets of lawyers arguing the application or only two. In other words, is the participation of the Coalition necessary to ensure justice is done or is advocacy best left to the Applicant and the Respondent? This is not a judgment on the merits of the Application one way or another. Nor, if the application is denied is it a limit on the rights of the community members or the Coalition to advance their position or their legal, moral or political rights in any other forum.
[4] Although the Coalition asks to intervene as a party, it does not ask to file affidavit material or introduce new evidence. I have concluded that a restricted intervention is warranted along the lines proposed. It may be necessary for the precise role of the Intervenor to be further refined after the positions of the parties have been crystalized. That may take place through the case management process or by the exercise of discretion by the Application judge.
Background
[5] The factual background is detailed and complex but for purposes of this motion, a brief outline will suffice. The Golf Course lands and the surrounding community are located on lands assembled and developed by Campeau Corporation in the 1980s. At that time, planning approval and amendments to the Official Plans involved two tiers of municipal government and other actors. In obtaining approval for this development, Campeau proposed to allocate 40% of the Campeau lands for open and green space to include an 18 hole golf course.
[6] According to the evidence in the City’s application record, the Regional Municipality of Ottawa Carleton required Campeau Corporation to enter into a contract with the City of Kanata as a condition of amending the Official Plans. That contract and subsequent amendments are collectively referred to as the 40% agreement and form the subject matter of the Application.
[7] As discussed earlier, the Application is brought by the City to uphold and enforce the 40% agreement. It is the City’s position and that of the Coalition that the agreement was intended to preserve 40% of the development lands as green or open space for the benefit of the Kanata Marchwood Lakeside Community and to provide for a golf course within the green space. Clublink is a successor in title to Campeau Corporation with respect to the Golf Course lands and of course the amalgamated City of Ottawa is a successor to the rights and obligations of the former City of Kanata.
[8] The Application was triggered by an application by Clublink, to rezone the golf course and for approval of a plan of subdivision. Clublink proposes to convert the golf course to residential housing. The City contends that even although the Golf Course remains in operation, the application for planning approval is a breach of the 40% agreement which remains binding on Clublink. One of the provisions of that agreement requires the owner of the Golf Course lands to convey them to the City for a nominal amount if the owner no longer wishes to operate the golf course. The original agreement was registered against the Campeau lands. That agreement and other restrictive covenants were registered against the Golf Course lands and against each of the lots on which individual homes were subsequently constructed. According to the affidavit evidence, this affects approximately 1700 homes.
[9] The coalition is a not for profit corporation created on July 11, 2019 for the stated purpose of preserving and protecting Kanata’s green spaces and to promote the value of its natural environment. It purports to represent the interests and/or rights of the community members and homeowners who make up the Kanata Marchwood Lakeside Community including the neighbourhoods identified in the City’s application record. The coalition purports to be an umbrella group with the support of various community and neighbourhood associations and with over 1200 signed up supporters. It is clear from the affidavit in support of the motion that its principle activity is to oppose the development and the resultant loss of green space.
[10] Although the corporation does not itself own land, it is a vehicle adopted by the community to advocate for the rights of the community members. The Respondent opposes intervention but it does not challenge the standing of the Coalition to bring this motion.
Analysis & Decision
[11] Intervention is governed by Rule 13. Rule 13.01 permits the court to grant leave to a person to be added as a party. Rule 13.02 permits the court to permit intervention as a friend of the court. In either case the court may make the order on terms and may make such other order as is just.[^2] This permits the judge to impose conditions or restrictions on the manner in which the intervenor may participate.
[12] As the rules make clear, granting of leave is discretionary and may be granted if the proposed intervenor meets one or more of certain conditions. The applicable sub-rules read as follows:
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(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. R.R.O. 1990, Reg. 194, r. 13.01 (1).
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).
LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 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. R.R.O. 1990, Reg. 194, r. 13.02; O. Reg. 186/10, s. 1.
[13] In this case the intervenor seeks party status. It does so on the basis that it meets the test in Rule 13.01 (1) and also that the individual members of the community have rights of action which could be exercised individually or, one supposes, as a class proceeding. The intervenor argues that it is more efficient and just to permit intervention. It agrees to respect the existing timetable and not to delay the hearing of the application. Clublink opposes intervention in the first instance but if it is granted, proposes strict limitations.
[14] Clublink argues that intervention should rarely be granted in a dispute over interpretation of a private contract. While it is true that the application is technically about an agreement structured as a contract between the City and the owner, it is not accurate to characterize the 40% agreement as solely a private contract. The requirement that Campeau enter into a written contract with Kanata was a term of a larger agreement reached with the late Regional Municipality of Ottawa Carleton and the former City of Kanata. The development proposal which included the reservation of 40% of the lands as open space required amendments to both the Regional and Local Official Plans as well as other planning documents. The agreement was a condition of approval. There is a public aspect of this agreement because it affects all of the former Campeau lands. The case is unlike Peixeiro v. Haberman and more like Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre.[^3]
[15] In addition, I agree with the Coalition that the agreement specifically states it is for the benefit of the Kanata Marchwood Lakeside Community. I disagree with Clublink that this is a vague term. The community is the community located on the development lands formerly owned by Campeau and the subject of the original rezoning and development proposal. It certainly includes residents of the neighbourhoods identified by the City in its application record. The beneficiaries of the 40% agreement include the lands surrounding the golf course. In fact, many of those properties have the agreement registered on title. It is entirely possible that these landowners have individual or collective rights of action. I need not determine the validity or extent of those rights for purpose of this motion. Nor need I determine whether the City and Clublink could amend or terminate the agreement without consulting the owners of the lands represented by the Coalition. Clearly the members of the coalition have an interest in this matter independent of the interest of the City. They purport to be the members of the Kanata Marchwood Lakeside Community referenced in the 40% agreement.
[16] In any event the homeowners who live in the area clearly have an interest in the maintenance of the 40% agreement and the retention of green space in their neighbourhood. Clublink objects that the evidence of potential reduction in property values and health benefits of green space is not properly before me but those objections in the context of this motion are unfounded. I need not accept the accuracy of the reports to accept that the homeowners have a basis to be concerned about diminution of property values and loss of green space. In addition, in my view, it is sufficient that the homeowners stand to lose the benefit of 40% green space which they believe was guaranteed. The impact on the nature and character of the neighbourhood if the development proceeds would obviously be profound.
[17] Although the proposed intervenor is a recently created corporate vehicle and not a well recognized organization, there is no doubt that it has wide support in the community and is well placed to represent its members. Those members have a direct and substantial interest in the subject matter of the application. The interest is specific to the community that benefits from the 40% agreement and is not simply an interest in common with all citizens of Ottawa.
[18] The criteria in Rule 13.01 (1) are easily met in my view.
[19] The more difficult question is whether or not I should exercise discretion to grant intervenor status and on what terms. It is difficult because the jurisprudence establishes criteria for the exercise of discretion which are not entirely consistent. I do not intend to review all of the cases cited by counsel still less all of those contained in the extensive briefs of authorities but I make the following general observations.
[20] Firstly, judges are given discretion so that they may tailor remedies to the particular facts they are faced with and to make orders and decisions that appear just in all of the circumstances. Discretion should not be exercised arbitrarily or whimsically, and the exercise of discretion should be guided by accepted principles. Nevertheless, it is a mistake to regard examples of principles applied in other cases as a straitjacket. The exercise of discretion necessarily means approaching the question on a case by case basis.
[21] Secondly, many of the cases cited by counsel are cases concerned with intervention at the appellate level, Judicial Review proceedings or on motions such as summary judgment motions. While the test under Rule 13 is the same, the considerations and the nature of the proposed intervention in these proceedings may be considerably different. For example, leave to appeal at the Court of Appeal or the Supreme Court of Canada may be sought by organizations more concerned with the development of the law and changes in critical jurisprudence than the outcome of a particular piece of litigation. Considerations in constitutional cases or Charter cases may be different than in private litigation.[^4]
[22] Intervention is not a shortcut to avoid the necessity of commencing a separate proceeding. It is a narrow right for the intervenor to add its voice to a matter that is already before the court. The cases establish that an intervenor cannot add new issues to the litigation. At the same time, their contribution must be more than saying “me too”. That is, it is not useful to the court or fair to the parties simply to have an intervenor repeat the same arguments as one of the existing parties.[^5]
[23] Intervention, even intervention as a party, is quite different from commencing a separate proceeding with common issues and asking that the two be heard together. It is different in nature from joinder as a necessary party under Rule 5.03. That rule provides for the addition of parties whose participation is deemed necessary. Rule 13, by contrast, is a rule providing for the addition of a party who shares an interest in the proceeding and whose participation is deemed useful. Although an intervenor may be given rights almost as broad as a full party, their participation should be restricted to its proper purpose. If the intervenor wishes broader rights which would add new issues or complexity, the better approach is to commence a separate proceeding.
[24] Although the rules governing intervention in other courts or other jurisdictions may differ from the Ontario rule, the common thread in the exercise of discretion appears to be that an intervenor must have an interest in the proceeding, must have a different and useful perspective and the intervention must not complicate the proceeding or drive up the costs of the existing litigants.[^6] In Ontario the test remains the test enunciated in Peel v. Great Atlantic & Pacific Co. of Canada Ltd.[^7] The factors are the nature of the case, the issues that arise in the case and the likelihood that the proposed intervenor will be able to make useful contribution to the resolution of the matter without injustice to the immediate parties.
[25] I am of the view that those criteria are satisfied in the present case. The Coalition does not propose to add any affidavit material except the affidavit of Barbara Ramsay which identifies the Coalition and who it represents. While the Coalition believes its members have independent legal rights, there is no right or remedy sought by the Coalition other than the findings already sought by the City.
[26] The Coalition will wish to draw documents to the attention of the application judge such as restrictive covenants and grading plans already contained in the application record and may wish to submit that the residents themselves have rights as third party beneficiaries of the 40% agreement. They cannot add new issues to the application. It will be up to the application judge to determine if the submission that the agreement creates a charitable purpose trust is a new issue or simply a submission relevant to the issues already before the court.
Conclusion
[27] In conclusion, leave is granted to the Coalition to intervene as a party since they do not approach this matter with the neutrality one would expect of a friend of the court. Despite being granted intervenor party status, however, the Coalition may not file additional evidence other than the Ramsay affidavit. The Coalition may attend and ask questions on any cross examinations, may file a factum and may present argument on the hearing of the application. But the coalition will not have an independent right of appeal. If there is an appeal, the Coalition may participate subject to directions from the appellate court.
[28] The Respondent asked that I place limits on the length of the factums. I agree that is appropriate, but I consider it premature. This application is case managed and the application date has been set for the week of February 24th, 2020. Once all the affidavits have been served and any cross examinations completed the parties should either agree on the lengths of the factums and a timetable for their exchange or request a case conference if they are unable to do so. I will also provide further direction if required.
Costs
[29] The parties advised they may be able to agree on costs of this motion and I encourage them to do so. The Coalition had indicated they would not seek costs of the Application and also asked to be insulated from a costs award but as I indicated at the hearing, I consider it inappropriate to grant a prophylactic costs award. The applications judge will have to determine if the participation by the Coalition drove up the costs of either of the parties and how to respond if that proves to be the case.
[30] In the event counsel are unable to resolve the costs of the motion, they may advise me of that fact within the next 30 days and I will provide further direction as to how the issue will be resolved.
Mr. Justice C. MacLeod
Date: December 23, 2019
COURT FILE NO.: CV-19-81809 DATE: 2019/12/23
ONTARIO SUPERIOR COURT OF JUSTICE
RE: City of Ottawa, Applicant (Responding Party on Motion) AND: Clublink Corporation ULC, Respondent (Responding Party on Motion) AND: Kanata Greenspace Protection Coalition, Proposed Intervenor (Moving Party)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Matthew Gottlieb and James Renihan, for the Respondent Clublink Alyssa Tomkins and Charles Daoust, for the Proposed Intervenors
DECISION AND REASONS
Mr. Justice Calum MacLeod
Released: December 23, 2019
[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^2]: Rule 37.13 (1) and Rule 13.01 (2) [^3]: See Piexeiro v. Haberman, (1994) 1994 7322 (ON SC), 20 OR (3d 666, 33 CPC (3d) 388 (Gen. Div.) and Bloorview Children’s Hospital Foundation v. Bloorview MacMillan Centre, 2001 CarswellOnt 1542, [2001] O.J. No. 1700 & 1701 [^4]: See Bedford v. Canada, 2009 ONCA 669 [^5]: See for example the review of the law in Steeves v. Doyle Salewski Inc, 2016 ONSC 2223 and the test as outlined in Hydro One Networks Inc. v. Ontario Energy Board, 2019 ONSC 3763 (Div. Ct.) [^6]: See for example, Workers Compensation Act, 1983 Reference, 1989 23 (SCC), [1989] 2 SCR 335 [^7]: (1990) 1990 6886 (ON CA), 74 OR (2d) 164 (CA) – although that case dealt with intervention in an appeal, the criteria have been widely applied.