Court File and Parties

COURT FILE NO.: CV-18-590584

DATE: 20210519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WORKING FAMILIES ONTARIO, PATRICK DILLON, PETER MACDONALD, THE ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO, FELIPE PAREJA, THE ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION AND ON BEHALF OF THE MEMBERS OF THE ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION, THE ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND LESLIE WOLFE, Applicants

– and –

THE ATTORNEY GENERAL OF ONTARIO and THE CHIEF ELECTORAL OFFICER OF ONTARIO, Respondents

– and –

THE CANADIAN CIVIL LIBERTIES ASSOCIATION, Moving Party (Proposed Intervenor)

BEFORE: E.M. Morgan, J.

COUNSEL: Colin Feasby, Lindsay Rauccio, Graham Buitenhuis, Stephen Armstrong, for the Moving party

Yashoda Rangangathan and David Tortell, for the Respondents

HEARD: Motion in writing

LEAVE TO INTERVENE

[1] The Canadian Civil Liberties Association (“CCLA”) brings this motion under Rule 13.02 of the Rules of Civil Procedure to intervene in this Application as a friend of the Court. The Respondents oppose the intervention on the grounds that it will not provide a perspective on the issues that is sufficiently distinct from that of the Applicants in the now consolidated Application.

[2] The underlying Application seeks to have certain provisions of the Election Finances Act, RSO 1990, c. F.7, as amended by Bill 254 (the “EFA”), declared unconstitutional as being contrary to ss. 2(b) and (d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 12 (the “Charter”). The Application contends that the EFA offends freedom of expression and association by expanding the regulation of third-party political advertising in a number of ways. These include, among other things, a new restriction of political expression for up to a year preceding a provincial election and a limitation on collaboration between parties in respect of political advocacy.

[3] It is well established that the factors to examine on a request to intervene include: (a) the nature of the case and issues involved; (b) the likelihood that the proposed intervener can make a useful and distinct contribution to the case; and (c) whether the intervention will cause any injustice to the parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 OR (2d) 164, 167 (CA); Bedford v. Canada (Attorney General), 2011 ONCA 209, at para 8.

[4] I will delve only briefly into the extensive history of the CCLA in respect of the issues at stake in the present Application. This Court has previously observed that “[t]he [CCLA], a national organization created in 1964, actively promotes respect for and the observance of fundamental human rights and civil liberties”: Corporation of the Canadian Civil Liberties Association v. Ontario (Minister of Education) (1988), 1988 CanLII 4784 (ON SC), 64 OR (2d) 577. For present purposes, suffice it to say as the Court of Appeal has that the CCLA “has substantial experience in promoting and defending the civil liberties of Canadians”: Tadros v. Peel Regional Police Service, 2008 ONCA 775, at para. 3. The defense of civil liberties and constitutional rights is not just one of the CCLA’s various interests; it is its very mission: Canadian Civil Liberties Association v. Ontario (Attorney General), 2020 ONSC 4838, at para. 27.

[5] The CCLA has frequently been granted intervenor status in this Court and others to make submissions on matters touching on those within its expertise. In cases ranging from Nova Scotia Board of Censors v. McNeil, 1975 CanLII 14 (SCC), [1976] 2 SCR 265 to R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697 to Lavigne v. Ontario Public Service Union, 1991 CanLII 68 (SCC), [1991] 2 SCR 211 to Little Sisters Book & Art Emporium v. Canada (Attorney General), 2000 SCC 69, [2000] 2 SCR 1120 to Groia v. Law Society of Ontario, 2018 SCC 27, [2018] 1 SCR 772, to name only a few out of literally hundreds of cases, it has contributed through its interventions to the development of Canadian law on civil liberties generally and on freedom of expression and association in particular. Even more specifically, it has been an intervenor in a number of prominent cases dealing with the interface between electoral regulation and political expression: Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 SCR 1084; BC Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 SCR 93.

[6] I have no hesitation in concluding that the nature of the present Application and the issues involved are well within the CCLA’s area of interest and expertise. Given its history of interventions, there is little doubt that it will be able to make cogent submissions on the issues of political expression, association, and electoral regulation that this Application will raise. It is a public interest advocacy group whose participation as friend of the Court is unlikely to cause any particular prejudice to the Respondents whose position it opposes. The only question is the one raised by counsel for the Respondents – i.e. whether its submissions will be sufficiently distinct from those of the other parties to the Application.

[7] Courts have noted in previous cases that some degree of overlap between the parties and a public interest intervenor is to be expected. This is particularly the case in constitutional cases where, like in the present Application, there are few underlying factual issues to be resolved by the Court: Trinity Western University v. Law Society of Upper Canada, 2014 ONSC 5541, at para. 41.

[8] The fact that the CCLA and the parties will predictably cover some of the same topics or rely on the same authorities relevant to those topics, does not alone determine whether the proposed intervenor can offer a fresh perspective. As was recently held in Dorsey, Newton, and Salah v. Attorney General of Canada, 2021 ONSC 2464, at para. 25, “Notwithstanding their reliance on the same evidence to support the same result, I accept the submission of the [proposed intervenor] that the correct resolution of this set of test cases will be assisted by submissions that provide a broader understanding of the historical, legal, policy and practical contexts that surround [the challenged government action].

[9] Counsel for the CCLA submit that in Charter cases, it is especially important for the Court “to receive a diversity of representations reflecting the wide-ranging impact of its decision”: Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON SC), 16 OR (3d) 32, 37 (Gen. Div.). In its materials filed in support of this motion, the CCLA’s affiant points out that the CCLA has on two separate occasions made submissions to committees of the Ontario legislature respecting the changes to the EFA with respect to third-party advertising, the very changes at issue in this Application. While those submission may not have been required by the legislature, there is nothing to indicate that they were not useful to the committee’s deliberations. The same can be said about the CCLA’s proposed submissions here.

[10] The CCLA can be expected to bring a useful and different perspective to this Application by addressing the issues from the viewpoint of a national civil liberties organization concerned about the larger development of the law as it affects political expression. It is not, like the Applicants, a trade union (or group associated with a trade union) that wants to express itself in the politics of an upcoming election; its interest is discernably broader than that. Counsel for the CCLA explains that it seeks to place the present Application within an overall policy context that considers the appropriate balance between free speech and fair elections.

[11] The CCLA is presently the only proposed intervenor in the Application. This is not a case where there is a ‘pile-on’ of public interest groups intervening on one side of the issues. Likewise, it is not a case where the proposed intervention will jeopardize the timetable set out for the case. The hearing is set to proceed on June 2-3, 2021, and nothing in the CCLA’s motion indicates that its participation will impact on those dates. Moreover, the CCLA’s involvement will be limited to legal submissions and will not include the submission of any new evidence, and thus will not greatly expand the task before the Court.

[12] I see a potential for enriching the legal argument, and see no potential for prejudice, in granting the CCLA the status that it requests in this Application. In my view, to do so will serve to enhance the public interest in resolving the Charter issues at stake.

[13] The CCLA is granted leave to intervene in this Application and to file a factum not exceeding 20 pages. It will have the opportunity to make oral submissions not to exceed 20 minutes at the hearing of the Application.

[14] As a friend of the Court, the CCLA is not to seek costs from any party to the Application, nor will it be liable for costs to any party.

Morgan J.

Date: May 19, 2021