COURT FILE NO.: CV-07-CV009334-0000 DATE: 20240530 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, c. C.30

BETWEEN:

Emily Stock, for the proposed intervenor, Keith Bannon James A. LeBer and Eric A.F. Grigg, for the Plaintiff

Southside Construction (London) Limited Plaintiff/Defendant by Counterclaim – and – The Corporation of the City of Windsor Defendant/Plaintiff by Counterclaim

Valerie Calvano, for the Defendant [1]

HEARD: November 22, 2023

RULING ON INTERVENTION MOTION

Howard J.

Overview

[1] I was designated the case management judge for this matter in November 2015 in anticipation of the retirement of the previous case management judge, Gates J., in December 2015.

[2] In February 2004, the City of Windsor (the “City”), as owner, entered into a construction contract with Southside Construction (London) Limited (“Southside”), as general contractor, for the construction of a 224-bed long-term care facility in Windsor, known as the Huron Lodge Home for Seniors (“Huron Lodge”).

[3] The contract named Montgomery Sisam Architects Inc. and J.P. Thomson Associates Ltd. as the architectural consultants (the “Architects”).

[4] In 2013, the City entered into direct negotiations with a number of unpaid subtrades of Southside who worked on the Huron Lodge project and who were third parties in this litigation. The City reached conditional settlements with eight third party subtrades [2] (the “Settling Third Parties”) from August through to October 2013 (the “Eight Settlement Agreements”).

[5] By statement of claim issued June 15, 2007, Southside sued the City for payment of the balance owing. The City counterclaimed for deficiencies and delay. As Southside’s work on the Huron Lodge project was carried out by subcontractors, in each case of deficiency and delay alleged by the City against Southside, Southside issued third party claims on the City’s counterclaim against each respective subtrade that performed the actual work.

[6] Southside also commenced third party proceedings against the Architects on the City’s counterclaim, seeking contribution and indemnity. The Architects defended the third party proceedings and cross-claimed against the subtrades, seeking contribution and indemnity for the claims of the City advanced against the Architects by counterclaim through Southside. [3]

[7] Each of Southside and the Architects brought motions for mirror relief, seeking, inter alia, an order pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [4] staying the City’s counterclaim against Southside, the City’s third party claim against the Architects, and the counterclaims, crossclaims, or other claims of the Settling Third Parties that were assigned to the City.

[8] For reasons released April 11, 2022, [5] I granted the motions and permanently stayed the counterclaim and third party claim of the City (and the other claims arising therefrom), on the basis that the failure of the City to immediately and fully disclose the Eight Settlement Agreements, which altered the litigation landscape of the proceedings, constituted an abuse of process by the City (the “Stay Decision”).

[9] However, an issue has since arisen concerning the impact of the Stay Decision on the litigation and, in particular, the City’s set-off defence. It appears there is a dispute between Southside and the City as to, at the very least, whether and to what extent the City can maintain defences of legal and equitable set-off as it relates to performance issues given the Eight Settlement Agreements and the Stay Decision.

[10] As reflected in my endorsement of June 15, 2023, there was discussion at the case conference held that day about the procedural vehicle through which the issue concerning the consequences of the Stay Decision would be presented to the court for determination. At the time, it was thought that a motion for directions was the appropriate vehicle. Subsequently, at the case conference held October 13, 2023, Mr. Sean Dewart (appearing as agent for Borden Ladner Gervais LLP, lawyers for the City) expressed the view that the more appropriate vehicle would be a pleadings amendment motion. I am advised that counsel are still in discussions concerning the nature of the motion to have the issue of the consequences of the Stay Decision determined by the court (the “Pending Motion”).

[11] The Pending Motion has yet to be argued.

[12] Mr. Keith Bannon, the former lawyer for the City who was involved in the negotiation of the Eight Settlement Agreements, now brings this motion as proposed intervenor seeking an order for leave under rule 13.01 of the Rules of Civil Procedure [6] to intervene as an added party to the Pending Motion. Counsel advised that Mr. Bannon will not be filing affidavit material on the Pending Motion but does seek permission to deliver a factum and make oral submissions on the Pending Motion.

[13] The City takes no position on the intervention sought by Mr. Bannon on the Pending Motion (and neither delivered a factum nor made oral submissions on the hearing of the intervention motion). However, the intervention is opposed by Southside.

[14] For the reasons that follow, the intervention motion of Mr. Bannon is dismissed.

Factual Background

[15] There is no real dispute amongst the parties as to the underlying facts. In para. 8 of its factum, Southside states that it does not dispute the general summary of the background of the action set out in paras. 8-17 of the factum of Mr. Bannon.

[16] As reflected in para. 2 of my endorsement of August 28, 2023, at the case conference held that day, counsel were directed to contact Trial Coordination in order to schedule a date for the hearing of the Pending Motion. At that point, it appeared “that the motion may be able to be held in November 2023, and certainly before the end of the year.”

[17] The Pending Motion was subsequently scheduled for November 22, 2023.

[18] At the subsequent case conference held October 13, 2023, which was now attended by Ms. Stock on behalf of the proposed intervenor, Ms. Stock advised that she intended to bring a motion on behalf of Mr. Bannon to permit him to intervene on the Pending Motion. Counsel agreed that the intervention motion would need to be heard and determined before the Pending Motion. Accordingly, it was ordered, on consent, that the special appointment date of November 22, 2023, which had been scheduled for the hearing of the Pending Motion, would now be used for the hearing of the intervention motion, if necessary. Leave was given to the proposed intervenor to file his materials on the intervention motion.

[19] In paras. 17 of the factum of the proposed intervenor, Ms. Stock advised that “the City has indicated an intention to commence a claim against [Mr. Bannon] with respect to the issues that led up to the [Stay Decision].” At the hearing of the intervention motion, Ms. Stock indicated that although a claim has been made against Mr. Bannon, no statement of claim had been issued (at least as of that date). There was no evidence before the court on the intervention motion in this regard, but counsel for Southside did not object to the court receiving this information.

[20] The Pending Motion has tentatively been scheduled for argument on Thursday, July 18, 2024, which date the court is holding, pending confirmation from counsel.

[21] To be clear, the proposed intervenor does not seek to intervene in the trial of the action between Southside and the City. Mr. Bannon seeks only to intervene as an added party on the Pending Motion.

Issues

[22] The following issues arise on this intervention motion:

a. Has Mr. Bannon satisfied at least one of the three conditions set out in subrule 13.01(1)?

b. Should the court exercise its discretion under subrule 13.01(2) to permit Mr. Bannon to intervene as an added party on the Pending Motion?

Analysis

The Legal Principles Applying to Intervention Motions

[23] There is no real disagreement between the parties as to the applicable legal principles.

[24] Under rule 13.01 of the Rules of Civil Procedure, a non-party may seek to intervene in a proceeding as a party. The rule states:

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.

(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.

[25] On the motion before me, Southside did not contest that rule 13.01 may have application to a situation where, as here, a proposed intervenor seeks to intervene in a motion. [7]

[26] It is common ground that rule 13.01 provides for a two-stage process. At the first stage, the proposed intervenor must satisfy at least one of the three conditions or requirements set out in subrule 13.01(1), and, for such purposes, the test is disjunctive. [8]

[27] However, the decision to add a proposed intervenor as a party to a proceeding under rule 13.01 is a discretionary one. It is not sufficient merely to fit oneself within the provisions of subrule 13.01(1). The proposed intervenor must still satisfy the court that the court should exercise its discretion to add them as a party to the proceeding. [9]

[28] Thus, even where a proposed intervenor satisfies one of the three conditions under subrule 13.01(1), at the second stage, the court must still consider whether to exercise its discretion to add the person as a party to the proceeding, having regard for all relevant considerations, including, the nature of the case, the issues that arise, whether the issues are essentially private or whether they involve some public interest component, the likelihood of the proposed intervenor making a useful contribution to the resolution of the issues, and whether the proposed intervenor’s participation would cause some unfairness or prejudice to the immediate parties. [10] Indeed, subrule 13.01(2) mandates that the court “shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.”

[29] As such, the exercise of the court’s discretion under subrule 13.01(2) reflects a gate-keeping function. [11]

[30] Simply repeating the issues, evidence and argument put forward by the main parties to the application is not a “useful contribution.” Rather, the moving party must show that it has something to add or contribute to the resolution of the issues. [12] “No useful contribution can be offered by an intervenor who essentially repeats the position advanced by a party, even with a different emphasis.” [13] As Watts J.A. put it in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), “[t]he ‘me too’ intervention provides no assistance.” [14]

[31] If the proposed intervener has a contribution to make, the court must still consider whether that intervention is sufficient to counterbalance the added “magnitude, timing, complexity and costs.” [15]

[32] The onus lies with the proposed intervenor to show that intervention is warranted. The burden on the proposed intervenor to intervene in a private dispute is heavier than in cases that involve constitutional issues or other broad public interests. [16]

[33] Indeed, the courts have repeatedly held that leave to intervene in a private lawsuit should be granted in “rare” cases only. [17] Speaking for the Divisional Court in Rare Charitable Research Reserve v. Chaplin, 2008 ONSC 48651 (Div. Ct.), Wilson J. said: “[i]n private, as opposed to public litigation, the discretion to add parties should be exercised sparingly or rarely, depending upon the facts of this case.” [18]

Has Mr. Bannon Satisfied At Least One of the Three Conditions Set Out in Subrule 13.01(1)?

Does Mr. Bannon have an interest in the subject matter of the proceeding?

[34] Clause (a) of subrule 13.01(1) asks whether the proposed intervenor has an interest in the subject matter of the proceeding. The onus is on Mr. Bannon to establish that he has an interest in the subject matter of the Pending Motion.

[35] I am not satisfied that Mr. Bannon has satisfied his onus here.

[36] As J.W. Quinn J. emphasized in Finlayson v. GMAC Leaseco Ltd. (2007), 84 O.R. (3d) 680, clause (a) requires an “interest in the subject matter of the proceeding [which] is to be distinguished from an interest in the outcome of the proceeding.” [19] [Emphasis in original.]

[37] The subject matter of the Pending Motion involves the legal consequences of the Stay Decision and its impact on the litigation and, in particular, the City’s set-off defence as it relates to performance issues.

[38] Mr. Bannon was and is not a litigant in the proceeding before the court in which the Stay Decision was issued. He was not a litigant in the third, fourth, fifth, or sixth party claims arising out of the instant proceeding. He asserted no claims in this litigation, and no claims of his were stayed or otherwise affected by the Stay Decision. Moreover, Mr. Bannon claims no interest in the construction contract at issue. He claims no interest in the Huron Lodge facility that was constructed because of the performance of that contract. He claims no interest in the funds that may be paid by the City to Southside.

[39] I can certainly understand why Mr. Bannon may be impacted by the outcome of the Pending Motion, and I will turn to consider clause (b) presently. However, in my view, it is important to give meaning to both clause (a) and clause (b) of subrule 13.01(1) and be sensitive to the different purposes they serve. They are two separate clauses, and, in my view, one should not conflate their meaning.

[40] In fairness to Ms. Stock, I understood her submissions before me to be that an interpretative approach that does not conflate the three clauses is to be preferred.

[41] Of course, there may well be times where a proposed litigant has both an interest in the subject matter of the proceeding within the meaning of clause (a) and also may be adversely affected by a judgment in the proceeding under clause (b). That was the case in Trempe v. Reybroek (2002), 57 O.R. (3d) 786, where Molloy J. permitted the former lawyer for the defendant (Mr. Taylor) to intervene as an added party on the motion for judgment brought by the plaintiffs, finding that:

In my opinion, Mr. Taylor meets all three tests. He has an interest in the subject matter of the motion and may be adversely affected by the result reached in the motion. The central issue on the motion is whether he acted properly in consenting to Minutes of Settlement which purport to bind the defendants and, in particular, which purport to require Mr. Reybroek to move out of York Region. Depending on the result of that issue, he will either have no exposure to any liability (e.g., if it is found that the clause is enforceable and that he had actual instructions from the defendants to agree to it) or he may be exposed to liability to an action against him either by the Reybroeks or by Belair Direct. Thus, the test in clauses (a) and (b) of Rule 13.01 are met. [20] [Emphasis added.]

[42] In Trempe, the allegation was that the proposed intervenor/former lawyer, Mr. Taylor, did not have the authority to agree to a term in the settlement agreement (that required the defendant to move his residence outside York Region), and a determination of that issue would be dispositive of the potential case against the proposed intervenor. Hence Molloy J. found that the “central issue on [the plaintiffs’ motion for judgment] is whether he acted properly …”

[43] That is not the case here. It cannot be said here that the “central issue” on the Pending Motion is whether Mr. Bannon “acted properly.” As Ms. Stock argued in para. 30 of the factum she delivered on behalf of Mr. Bannon, all counsel agree that the purpose of the Pending Motion is to have the court finally determine the consequences of the Stay Decision and the finding of the City’s abuse of process on the City’s set-off defence. Whether Mr. Bannon did or did not “act properly” is not an issue in the Pending Motion, let alone is it the “central issue.”

[44] Trempe was simply a different set of circumstances. It is distinguishable from the case before me and is of no assistance to Mr. Bannon here.

[45] In oral argument before me, Ms. Stock submitted that clause (a) was satisfied because, inter alia, “the legal issues of whether – and the impact of the stay order on the set-off claim is an issue that directly engages Mr. Bannon and the claim that has been made against him, albeit without the filing of a statement of claim.”

[46] Respectfully, I regard that argument as saying that Mr. Bannon may be adversely affected by the ultimate judgment in the Pending Motion. As such, it may be relevant to a consideration of clause (b) but, again, I believe it is important not to conflate the two different requirements.

Does a common question of law or fact exist between Mr. Bannon and one or more of the parties to the proceeding?

[47] Clause (c) of subrule 13.01(1) asks whether there exists a common question of law or fact in the Pending Motion and some other proceeding in which Mr. Bannon is involved or has an interest.

[48] Again, I am not satisfied that Mr. Bannon has discharged his onus here. For example, it was not suggested that Mr. Bannon was a party to some other litigation where one of his claims (or even the claim of another party) was permanently stayed by the court on the grounds of abuse of process, such that, the court’s determination of the Pending Motion may impact the interpretation of the consequences of the stay of proceedings on the claims in Mr. Bannon’s other proceeding.

[49] I note also that the language of clause (c) asks whether there “exists” a common question of law or fact. As I read it, clause (c) uses the present tense, and the inquiry is directly to currently existing circumstances. The question is not “might there exist a common question of law or fact at some point in the future?” Rather, the question is whether one “exists” at present.

[50] To my mind, the decision of Lederer J. in Rare Charitable Research Reserve v. Chaplin, 2007 ONSC 6700 is of assistance in understanding the scope of clause (c) of subrule 13.01(1). In that case, two solicitors sought to intervene in two applications arising out of an unusual real estate transaction, where the transfer of the subject property was subject to certain covenants and options. In the first court application, the applicants sought a declaration that the covenants and options were invalid and unenforceable. A second application was commenced, seeking a declaration that the covenants and options were all bona fide and in full force and effect.

[51] Significantly, two further civil proceedings were then commenced against the two solicitors who had advised the property owners and the transferee charity, alleging professional negligence on the part of those lawyers.

[52] The two solicitors were given leave to intervene in the court applications, in part, because there was a common question of law and fact. [21] But again, in Rare Charitable, there was separate litigation already commenced against the lawyers dealing with the same issues, transaction, and alleged professional negligence. That is not the case here.

[53] I appreciate that in Trempe v. Reybroek, Molloy J. also found that clause (c) had been satisfied, even when no litigation had yet been commenced against the proposed intervenor/litigant there. For present purposes, Southside takes no issue with the Trempe decision in this regard. Given my conclusion on clause (a) below, I need not attempt to reconcile the apparently competing interpretations of clause (c) here.

[54] That said, and in any event, I observe that the task of determining whether common questions of fact or law exist is rendered considerably more difficult where, as here, the issues in both intended proceedings have not been definitely framed or crystallized. As Southside says in para. 32 of its factum, there is a practical problem here: since the City has not yet commenced a statement of claim against Mr. Bannon, it cannot be known with certainty at this point what issues will be put in question by the City’s claim and/or Mr. Bannon’s defence.

[55] That practical difficulty is compounded by the fact that, as previously referenced, counsel for the parties here have not agreed upon the nature of the Pending Motion and what rule it will be brought under (a pleadings amendment motion? A summary judgment motion?).

[56] To the extent that it seems to be accepted by counsel that the Pending Motion will involve the question of the impact of the Stay Decision on the City’s set-off defence, I agree with Southside that it is not at all obvious that those are questions that will be in issue in the threatened professional negligence claim against Mr. Bannon.

[57] Similarly, it is not at all obvious to me that there would be any commonality between the issues in the professional negligence claim against Mr. Bannon and those in a pleadings amendment motion between Southside and the City.

Is Mr. Bannon a person who may be adversely affected by a judgment in the proceeding?

[58] I accept that Mr. Bannon may be adversely affected by the court’s judgment in the Pending Motion.

[59] In coming to this conclusion, I recognize that Mr. Bannon has provided no evidence to show that he may be adversely affected by the court’s decision in the Pending Motion, and that the failure of a proposed intervenor/former lawyer for one of the parties to provide such evidence has been a factor in other decisions dismissing the proposed intervenor’s request to intervene. [22]

[60] In the circumstances of the instant case, I am not satisfied that, as referenced in para. 33 of the factum of the proposed intervenor, the potential impact of any decision in the Pending Motion on “counsel’s competency and integrity” or other “adverse findings or observations” [23] on Mr. Bannon’s reputational interests is sufficient to justify Mr. Bannon’s intervention. I agree with the analysis of Nordheimer J. in Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd., 2002 CarswellOnt 350 that an adverse effect on counsel’s reputational interests and the like does not constitute the type of adverse effect on the legal interests required by clause 13.01(1)(b).

[61] In this regard, Ms. Stock relies upon the Court of Appeal’s 2009 decision in Butty v. Butty (2009), 98 O.R. (3d) 713 (C.A., in chambers). In that case, it was said that in the course of lengthy written reasons for judgment in a family trial, the trial judge was “extensively and highly critical” of the lawyer for the applicant husband, believing that counsel “purposefully suppressed information and disclosure in an explicit attempt to mislead opposing counsel and the court.” [24] In the appeal from the trial decision, counsel for the husband was permitted to intervene on appeal.

[62] However, it will be seen at once that Butty v. Butty is plainly distinguishable on its facts. In the instant proceeding, there has been no judgment that is “extensively and highly critical” of Mr. Bannon personally. (I also note in passing that in Butty v. Butty there was affidavit evidence from the proposed intervenor as to the impact on his professional reputation and the adverse impact on his practice, which, as I have said, is absent here. [25])

[63] Further, one of the features of Butty v. Butty that persuaded the chambers judge to grant the lawyer leave to intervene on appeal was that there were “likely no other remedies available” to counsel to address their concerns “other than by intervening in the appeal.” [26]

[64] That consideration also distinguishes Butty v. Butty from the case at bar, in that, Mr. Bannon will have another forum in which to defend his reputation and other professional interests. On the assumption that the City will proceed with its claim against Mr. Bannon, then that civil action will be the appropriate forum in which Mr. Bannon may defend his professional reputation and conduct. [27]

[65] That said, I am persuaded that the real potential for future liability of Mr. Bannon is sufficient to satisfy the criteria under clause (b). I am advised by counsel that the City has indicated an intention to commence a claim against Mr. Bannon with respect to the issues that led up to the Stay Decision and the stay of the City’s claims.

[66] In the event that this court determines the Pending Motion so as to, in effect, find that the consequences of the Stay Decision are that the City is not entitled to plead the defence of legal and equitable set-off, this could directly impact any claim against Mr. Bannon by the City for his role in the negotiation of the Eight Settlement Agreements. As such, the judgment in the Pending Motion may adversely affect Mr. Bannon by exposing him to liability to his former client. [28]

[67] Southside argues that any effect of the Pending Motion is “incidental at best” and depends on a number of unknown conditions and variables. The latter is true. But again, in interpreting the scope of rule 13.01, the language of the provisions is important. Clause (b) of subrule 13.01(1) uses the term “may” – has it been shown that the potential intervenor “may” be adversely affected by a judgment in the proceeding? The language of the provision does not require a showing that the intervenor will certainly be adversely affected. Absolute certainty is not required. It asks only whether the intervenor “may” be adversely affected.

[68] I do not believe the prospect of a claim against Mr. Bannon to be highly speculative. I accept the information provided by Ms. Stock, as an officer of the court, that the City has made a claim against Mr. Bannon, albeit without the filing of a statement of claim (yet).

[69] As such, I accept that the potential exposure of Mr. Bannon as a former lawyer of the City to a threatened professional negligence action by the City is sufficient to satisfy the requirement under clause (b) that Mr. Bannon show that he may be adversely affected by a decision in the Pending Motion.

[70] In the result, I find that Mr. Bannon has satisfied his onus of showing that he may be adversely affected by the court’s judgment in the Pending Motion.

Should the Court Exercise Its Discretion under Subrule 13.01(2) to Permit Mr. Bannon to Intervene as an Added Party on the Pending Motion?

Nature of the Case and the Issues

[71] In considering whether to exercise the court’s discretion to permit the non-party Mr. Bannon to intervene on the Pending Motion, I am reminded of the comments of Trotter J.A. in the 2505243 Ontario Limited (ByPeterandPaul.com) v. Princes Gates Hotel Limited Partnership, 2022 ONCA 700 case, that:

As a general matter, the nature of the dispute between the parties on appeal is crucial to this determination. In Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Watt J.A. said, at para. 23:

The nature of the case is an important factor. Where the litigation in which the intervention is sought is a private dispute, rather than a public prosecution pitting an individual against the state, the standard to be met by the proposed intervenor is more onerous or more stringently applied …

This approach has been followed in other decisions of this court: see Foxgate Development Inc. v. Jane Doe, 2021 ONCA 745, 159 O.R. (3d) 274, at paras. 7, 39; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 11. [29]

[72] The Pending Motion arises out of a private commercial dispute between contracting parties to a construction contract. There are no constitutional issues involved. It is not a criminal case that gives rise to larger legal issues of public importance. There are no issues of broader public importance raised. The Pending Motion will address such procedural issues as to whether one party can maintain its set-off defence in the aftermath of a stay of proceedings of that same party’s counterclaim.

[73] In sum, the decision on the Pending Motion may be important to the immediate parties; however, its significance will remain limited to the immediate parties to this entirely private dispute.

The Likelihood of the Proposed Intervenor Making a Useful Contribution to the Determination of the Issues on the Pending Motion

[74] The likelihood and nature of the contribution that may be made by a proposed intervener is another important consideration. Mr. Bannon must be able to demonstrate that he is able to make a useful contribution to the Pending Motion. Again, as Watt J.A. said in Jones v. Tsige, in the end, “a proposed intervenor must have more to offer than mere repetition of the position advanced by a party. The ‘me too’ intervention provides no assistance.” [30]

[75] Ms. Stock confirmed that Mr. Bannon does not seek to adduce any additional evidence on the Pending Motion. He will make no contribution to the evidentiary record on the Pending Motion. He does not seek to supplement the record; rather, he will take the record as he finds it.

[76] Although, again, counsel for the parties have not settled upon the nature of the motion or other procedural vehicle for the Pending Motion, it appears that the central issue will involve the question of the impact of the Stay Decision on the City’s set-off defence. At bottom, that involves a legal question. The defendant is represented by very experienced and capable counsel who are well able to advance before the court on the Pending Motion all available and appropriate legal submissions.

[77] This is not a case where one party on the Pending Motion is self-represented and not familiar with the relevant jurisprudence or is otherwise at some disadvantage in accessing legal resources. In short, the City needs no assistance with its legal submissions.

[78] In this same vein, I note that in para. 5 of the factum of the proposed intervenor, the submission is made that, “given his history with this litigation, Mr. Bannon is well versed in this matter and can in fact assist the parties and the Court in the determination of the consequences of the abuse of process decision.” While I appreciate the offer, respectfully, Mr. Bannon is not the only person who is “well versed” in this litigation. Again, at the end of the day, the core issue on the Pending Motion involves a question of law. Counsel for the immediate parties are well able to assist the court determine the issues on the Pending Motion through, what I have no doubt will be, their considered, thorough, and helpful legal submissions.

[79] That said, in oral argument before me, Ms. Stock submitted that the interests of the City and those of Mr. Bannon are no longer aligned following the release of the Stay Decision (a difference that, no doubt, will become even sharper if the City actually proceeds with a statement of claim against its former lawyer), and it was submitted that the proposed intervenor is able to provide a unique perspective on how the issues on the Pending Motion should be framed.

[80] In this regard, Ms. Stock indicated that while she generally agrees with Mr. Dewart that a pleadings amendment motion is the most appropriate procedural vehicle by which to present the core issue to the court for determination, she would frame the issues slightly differently than does either Mr. Dewart for the City or Mr. LeBer for Southside. In particular, it was said that the pleadings as proposed to be amended are not fulsome enough, and she would propose even further amendments to the statement of defence (in particular, to paras. 9 and 11 to the proposed amended statement of defence). Ms. Stock submitted that it is the position of the proposed intervenor that, following the Stay Decision and the Eight Settlement Agreements, what “should be left (or struck, as the case may be) is that the City’s claim should only be for the several responsibility of Southside, as opposed to what the subtrades are alleged to have done wrong, and, similarly, Southside should not be permitted to claim for those contractual amounts that are no longer owed to the subtrades.”

[81] It was said this was part of the “unique perspective” that Mr. Bannon is able to bring to the determination of the issues on the Pending Motion.

[82] While the onus is on Mr. Bannon to establish that he can make some useful contribution, the contribution must also be appropriate and proper for an intervenor.

[83] Respectfully, I do not think it is appropriate for a non-party proposed intervenor to tell the immediate parties to a private dispute how they should frame their dispute. I do not think it is the place of Mr. Bannon to tell the City, his former client, how their statement of defence should be amended. It is for the City, with the advice of its legal counsel, to decide how their pleading before the court is to be framed and, if necessary, amended. The same is true for Southside and its claim. If there is a dispute between Southside and the City as to how their dispute should be framed and/or whether an amendment to their pleadings is required, then the immediate parties to the litigation may raise that dispute with the court for determination. While a non-party stranger to the litigation may have their own particular views and unique perspectives on how the parties ought to frame their pleadings, in my view, that type of “contribution” is not appropriate for a proposed intervenor.

[84] In my view, this is one example of the “real mischief” of permitting a former lawyer for one of the parties to a private dispute to intervene as an added party, which the court warned against in Loy-English v. The Ottawa Hospital, 2017 ONSC 6533, where Hackland J. held:

Furthermore, in my view, real mischief could arise from the solicitor’s intervention. Pursuit of the solicitor’s agenda, particularly with full rights of participation could interfere with or undermine the presentation of the plaintiff’s case or it could introduce another quasi-plaintiff into the mix, to the detriment of the defendants. This has a real potential to complicate and prolong proceedings. In this regard I respectfully agree with the observations of Master Short in Whirlpool Canada Co. v. Chavila Holdings Ltd., 2015 ONSC 2080 (Ont. S.C.J.) where he stated:

While it is theoretically possible to intervene in a purely private dispute, the cases indicate that the moving party faces a serious challenge.

Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. My reading of most other cases indicates that our courts have indicated the intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to limit submissions. [31]

[85] In my view, the type of contribution that Mr. Bannon seeks to make is not appropriate for an intervenor, and, in the absence of that type of contribution, I find that Mr. Bannon has failed to satisfy this court that the proposed intervenor is in a position to make a useful or appropriate contribution to the determination of the issues on the Pending Motion.

Would the Proposed Intervenor’s Participation Cause Some Undue Delay, Unfairness, or Prejudice to the Immediate Parties?

[86] Even if I were convinced, which I am not, that Mr. Bannon could make a contribution to the determination of the issues on the Pending Motion, I must still consider whether the proposed intervenor’s participation would cause some unfairness or prejudice to the immediate parties.

[87] The reality is that the proposed intervention has already delayed this proceeding. The Pending Motion had been scheduled to be heard on November 22, 2023. While I accept, to Ms. Stock’s point, that at the case conference on October 13, 2023, it was agreed, on consent, that the November 22nd date would be used for the hearing of this intervention motion instead of the Pending Motion, to my mind, that was just a function of all counsel yielding to the logic of the situation that, of course, the intervention motion would need to be heard and determined before the argument on the Pending Motion (as reflected in paras. 6 of my endorsement of October 13, 2023). As I believe all counsel recognized, of necessity, it needed to be decided who would be participating in and making submissions on the Pending Motion before we actually proceeded with the hearing of the Pending Motion.

[88] The reality is that, had the question of Mr. Bannon’s intervention never been raised, counsel would have proceeded to argue the Pending Motion on November 22, 2023, and it is likely the parties would have received a decision from the court by now on that Pending Motion.

[89] As such, there is no doubt in my mind, that the proposed intervention has already delayed this proceeding.

[90] Further, to my mind, there is also the potential for further delay. The reality is that it is hard enough to find timely dates for a special appointment motion where Trial Coordination is trying to coordinate dates where the court has available judicial resources with the schedules of both counsel for the moving party and counsel for the responding party. Where there is, on top of that, a need to accommodate the schedule of yet another lawyer, such as counsel for an intervening party, practice indicates that it is almost inevitable that available dates will get pushed off to accommodate the schedule of that additional counsel. And that results in a delay to the immediate parties to the lawsuit.

[91] Moreover, there is potential for further delay by reason of appeal. If Mr. Bannon were given leave to intervene as an added party, as he requests, then, by rights of being an added party, he would have the same rights of appeal as any other party. As such, if he were granted leave to intervene in the Pending Motion, and if the court ultimately delivered a decision on the Pending Motion that Mr. Bannon (or his professional indemnity insurer) regarded as unfavourable, he (his insurer) would have the right to appeal that decision. Any such appeal has the potential to further delay the trial in this proceeding and its ultimate determination.

[92] I well recognize that in considering whether the proposed intervention will unduly delay or prejudice the determination of the rights of the immediate parties to the Pending Motion, one is required to consider the potential for delay and prejudice, which, in turn, somewhat requires an exercise of what I would call “informed speculation.” Subrule 13.01(2) requires the court to consider whether the intervention “will unduly delay or prejudice” the determination of the Pending Motion. No one has a crystal ball. No one can accurately predict whether or what to extent undue delay or prejudice “will” result. And so, I well appreciate that my consideration of such factors as the potential for appeals by the proposed intervenor causing the potential for delay are (necessarily) somewhat speculative; however, in my view, the language of the subrule requires the court to turn its mind to that potential.

[93] On that point, it bears emphasizing that this litigation arises out of a construction contract that the City and Southside entered into in February 2004 – more than two decades ago. It was in 2013 that the City entered into the direct negotiations with the Settling Third Parties, resulting in the Eight Settlement Agreements, finalized during the period from August through to October 2013 – more than a decade ago.

[94] Basically, since then, the parties have been immersed in this subset of litigation dealing with the City’s secret negotiation of the Eight Settlement Agreements for the last ten years. I am the second case management judge to have been appointed in this matter, now almost a decade ago, and my tenure has been consumed with that same subset of the litigation.

[95] A contextual approach is required when addressing intervention requests, and, as such, I approach the request of Mr. Bannon to intervene as an added party (and not a friend of the court) in the Pending Motion within the overall context of this litigation and its protracted history.

[96] In that vein, I am reminded of the observations of Master D.E. Short of our court in his 2015 decision in Whirlpool Canada Co. v. Chavila Holdings Ltd., 2015 ONSC 2080, where, after conducting a review of the relevant Ontario jurisprudence on point, the Master concluded that while “it is theoretically possible to intervene in a purely private dispute, the cases indicate that the moving party faces a serious challenge,” [32] and concluded that:

Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. My reading of most other cases indicates that our courts have indicated that intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to limit submissions. [33] [Emphasis added.]

[97] As such, I am mindful of the admonition of the court to carefully consider the added costs and complexity to the litigation that the intervention of the non-party Mr. Bannon may add into an essentially private dispute.

[98] On balance, I am satisfied that the intervention of Mr. Bannon would serve to further delay the proceedings, to the prejudice of the immediate parties. Again, Southside opposes the intervention of Mr. Bannon, and the City does not support his intervention but, rather, simply takes no position on the matter.

[99] In the result, although I am satisfied that Mr. Bannon may be adversely affected by a judgment in the Pending Motion, I am persuaded that there are other factors that speak loudly against allowing him to intervene as an added party on the Pending Motion.

[100] The jurisprudence is clear that the discretion of the court to allow a non-party to intervene as an added party in a private dispute is to be exercised sparingly or rarely. On balance, Mr. Bannon has not persuaded me that this is one of those rare cases where intervenor added-party status should be sparingly granted to a non-party on a motion involving a private dispute.

Conclusion

[101] For all of these reasons, the motion of the proposed intervenor is dismissed.

[102] To the credit of counsel for the parties, they were able to come to an agreement on the appropriate quantum of costs for this special appointment motion. I am advised that the parties are agreed that the successful party on the motion should have their costs in the total amount of $11,000, all inclusive.

[103] As such, in accordance with the agreement of the parties, there shall be an order that the proposed intervenor shall pay Southside’s total costs of the instant motion in the all-inclusive amount of $11,000, within 30 days.

Original signed by “J. Paul R. Howard”

J. Paul R. Howard

Justice

Released: May 30, 2024