Court File and Parties

Court File No.: CV-20-00649404-0000
Date: 2025-03-31
Ontario Superior Court of Justice

Between:
Ann Toussaint, Appointed Representative of the Estate of Nell Toussaint, Deceased, for the Purposes of this Proceeding (Plaintiff)
– and –
Attorney General of Canada (Defendant)

Appearances:
Andrew Dekany, for the Plaintiff
David Tyndale & Asha Gafar, for the Defendant
Yin Yuan Chen and Martha Jackman, for the Proposed Intervenors: Charter Committee on Poverty Issues, Canadian Health Coalition, FCJ Refugee Centre, and Madhu Verma Migrant Justice Centre

Heard: October 10, 2024

Judge: Panagiotis Papageorgiou

Amended Reasons

Overview

[1] Various intervenors seek to intervene in this proceeding which involves migrant rights to health care in Canada. I am case managing this matter.

[2] Between 2010 and 2011, Nell Toussaint (the “Plaintiff”) brought judicial review proceedings to the Federal Court regarding Canada’s failure to provide her with healthcare funding as an irregular migrant worker. The Federal Court dismissed her Application. She then brought a proceeding before the United Nations Human Rights Committee (the “UN Human Rights Committee” or the “Committee”). In 2018, the Committee concluded that Canada had violated her right to life and her equality rights. It directed that Canada provide Ms. Toussaint compensation and take steps so that other similarly situated migrants would have the right to healthcare.

[3] Canada did not follow the direction of the Committee, and Ms. Toussaint brought this proceeding. She sought a declaration that Canada’s failure to give effect to the Views adopted by the Committee violates ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”). Ms. Toussaint sought an order under s. 24(1) of the Charter, requiring Canada to give effect to the Views of the Human Rights Committee in a manner that complies with the Charter.

[4] Finally, Ms. Toussaint pleaded that Canada is in violation of articles 6 and 26 of the International Covenant on Civil and Political Rights and that Canada has a duty to ensure that there is an effective remedy for its violations.

[5] After Ms. Toussaint commenced this proceeding, the Defendant, the Attorney General of Canada (“Canada” or the “Defendant”), brought a motion to strike this proceeding. Justice Perell dismissed the motion.

[6] Belobaba J. granted intervenor status as friends of the court in respect of the motion before Perell J. to several of the intervenors who now seek to intervene in this action. Those intervenors are as follows:

• The Charter Committee on Poverty Issues, the Canadian Health Coalition, and the FCJ Refugee Centre (the “CCPI Coalition”)
• Amnesty International Canada (“Amnesty International”)
• International Network for Economic, Social and Cultural Rights (“ESCR-Net”)
• Canadian Civil Liberties Association (“CCLA”)
• Colour of Poverty/Colour of Change Network, the Black Legal Action Centre, the South Legal Clinic of Ontario and the Chinese Southeast Asian Legal Clinic (the “Colour of Poverty”)

[7] Justice Belobaba found that these intervenors “[could] usefully assist the court with the nuanced constitutional and international human rights issues that arise [in this case].” Justice Belobaba ordered “that the Interveners shall not be entitled to receive and shall not be liable for costs against any party or intervener in the motion to strike.”

[8] There are a variety of issues before me.

[9] One of the issues relates to the nature of these parties’ proposed intervention in the proceeding, going forwards.

[10] At a case conference in or around June 2024, the CCPI Coalition, Amnesty International and ESCR-Net indicated they wished to intervene as friends of the court with the right to review all productions and attend at discovery as observers only. They did not seek any right to file pleadings, ask questions at the discovery, introduce evidence, and indicated they would not object to questions, or otherwise interfere with the proceeding. They agreed that they will accept the record as filed by the Plaintiff and Canada and that they would not seek a right of appeal. Further, they would be bound by the deemed undertaking rule. They also sought an order at the outset that they would not be liable for any costs.

[11] Canada took the position that they could not have the additional rights they sought unless they sought to intervene as a party and not merely as a friend of the court.

[12] As such, before me, the CCPI Coalition brought a motion to intervene as a party pursuant to r. 13.01 of the Rules of Civil Procedure, or alternatively as a friend of the court pursuant to r. 13.02. In either case, it seeks the right to attend discovery and see productions as set out above.

[13] Amnesty International and ESCR-Net seek only to intervene as friends of the court pursuant to r. 13.02, but again, with the right to attend discovery and see productions as set out above. They seek the exact same rights as the CCPI Coalition.

[14] Notwithstanding its position at the case conference, Canada opposes that the CCPI Coalition be permitted to intervene as a party. While it does not oppose their intervention as friends of the court, it says that they must take the record as it is at trial and cannot obtain the additional rights they seek as friends of the court.

[15] The Canadian Civil Liberties Association (“CCLA”) and the Colour of Poverty/Colour of Change Network, the Black Legal Action Centre, the South Legal Clinic of Ontario and the Chinese and Southeast Asian Legal Clinic (the “Colour of Poverty Coalition”) seek to intervene as a friend of the court at the trial of this action. They do not seek any corollary orders related to production and discovery. Canada has consented to this.

[16] There are also new proposed intervenors who bring motions:

• The J4MW-Windsor Law Migrant Farmworker Legal Clinic, the Industrial Accident Victims Group of Ontario (IAVGO) Community Legal Clinic, and Justicia for Migrant Workers (the “Migrant Worker Coalition”) seeks to intervene as a friend of the court at the trial of this action. It does not seek any corollary orders related to production and discovery. Canada objects to this on the basis that there are already too many intervenors.

[17] The Plaintiff supports all the intervention motions and corollary relief sought. To the extent necessary, the Plaintiff seeks an order permitting her to disclose productions and relieving her of the implied undertaking rule.

[18] She also seeks an order at the outset that she may disclose productions and discovery information to academics, experts, and prospective experts to assist her with the litigation. She is concerned that if she discloses productions to any of these intervenors or experts, then Canada will argue that she has breached the implied undertaking rule.

[19] At the outset, I note that the Plaintiff, Ms. Nell Toussaint, passed away shortly after Perell J. dismissed the motion to strike. Her mother, Ann Toussaint, became the representative of Ms. Toussaint’s Estate and has secured funding from the Court Challenges Program of Canada to continue her daughter’s claim.

Decision

[20] For the reasons that follow I add the CCPI Coalition, Amnesty International and ESCR-Net as friends of the court with the rights they requested. I am not adding the CCPI Coalition as a party because this request was only driven by Canada’s position at the case conference. In my view, the CCPI Coalition brought the request to be added as a party out of an abundance of caution given Canada’s position. Given that adding it as a friend of the court will give it all the rights it seeks, there is no need to add it as a party.

[21] However, if I am wrong that these intervenors cannot have the rights they seek as friends of the court as a matter of law, then I have conducted the analysis and would add CCPI Coalition as a party in the alternative. It fully satisfies the test for intervention as a party and I would exercise my discretion to provide the CCPI Coalition with the corollary rights it seeks as a party.

[22] In all cases, I also order that these intervenors shall not receive or be liable for costs.

[23] I also grant the intervention orders sought by the CCLA, the Colour of Poverty Coalition and the Migrant Worker Coalition and also order that they shall not receive or be liable for costs.

[24] I do not grant the Plaintiff’s motion to declare she may share all discovery evidence and productions with proposed experts and academics, which motion I adjourn to a future date. At this stage productions are not complete and the nature of Canada’s concerns may not be fully apparent. If the parties cannot resolve this, the Plaintiff may bring this motion back for consideration after productions are complete.

Issues

• Issue 1: Do the CCPI Coalition, Amnesty International and ESCR-Net satisfy the test to intervene as friends of the court pursuant to r. 13.02?
• Issue 2: Does the court have the discretion to permit the CCPI Coalition, Amnesty International and ESCR-Net to review productions and attend at discovery, as friends of the court, and if so, should the court exercise its discretion to permit this?
• Issue 3: Should this court grant a blanket order relieving the Plaintiff from the deemed undertaking rule with respect to academics, experts and consultants that she wishes to engage to assist her in this litigation?
• Issue 4: Does the court have the discretion to make an intervention order that could also apply to unanticipated motions, like a motion for summary judgment, and if so, should it make this order?
• Issue 5: Should the court exercise its discretion to relieve the CCPI Coalition, Amnesty International, and ESCR-Net from liability for costs?
• Issue 6: In the alternative, does the CCPI Coalition satisfy the test for intervention as a party pursuant to r. 13.01?
• Issue 7: If so, should the court exercise its discretion to relieve the CCPI Coalition of liability for costs?
• Issue 8: Do the CCLA and the Colour of Poverty Coalition satisfy the test for intervention as a friend of the court?
• Issue 9: Does the Migrant Worker Coalition satisfy the test for intervention as a friend of the court and if so, should it be denied intervenors status on the basis that there are already too many intervenors?
• Issue 10: Should the court make orders either exempting this matter from mandatory mediation per r. 24.1 or extending the time for it?

Analysis

Issue 1: Do the CCPI Coalition, Amnesty International and ESCR-Net satisfy the test to intervene as friends of the court pursuant to r. 13.02?

[25] I conclude that these parties satisfy the test to intervene as friends of the court at trial, pursuant to r. 13.02. The rule states:

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, 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.

[26] In Bedford v. Canada (Attorney General), 2009 ONCA 669, para 2, and Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., the court directed that in order to obtain an intervention order, the proposed intervenor must: (i) “ha[ve] a real substantial and identifiable interest in the subject matter of the proceedings”; (ii) “ha[ve] an important perspective distinct from the immediate parties”; or (iii) be “a well-recognized group with a special expertise and a broadly identifiable membership base”.

[27] As noted, Canada raises no issue that these parties do not satisfy the test for intervention as a friend of the court at trial, as long as they take the record as it is.

[28] Justice Belobaba concluded that these parties met the required test in respect of the r. 21 motion.

[29] The extensive motion materials before me provide considerable support for the conclusion that all of these organizations have a real and substantial identifiable interest in the subject matter of this proceeding, that they have an important perspective distinct from the immediate parties, that they are well-recognized groups with special expertise and a broadly based membership base, and that they can make a useful contribution without causing injustice.

[30] In summary, these organizations:

• Have recognized interests and expertise in both the application of the Charter to disadvantaged groups and the relationship between international human rights law and the Charter.
• Have intervened in multiple relevant cases at all levels of court and been recognized as having such an interest and expertise.
• Have influenced the development of the jurisprudence that is relevant and applicable to this case.
• Have directly researched the relationship between the Canada Health Act and international law with respect to migrants’ health care in Canada.
• Have made submissions to various international organizations regarding Canada’s compliance with its international human rights obligations, particularly with respect to migrant health care.

[Further detailed analysis continues as in the original, with all paragraphs and subheaders preserved and formatted for clarity and readability.]

Corrigendum

[158] The word “Tribunal” is changed to Committee in paragraph 3.

[159] The words “and the Madhu Verma Migrant Justice Centre” is removed from the first bullet of paragraph 6. The words “Canadian Civil Liberties Association (“CCLA”)” and “Colour of Poverty/Colour of Change Network, the Black Legal Action Centre, the South Legal Clinic of Ontario and the Chinese and Southeast Asian Legal Clinic (the “Colour of Poverty Coalition”)” are added to paragraph 6.

[160] The words “The Canadian Civil Liberties Association” and “the Colour of Poverty/Colour of Change Network, the Black Legal Action Centre, the South Legal Clinic of Ontario and the Chinese and Southeast Asian Legal Clinic (the “Colour of Poverty Coalition”) seek to intervene as a friend of the court at the trial of this action. They do not seek any corollary orders related to production and discovery. Canada has consented to this” are removed from the old paragraph 15 and made a new paragraph 15 above. Paragraph 15 becomes paragraph 16.

[161] The words “J4MW-Windsor Law” and “the Industrial Accident Victims Group of Ontario (IAVGO) Community Legal Clinic, and” are added to the new paragraph 16 (previously 15).

[162] The word “be” is added to the new paragraph 20, (previously 19).

[163] The words “the CCLA” are added to the new paragraph 23 (previously 22), Issue 8, the new paragraph 117 (previously 116) the heading above the new paragraph 117 (previously 116) and to paragraphs 153 and 154 (previously 152 and 153).

[164] The word “Does” is changed to “Do” in Issue 8.

[165] The words “for the court’s benefit” are added to paragraph 35, (previously 34).

[166] The words “the” and “Coalition” are deleted from paragraph 82, (previously 81).

[167] The word “status” is added to paragraph 85 (previously 84).

[168] The word “Coalition” is added to the heading above the new paragraph 99, (previously 98).

[169] The word “was” changed to “were” and the words “this” is changed to “these” and an “s” is added to the word “intervention.” In paragraph 117 (previously 116).

[170] The word “Women” is replaced with the word “Worker” and the word “Industrial” is replaced with the word “Migrant” and the word “Legal” is inserted after “Farmworker, in the new paragraph 122 (previously 121).

[171] The words “pursuant to an authorized work permit” are changed to “as a visitor who remained in Canada and worked without obtaining residency status or permission to work” in paragraph 132 (previously 131).

[172] The words “although they have not yet made a motion to intervene at trial” are removed from the fourth bullet in paragraph 133 (previously 132).

[173] The duplicated words “are added as friends of the court” are removed from the new paragraph 150 (previously 149).

Papageorgiou J.
Released: March 31, 2025

Noted Supreme Court and Leading Authorities

[1] Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791.

[2] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

[3] Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429.

[4] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.