A Little Help From Our Friends (Of The Court): Public Interest Interventions In Ontario Courts

At the end of last year, I wrote a series of articles about public interest and environmental interventions in Federal Court proceedings: "Interventions in Federal Court: A (Nearly) New Approach", "Intervening in the 'Interests of Justice' in the Federal Courts", and "Environmental Interventions in Federal Court Proceedings". Following that series, this article will provide a concise overview of public interest interventions in Ontario proceedings. Specifically, this article considers: the applicable rules for intervention; the various factors Ontario courts consider in determining whether to grant leave to intervene; and a few areas where interventions in the public interest are most frequent - constitutional law, class actions, and environmental litigation.

Rule 13 of the Rules of Civil Procedure

Pursuant to the Rules of Civil Procedure, RRO 1990, Reg 194, Rule 13, a court may grant leave to intervene in civil proceedings to a party in two capacities: (1) as an added party (Rule 13.01); or (2) as a friend of the court (Rule 13.02). This article focuses on Rule 13.02 interventions as they are more relevant to public interest litigation.

Rule 13.02 states:

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.

Simple enough in its wording, the language of this rule is clearly discretionary. Accordingly, the jurisprudence has developed a number of considerations to help guide judges in the exercise of that discretion.

Elements of an Amicus Curiae1 Intervention

In Jones v Tsige,2 Watt JA described the governing principles for leave to intervene as a friend of the court as "largely uncontroversial".

The principles governing leave to intervene have been largely uncontroversial since 1990, when Dubin CJO opined that the proper matters to be considered in determining whether to grant leave to intervene are:

(a) the nature of the case;

(b) the issues which arise; and

(c) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.3

Subsequently, McMurtry CJO expanded on the first criterion, and some courts have since added the explicit consideration whether the issues are essentially private in nature or whether they involve a public interest component.4 Where the case is essentially a private dispute, "the standard to be met by the proposed intervenor is more onerous or more stringently applied".5 However, this more onerous threshold applicable to private litigation may be relaxed when public policy issues arise or matters of public interest are involved.6

It should be noted that "resolution of the appeal" in the third consideration equally applies to the resolution of the issues in non-appeal proceedings.7 In some cases, this third criterion has been expressed as two separate factors: (i) whether the applicant will make a useful contribution; and (ii) whether the applicant will cause injustice to the immediate parties.8

Regardless of how the factors are framed, the ultimate issue is whether the proposed intervenor will render "assistance to the court by way of argument." To that end, the onus is on the applicant to demonstrate the court's ability to determine the issues before it would be enhanced by the proposed intervention.9 The likelihood that intervention will be of assistance depends on numerous variables, including the experience and expertise of the proposed intervenor.10

Amicus...