No Friend To The Court: Public Interest Intervention Denied Where Nothing New To Say

Last year, I published a case commentary on Huang v. Fraser Hillary's Limited, 2017 ONSC 1500 regarding how s.99(2) of Ontario's Environmental Protection Act, R.S.O. 1990, c. E.19 provides a powerful remedial tool to seek compensation for historical spills. The trial judgment in that case, which held the defendant corporation liable in nuisance and under the Environmental Protection Act (EPA) for approximately $1.8 million in damages arising from the contamination of the plaintiff's land by pollutants from the corporation's dry cleaning business, has been appealed to the Court of Appeal for Ontario.

In advance of the hearing of the appeal, Ecojustice, an environmental rights and public interest litigation charity, brought a motion for leave to intervene in the appeal as a friend of the Court pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Court of Appeal's decision on the motion for leave to intervene is reported at Huang v. Fraser Hillary's Limited, 2018 ONCA 277. For a thorough discussion of public interest interventions, including interventions in cases involving environmental litigation, see my previous article, "A Little Help From Our Friends (of the Court): Public Interest Interventions in Ontario Courts".

In the Huang case, Ecojustice claimed that it could provide a helpful perspective to the Court in understanding the environmental law implications of the trial decision. Chief Justice Strathy, sitting as a single judge, dismissed Ecojustice's motion for leave to intervene as a friend of the Court. In reaching this conclusion, Strathy C.J.O. reaffirmed and applied the factors set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), being: "(a) the nature of the case; (b) the issues that arise; and (c) the likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties."

In respect of these three factors, Chief Justice Strathy held:

The nature...