Court of Appeal Decision of the Week
Amicus Curiae & Zoning Disputes: With (Amicus) Friends Like These, Who Needs Enemies?
Case: Scaduto v. Cucu, 2017 ONCA 224 (CanLII)
Keywords: Amicus Curiae; Property Zoning
The appellants, Maria Scaduto and her son Guiliano Scaduto, object to the operation of a restaurant at a property neighbouring theirs. The property was originally a garage before being converted into a restaurant. The respondent, Liviu Cucu, owns the property in question and formerly operated the restaurant.
The appellants maintain the property was not zoned for commercial use and the City of Toronto acted improperly in allowing a building permit for conversion of the property. In this proceeding, the appellants seek an injunction against the respondent. The City of Toronto is not a party.
An Application Judge had appointed counsel for Toronto as amicus curiae to help the court with “…the history and with the materials”. (See para. 5). The Application Judge found the appellants are incorrect – the legal address of the property (as distinct from its “convenience address”) had been zoned to permit restaurants.
On appeal, the appellants argue the Application Judge erred in granting the City of Toronto amicus curiae status since it had been an adverse party in two previous proceedings and in Divisional Court.
The Court of Appeal dismisses the appellants’ appeal; finding it proper that the Application Judge allowed the City of Toronto to make its submissions.
This case poses an interesting question with respect to the appropriate function of amicus curiae in our courts: to what extent should the interests of amicus curiae be aligned with those of the parties? Here, the Court of Appeal refused to give effect to the appellants’ ground (that the City of Toronto should not have been appointed amicus curiae as it had not been neutral in previous proceedings) and cited Rule 13.02 of the Rules of Civil Procedure:
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. (See para. 10).
The Court of Appeal held that where amicus curiae makes a useful contribution to the analysis of issues before the court, the fact their position is “generally aligned” with that of one or the other parties is no bar. (See para. 11).
Despite the words “…without becoming a party to the proceeding” contained in the Rule, the Court of Appeal found, pursuant to Oakwell Engineering Ltd. v. EnerNorth Industries Inc., 2006 CarswellOnt 9793 (C.A.), at para. 9, that amicus curiae need not be “impartial”, “objective” or “disinterested” in the outcome of a case. (See para. 11).
Notwithstanding its participation in previous proceedings, the Court of Appeal found the City of Toronto was able to provide “…a useful contribution to the resolution of the case, without causing injustice to the Scadutos”. Moreover, the Court of Appeal noted its participation was based on the appellants “…having informed the City that it was to be added as a party”. (See para. 12).
For the Court of Appeal there was “no merit” to the underlying zoning issue. As such, with or without the City of Toronto as amicus curiae, the Court of Appeal found there would have been no change to the ultimate outcome. (See para. 13).
Counsel for the Appellants: Giuliano Scaduto (in person)
Counsel for the Respondent: Liviu Cucu (in person)
Posted: Wednesday, March 22, 2017