Court of Appeal Decision of the Week

Intervening at the Court of Appeal

Case: Huang v. Fraser Hillary’s Limited, 2018 ONCA 277 (CanLII)

Keywords: Intervener; Pollutants; Nuisance; Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Environmental Protection Act, R.S.O. 1990, c. E19

Synopsis:

Pollutants from a dry cleaning business contaminate Mr. Eddy Huang’s land, causing approximately $1.8 million in damages. The decision under appeal finds that Fraser Hillary’s Limited liable in nuisance and under the Environmental Protection Act, R.S.O. 1990, c. E19.

Ecojustice, a Canadian non-profit environmental law organization seeks leave to intervene in the appeal as “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 dismisses Ecojustice’s motion.

Importance:

The Court of Appeal provides a clear articulation of the test established in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167.

The decision to grant leave to intervene is based on the following:

  1. The nature of the case;
  2. The issues that arise; and
  3. 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. (See para. 4).

Citing Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A., in Chambers), at para. 23, the Court of Appeal determined the “standard to be met” in seeking leave to intervene is “more onerous” where the litigation in question is private as opposed to a public prosecution. (See para. 5). In this case, the Court of Appeal determined the matter was “fundamentally private litigation” – a claim by Mr. Huang that a dry cleaning business contaminated his property. (See para. 6).

With respect to the issues that arise, the Court of Appeal noted they were well-settled and not complex. Further, since Ecojustice “[did] not elaborate on how its submissions will be different” or provide a draft factum setting them out, the Court of Appeal could “only speculate” as to their use. (See para. 11). As such, the Court of Appeal was not satisfied Ecojustice would be materially capable of assisting the Court. (See para. 11).

As to the third factor, the Court of Appeal was “prepared to assume” Ecojustice was capable, in terms of experience and expertise, to assist the Court. That being said, the Court of Appeal determined that Ecojustice’s submissions would “simply recast” the submissions made by the parties themselves. (See para. 13). The Court of Appeal identified a “concern about injustice” – that Ecojustice’s factum would raise “arguments going beyond the fairly narrow scope of the appeal”, necessitate a detailed response from the main parties, and potentially lead to an adjournment of the appeal. (See para. 15).

Accordingly, the motion for leave to intervene was dismissed on the basis Ecojustice’s involvement had the potential to “cause additional prejudice to the parties”. (See para. 15).

Counsel for the Proposed Intervener (Ecojustice): Sarah McDonald and Kaitlyn Mitchell

Counsel for the Appellant: Michael Hebert (Beament Hebert Nicholson LLP, Ottawa)

Counsel for the Respondent (David Hillary): Jeremy Rubenstein (Williams Litigation Lawyers, Ottawa)

Counsel for the Respondent (Fraser Hillary’s Limited): Michael Rankin and Jonathan O’Hara (McMillan, Ottawa)

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Posted: Wednesday, March 28, 2018