Monday, February 2, 2015

Ontario Court Summarizes Criteria for Intervening as a "Friend of the Court" in Trinity Western University case

The Ontario Divisional Court (Justice Nordheimer) recently handed down its decision concerning criteria for parties who apply to intervene in lawsuits as "friends of the court" -  Trinity Western University v. Law Society of Upper Canada 2014 ) ONSC 5541.


Trinity Western University (“TWU”) is a Christian university located in Langley, British Columbia.  TWU submitted a proposal to establish a law school to the British Columbia Ministry of Advanced Education and the Federation of Law Societies of Canada in June of 2012.  The new law school is planned to open in September of 2016.


All TWU students, faculty and staff are required annually to sign a community covenant agreement which includes a commitment to voluntarily abstain from various conduct  including “sexual intimacy that violates the sacredness of marriage between a man and a woman”. 


TWU sought accreditation for its law school from a number of provincial law societies.  The Law Society of Upper Canada (“LSUC”) voted against the accreditation of TWU’s proposed law school.  TWU brought an application for judicial review to the Divisional Court of Ontario.


Subsequently, eleven motions were made for leave to intervene in the application on behalf of 14 organization and individuals:


  1. Canadian Counsel of Christian Charities;
  2. The Christian Legal Fellowship;
  3. Justice Centre for Constitutional Freedoms;
  4. The Association for Reformed Political Action Canada;
  5. The Evangelical Fellowship of Canada and Christian Higher Education Canada;
  6. Catholic Civil Rights League and Faith and Freedom Alliance;
  7. Gerard P. Charette;
  8. Canadian Association of Labour Lawyers;
  9. Criminal Lawyers’ Association;
  10. Out On Bay Street and OUTlaws;
  11.  The Advocates' Society.
Justice Nordheimer set out the principles upon which a court should grant intervener status. 

Rule 13.02 of the Rules of Civil Procedure provide:  “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”. 

He then cited two instructive cases:  Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada Ltd., where the Chief Justice of Ontario said:  “Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the moving parties”.        

These basic principles were expanded upon as they apply to cases involving the Canadian Charter of Rights and Freedoms by the case of Bedford v. Canada (Attorney General) where the court said:  “Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervener:  It has a real, substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or, it is a well-recognized group with a special expertise and broadly identifiable membership base “.  
Having regard to both cases, Justice Nordheimer concluded that even under the principles set out in Bedford, a proposed intervener must still satisfy the basic requirement that their participation will result in them making a useful and distinct contribution not otherwise offered by the parties.  He also referred to the Supreme Court of Canada’s decision in R. v. Finta, where the Chief Justice (as she then was) stated: “The criteria under rule 18 [ now rule 57] require that the applicant establish:  (1) an interest; and (2) submissions which will be useful and different from those of the other parties”.
Finally, Justice Nordheimer found it helpful to mention three other principles that governed the granting of intervener status - first as a general principle, the threshold for granting intervener status in a public interest or public policy case is lower than it is for a private case; second, in Charter cases, courts recognize that it is important for the court to receive a diversity of representations reflecting the potential wide ranging impact of its decision; and, third, the fact that the proposed intervener is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene.  However, the court should take into consideration that there should be some balance between the positions to be advocated when granting intervener status, i.e. the court should not allow piling on.
Of the 14 proposed interveners in this case, the first 10 supported the position of TWU.  The final four supported the position of the LSUC.
Justice Nordheimer noted that there was some degree of overlap, albeit limited, with the positions of the interveners.   Each of the proposed interveners had a slightly different perspective on the issues raised.  
Justice Nordheimer held that the court process is not akin to a public consultative process where every conceivable difference of opinion or view is to be gathered and digested.  The principal focus of the court is to resolve the issues that are in dispute between the parties in accordance with the applicable legal principles but in doing so to be guided by considerations of the broader impacts that the court’s decision may have.  It is to this latter consideration that the interveners can provide assistance. 
As a result, he found that it was not necessary for seven organizations to be given intervener status in order to gain an appreciation of the right to freedom of religion and freedom of association.  Accordingly, out of the seven Christian organizations, he granted intervener status to the Christian Legal Fellowship and jointly to The Evangelical Fellowship of Canada and The Christian Higher Education Canada.
Justice Nordheimer granted intervener status to the Judicial Centre for Constitutional Freedoms as a non-religious organization.  It brought a different perspective to the issues. 
He did not grant intervener status to Mr. Charette who, as both a lawyer and an ordained Roman Catholic deacon, had concerns that appeared to be very much directed towards his own rights which were at that point hypothetical. 
As for the rights of gays and lesbians, he granted intervener status jointly to Out on Bay Street and OUTlaws. 
Finally, concerning the issue of the protection of the public and how regulator bodies should deal with accreditation decisions, Justice Nordheimer granted intervener status to The Advocates’ Society and the Criminal Lawyers' Association. 



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