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 of the case: The Huang case is “fundamentally private litigation” to which one party is seeking compensation for historical environmental contamination from the other parties, imposing a more onerous standard on the proposed intervener to demonstrate that the intervention would assist the Court;
- The issues that arise: Although “intervention may be warranted in some cases where the construction or application of important legislation – particularly a provision such as [section 99(2) of the EPA], which has received little judicial interpretation – is at issue”, Ecojustice’s proposed intervention would make only brief submissions about retrospective application of the provision, which the parties had already thoroughly canvassed in their written submissions; and,
- Useful contribution without causing injustice: Ecojustice’s proposed intervention would not assist the Court in any meaningful way as many of its submissions would “simply recast the submissions made by the parties themselves” and there was a risk of additional prejudice to the parties as it may have become necessary to adjourn the appeal in order to allow the parties to properly respond to the intervention as the hearing was only seven weeks’ away.
Although Chief Justice Strathy’s decision does not create new law in respect of interventions “as a friend of the court”, it does provide insight into how the factors are applied that will make some proposed interventions unsuccessful.