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An Impartial “Friend of the Court”: The Importance of the Impartiality of the Proposed Intervener

5 minute read

In the recent decision of Baldwin v Imperial Metals Corporation, the Ontario Court of Appeal identified a further benchmark for parties seeking leave to intervene in an appeal. Specifically, the court confirmed that the party seeking to intervene must satisfy an appearance of impartiality before they can be granted intervener status to intervene as a “friend of the court”.

Friend of the Court

The Rules of Civil Procedure, RRO 1990, Reg 193 (the “Rules”), provides that third parties may gain intervener status in an action as a friend of the court. Rule 13.02 provides that 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.[1]

The Proposed Intervener

In Baldwin, the Osgoode Investor Protection Clinic (“the Clinic”) sought leave to intervene as a friend of the court pursuant to ss. 13.02 of the Rules of Civil Procedure.[2] The underlying appeal concerned the interpretation of provisions of the Securities Act as the appellants had unsuccessfully brought a motion for leave under s. 138.8 of the Securities Act to commence a claim for secondary market misrepresentation against the respondents. The appellants appealed the dismissal of their motion, relying on arguments of the correct statutory interpretation of “public correction”, and the Clinic sought to intervene in this appeal.

In assessing the Clinic’s proposed intervention as a friend of the court, the court reiterated the well-established test on an application for intervention: the nature of the case, the issues which arise, and the likelihood of the applicant being able to make a useful contribution without causing injustice to the immediate parties.[3]

Applying this test, the court was not persuaded that the Clinic met the “useful contribution” factor, since the Clinic’s proposed arguments essentially mirrored those of the appellants.[4] The court noted, “What constitutes “a useful contribution” will depend on the circumstances of the case. The fact that an intervener’s submissions reflect one or both of the parties’ positions is no bar to intervention provided the intervener can make a useful contribution to the resolution of the issues in the case, often based on the unique perspectives of the proposed intervener. No useful contribution can be offered by an intervener who essentially repeats the position advanced by a party, even with a different emphasis.”[5]

In this case, the court found that the matters at issue in this appeal were that of statutory interpretation that would be fully canvassed by the parties’ counsel with noted expertise in securities law. The Clinic’s proposed arguments essentially mirrored those of the appellant, and notably the appellant’s counsel acknowledged that none of the Clinic’s proposed submissions contradicted or undermined the appellant’s position, and the appellant agreed they could make any of the submissions that the Clinic proposes to advance.[6]

Yet beyond the tri-factor test on an application for intervention, the court was also concerned with the proximate relationship between the Clinic and the appellant’s counsel. One of the Clinic’s named counsel on the motion previously acted for the appellant in these proceedings when he was an associate lawyer with Siskinds. In that role, he provided affidavit evidence in support of the appellant’s application for leave to commence an action under the Securities Act. The court also noted that the two firms representing the appellant on appeal (as well as the firm representing the Clinic on the motion) were among ten law firms which the Clinic refers to as “partners” for the provision of pro bono services.[7]

In light of this, the court noted, “While undoubtedly acting with altruistic intentions in accordance with its mandate, the Clinic’s connections with the appellant undermine the appearance of impartiality needed to act as a friend of the court.”[8]

Conclusion

Ultimately, Baldwin extends established principles that a friend of the court must be a neutral “person or bystander…who has no interest in the proceedings” and connotes “an element of impartiality or altruism”.[9] The Ontario Court of Appeal now recognizes this principle may be applied to actual impartiality or simply the appearance of impartiality between counsel to the proceedings. Although interveners and counsel may act with altruistic intentions, Baldwin suggests that they should also be aware of any professional connections with parties that may prevent them from being granted intervener status.

 

[1] See our article “A Little Help from Our Friends (of the Court): Public Interest Interventions in Ontario Courts” February 15, 2017 for more background.

[2] Baldwin v Imperial Metals Corporation, 2021 ONCA 114

[3] Baldwin, at para 2.

[4] Baldwin, at paras 5-6.

[5] Baldwin, at para 7.

[6] Baldwin, at para 6.

[7] Baldwin, at para 7.

[8] Ibid.

[9] Baldwin, at para 4.

Jacqueline M. Palef

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Lucy Sun

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