The Court of Appeal distinguishes between a novel ‘issue’ and ‘argument’ in Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842
In this application before the Ontario Court of Appeal, six moving parties sought leave to intervene as friends of the court in a pending appeal from a decision by the Ontario Divisional Court. Here, the Court of Appeal distinguished between an intervener raising a new ‘issue’ on appeal, and a new ‘argument’ on appeal, as well as confirmed the willingness to grant intervener status even if the intervener’s submissions may not end up persuading the final decision.
At issue in the underlying matter was a decision by the Ontario Cabinet that required the Minister of Training, Colleges and Universities (hereinafter “Ontario”) to direct publicly-funded colleges and universities to allow students to opt out of fees that were not categorized as ‘essential mandatory fees’. These ‘non-essential optional fees’ were generally fees intended for student associations, products and special services. The Canadian Federation of Students (“CFS”) brought an application before the Divisional Court seeking to quash the Ontario Cabinet decision. The application was successful, and the respondent, Ontario, subsequently was granted leave to appeal the decision.
Ontario opposed the proposed intervention of a group of parties referred to as the “Coalition” as it alleged that the Coalition sought to raise a new issue on appeal. In deciding whether to grant the parties intervener status, the court noted the considerations it must take into account: (1) the general nature of the case; (2) the issues that arise in the case; and (3) the contribution that the intervener can make to those considerations without incurring injustice to the parties.
First, looking to the proposed interveners other than the Coalition, the court noted that given the wide ranging implications of the funding decision and their impact on many organizations that rely on such funding, each proposed intervener had an interest that was engaged in the pending appeal. The court further found that each of the proposed interveners also had useful and important contributions to make on the appeal, and would provide perspectives that will not be offered by the parties.
The court then turned to the Coalition’s motion to intervene. The Coalition sought to ask the court to use s. 2(b) of the Charter of Rights and Freedoms (the “Charter”), and the values underlying that provision, to aid the court’s statutory interpretation at issue in this appeal. The Coalition argued that it was not attempting to argue a new issue, as it did not seek a determination as to whether the rights and freedoms protected by s. 2(b) of the Charter have been directly infringed by the Initiative.
Ontario argued that as the Divisional Court did not characterize the governing legislation as ambiguous, nor use s. 2(b) of the Charter as an interpretive aid, this would be a novel issue. Ontario noted that Charter values may only be used as an interpretive aid where there is a genuine ambiguity in the legislation. As this was not found in the underlying application, the Coalition’s argument for the Charter’s use in interpretation would be a new legal issue.
The Court of Appeal disagreed with Ontario. The appropriateness of using s. 2(b) of the Charter as an interpretive aid would not be a new legal issue, but rather a new argument to support the Divisional Court’s interpretation. The Court of Appeal could conclude that the relevant statutory provisions are ambiguous, even if the Divisional Court did not, and even if neither party argued that the legislation is ambiguous. While the Coalition’s submissions may not be found to be relevant or persuasive, they may be of assistance if so required. Since the parties would have the opportunity to respond to any submissions made by the Coalition, no prejudice would result from the Coalition being granted intervener status.
In this decision, the Court of Appeal made it clear that it would not be limited in its analysis based on the decision made by the underlying court, nor the submissions made by the parties, with respect to an issue related to interpretation. Even if neither of the parties made submissions related to ambiguity, nor did the underlying decision note issues related to ambiguity, the Court of Appeal would be free to make such a finding. The key take away is the Court of Appeal’s recognition that there is a distinction between an intervener seeking to raise a new issue, and raising a different argument on an existing issue that might assist the court with its deliberations, irrespective of whether it is ultimately accepted.
 Ibid at paras. 3-4.
 The “Coalition” consisted of: Canadian Journalists for Free Expression, the Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, World Press Freedom Canada, and the Canadian Association of University Teachers.
 Supra note 1 at para. 10.
 Ibid at paras. 11-12.
 Ibid at paras. 13-14.
 Constitution Act, 1982; 2(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
 Supra note 1 at paras. 15-16.
 Ibid at para. 17.
 Ibid at paras. 18-20.