When can a third-party, who is not a class member, intervene in a class action?
The Rules of Civil Procedure
The Rules of Civil Procedure, RRO 1990, Reg 193 (the “Rules”), provide third party’s with two ways to gain intervener status in an action: (1) by being added as a party to the action or (2) as a friend of the court.
Rule 13.01 of the Rules, provides that a person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims: (a) an interest in the subject matter of the proceeding; (b) that the person may be adversely affected by judgement in the proceeding; or (c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
Rule 13.02 of the Rules, 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. See our article “A Little Help from Our Friends (of the Court): Public Interest Interventions in Ontario Courts” February 15, 2017 for more background.
While these rules are not specific to class proceedings, they have been followed by the courts in class actions.
The Class Proceedings Act, 1992
In addition to the Rules, section 12 of the Class Proceedings Act, 1992, SO 1992, c 6, in Ontario, gives the court the authority to make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination. In Fontaine v Canada (AG), 2014 ONSC 3781, Justice Perell recognized that these broad power provides the court the means to grant a third party, who is not a class member, intervention in a class action.
Third Party Intervention Granted
The Quebec Court of Appeal, in Abihsira v Johnston, 2019 QCCA 657, was recently faced with deciding whether a third party, who was not a member of the class, could intervene in a class action. Like in Ontario, in Quebec, a third party must obtain court approval to intervene in a class action. This class action involved the sale of concert tickets and a proposed settlement was before the court. Notice was sent out to class members about the proposed settlement. An individual who believed himself to be a member of the class opposed the settlement.
In this case, both parties opposed the intervention. The trial judge authorized the individual’s intervention, noting that a friend of the Court is not a party to the record in that it cannot be treated as a “litigant.” While the court noted that this role had limitations, it does not specify what, if any they were.
The Quebec Court of Appeal, in its decision at paragraphs 7 and 8, found the trial judge exercised reasonable discretion and confirmed the intervention was permissible but limited the role of the intervener to making representations on the issue of whether the coupons proposed in the settlement were a satisfactory way of compensating the class.
Third Party Intervention Denied
In Ontario, the court has denied third party intervention in class proceedings at the certification stage of a proposed class action in Fairview Donut Inc. v the TDL Group Corp,  OJ No 4720 (ONSC). This proposed class action involved Tim Horton franchises and allegations involving breaches of an agreement between the parties over the Always Fresh system. A group of franchisees sought to oppose certification of the action and brought a motion to intervene. The court, at paragraph 9 of the decision, was concerned that adding an intervener at this stage of the litigation would only serve to delay the determination of the issues and may serve to take the proceedings off into a tangent. The motion to intervene was denied. Justice Lax noted the opt-out mechanism provided in the Class Proceedings Act was the appropriate way for franchisees to express concerns.
Similarly, the court has denied third party intervention in class proceedings at the settlement stage of a certified class action. In Parsons v the Canadian Red Cross Society, 2016 ONSC 2661, the court denied a motion by the “Steering Committee,” a group of 7 physicians, researchers, and scientists who applied to be added as parties or as interveners in this certified class action. The parties reached a settlement that was before the court for approval. The group seeking intervener status sought to comment on the allocation of certain funds in the proposed settlement. In dismissing the intervention request, at paragraph 19 of the decision, the court noted:
…the parties to the litigation, the plaintiffs and the defendants to the class actions, negotiated a settlement in their own self-interest and they are under no obligation to be altruistic in enforcing the bargain they reached. The Steering Committee has no substantive right to participate in what amounts to the administration of a contract that has been approved by the court. Its participation would create an opponent to the parties to the contract, and the Steering Committee’s participation would delay and potentially disturb the commencement of the long-scheduled hearing of the allocation motion.
A Court’s decision whether to grant a third party, who is not a class member, an opportunity to intervene in a class proceeding is discretionary. In Ontario, the court will consider whether the tests set out in Rule 13 of the Rules of Civil Procedure are met, and other discretionary factors including whether the intervention would cause undue delay to the proceedings. In addition, the court may consider whether an order under section 12 of the Class Proceedings Act, 1992, is appropriate to authorize granting intervener status to a third party in a class action. For more thorough discussion of these factors see our previous article on the subject.