



COURT OF APPEAL FOR ONTARIO

CITATION: Baldwin v. Imperial Metals
    Corporation, 2021 ONCA 114

DATE: 20210222

DOCKET: M52162 (C68768)

Roberts J.A. (Motions Judge)

BETWEEN

Claire Baldwin

Plaintiff

(Appellant)

and

Imperial Metals Corporation, J. Brian
    Kynoch, Andrew Deepwell,

Larry G. Moeller, Laurie Pare, N. Murray
    Edwards,

Edco Financial Holdings Ltd. and Edco Capital
    Corporation

Defendants

(Respondents)

Garth Myers, for the moving party/proposed
    intervenor, Osgoode Investor Protection Clinic

Michael G. Robb and Garett Hunter, for
    the appellant

Lawrence E. Thacker and Aoife Quinn,
    for the respondents

Heard: February 8, 2021 by
    video conference

REASONS FOR
DECISION

[1]

T
he
Osg
oode
    Investor Protection Clinic
(

the Clinic

)
seeks
leave to intervene as a friend of the
court in this
    appeal
pursuant to
r
r
.

13
.02

of the
R
ules
    of Civi
l Procedure
, R
.R.O.
    1990, Reg. 194
.

Th
e
appeal concerns the
interpretation

of
various provisions of the
Securit
ies
    Act
, R.S.O.
1990, c. S.5
,
including the meaning of

public corrections

and th
e test for leave

to bring
a
statutory

claim

for
sec
ondary
    marke
t

misrepresentation

under

s
s
.
138.3(1)
and 138.
8(
1)
.
The appellant takes no p
osition
    with respect to this motion. The respondents are opposed.

[2]

T
he test for intervention is well

e
stablished.

In
determining
whether an application for intervention

should

be g
ranted,
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 reso
lution of the a
ppeal without
causing

injustice to the immediate pa
rties

:
Peel
(Regi
onal Municipality) v. Gr
e
at Atlantic & Pacific Co. of
Canada
Ltd.
(
1990
),

74
    O.R. (2d) 164
(C.A.)
, a
t p.
167
.

[3]

What
    constitutes

a
useful contribution


will
depend
on the
circumstances of
the

case
.
The fact tha
t an
intervenor

s
    submission
s

reflect

one

or
both

of
    the
parties


positions
is no bar to intervention provided the intervenor can
make a usefu
l contribution.

N
o useful contribution can be offered by
an interve
nor
who
essentially repea
ts the position advanced by
a
    party
, even with a
d
ifferent

e
mph
asis
:
Jones v. Tsige
, [2011] O.J. No. 4276
(C.A.)
, at para. 29
;
Stadium Corp.
of
Ontario Ltd.
v. Toronto (City)
, [1992] O.J. No. 1574
(Div. Ct.)
,
at
para.

14,
rev

d on other grounds,
12 O.R. (3
d) 646 (C.A.)
.

[4]

Rule 13
    provides that

a
person
may

obtain leave
to i
ntervene
in proceedings
as an added party or as
a

friend of the court

.
Th
e
Clinic seeks to intervene as a
friend
    of the court

under r
ule
13.02

for the pur
p
ose of rendering assistance
to

t
he
court
by way of argum
ent

.
T
he language of r
u
le
13.02 refle
cts
the
historical
    role
of
a frie
nd of the court
as a n
eutr
al


person or bystander
who has no interest in the proceedings an
d

intervenes
    simply to call the
attention

of the Court to some point
in
law or fact which es
caped its
    notice

:
Nakon
ag
os
v. Hump
hrey
, [
1996]
    O.J. No. 2
0
02 (Gen
. Div
.), at para. 24.
A friend of the court

serves the court
, not the parties
. The role connotes


an
    element of i
mpartiality or altruism

:

Peixeiro v. Haberman
,
[
1994
]

O
.
J. No. 2459
(
Gen.

Div.),
at para. 19
.

[5]

I
n this
case, t
he Cli
nic

s expertise

in
Se
cur
ities Act

mat
ters

is
not di
sputed
,

and
its interest

i
n the
    subject matter of th
e
appeal
is legitimate
.

However,
I am not persuaded that
i
t
will make
the kind of
useful
c
ontributio
n

that is required of an
    intervenor,

no
r
that it will
be seen
to have the requisite indep
enden
ce
to act as a friend of the court
.

[6]

T
he principa
l issues
under
appeal are ma
tters of stat
utory interpretation
that
will be fully
    canvassed
by the partie
s

skilled and exp
erienced counse
l
, all
with
subs
tantial
expert
ise in securit
ies law
. The
Clinic

s
proposed
arguments e
ss
en
tially mirror those
of
the appellant
, as ref
lec
ted in the appellant

s notice of appeal and
appeal
    factum
.

A
ppellant

s counse
l

acknowl
edged

that
none of the
Clinic

s
    proposed submissi
ons
contradict
ed
or undermined
the appellant

s position
,
and
he agreed
that the appe
llant
could
make any of the
submissi
ons that the C
linic propose
s to
advance
.

[7]

T
he
likelihood
tha
t the Clin
ic

will
si
mply

ech
o
or amplif
y
the appellant

s arguments is compou
nde
d by the c
lo
se relationship between the
    Clinic and
appellant

s

counsel.
O
n
e of
the Clini
c

s
named cou
nsel on this
motion

previously acted for the
    appellant in these pr
oceedings when he was an
    associat
e law
yer with Si
skinds
.

In that
role, he

provided aff
ida
vit evidence
in support o
f the appellant

s

application
    for leave to commence
an
action
under the
Securities Act
.
I
    also note t
hat the
two firms
representin
g the appellant
on
appeal

(as
well as the firm
rep
resenting
the
Clinic
on this motion
)
are
amo
ng
    t
en law firms wh
ich the
    Clinic refers to as

partne
rs

for
    the prov
ision of pro bono services
.

While
un
doubtedly
    acting with altruistic
intentions

in accordance with its mandate
,
th
e Clinic

s
connection
s

with

the
    appellant
undermin
e
the appearance of
impar
t
iality

needed
t
o ac
t as
a friend of
the court
.

[8]

I
n these circums
tances, g
ranting intervenor status
to the Clinic
wo
u
ld
create an imbalance
or the
appeara
nce of an im
balance
between the parties
:
Dun
kin

Brands
Canada Ltd. v. Bertico inc.
, 2013 QCCA 867
, a
t
para
s. 23-24
;

Ra
ibex
    Canada Ltd. v. ASWR Franc
hising Co
rp.
, 2017
CarswellOnt
21537
,
at para. 34.

[9]

A
cco
rdingly, the
motion

for
    leave
to
intervene is
    dismissed.

[10]

T
h
ere shall be no
costs of this motion.

L.B. Roberts J.A.


