



COURT OF APPEAL FOR ONTARIO

CITATION: Shortt (Re), 2020 ONCA 482

DATE: 20200723

DOCKET: M51620 & M51622 (C67425)

Strathy C.J.O. (Motions Judge)

IN
    THE MATTER OF:  Wesley Shortt

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant Wesley
    Shortt

Dena Bonnet, for the respondent the
    Attorney General of Ontario

Janice E. Blackburn and Andrew W.
    MacDonald, for the respondent the Person in Charge of St. Josephs Healthcare
    Hamilton

Anita Szigeti, Maya Kotob, Michael Davies and
    Meaghan McMahon, for the proposed intervener the Empowerment Council

Jill R. Presser and Cassandra DeMelo, for the
    proposed intervener The Criminal Lawyers Association

Heard: In writing

REASONS FOR DECISION

[1]

These reasons address motions by the Empowerment
    Council (EC) and the Criminal Lawyers Association (CLA) for leave to intervene
    in an appeal from a decision of the Ontario Review Board (the Board).

[2]

The appeal is scheduled to be heard on September
    11, 2020. In the interests of expediency, these reasons will be brief.

[3]

I observe at the outset that there is no dispute
    about the suitability of either of the proposed interveners, both of which have
    a history of engagement and assistance to the courts in the matters at issue.

[4]

In considering the proposed interventions,
    however, it is important to consider the nature of the case and the issues that
    arise. The focus of the appellants appeal from the Boards disposition is the
    dismissal of his
Charter
application. As the CLA puts it, the issue
    whether the failure to provide resources in the community represents a breach
    of Mr. Shortts rights under section 7 of the
Charter
, and if so, what
    the appropriate remedy would be.

[5]

The order sought on appeal is a direction that
    funding be made available to facilitate Mr. Shortts transition into supportive
    community housing.

[6]

It is also important to note that the appellant
    makes no complaint about the exercise of the Boards inquisitorial powers at
    his Board hearing on July 18, 2019, as directed by this court in its reasons in
    relation to the 2018 disposition: see
Shortt (Re)
, 2019 ONCA 232.

[7]

It is apparent that, with the active involvement
    of the appellants counsel, considerable effort took place, during several
    pre-hearing conferences and at the hearing itself, to ensure that appropriate
    evidence was available to enable the Board to discharge its responsibilities.
    The appellant makes no complaint about the adequacy of that evidence. His
    complaint is about the lack of funding to enable him to transition to a
    suitable community facility.

[8]

In this context, I am not satisfied that the
    proposed intervention by the EC would make a useful contribution to the
    resolution of the appeal, without causing unfairness to the other parties. The
    focus of its proposed intervention is the interpretation and application of the
    Boards inquisitorial role, including the scope of its inquisitorial powers and
    duties. While that issue may be peripherally in play on the appeal, granting
    leave to intervene on the issue would not assist the court and would be unfair
    to the other parties. While I recognize that this is not the only ground on
    which the EC seeks leave to intervene, I do not see that it adds any greater
    perspective on the other issues than will be provided by the appellant or the
    CLA.

[9]

The CLA seeks leave to intervene on two issues:
    (a) the need for the Board to consider systemic issues in fashioning
    appropriate individualized remedies even if it cannot grant systemic remedies;
    and (b) whether the Board has remedial
Charter
jurisdiction to make
    funding orders.

[10]

The first issue is peripheral in my view. The
    Board clearly considered systemic issues and made a finding, at para. 51, that
    the path to successful community integration has been unavailable due to
systemic

challenges
[Boards emphasis] that are both bureaucratic and fiscal.

[11]

The second issue, however, is central to the
    appeal. On this issue, the CLAs broad experience with
Charter
issues
    would provide a perspective that may assist the panel hearing the appeal in a
    manner that will not cause unfairness to the other parties.

[12]

I therefore order as follows:

(a)

the motion of the EC is dismissed;

(b)

the motion of the CLA is granted, but only with
    respect to the second issue identified above;

(c)

the CLA may file a factum of up to 15 pages and
    may make oral submissions of up to 15 minutes, in the discretion of the panel
    hearing the appeal;

(d)

the CLA shall file its factum within 10 days of
    the release of these reasons or such greater time as the parties may agree;

(e)

the CLA shall accept the record as is and shall
    not augment the record; and

(f)

the CLA shall not seek costs and shall not be
    liable for costs.

[13]

The time allocations for the appeal are revised
    as follows:

(a)

Appellant (including reply): 60 minutes

(b)

Respondents, jointly: 45 minutes; and

(c)

Intervener: 15 minutes.

[14]

I do not see any need to increase the length of
    the respondents factums, given the narrow scope of the intervention.

G.R.
    Strathy C.J.O.


