



COURT OF APPEAL FOR ONTARIO

CITATION: Bowman v. Ontario, 2021 ONCA 795

DATE: 20211105

DOCKET: M52851 & M52778 (C68939)

Strathy C.J.O. (Motion
    Judge)

BETWEEN

Dana Bowman, Grace Marie
    Doyle Hillion,
Susan Lindsay and Tracey Mechefske

Plaintiffs (Appellants)

and

Her Majesty the Queen in
    Right of Ontario

Defendant (Respondent)

Stephen J. Moreau and Kaley
    Duff, for the appellants

Christopher Thompson,
    Chantelle Blom, Ravi Amarnath and Adam Mortimer, for the respondent

Jennifer L. Hunter, Jennifer
    ODell and Jacqueline Palef, for the proposed intervener, Canadian Civil
    Liberties Association (M52851)

Anu Bakshi and Nabila F. Qureshi,
    for the proposed intervener, Income Security Advocacy Centre (M52778)

Heard: October 27, 2021 by video conference

ENDORSEMENT

[1]

After hearing motions for leave to intervene by the Canadian Civil
    Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC), I
    advised counsel that I would grant the motion in respect of the former and I
    reserved judgment on the latter.

[2]

In respect of the CCLA motion, which is unopposed, I am satisfied that the
    proposed intervention meets the requirements set out in
Peel (Regional
    Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990),
    74 O.R. (2d) 164 (C.A.), and that the CCLA will make a useful contribution to
    the resolution of the appeal without causing injustice to the parties. The
    following terms will apply: (a) the CCLA may file a factum of up to 15 pages in
    length by November 30, 2021 or such other date as the parties agree upon; (b)
    the Crown may file a responding factum of up to 15 pages in length by December
    15, 2021 or such other date as the parties agree upon; (c) the CCLA may have up
    to 15 minutes for oral argument on the appeal, such time to be deducted from
    the appellants allotted time of two and one half hours; (d) the Crowns time
    for oral argument in reply shall be contained within its existing allotment of one
    and one half hours; (e) the CCLA shall take the record as it finds it and shall
    not augment the record; and (f) the CCLA shall not seek costs and will not be
    liable for costs.

[3]

Having considered the submissions of the ISAC and the additional
    authorities submitted by the parties, and with some regret, I dismiss the
    ISACs motion without costs.

[4]

The issues in this appeal, a class action on behalf of low-income
    individuals, fall in the middle of the private/public spectrum. The appeal involves
    issues of public interest which fall squarely within the ISACs wheelhouse. I do
    not have any doubt that the ISAC has the expertise and experience to make a
    useful contribution to the appeal.

[5]

The ISAC seeks to intervene with respect to the issue of whether there
    is a contract between the class members and the Province of Ontario with
    respect to the Basic Income Pilot Project (the Project). It proposes to
    address the legal principles that would guide the determination of whether a
    contract was formed.

[6]

In opposing the ISACs motion for leave to intervene, the Province
    raised the issue of the ISACs engagement with the Project at the government
    and community levels.

[7]

I do not hold to the view that an intervener must have no connection to
    the underlying dispute or that a true friend of the court must be a
    disinterested non-party: see
United Brotherhood of Carpenters and Joiners
    of America, Local 1386 v. Bransen Construction
, 2002 NBCA 27, 249 N.B.R.
    (2d) 93, at para. 15;
Gemtec Limited & Robert G. Lutes v. The Queen
,
    2006 NBQB 439, 313 N.B.R. (2d) 296, at para. 18. As McMurtry C.J.O. observed in
Childs v. Desormeaux
(2003), 67 O.R. (3d) 385, (C.A.), which has been
    a jurisprudential touchstone in intervention motions, the submission that a friend
    of the court must be neutral, abstract and objective refers to a restricted
    notion of the
amicus curiae
that has long been rejected: at para. 13.
    Indeed, it is frequently the interveners interest and experience in the
    matter that enables it to make a useful contribution to the appeal by providing
    a perspective on the issues that differs from the immediate parties: see also
Ontario
    (Natural Resources and Forestry) v. South Bruce Peninsula (Town)
, 2021
    ONCA 749, at para. 19.

[8]

I accept, therefore, that having an interest in the Project does not
    automatically disqualify the ISAC from intervening  indeed, advocacy for income
    security through basic income or other means is the ISACs raison dêtre.

[9]

My overriding concern, however, is that the ISAC is much more than
    interested in the subject of this appeal. It has been
directly
    involved
in the underlying process, including, in its own words,
    participating in government consultations to develop the Basic Income Pilot Project
    that is the subject of this Appeal and developing public legal education
    presentations and materials on basic income for the purpose of the Project. The
    ISACs work included making recommendations to senior government officials
    concerning communications with the participants in the program (that is, the
    members of the proposed class). The ISAC also provided advice, directly or
    indirectly, to those who participated in the Project.

[10]

One
    of the fundamental issues before the court in the underlying appeal will be
    whether a contractual relationship existed between the Province and the members
    of the class and, if so, the terms of that contract. The resolution of those
    questions will require an examination of the factual matrix  a matrix that the
    ISAC was a part of and helped shape. The involvement of the ISAC in that
    factual matrix could well become a matter of evidence, should the matter
    proceed to trial.

[11]

Put
    another way, and more colloquially, the ISAC has skin in the game. At a
    minimum, it has a reputational issue at stake on the appeal, because of its
    direct involvement in the Project. In my view, the ISAC is simply too close to
    the underlying factual issues and too closely associated with the potential
    class members to permit it to take on the role of intervener. As well, it would
    be unfair to require the respondent to respond to an additional voice which is
    so closely allied with the appellants.

[12]

I
    am satisfied, moreover, that any perspective that the ISAC might be able to
    provide on the appeal will be reflected in the submissions of counsel for the
    appellants.

[13]

For
    these reasons, the ISACs motion is dismissed, without costs.

G.R. Strathy C.J.O.


