



COURT OF APPEAL FOR ONTARIO

CITATION: M.J.H. v. Kenora-Rainy River Districts Child &
    Family Services, 2022 ONCA 292

DATE: 20220408

DOCKET: M53236 (C69879)

Lauwers J.A. (Motion Judge)

BETWEEN

M.J.H. and J.A.H.

Plaintiffs (Appellants)

and

Kenora-Rainy River Districts Child & Family Services and the
Estate of B.Z. by Estate Trustees B.M.Z.
  and E.F., and the Estate of M.Z.
by Estate Trustees
B.M.Z. and E.F.

Defendants

(Respondents/Responding
    Parties)

and

Her Majesty the Queen in Right of
    Ontario
and Attorney General of Canada

Third Parties (Respondents)

Jeff Van Bakel, for the appellants
[1]

Harvey Stone, for the responding party Kenora-Rainy
    River Districts Child & Family Services

Robert Sinding, for the responding parties the Estates
    of B.Z. and M.Z.

Diane Fernandes, for the third party the Attorney
    General of Canada
[2]

Rina Li and Nadia Laeeque, for the third party Her
    Majesty the Queen in Right of Ontario
[3]

Loretta P. Merritt and Erin Ellis, for the proposed intervener
    Ontario Trial Lawyers Association

Heard: April 7, 2022 by video conference

REASONS FOR DECISION

Overview

[1]

The Ontario Trial Lawyers Association (OTLA) moves for leave to
    intervene as a friend of the court under r. 13.03(2) to render assistance to
    the court by way of argument in the appeal of the decision of Fregeau J. of the
    Superior Court of Justice, dated August 23, 2021, reported at 2021 ONSC 5631.
    The hearing of the appeal is scheduled for April 26, 2022.

[2]

Between 1966 and 1974, the appellants, who are siblings, were under the
    care of Kenora-Rainy River Districts Child & Family Services (KRRDCFS)
    and were placed in the foster home of B.Z. and M.Z. The appellants claim that
    they were abused while in the care of B.Z. and M.Z., who are now deceased. Their
    estates are respondents.

[3]

In the appeal, the appellants ask this court to set aside the status hearing
    order of Fregeau J., in which he dismissed their action under r. 48.14 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 because they had not provided an
    acceptable explanation for their delay in prosecuting the action.

OTLAs Argument

[4]

The principles governing interventions are well known and were most
    recently summarized by Coroza J.A. in
Foxgate Developments Inc. v. Jane Doe,
2021 ONCA 745. I will not repeat them.

[5]

OTLA proposes to make a two-step argument if given leave to intervene.
    The first step is to argue that there is an absurdity in the
Rules of
    Civil Procedure
that works to the prejudice of those like the appellants
    whose claims are dismissed after a status hearing. An action can be dismissed
    for delay in three ways: on a defendants motion, under r. 24.01(2); by the
    registrar, under r. 48.14(1); or by a judge at a status hearing, under r.
    48.14(5).

[6]

OTLA argues that the absurdity arises because certain plaintiffs whose
    actions are dismissed may start another similar action but not others, such as
    these appellants. The distinction arbitrarily depends on the manner in which
    the action was dismissed. OTLA submits that plaintiffs whose actions are
    dismissed by a judge on a defendants motion or by the registrar may bring another
    similar action, as a result of rr. 24.05 and r. 48.14(9). But plaintiffs whose
    actions are dismissed at a status hearing do not have similar recourse. This
    outcome is especially absurd for plaintiffs whose claims for historical sexual
    and physical abuse are not subject to a limitation defence under the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, such as the appellants in this
    case.

[7]

Assuming the first step of the argument prevails, OTLA proposes, as the
    second step argument, that this court should purge the absurdity by
    reformulating the test for dismissal by a status hearing judge. While the

two-part test
    prescribed by this court in
Faris v. Eftimovski
,
2013 ONCA 360, 363 D.L.R. (4th) 111,
at para. 32
would apply in most cases, it would not apply in cases advancing a claim for
    historical sexual and physical abuse
for which there is no limitation defence.
    OTLA proposes that an action should only be dismissed at a status hearing if
    the plaintiffs delay is contumelious or if the action is frivolous and
    vexatious.

[8]

This proposed new test was expressed in oral argument but not in OTLAs motion
    factum. The new test represents an advance on the policy argument in its factum:

In light of the amendments to the Ontario rules governing
    limitation periods for cases based on sexual assault, it appears irreconcilable
    that no time constraints apply to the commencing of an action but will apply to
    the procedural progress of the action.

When removing limitation periods for cases based on sexual
    assault, it was acknowledged that many survivors find the strength to come
    forward, but then recoil before they gather enough strength to come forward
    again to pursue their case. Recognition of this fact, and the desire to not
    force a survivor to explain their behaviour, was a large consideration when
    removing timelines for cases based on sexual assault.

[9]

OTLA does not seek to file new evidence to support the policy argument
    just quoted but instead seeks to rely on the factual findings in abuse cases such
    as
K.M. v H.M.
,

[1992] 3 S.C.R. 6.

Discussion

[10]

I
    dismiss OTLAs motion for leave to intervene for four reasons:

[11]

First,
    in this appeal the appellants did not make the argument that OTLA now advances.
    There is no evidence that the appellants actions can be explained on the basis
    that OTLA asserts and the appellants do not seek to do so.

[12]

Second,
    and relatedly, this would be a new issue and an entirely new argument on
    appeal, something this court rarely allows. Not only is there no relevant
    factual evidence, there is no lower court decision on the issue.

[13]

Third,
    the OTLA intervention would radically expand the scope of the appeal and would likely
    require an adjournment so that the respondents could marshal a response. A
    tardy motion for leave to intervene should not be permitted to derail a
    scheduled appeal.

[14]

Fourth,
    this is a private dispute. This courts determination on the issue OTLA raises
    could well result in a further appeal, which the parties to this appeal are in
    no position to fund.

[15]

Fifth,
    as an experienced and competent intervener, OTLA knows that this court
    discourages late intervention motions because of their impact on a scheduled
    appeal. In this case OTLA made no effort to mitigate this impact by following
    the best practice of providing a draft factum for the appeal with its Notice of
    Motion. It did not even articulate its oral argument in its motion factum, including
    the new test that it now proposes to propound, leaving the responding parties in
    the dark about the argument to which they were required to respond.

Disposition

[16]

The
    motion is dismissed. Although it is unusual in motions for leave to intervene,
    I award costs in the amount of $1,500 each, all-inclusive, to KRRDCFS and to
    the B.Z. and M.Z. Estates, which will make only a modest contribution to the considerable
    work that was required to respond to this late-breaking motion.

P. Lauwers J.A.





[1]
Mr. Van Bakel appeared but made no written or oral submissions on behalf of the
    appellants.



[2]
Ms. Fernandes appeared but made no written or oral submissions on behalf of the
    Attorney General of Canada.



[3]
Ms. Li and Ms. Laeeque appeared but made no written or oral submissions on
    behalf of Her Majesty the Queen in right of Ontario.


