



COURT OF APPEAL FOR ONTARIO

CITATION: McFarlane v. Ontario (Education), 2019 ONCA 641

DATE: 20190731

DOCKET: M50264 (M50629)

Nordheimer J.A. (Motion Judge)

BETWEEN

Becky McFarlane, in her personal capacity and as
    litigation guardian for L.M. and the Corporation of the Canadian Civil
    Liberties Association

Applicants

(Moving parties on Motion for Leave to
    Appeal)

and

Minister of Education (Ontario)

Respondent 
    (Responding Party on Motion for Leave to Appeal)

Reema Khawja, Insiya Essajee and Lisa Bush, for the
    moving party, Ontario Human Rights Commission

Brendan Brammall, for the applicants

Andrea Bolieiro, for the respondent

Heard: July 30, 2019

ENDORSEMENT

[1]

The Ontario Human Rights Commission (OHRC) seeks leave to intervene in
    the pending motion for leave to appeal brought by the applicants from the
    decision of the Divisional Court in
Elementary Teachers' Federation of
    Ontario v. Ontario (Minister of Education),
2019 ONSC 1308, 144 O.R. (3d)
    347 (Div. Ct.).  The OHRC also seeks an order granting it intervener status on
    the appeal, if leave to appeal is granted. For the following reasons, I would
    dismiss the first part of the OHRCs motion and adjourn the second part.

[2]

The underlying proceeding involves a challenge to the provincial
    governments directive dated August 22, 2018 (the Directive) requiring
    teachers in Ontario's publicly funded elementary schools to teach the sex
    education curriculum in place from 2010 to 2015. The applicants contend that
    the Directive, and the events surrounding it, infringe the
Charter
rights of teachers, students, and/or parents. The Divisional Court dismissed
    that challenge, along with a companion challenge brought by other parties. The
    applicants have sought leave to appeal from the decision of the Divisional
    Court. The OHRC seeks to intervene on the applicants motion for leave to
    appeal, to support the applicants position that leave ought to be granted.

[3]

I begin with the proposition that granting intervener status on a motion
    for leave to appeal should be a rare and extraordinary event. On that point, I
    adopt the following observation made by LeBel J. in
ING Canada Inc. v.
    Aegon Canada Inc.
, [2004] S.C.C.A. No. 50:

Interventions in support of a leave application are exceptional
    and should not be encouraged. There is no need for interventions which purport
    to draw the attention of the Court to the importance of the application for
    leave to appeal. The application for leave to appeal should itself include
    material relevant to the general importance of the case. [Citations omitted.]

[4]

The OHRC says that it would make unique contributions to the motion for
    leave to appeal by submitting: (1) that the issues on the motion engage the
    public interest and (2) that the Divisional Court erred in its analysis of
    discrimination.

[5]

In terms of the first point, the respondent Minister of Education does
    not dispute that the issues raised in this case involve matters of public
    interest. Even without that acknowledgment, I believe it would be self-evident
    from the reasons of the Divisional Court that the issues raised by this
    litigation involve matters of public interest. Indeed, the Divisional Court
    says as much at para. 57 of its reasons. And even without either of those
    factors at play, I believe that the Canadian Civil Liberties Association, as
    one of the applicants for leave to appeal, would be quite capable of drawing
    the public interest element of the case to the attention of the panel hearing
    the motion for leave to appeal.

[6]

In terms of the second point, again I believe that the Canadian Civil
    Liberties Association is quite capable of outlining any errors that it says the
    Divisional Court made in the course of its reasons. While the OHRC might be
    able to assist, in that regard, in terms of identifying particular arguments or
    variations on existing arguments but from its own particular expertise, that is
    not a requirement on a motion for leave to appeal. I am prepared to accept that
    the OHRC might be able to provide a separate perspective on the issues raised
    by the substance of the appeal  but that is a matter for the appeal itself, if
    leave is granted. It is not a requirement on the motion for leave to appeal,
    which simply requires that the applicant show that there is an arguable
    question of law or mixed fact and law:
Sault Dock Co Ltd v. City of Sault
    Ste Marie
, [1973] 2 O.R. 479 (C.A.). An arguable question does not require
    that every possible error be delineated.

[7]

In support of its motion, the OHRC relies heavily on the decision in
2016596
    Ontario Inc. v. Ontario (Minister of Natural Resources),
[2003] O.J. No.
    2905 (C.A.), where OConnor A.C.J.O. granted intervener status on a motion for
    leave to appeal. In my view, that case is distinguishable from the case at bar
    because in
2016596
the public interest component of the proposed
    appeal was not evident and was not advanced by an applicant organization with
    expertise in such matters, as the Canadian Civil Liberties Association does
    here. No other case is proffered by the OHRC that reveals intervention status
    being accorded on a motion for leave to appeal in this province.

[8]

In my view, the OHRC has not established that this case is one where the
    extraordinary remedy of granting intervener status on a motion for leave to
    appeal is required. I am also concerned that, if such status were to become
    easily obtainable, this court might become flooded with such applications, with
    various interested individuals and organizations seeking to line up on one side
    or the other to attempt to tip the balance in favour of, or in opposition to,
    leave to appeal being granted. That result would, in my view, undermine the
    fundamental process that this court adopts in considering whether to grant
    leave to appeal. I believe that is what LeBel J. was referring to when he said
    that such motions should be discouraged.

[9]

In terms of the OHRCs request that it be granted intervener status if
    leave to appeal is granted, in my view that request is premature. If leave to
    appeal is granted, there will be the opportunity for any number of interested
    parties to seek intervener status. I note, on that point, that three
    interveners (the OHRC was not one of them) appeared before the Divisional
    Court. Given that one of the considerations in granting intervener status is
    whether the proposed intervener will make a distinct contribution, it would be
    helpful in deciding those requests to know all of the persons who seek to
    intervene:
Bedford v. Canada (Attorney General),
2009 ONCA 669, 98 O.R.
    (3d) 792, at para. 2.

[10]

As a
    result, I would dismiss the OHRCs motion for intervener status on the motion
    for leave to appeal. I would adjourn the OHRCs motion for intervener status on
    the appeal if leave to appeal is granted. In reaching those conclusions, I am
    not making any comment or determination as to whether the OHRC should be
    granted intervener status on any appeal.

[11]

None
    of the parties sought costs of the motion and no costs are awarded.


I.V.B. Nordheimer J.A.



