No Good Unless for the Public’s Good: When Can a Third Party Intervene after Certification is Denied?

By Sonya Molyneux

As is the case elsewhere in Canada, third parties in Quebec must obtain court approval before they can intervene in a class action. Both in Quebec and Ontario, courts are hesitant to grant intervenors precious court time before a class action is authorized/ certified.  On February 12, 2020 Amnesty International (“Amnesty”) was granted intervenor status in the ongoing climate change class action, ENJEU v Canada (see decision). In its judgment, the Court clarified the criteria to be considered when exercising the judicial discretion to include or exclude a third-party seeking leave to intervene. 

Background

In November 2018, ENvironment JEUnesse (“ENJEU”) filed an application with the Superior Court of Quebec to authorize a class action against the Government of Canada (“GOC”). The proposed class action was made on behalf of all Quebec residents aged 35 and under. ENJEU’s ambitious suit includes petitioning the court to compel the GOC to pay $100 to each member (approximately $340 million total) into a fund to mitigate and adapt to the climate crisis. ENJEU alleged the government’s failure to take adequate action to reduce greenhouse gas emissions in the face of global warming violates the class’s fundamental rights protected by the Canadian Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms.

Authorization Denied at the Superior Court of Quebec

Like certification in the common law provinces, authorization is the first step in the life of a class action in Quebec. The motion judge’s role is to screen out frivolous and meritless claims. Widely considered a class action-friendly jurisdiction, Quebec does not grant the motion judge any residual discretion once the four criteria for authorization are met.

Although Justice Morrison found all issues raised before the court justiciable, he did not authorize the proposed class action on the basis that the class’ configuration was inadequate (see original version of his decision and unofficial English translation). Justice Morrison rejected the ‘arbitrary’ age parameters of the proposed class, stating, “But why choose 35? Why not 20, 30 or 40? Why not 60?” In addition, the inclusion of children below the age of majority posed an issue of consent for the Court, particularly since ENJEU “is not a statutory entity created by legislature to protect the rights of minors or to act on their behalf.” Justice Morrison concluded it was inapt to proceed in the form of a class action. A claimant could litigate for a declaratory judgment single-handedly.

Decision to Grant Amnesty International Intervenor Status

Justice Bich of the QCCA contemplated Amnesty’s application to intervene on the appeal by asking:

1.     Whether Quebec’s procedural framework allows friendly intervenors at the authorization stage?

2.     If so, should intervenor status be granted in this case?

Justice Bich consulted provisions of the Quebec Code, class action jurisprudence, and academic research. Article 185 of the Quebec Code sets out the three types of voluntary intervenors:

(1)  An aggressive intervenor – the third-party who requests recognition of a right against the parties;

(2)  A conservatory intervenor –the third-party who wishes to replace one of the parties or intends to support/ assist their claims

(3)  A friendly intervenor– the third-party seeking to participate in argument during the investigation.

Justice Bich determined it is less practical and intuitive for judges to grant conservatory and aggressive intervenor status on an appeal for authorization. She expressed concern that these parties will provide little value for the court reviewing the appeal for authorization. She held, however, that a deciding court may approve a friendly intervenor when an appeal for authorization is in progress, where it determines that the intervention will be expedient, and the third party’s contribution will be useful. Generally speaking, courts should have a “certain flexibility” for friendly intervenors where there is public interest or law at stake.

Amnesty requested amicable intervenor status, a move supported by ENJEU and opposed by the GOC. Amnesty proposed to participate in the debate by raising arguments outside the scope of the appellant and respondent’s facta, namely, on matters of international law and the rights of children. In granting intervenor status, Justice Bich relied heavily on two key points. First, Amnesty has expertise in international instruments, including the Declaration of the Rights of the Child and the International Covenant on Civil and Political Rights that both parties lack. Second, the case involved the adjudication of fundamental rights of a public nature. Justice Bich noted it would have been preferable for Amnesty to have sought intervenor status at the motion for authorization itself. Amnesty is limited to making legal observations to assist the appellate court.

Analysis: Is Ontario Less Friendly to Intervenors than Quebec?

In both common and civil law jurisdictions, it is contentious whether an intervenor can be involved in the appeal of an authorization/certification decision. Quebec law is not entirely settled and applicants in Ontario have had mixed results. In Quebec. for example, third parties seeking aggressive intervenor status have not fared well in an appeal of authorization and after authorization was granted (Example 1; Example 2). By and large, however, the Quebec court is more liberal than Ontario in granting friendly intervenor status at the settlement stage.

In Ontario, Rule 13 of the Rules of Civil Procedure enables courts to grant intervenor status “for the purpose of rendering assistance to the court by way of argument”. Under s. 12 of the Class Proceedings Act courts can make orders they deem appropriate to ensure a fair and swift determination of a class action. In theory, this provision grants Ontario courts a broad authority to regularly include intervenors in an appeal for certification. In practice, however, Ontario rarely allows friendly intervenors when certification is contested. For example, in the case Fairview Donut Inc. v the TDL Group Corp, Justice Lax refused the motion for leave to intervene in the certification appeal, on the basis that it would “only serve to delay to determination of issues and may serve to take the proceeding off into a tangent”. Matthew Good attributes the Ontario courts’ restrictive approach to “the narrow confines of certification itself”, namely, that certification is supposed to be a procedural hurdle, rather than a substantive decision on the underlying issues.

When assessing an application to intervene, a court decides whether the proposed intervenor will add a useful, new perspective to the debate. In an adversarial dispute, friendly intervenors provide valuable insight beyond a bipartisan purview. As might be the case in EnJeu, an appeal of an authorization/ certification decision might be the last opportunity an intervenor has to influence the Court’s decision-making. Judges should make greater use of their broad discretionary powers to include friendly intervenors in class action litigation on issues affecting wide segments of society.  

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