Associate Chief Justice Alexandra Hoy, of the Ontario Court of Appeal, decided that the Canadian Council of Christian Charities would not be given intervener status in Trinity Western University’s appeal of the Ontario Divisional Court’s decision. The role of an intervener is to provide an assistance to the Court to understand the broader implications of the case at hand. The decision to decide who may intervene is at the sole discretion of the Court.
The legal test for an intervener is the likelihood of the proposed entity being able to make a useful contribution to the resolution of the matter without causing injustice to the immediate parties. To determine that the courts require the proposed intervener meet at least one of the following:
- that it has a real substantial and identifiable interest in the subject matter of the proceeding;
- that it has an important perspective distinct from the immediate parties;
- that it is a well-recognized group with a special expertise and a broadly identifiable membership base.
The court gets to choose, in its sole discretion, whether a proposed party will in fact be useful. Justice Hoy was of the view that CCCC had met the test but at the end of the day she was of the view that its submissions would not be of any assistance as its arguments would be duplicative of the arguments put forward by the Canadian Constitution Foundation (CCF). The CCF proposes to argue “that the Divisional Court gave insufficient weight to the historical importance of religion in Canada balancing the competing Charter rights at play.”
During oral argument, I, as CCCC’s lawyer, pointed out to the Court that CCCC wanted to emphasize the importance of institutional religious freedom under s.2a of the Charter. I also stated that there was an important contribution CCCC could make about the ability of such institutions in the ongoing debate about the “private” and “public” sphere. When asked about how that is different from TWU’s position I noted that as an organization of some 3300 Christian charities across Canada we are well placed to share with the Court the implications its decision will have not only on universities but the entire institutional Christian community, as they too have codes of conduct based on their religious beliefs.
The position of institutional religious freedom runs to the core of what CCCC’s is all about. We have ministries that range from development organizations drilling wells in underdeveloped countries to running TV programming. It is a wide swath of endeavours that its members are a part of. The outcome of this case against TWU is not, in our view, going to be limited to universities and educational institutions. Instead the ramifications will be widespread.
To date, the courts in B.C. and Nova Scotia have thought that CCCC’s contribution to their respective TWU cases has been of value as we have been given the opportunity to submit our position and concerns. Ontario courts have not found CCCC’s position to be of any assistance. It is their call to make.
During oral argument, at the Ontario Court of Appeal, I also shared our experience in the BC and Nova Scotia courts. When those courts granted intervener status they maintained the discretion to grant oral argument after the factums (legal briefs) were filed. This provided the courts flexibility to determine whether it was necessary to hear oral argument from the interveners. It also provided the interveners the opportunity to meet and discuss among themselves their various positions to ensure that they eliminate as much overlap as possible when preparing their factums. Indeed, Justice Hoy encouraged the interveners in this case to consult with each other to avoid any duplication in their argument. She also retained the discretion of granting oral argument to panel of judges that will hear the case. “Once the panel has reviewed all factums filed and heard oral submissions from TWU and the LSUC, it will be in a position to determine to what extent oral submissions from the interveners would be of assistance to it.” That is a positive move forward and it will hopefully assist in future cases of this nature in Ontario.
Though CCCC will not be part of the hearing at the Ontario Court of Appeal, perhaps we nevertheless had a positive role to play, however indirectly, by making such submissions on procedure. That in the end, the process is better because CCCC did in fact participate to such a limited degree.
In the meantime, we will continue with our arguments in Nova Scotia in the New Year where we have been granted 20 minutes oral argument and also granted the right to file a 20 page brief outlining matters that, in our view, will be helpful to the court about the importance of this case to institutional religious freedom.