Intervention by a Friend of the Court

Courts sometimes allow third parties to participate (intervene) in proceedings in order to provide assistance to the Court. Many regulatory tribunals do so as well.

The decision in Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340 (CanLII), reinforces the proposition that a proposed intervenor as a friend of the court must offer a contribution that is distinct from the contributions made by the parties to a dispute. Further, there is a heightened burden on the proposed intervener in cases that are closer to the private end of the spectrum. In that case, the Court set aside an order granting leave for the Ontario Trial Lawyers Association (“OTLA”) to intervene as a friend of the court in the judicial review application.

As background, the applicant sought judicial review of the decision of the appeal Board upholding the decision of the Inquiries, Complaints and Reports Committee of the regulator (“Committee”) to take no further action with respect to a complaint against the practitioner by the applicant. The complaint concerned the practitioner accessing the applicant’s medical records without consent for the purpose of litigation. OTLA took issue with the potential impact the Board’s decision confirming that practitioners in preparation for litigation have a legitimate reason to look at patient records without consent. OTLA applied for, and was granted, leave to intervene as a friend of the court in the judicial review application. The practitioner brought the motion to set aside the Order granting leave to the OTLA to intervene.

OTLA’s counsel, in support of why the OTLA should be granted intervenor status, argued that OTLA’s expertise would provide broader perspective to the issues beyond the parties.

The Court rejected the argument that OTLA would provide a contribution distinct from the applicant:

Based upon the materials filed, I find that OTLA would not provide a contribution distinct from the appellant.

Further, I find that this matter lies near the private dispute end of the spectrum between private and public disputes. OTLA has not met its heightened burden to be made a friend of the court in the circumstances.

The judicial review application concerning the reasonableness of the Board’s decision in the disciplinary process is still before the court.

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