(just a quick synopsis)
The Ontario Trial Lawyers Association (OTLA) was granted leave to intervene on the plaintiffs’ appeal related to pre-judgment interest for general damages. The scope of intervention was narrowed so as to not improperly expand the scope of the appeal.
(your key takeaways)
- In a private dispute, intervenors may be appropriate for issues with broad implications.
- Intervenors cannot expand the scope of an appeal through raising new questions that require new evidence.
- An affiliation between counsel and a proposed intervenor does not, in itself, raise the risk of prejudice through duplicative submissions.
(links to the full judicial reasons)
To intervene, or not to intervene? That was the question the Court of Appeal for Ontario answered in this interlocutory motion.
Facts
The plaintiffs appeal the trial judge’s decision to depart from the presumptive pre-judgment interest (PJI) rate for non-pecuniary damages. The appeal has been perfected and is scheduled to be heard on January 18, 2024.1
In a motion before Associate Chief Justice Fairburn, the Ontario Trial Lawyers Association (OTLA) sought leave to intervene as a friend of the court, specifically on the issue of PJI.
OTLA proposed to advance two submissions:
- A high evidentiary threshold is required to deviate from the presumptive PJI rate; and,
- A party must give adequate notice if it seeks a PJI rate other than the presumptive rate.
The plaintiffs (appellants) consented to the motion. The defendant physician (respondent) opposed, arguing that OTLA’s submissions would raise new issues on appeal and are duplicative of the plaintiffs’ submissions.
Issue
Should OTLA be granted leave to intervene on the appeal?
Held
Yes, but only with respect to its first proposed submission.
REASONS
Fairburn ACJO confirmed that the following factors must be considered when determining whether to grant leave to intervene:
- General nature of the case;
- Issues that arise in the case; and,
- Contribution that the intervenor can make to the issues without doing injustice to the parties.
Considering the first two factors, Fairburn ACJO found this is an appropriate appeal for intervention. While the case involves a private dispute, the issue of how to award PJI for non-pecuniary loss (according to the statute and recent case law) has “potentially broad implications.”
With respect to the third factor, Fairburn ACJO found that OTLA is an appropriate intervenor with expertise to contribute to the appeal. However, it may only intervene to the extent that its contributions are useful without causing prejudice to the parties.
OTLA is not permitted to make submissions on the issue of notice because it would improperly expand the scope of the appeal. The issue of notice was not considered by the trial judge, supported by the evidentiary record, or raised on appeal.
In contrast, OTLA is permitted to make submissions on the requisite evidentiary threshold. These submissions do not inappropriately seek to introduce new evidence or weigh in on new evidence. They are broadly framed, and do not duplicate the plaintiffs’ fact-specific submissions.
Fairburn ACJO notably stated that plaintiff counsel’s involvement with OTLA does not, on its own, increase the risk of duplicative submissions. The law should not dissuade counsel from “laudabl[y]” contributing to legal organizations on a pro bono basis. A strong presumption of professionalism is warranted in this case.
- The plaintiffs were successful in the medical malpractice jury trial, and the defendant physician also appeals the liability decision. The defendant’s appeal will be heard with the plaintiff’s appeal. ↩︎