THE Estate of DesirÉe A. Dichmont Applicant And: Her Majesty the Queen in Right of Newfoundland v. Labrador, 2019 NLSC 25

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Dichmont Estate v. Newfoundland and Labrador (Government Services and Lands) , 2019 NLSC 25 Date : February 1, 2019 Docket : 201701G4144 Between: THE Estate of DesirÉe A. Dichmont Applicant And: Her Majesty the Queen in Right of Newfoundland and Labrador AS REPRESENTED BY THE MINISTER OF GOVERNMENT SERVICES AND LANDS First Respondent And: Newfoundland and Labrador Human Rights Commission Second Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 16, 2019

Summary: The Court granted leave to intervene on conditions to a charitable organization dedicated to advocating for Charter rights and freedoms. The proceeding before the Court was an appeal from a human rights board of inquiry decision that involved reconciliation and

integration of Charter rights and values in a human rights complaint. The Court determined that the intervenor’s experience andexpertise, combined with its different perspective, could result in it making a useful contribution on an issue of public interest. Appearances: Marty Moore Appearing on behalf of the Intended Intervenor, Justice Centre for Constitutional Freedoms Philip Fourie and Appearing on behalf of the Applicant Deina Warren (by phone) David G. Rodgers Appearing on behalf of the First Respondent Donna L.

Strong Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: David Suzuki Foundation v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2018 NLSC146; Forsey v. Eastern Regional Health Authority, 2007 NLTD 101; Eastern Regional Integrated Health Authority v. Assn. of RegisteredNurses of Newfoundland and Labrador, 2014 NLCA 52; Ward v. Canada (Attorney General) (1997), (NL SC), 153Nfld. & P.E.I.R. 135, 35 W.C.B. (2d) 12 (Nfld. S.C. (T.D.)); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of CanadaLtd. (1990), (ON CA), 45 C.P.C. (2d) 1, 22 A.C.W.S. (3d) 292 (Ont.

S.C. C.A.); Rothmans, Benson & Hedges Inc. v.Canada (Attorney General) (1989), (NS CA), [1990] 1 F.C. 74 (F.Ct.); Dalton v. Hutton (2003), (NL SC), 120 A.C.W.S. (3d) 43, 222 Nfld. & P.E.I.R. 97 (N.L.S.C. (T.D.)); Peixeiro v. Haberman (1994), (ON SC),20 O.R. (3d) 666, 33 C.P.C. (3d) 388 (Ont. Ct. J. (Gen. Div.)); British Columbia v. Goodwin, 2005 BCCA 585; Newfoundland (Ministerof Government Services & Lands) v. Drew (2000), (NL SC), 191 Nfld. & P.E.I.R. 82, 96 A.C.W.S. (3d) 36 (Nfld.S.C. (T.D.)); M. v. H. (1994), (ON SC), 20 O.R. (3d) 70, 9 R.F.L. (4th) 94 (Ont. Ct. J. (Gen.

Div.)); Schofield v.Ontario (Minister of Consumer & Commercial Relations) (1980), (ON CA), 28 O.R. (2d) 764, 3 A.C.W.S. (2d) 149(Ont. C.A.); Yale Indian Band v. Aitchelitz Indian Band (1998), (FC), 151 F.T.R. 36, 81 A.C.W.S. (3d) 772 (F. Ct.(T.D.)); Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16; C.U.P.E. v. Canadian Airlines International Ltd., 2000 FCA233; Osborne v. Canada (Treasury Board), (SCC), [1991] 2 S.C.R. 69; Fraser v. Canada (Treasury Board, Departmentof National Revenue), (SCC), [1985] 2 S.C.R. 455; Trinity Western University v. Law Society of Upper Canada, 2014ONSC 5541; Bedford v.

Canada (Attorney General), 2009 ONCA 669; The Christian Medical and Dental Society of Canada v. Collegeof Physicians and Surgeons of Ontario, 2018 ONSC 579 STATUTES CONSIDERED: Human Rights Code, R.S.N.L. 1990, c. H-14; Human Rights Act, 2010, S.N.L. 2010, c. H-13.1, s. 14;Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.) 1982,c. 11; Canadian Human Rights Act, R.S.C., 1985, c. H-6 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT

McGrath, J.: INTRODUCTION [1] The Justice Centre for Constitutional Freedoms (the “Justice Centre”) has asked this Court for leave to intervene in an appealof a decision of a Human Rights Board of Inquiry (the “Board”).

The decision appealed from dismissed the complaint of DesiréeDichmont, a former marriage commissioner, that she had been discriminated against by the First Respondent (the “Province”) on thebasis of her religious creed (the “Decision”), contrary to human rights legislation. [2] By way of background, on December 21, 2004 this Court declared the common law definition of marriage to be the voluntaryunion for life of two persons, effectively granting same-sex couples the ability to marry.

On December 23, 2004, the Province sent aletter to all marriage commissioners appointed by it advising that they must either provide services to same-sex couples or resign theirappointment. [3] Ms. Dichmont submitted her letter of resignation on January 14, 2005, explaining that she was unable to marry same-sexcouples based upon her religious beliefs. She then filed a complaint with the Human Rights Commission (the “Commission”) claimingdiscrimination in regard to employment or a term or condition of employment on the basis of religious creed, contrary to section 9(1) ofthe Human Rights Code, R.S.N.L. 1990, c.

H-14 (since replaced by the Human Rights Act, 2010, S.N.L. 2010, c. H-13.1, s. 14). [4] The complaint was initially dismissed by the Commission on the basis that there was insufficient evidence to set it down fora hearing. However, that decision was reviewed by this Court, resulting in an Order that the Commission refer the complaint to a Boardof Inquiry. The hearing of that complaint took place before a Board of Inquiry adjudicator. Unfortunately, Ms. Dichmont passed awayafter the hearing but before the adjudicator released his Decision. [5] Notwithstanding Ms.

Dichmont’s death, her Estate (the “Estate”) filed an appeal of the Decision. This Court granted leave toappeal on November 28, 2017. An application to have the issue of mootness determined as a preliminary question of law was filed bythe Province but was withdrawn before its scheduled hearing date. Notwithstanding the withdrawal, the issue of mootness as well as thestanding of the Estate remain live issues to be argued at the hearing of the matter. [6] Following the withdrawal of the Province’s application, appeal dates were set for January 16 and 17, 2019.

However, as theJustice Centre filed this intervention application in November, 2018, the appeal date was rescheduled to March 4 and 5, 2019, with thiscontested application being heard on January 16, 2019. The following are my reasons for judgment on that application for intervention. issue [7] The issue to be determined on this application is as follows: 1. Should the Justice Centre be granted intervenor status in this matter? law and analysis [8] The Justice Centre seeks leave to intervene under either Rule 7.05(1)(

a) or 7.06 of the Rules of the Supreme Court, 1986,S.N.L. 1986, c. 42, Sch. D. Rule 7.05(1)(

a) allows a person to seek leave of the Court to intervene as a party and reads as follows: 7.05.

(1) Any person may, with leave of the court, intervene in a proceeding and become a party thereto if (

a) that person claims an interest in the subject matter of the proceeding, including any property seized or attached in theproceeding, whether as an incident to the relief claimed, enforcement of the order therein, or otherwise; [9] Rule 7.06 allows persons to seek leave to intervene as a friend of the Court as opposed to a party. It reads as follows: 7.06. Any person may, with the leave of the Court and without becoming a party to a proceeding, intervene in the proceeding as a friendof the Court for the purpose of assisting it. [10] Rule 7.05(1)(

a) was recently considered by Justice Chaytor of this Court in David Suzuki Foundation v. Canada-Newfoundlandand Labrador Offshore Petroleum Board, 2018 NLSC 146. At paragraph 59, Chaytor, J. cited a previous decision of this Court inForsey v. Eastern Regional Health Authority, 2007 NLTD 101 in which the Court noted the following three criteria an intendedintervenor must demonstrate in order to be granted leave to intervene under Rule 7.05(1)(a): 1. That it has a sufficient interest in the proceeding; 2. That it can make a useful contribution; and 3.

That its participation will not unduly lengthen or delay the proceedings nor impose an injustice or an excessive burden on theparties. [11] In Eastern Regional Integrated Health Authority v. Assn. of Registered Nurses of Newfoundland and Labrador, 2014 NLCA52, Hoegg, J.A. noted at paragraph 4 that whether public law issues are involved is also a factor for consideration. [12] When public law issues are involved, case law indicates there has been a relaxation of the criteria for intervention. This wasnoted in the 1997 decision of Ward v. Canada (Attorney General) (1997), (NL SC), 153 Nfld. & P.E.I.R. 135, 35

W.C.B. (2d) 12 (Nfld. S.C. (T.D.)), at paragraphs 17 and 18, in which Hickman, C.J. referred, with approval, to the decision of theOntario Court of Appeal in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), (ONCA), 45 C.P.C. (2d) 1, 22 A.C.W.S. (3d) 292 (Ont. S.C. C.A.). At paragraph 6 of that Ontario decision, Dubin, C.J. noted as follows: 6.

In constitutional cases, including cases under the Charter of Rights and Freedoms, which is the case here, the judgment has agreat impact on others who are not immediate parties to the proceedings and, for that reason, there has been a relaxation of the rulesheretofore governing the disposition of applications for leave to intervene and has increased the desirability of permitting some suchinterventions. [13] At paragraph 20 of Ward, Chief Justice Hickman also referred to Rothmans, Benson & Hedges Inc. v. Canada (AttorneyGeneral) (1989), (NS CA), [1990] 1 F.C. 74 (F.

Ct.), at paragraph 79, wherein Rouleau, J. noted that the SupremeCourt appeared to be requiring somewhat less by way of connection to consider “public interest” intervention once the court has beenpersuaded as to the seriousness of the question. In particular, Rouleau, J. identified the following criteria that would be relevant inconsidering whether to allow full public interest intervention: 12.

In order for the Court to grant standing and to justify the full participation of an intervenor in a "public interest" debate, certaincriteria must be met and gathering from the more recent decisions the following is contemplated:

(1) Is the proposed intervenor directly affected by the outcome?

(2) Does there exist a justifiable issue and a veritable public interest?

(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?

(4) Is the position of the proposed intervenor adequately defended by one of the parties to the case?

(5) Are the interests of justice better served by the intervention of the proposed third party?

(6) Can the Court hear and decide the cause on its merits without the proposed intervenor? [14] The first two criteria identified in Rothmans, Benson & Hedges relate to the requirement that the intended intervenor establishthat it has a sufficient interest in the proceeding while the last four criteria relate primarily to the requirement that the intended intervenordemonstrate it will make a useful contribution. [15] It is notable that in identifying the six criteria for consideration in Rothmans, Benson & Hedges, Rouleau, J. was identifyingfactors relevant to “full” participation by an intervenor.

In cases involving a public interest where limited participation is contemplated,even less restrictive criteria have been applied. [16] In respect of the first criterion, i.e. whether the proposed intervenor is “directly” affected by the outcome, Chief JusticeHickman, at paragraphs 20 and 21 of Ward, referred to later passages from Rothmans, Benson & Hedges, to the effect that while a personor group may have no direct interest, a proposed intervenor with an interest in public law issues may have the ability to assist the court ina unique way in making its decision.

This may be so even when the “public interest” may be adequately defended by one of the partiesas the intended intervenor may have special knowledge and expertise with respect to the issue. [17] However, as noted at paragraph 23 of Ward, courts must be vigilant to ensure courtrooms are not used as a forum to advocatefor a cause. Intervention should only be allowed under the public interest umbrella where the person or group seeking to intervene canassist the court in its determination of the issue of public interest.

In such a case, the intervenor would act as a friend of the Court,rendering assistance by way of argument. [18] Counsel for the Province and the Commission do not disagree that the above considerations are those that I must take intoaccount in determining whether to grant leave to intervene.

However, they take differing positions as to whether a consideration of therelevant criteria weighs in favour of granting leave. [19] While neither the Province nor the Commission assert that the participation of the Justice Centre will unduly lengthen or delaythe proceedings or impose an injustice or excessive burden on the parties, they disagree both as to (

i) the sufficiency of the JusticeCentre’s interest, turning in large part on the extent to which this appeal should be considered a “public interest” proceeding; and (ii)whether the Justice Centre could make a useful contribution beyond that provided by counsel for the Estate. I will now examine each ofthese contested factors. Sufficiency of Interest [20] The Justice Centre defines itself as an independent, non-religious, non-partisan, registered charity that is dedicated toadvocating for rights and freedoms under the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the “Charter”), particularly the fundamental freedoms set out in

section 2. [21] The Justice Centre acknowledges it does not have a direct interest in the outcome of the appeal. It does not have any membersor clients who have similar ongoing litigation or potential litigation before any court in Canada. It also acknowledges it has no directinterest in the outcome of this case for, or against, the Estate, including the Estate’s request for compensation. [22] However, the Justice Centre notes that a direct interest in the outcome is not required in order to be granted intervenor status asthis matter raises important Charter issues, being issues of public interest.

It says the public interest nature of the matters under appealare clearly identified in the Notice of Appeal in which it is alleged that the adjudicator erred by: … (

d) Concluding that Ms. Dichmont is an entity to which s. 32 of the Charter applies, in that it places Charter obligations on her as anindividual; (

e) Concluding that Ms. Dichmont’s religious views cannot be accommodated by virtue of the fact that she was “acting as government”; (

f) Concluding that the First Respondent, Her Majesty the Queen in Right of Newfoundland and Labrador is an entity to which s.32Charter obligations do not attach vis-à-vis Ms. Dichmont; (

g) Failing to apply Charter jurisprudence regarding (

i) freedom of religion and conscience and (ii) equality on the grounds of religion indefining the content and nature of Ms. Dichmont’s religion and religious creed-based Code claim; … (

l) Failing to properly apply the duty of state neutrality; [23] The Justice Centre asserts that the above referenced grounds of appeal directly raise matters of broad public and societalconcern. In light of these issues, it says it would be inaccurate to describe this appeal as a private law matter. [24] The Respondents, on the other hand, describe the issue on this statutory appeal as being a judicial review of a decisiondismissing a human rights complaint filed by an individual who was seeking personal relief. The Respondents say the issue before theBoard was as set forth in Ms.

Dichmont’s complaint form, i.e. an alleged violation of her religious beliefs under human rights legislation,and not a breach of the Charter. Counsel for the Commission says that, while human rights legislation must be interpreted consistentlywith the Charter, with decision makers applying Charter values, it is an alleged breach of human rights legislation that is the core issuebefore this Court. That issue is of a more personal nature than public. [25] Counsel for the Commission refers to the decision of this Court in Dalton v.

Hutton (2003), (NL SC), 120A.C.W.S. (3d) 43, 222 Nfld. & P.E.I.R. 97 (N.L.S.C. (T.D.)) for its position that the Court should be concerned not to allow publicinterest groups to inappropriately intervene in private litigation. At paragraph 25, Handrigan, J. referred to the Ontario General Divisiondecision of Peixeiro v. Haberman (1994), (ON SC), 20 O.R. (3d) 666, 33 C.P.C. (3d) 388 (Ont. Ct. J. (Gen. Div.)), inwhich a lawyers’ professional indemnity company applied for leave to intervene on a pre-trial motion as a friend of the Court.

At page670, MacPherson, J. found that the insurance company’s interest in the motion was not sufficient to allow it to participate in theproceedings and noted that “caution” should be exercised when granting leave to intervene in “private litigation”. [26] After reviewing Canadian case law, Handrigan, J. found that there was a clear demarcation between public and privatelitigation in how courts view applications for leave to intervene. At paragraph 35, he defined public law issues as follows: 35.

Public law issues are matters of broad public and societal concern, and include such things as health, environmental and aboriginalmatters. There is an increased likelihood intervention will be permitted in proceedings engaging the Canadian Charter of Rights andFreedoms, especially where legislation that affects a broad spectrum of society is being challenged.

In those cases it is not only likelythat intervention will be permitted, but it is generally desirable that it be sought, so that as much fresh information and as many differentperspectives can be brought to the discussion as possible. [27] However, counsel for the Respondents submit the raising of Charter issues does not alter the personal nature of the litigation. The Respondents state that the issues determined in the Decision were personal to Ms. Dichmont and, further, that they abated upon herdeath. Counsel for the Commission references British Columbia v.

Goodwin Estate, 2005 BCCA 585, at paragraph 11, where Lowry,J.A. noted that the substantive rights created by the British Columbia Human Rights Code are those of the person who has suffered ahuman rights violation. [28] However, I note that in Goodwin, the issue on appeal was whether the judge hearing the appeal at first instance erred in rulingthat the human rights tribunal had no jurisdiction to conduct a hearing when a complainant died prior to the hearing. The focus of thedecision was on the remedies that had been sought, which were all personal to the deceased claimant, other than a request for a systemic

order that the government set up a program to provide services to persons like the deceased Mr. Goodwin. The appeals judge decidedthat the provisions of the British Columbia Human Rights Code that permitted representative complaints to file a complaint did notcreate any substantive rights and thus could not be relied upon to allow a personal claim of a deceased person to continue solely in orderto grant the systemic order that was sought. [29] As such, the court in Goodwin was not asked to characterize the nature of the issues as personal versus private.

It was asked todetermine the tribunal’s jurisdiction based on the personal nature of the remedies it could provide. [30] Counsel for the Justice Centre acknowledges that the remedies the Board could provide were personal to Ms. Dichmont. However, the Justice Centre does not claim to have an interest in respect of any of the remedies or the eventual outcome for any of theparties in respect to this proceeding.

It says it merely wishes to provide assistance to the Court in respect of the legal issues that will beat the core of the arguments before the Court and upon which the decision will turn. [31] Counsel for the Justice Centre relies upon cases from this jurisdiction in which intervenor status was granted based on thenature of the issues before the Court.

The Justice Centre refers to Ward, in which Hickman, C.J. found that the IFAW, a not-for-profitorganization who vocally opposed the seal hunt, could assist the Court in its determination of the constitutionality of subordinatelegislation regulating the seal hunt, an issue which would determine how and by whom a large industry in this province would beregulated. As such, he granted leave to intervene as a friend of the Court under the “public interest” umbrella. [32] Counsel also referred to the decision of Barry, J in Newfoundland (Minister of Government Services & Lands) v.

Drew (2000), (NL SC), 191 Nfld. & P.E.I.R. 82, 96 A.C.W.S. (3d) 36 (Nfld. S.C. (T.D.)). In that case, Barry, J. granted intervenorstatus to Abitibi Consolidated Inc., a pulp and paper company who had proprietary interests in lands adjacent to the Bay du NordWilderness Reserve. The Defendants in the proceeding had claimed entitlement to own cabins in the Reserve on the basis of treaty andaboriginal rights.

The Court was satisfied that Abitibi had a sufficient interest in the subject matter of the proceedings as the case wouldinvolve a determination of the extent of treaty and aboriginal rights which could directly affect Abitibi’s proprietary interest in landsadjacent to the Reserve.

Given the fact that Abitibi was asserting that its own rights were being prejudiced, Barry, J. found at paragraph26 that it was more appropriate that it be added as a party rather than a friend of the Court. [33] While the application in Drew was not decided on the basis of the proposed intervenor’s “public interest”, the Court did notethat the public nature of the issues required a more relaxed approach. The Justice Centre submits that the manner in which Barry, J.characterized the nature of the issue before him is of relevance to this application.

At paragraph 23, Barry, J. stated that, while thesubject of the proceeding could be narrowly viewed as the applicability of legislation to aboriginal cabins, the pleadings made it clearthat the case would turn upon the existence or otherwise of aboriginal and treaty rights.

The Court was satisfied that this was aconstitutional and public law issue which warranted a less rigid approach to the exercise of the Court’s discretion to permit intervention. [34] Counsel for the Justice Centre says the Ward and Drew cases, as well as case law referred to therein, provide support for itsposition that the Court should take a broader view of whether a matter is of public interest. The Court should seek to determine theunderlying nature of the issues the case will turn upon. [35] On the other hand, the Respondents do not agree that this raises broad public interest issues.

They note that Ward involved adirect attack on regulations governing all those involved in the seal hunt. In Drew, the court was being asked to rule directly on theextent of aboriginal and treaty rights that may affect a large number of landowners as well as the Province. The rulings in thosedecisions would therefore have a broad impact upon the public. [36] In Ward, counsel for the Commission notes that if the regulations were struck down as being unconstitutional, there wouldhave been a significant impact as the seal hunt would have been left unregulated and in legislative limbo.

At paragraph 18 of thatdecision, Hickman, C.J. noted the great impact that the striking down of the regulations would have on persons who were not immediateparties to the proceedings. [37] The Respondents note that Ms. Dichmont could have launched a constitutional challenge to the Province’s policy of mandatingmarriage commissioners to either perform same-sex marriages or resign. Had Ms. Dichmont done so, the Justice Centre would have hada stronger argument to make in support of its application for intervention.

That is because the striking down of a policy would have hada broader impact upon members of the public. [38] The Respondents submit that the outcome of a decision of this Court will be significantly different from that of a constitutionalchallenge. This Court’s decision on judicial review will only have potential impact upon the Estate of Ms. Dichmont. No law or policywill be struck down. [39] Further, the Respondents submit that a decision of this Court will not have significant precedential or jurisprudential value.

The Court will only be asked to decide the reasonableness of the adjudicator’s Decision[1], which involved him balancing and integratingCharter values with obligations under the former Human Rights Code. As a result, the Court will not be making a definitive statementwith respect to how Charter rights at play are determined. While a decision of this Court may be persuasive upon other courts, it wouldnot be binding upon this Court or courts of any other province. [40] Counsel for the Commission also notes that this is not the type of matter that routinely comes before the Commission.

In fact,this is the only case of this type, thereby indicating it would not have a significant impact on other decisions. [41] The Respondents further state that, even if a decision of this Court were to have jurisprudential value, a jurisprudential interestalone is generally seen as an insufficient interest to warrant an intervention. As noted by Handrigan, J., at paragraph 45 of Dalton,quoting from Epstein, J. in M. v. H. (1994), (ON SC), 20 O.R. (3d) 70, 9 R.F.L. (4th) 94 (Ont. Ct. J. (Gen.

Div.)), atpages 76-77: "[t]he common law system would implode on itself"49, if applications were allowed for that reason: "[The common law] . . . is built upon

an incremental system of developing the law. An issue is determined between the parties and then, subsequently, an individual who has acase with the same issue pending asks the court hearing his or her matter to decide whether or not the precedent set is applicable.

If thecourts had previously interpreted or were to interpret Rule 13 [roughly equivalent to Rule 7.05] as giving intervention rights toindividuals who might be affected, adversely or otherwise, solely by the legal precedent which the first case creates, then . . . there wouldbe no principled way of excluding the second or the 500th case" [42] Further, at paragraph 26, Handrigan, J. referred with approval to comments in the Ontario Court of Appeal decision inSchofield v. Ontario (Minister of Consumer & Commercial Relations) (1980), (ON CA), 28 O.R. (2d) 764, 3A.C.W.S. (2d) 149 (Ont.

C.A.), which were repeated in Peixeiro, at page 671: …[i]t seems to me that the fact that the decision of that lis may be applied subsequently by another Court as a precedent in resolving a lisbetween other parties is not a sufficient interest to justify a grant of standing to one of those other parties. [43] Dalton dealt with an application by a third party interest group to intervene on an interlocutory application to strike an action. The Plaintiff had been wrongfully convicted of murder and brought a claim against both the Province and the pathologist who hadtestified at his criminal trial.

The Province brought an action to strike the claim on the basis that the pathologist had witness immunity. The proposed intervenor was the Association in Defence of the Wrongfully Convicted (“AIDWYC”), a national public interestorganization dedicated to preventing and rectifying wrongful convictions. [44] Handrigan, J., at paragraph 44, held that the Dalton-Hutton litigation was a private cause of action that involved issues that hadto be resolved between the parties and would have a direct impact on them alone.

While a decision on the issue of witness immunitycould be offered as a precedent in other proceedings, that alone did not change the complexion of the issue so that the cause moved intothe realm in which AIDWYC operated. Further, the proposed intervenor’s concern about stare decisis did not differentiate it from anyother member of the public who was viewing the proceedings.

As such, AIDWYC was held not to have a sufficient interest in theproceedings to warrant exercising the Court’s discretion to allow intervenor status. [45] However, counsel for the Justice Centre submits that its interest is not purely jurisprudential. Its concern is the broad impactthe decision of this Court may have. It suggests that the Province may view this decision as a guide for how it must balance the Charterrights of the public it serves with the Charter rights of the public service.

It is notable that the Respondents are comprised of theProvince, the employer for the large public sector, and the Commission, an entity with a broad mandate to investigate, promote andadvise on human rights issues in this province. As such, the Justice Centre says that the consequences of this decision cannot be viewedas narrowly as suggested by the Commission and the Province.

They are issues of a public nature. [46] In considering the nature of the issues in this proceeding, I appreciate the position taken by the Respondents that human rightslegislation is focussed on providing personal remedies to the individual who has been discriminated against and is intended to protectpersonal rights. In fact, the personal nature of the remedies available to Ms.

Dichmont will be fully argued on this appeal when theparties address the issue of mootness. [47] However, the Province withdrew its application seeking a preliminary determination of fact and law on the issue of mootness,with the parties agreeing to have the issues of mootness and standing argued at the same time as the hearing of the appeal on the merits. As a result, it would be premature to make any comment on these issues or to make an assessment as to the impact those arguments mayhave on the exercise of my discretion to permit intervention.

What is clear is that the merits of the appeal of the Decision will be arguedbefore those issues are decided. I must consider this application in light of the issues raised on the merits. [48] While the appeal before me is in respect of a finding as to whether the Province engaged in prohibited discriminatory conductwith respect to Ms.

Dichmont, in the circumstances of this case, one of the core issues to be argued is whether the Decision should beoverturned on the basis of an improper integration and application of Charter rights and values in the human rights context. [49] The Board found, and it is not contested, that a prima facie case of discrimination had been made out by Ms. Dichmont. Thedecision of the Board came down to whether the Province met its burden of establishing that the limitation, specification or preference itimposed on Ms.

Dichmont was based on a good faith occupational requirement and whether it had attempted to accommodate Ms.Dichmont to the point of undue hardship. [50] It is clear from a review of the Decision that, in determining whether the Province had met its duty to accommodate, theProvince’s obligation to respect the Charter and its duty to maintain state neutrality, was central to that determination.

It is thereconciliation of the Province’s Charter obligations with the Charter rights of both the public service and the public served bygovernment that will be one of the primary arguments on the appeal. [51] Further, while the issue before the adjudicator dealt particularly with Ms. Dichmont’s complaint in the context of a marriagecommissioner who was asked to carry out duties that were contrary to her religious creed, the analysis carried out by the adjudicatorcould also apply to numerous other duties government may impose on civil servants.

It is not difficult to imagine other scenarios wherea public servant may be asked to carry out a duty as a condition of employment that offends one of that public servant’s Charter rights,be it the right of freedom of expression, association, religion or otherwise, but where the purpose of that condition of employment is toensure that government does not breach the Charter rights of a member of the public. [52] As such, in my view, the issue of placing Charter obligations directly on individual public servants and the reconciliation ofCharter rights and obligations would be of interest to the broader public and certainly to the broader public service, not just marriagecommissioners.

These are issues of broad public and societal concern. [53] With respect to the non-binding nature of any decision this Court may make, I agree with the Respondents that, in the future,the Province is not necessarily bound to follow the same balancing exercise as the adjudicator did in his Decision, nor will it be bound byany statement made by a judge of this Court on judicial review. However, without countervailing authority in this Province, I accept theargument of the Justice Centre that a decision on this judicial review may be persuasive both on other courts, a future Board of Inquiryand the Province.

As such, that adds to the public interest component to this proceeding.

[54] I further agree with the Province and the Commission that the public interest nature of the matters before this Court are not assubstantial as they would be in cases in which legislation or government policy is challenged on the basis of a breach of Charter rights. However, in my opinion, it is taking too narrow a view to define the issues referred to herein as being more along the continuum ofprivate versus public. Courts have not defined public law issues as being limited to cases where challenges have been made to legislationor government policy.

For the purposes of deciding this application to intervene, I am satisfied a sufficient public law issue has beenidentified. [55] In making this statement, I wish to add that my comments apply in respect of the particular circumstances before me on thisappeal. In my view, it would be the unusual case when a public interest group is granted intervenor status on an appeal of a decision of aBoard of Inquiry appointed under human rights legislation.

The role of such a tribunal is generally to hear and determine the individualcomplaint that is before it. [56] However, this is a somewhat unusual case in which not only was discrimination acknowledged but, in looking at the duty toaccommodate, the Board was focused on the reconciliation of Charter rights as opposed to the specifics of how a particular complainantcould be accommodated.

In determining whether the decision of the Board should be upheld, the Court will need to have regard to howthose competing Charter rights and obligations were reconciled. [57] Having found a justifiable issue and a veritable public interest, I must now consider the nature of the interest the Justice Centrehas in these public law issues. While the Justice Centre is not directly affected by the outcome, the evidence is that it has establisheditself as an entity with interest and experience in litigation involving the Charter rights of members of the public and the public service.

The issue then becomes whether the Justice Centre can provide a useful contribution to this Court. Useful Contribution [58] The Justice Centre says its contribution to the Court will be in addressing the implications of the Decision which imposedgovernment obligations directly on an individual engaged by the Province in the public service.

The Justice Centre suggests that, ratherthan recognizing that the government owes Charter obligations both to the public and those it engages in serving the public, theadjudicator imposed the government’s Charter obligations directly on private individuals without distinction, alleging that this misuse ofthe Charter strips individual citizens of their constitutional protections. [59] The Justice Centre says that these public interest issues fall squarely within its mandated purpose; that purpose being toadvocate for a correct understanding,

interpretation, and respect of Charter rights and obligations. [60] The Justice Centre also submits that it has relevant and unique experience, not only in respect of protection of Charter rights ofindividuals engaged in public service, but also the application of the Charter in the context of civil marriage commissioners. It hasintervened in constitutional and Charter cases in other provinces and at all levels of court.

If granted intervenor status, it will limit itssubmissions to the proper application of government employees’ and agents’ Charter rights, which will assist the Court in thedetermination of the merits of the appeal without hijacking the litigation. It is also prepared to place limits on the length of its writtenand oral submissions so as to ensure its intervention does not prejudice the parties. [61] However, the Respondents state that the proposed submissions would be duplicative of those of counsel for the Estate. Assuch, they say the Justice Centre has no unique or useful contribution to make.

Further, they submit that the matter can be dealt withfairly and fully without the participation of the proposed intervenor. [62] At paragraph 60 of Suzuki, Chaytor, J., referred to the Federal Court’s decision in Yale Indian Band v. Aitchelitz Indian Band(1998), (FC), 151 F.T.R. 36, 81 A.C.W.S. (3d) 772 (F. Ct. (T.D.)), at paragraph 5, where the Federal Courtcommented upon the contribution that would justify leave to intervene as follows: 5.

The onus is on the potential intervenor to show it has a legitimate interest in the outcome and that it can bring to the proceedingrelevant, different or new viewpoints, insights or expertise which the other parties do not have and which would allow the Court to fullyand effectually adjudicate the matter. [63] The Province submits that the proposed intervention is similar to the application for intervention considered by the FederalCourt of Appeal in C.U.P.E. v. Canadian Airlines International Ltd., 2000 FCA 233.

In that case, the court accepted that the proposedintervenor, Public Service Alliance of Canada (“PSAC”), had acquired an expertise in the legal area of pay equity. However, it wasincumbent upon PSAC to show what it would bring to the debate over and above what was already available to the Court through theparties and how its expertise would be of assistance in the determination of the issues. [64] In refusing to grant leave, the court cited the criteria set forth in Rothmans, Benson & Hedges referred to earlier in this decisionas those applicable to the application.

In considering those criteria, it found the following factors relevant to its decision to denyintervenor status: 1. the proposed intervenor represented no one employed by either of the appellant companies; 2. the Tribunal's decision made no reference to any litigation in which PSAC was or is engaged; 3. the grounds on which PSAC sought leave to intervene were precisely those which both the Commission and CUPE intended toaddress; 4. nothing in the materials filed by PSAC indicated that it would put or place before the Court any case law, authorities or viewpointwhich the Commission or CUPE were unable or unwilling to present. [65] Counsel for the Province submits that the above four reasons for denying intervenor status are equally applicable to theapplication currently before me.

In particular, he says the Justice Centre has not raised any new issues, nor it has not indicated that it

will place before the Court any case law, authorities or viewpoint which the parties are “unable” or “unwilling” to present. [66] In support of the Respondents’ position that the Justice Centre will not bring any different or new viewpoints or insights, theProvince refers to the interlocutory application filed by the Justice Centre. The application refers to the case of Mouvement laïquequébécois v.

Saguenay (City), 2015 SCC 16 in support of its proposed submission that the constitutional duty of neutrality falls oninstitutions and the state, not individuals. [67] Counsel for the Province notes that this issue is specifically identified in the Notice of Appeal filed by the Estate. Further, inthis case, because of the lateness of the filing of the intervention application, this Court already has the benefit of being able to reviewthe written submissions of the Estate filed in November of 2018.

The Respondents note that these submissions address the exact sameissue, take the same position and cite the same case that the Justice Centre wishes to address. The Respondents therefore state that theEstate is asking this Court to find that the Board erred on the very same grounds as proposed to be argued by the Justice Centre; i.e.errors in the imposition of Government Charter obligations on the public service and the obligation to maintain state neutrality.

As such,the interests and arguments of the Estate and the Justice Centre are perfectly aligned. [68] The Respondents acknowledge that the Estate has not referenced in its written brief two of the cases upon which the proposedintervenor intends to rely; namely, the Supreme Court of Canada decision in Osborne v. Canada (Treasury Board), (SCC), [1991] 2 S.C.R. 69 and the earlier Supreme Court of Canada decision in Fraser v. Canada (Treasury Board, Department ofNational Revenue), (SCC), [1985] 2 S.C.R. 455.

In both those cases, the Supreme Court of Canada made statementsregarding the rights of public servants to assert rights entrenched in the Charter. [69] However, counsel for the Province says that the test as to whether a proposed intervenor can make a useful contribution cannotbe as simple as an organization stating that it wishes to reference case law that one party has not cited in its brief.

If the argument is onthe same issue and advocating for the same result, intervention should not be allowed. [70] Counsel for the Province acknowledges the Ontario Superior Court of Justice case of Trinity Western University v. Law Societyof Upper Canada, 2014 ONSC 5541, filed by the estate, in which intervenor status was granted to various public interest groups,including the Justice Centre who were advocating for the same result as the applicants.

However, the Province differentiates the Court’sexercise of discretion in that case on the basis that, not only did the applicants allege that a decision of an adjudicative body breachedCharter rights and was therefore of broader public interest, but the Court was able to ascertain different perspectives each of theproposed intervenors brought to the issues. [71] Counsel for the Province refers to paragraph 42 of Trinity Western in which it is noted that the Court does not look for “slightnuances”, but an important perspective distinct from the immediate parties (citing Bedford v.

Canada (Attorney General), 2009 ONCA669).

At paragraph 2 of Bedford, the Ontario Court of Appeal stated as follows: 2. …Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervenor: it has a realsubstantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediateparties; or it is a well recognized group with a special expertise and a broadly identifiable membership base. … [72] The Respondents say, in this case, the perspective brought by the Justice Centre and that of Estate are the same: that is, theperspective of an individual employed as a public servant who seeks to have her Charter rights respected and accommodated even whenthe state must maintain its neutrality and protect the Charter rights of the public that it serves. [73] The Justice Centre, on the other hand, maintains that its perspective is not merely slightly nuanced from that of the Estate.

TheJustice Centre refers to paragraph 17 of Ward in which Hickman, C.J. referred to Peel (Regional Municipality).

In the Peel case, it wasacknowledged that, although arguments might overlap between the applicant intervenor and other parties to the action, if the applicanthad special knowledge or an expertise in the subject matter and is in a position to place the issues in a slightly different perspective,intervention may be desirable. [74] The Justice Centre refers to paragraphs 48 and 49 of Trinity Western in which the Court noted that the Justice Centre, as a non-religious organization, brought a different perspective to the issues because it was concentrating its submissions on the freedom ofassociation issue as opposed to freedom of religion.

Similarly, in this case, the Justice Centre says that its submissions will be distinctand bring a different perspective as it will focus on the broader impact of imposing Charter obligations on public servants generally willhave as opposed to the Estate’s focus on Ms. Dichmont’s rights in respect of religion. [75] It says its experience and expertise in this area will allow it to fully address how case law on this issue has evolved over theyears.

While the Estate, both before the Board and this Court, has referred to the Saguenay case, the focus of Saguenay was the state’sobligation to maintain religious neutrality. The Justice Centre says the Supreme Court of Canada’s jurisprudence dealing with thebroader issue of public servants’ rights to invoke their own Charter rights should be before this Court to provide the proper approach andframework for analysis.

It is that different perspective and broader interest on that issue that they wish to bring to this proceeding. [76] In response, the Respondents submit that these arguments can ably be put to the Court by counsel for the Estate, who areseasoned counsel with experience in constitutional issues. As such, the matter can be dealt with fairly and effectively by the partiesalready before the Court. In particular, they note that Ms. Warren, co-counsel for the Estate, is referenced as counsel for an intervenor inthe case of The Christian Medical and Dental Society of Canada v.

College of Physicians and Surgeons of Ontario, 2018 ONSC 579. The Justice Centre was also an intervenor in that case dealing with the constitutional validity of two policies of the College of Physiciansand Surgeons of Ontario requiring physicians to make an effective referral to another health care provider if they were unwilling toprovide elements of care on moral or religious grounds. [77] Counsel for the Estate, while appreciative of the Respondents’ confidence in their abilities, support the Justice Centre’sargument that it brings a different perspective to the table.

The Estate notes that an intervenor must not expand the issues beyond thosethat have been raised on appeal. As such, a fine line needs to be drawn between finding that an intervenor’s position is aligned anddetermining that a proposed intervenor brings a different perspective to the issue. The Estate says that while their positions are aligned,

the Justice Centre can bring a broader understanding to this Court of public service rights based upon its prior experience and expertise in advocating for public servants’ Charter rights generally. That is the different perspective it brings. [ 78 ] In considering the parties submissions, I acknowledge that the positions of the Estate and the intended intervenor are closely aligned. I also have no doubt that counsel for the Estate are experienced and able counsel with an ability to place the issues before the Court. [ 79 ] I have also considered the case law placed before me by the parties.

In doing so, I note that the application for intervention before me is distinguishable from that before the Federal Court of Appeal in Canadian Airlines . That proceeding dealt with a question of statutory

interpretation of the word “establishment” as used in the Canadian Human Rights Act , R.S.C., 1985, c. H-6 . While the issue of statutory

interpretation may have had application to future cases involving employees in a similar situation, PSAC had no particular expertise or experience in statutory

interpretation. There was also no suggestion the application was brought under the “public interest” umbrella. [ 80 ] In my view, in cases involving issues of public law, a less restrictive approach should be taken. In this instance, the intended intervenor has had prior experience as an intervenor in all levels of court in respect of the

interpretation and application of Charter rights, particularly as they pertain to the public service. The Justice Centre has identified a different perspective it can bring by focusing on the evolution of case law, particularly from the Supreme Court of Canada, on the issue of how the Charter applies to public servants.

Its application to intervene is supported by counsel for the Estate who were not relying on this case law and who agree on the different perspective and experience the intended intervenor can bring. [ 81 ] I am therefore satisfied that the Justice Centre can make a useful contribution by providing the Court with submissions with no injustice being imposed on the immediate parties. The intervention, on the conditions set out below, will be limited in nature and not cause any delay or undue burden on the parties.

Leave to intervene is therefore granted under Rule 7.06 for the purpose of rendering assistance to the Court by way of submissions. conclusion [ 82 ] I conclude it is appropriate to grant leave to the Justice Centre to intervene under Rule 7.06 for the purpose of rendering assistance to the Court by way of submissions on the following conditions: 1. The Justice Centre will not be permitted to adduce evidence. 2. The Justice Centre may file a written brief of no more than fifteen pages. 3. The Justice Centre may make oral submissions of no more than twenty minutes. 4.

The Justice Centre may not seek costs and will not be liable for costs to any other party. 5. Costs of this application will be costs in the cause. [ 83 ] In light of this Order granting the Justice Centre leave to intervene and the Estate having already filed written submissions on the appeal, I make the following Order with respect to filing deadlines for the appeal: 1. The Justice Centre shall file and serve its written submissions on or before February 8, 2019. 2. The Province and the Commission shall file and serve their written submissions on or before February 20, 2019. 3.

The Estate shall file and serve any submissions in reply on or before February 27, 2019. _____________________________ Rosalie McGrath Justice