Justice Watt's Dos and Don'ts of Interventions: OCA Denies Leave to Intervene in Privacy Case
This decision is a must read for hopeful intervenors. In his characteristic novella style, Justice Watt provides some helpful guidance on intervening at the Ontario Court of Appeal in Jones v. Tsige.
In a previous post, I commented on the significance of the main appeal in Jones v. Tsige, which was heard by the Court on September 29, 2011. In brief, Jones and Tsige worked at different branches at the Bank of Montreal. For three years, Tsige "helped herself to personal banking information about Ms. Jones" without any justification. Jones sued Tsige for invasion of privacy and breach of fiduciary duty. Dueling summary judgment motions were brought by both parties. Watt J.A. summarized the result:
Ms. Jones failed. Ms. Tsige succeeded. The motion judge concluded that the common law does not recognize a tort of invasion of privacy.
The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Aid Clinic Ontario and the Canadian Civil Liberties Association sought leave to intervene. Jones supported the interventions. Tsige, described as "the lone dissenting voice" on the motion, opposed. Ms. Tsige succeeded. Ms. Jones and the intervenors failed. The lessons from the battle waged before Watt J.A. in this round of the Jones v. Tsige war are as follows.
Lessons on Interventions:
Frame the issues on appeal as matters of public interest that have effects beyond the immediate parties to the appeal.
- Watt J.A. held that the appeal arose "out of a private dispute between two parties". It did not involve "a conflict between the state and the individual" or the "determination of the limitations that should be placed on state activities to avoid incursions into the personal, territorial or informational privacy of individuals". Furthermore, it did not involve "the use of some new or emerging technology and its implications on the privacy of others, nor the interest of a defined group of individuals in keeping to themselves information about their health."
Highlight the unique perspective that you will offer to the Court.
- Watt J.A. noted that the "me too" intervenor adds no assistance to the Court. He stated that nothing he heard on the motion "satisfied me that the intervenors would offer anything more than a repetition of or slightly different emphasis on the well-framed arguments of the appellant."
Highlight the unique expertise that you can offer to the Court.
- Watt J.A. noted that the expertise of the intervenors seemed "far removed" from the issues at hand. For instance, a banking dispute between two private litigants was not the "traditional fare" of the CCLA.
Live with the record developed at first instance where possible.
- Watt J.A. was unimpressed with the attempts by the intervenors to augment the record with additional survey evidence late in the game, which would cause prejudice to the immediate parties on appeal.
- Watt J.A. found it significant that the appeal had already been perfected and that times for oral argument had already been assigned by the Court.
File a draft factum.
- Don't tell the Court what you will say; show them what you will say. Watt J.A. was unimpressed that "[n]either proposed intervenor has filed a draft factum outlining the submissions it would make if permitted to intervene. In oral argument on the motion to intervene, each offered a brief glimpse of their positions."
With these lessons in hand, go forth and intervene.
Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.)
Decision: August 25, 2011
guidance on intervening interventions invasion of privacy Ontario Court of Appeal public interest