A recent Ontario case allowed a non-party to be given intervenor status. The claim had been commenced against the employer by a person whom had been terminated by the employer due to allegations of offensive behaviour displayed, as alleged, by the plaintiff to a co-worker. This person wished to participate in the proceeding to preserve her integrity. 1
The motion was allowed.
The court noted that such a successful application would be rare. The general test would be as follows:
In applying the criteria for a motion to intervene under rule 13.01(1), and considering whether Parsons could make a useful contribution to the resolution of the underlying application, Pitt J. stated (at paragraphs 21 and 22):
21 A fair analysis of the dispute would demonstrate that:
(a) Parsons has an interest in the subject matter of the proceedings, that interest being the protection of his integrity, which is being attacked in the proceedings, and indeed which is the main focus of the respondent, and
(b)Parsons may be adversely affected by a judgment in the proceeding. Such a judgment may be a declaration that he is unfit by virtue of his dishonesty to serve on the Board of Directors, and
(c) There exists between Parsons and both of the parties a question of fact in common with that of the questions in issue in the proceeding, namely whether Parsons misrepresented in writing deliberations to which Parsons was a party, namely the interview to which I referred earlier. [emphasis added]
22 Clearly Parsons could make a useful contribution to the resolution of what might be an issue more complex than may appear on the surface, by placing the issue in a different perspective from that of the applicant, and I see no reason why his contribution cannot be made without causing injustice to the immediate parties. See Regional Municipality of Peel v. Great Atlantic and Pacific Co. et al. [supra].
The discretion as allowed by the Rules of Civil Procedure are subject to the following factors:
Assuming that the prospective intervener meets the threshold in rule 13.01(1), the court may exercise its discretion whether or not to add the person as a party and to “make such other order as is just” based on a consideration of the following:
1. The court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. (See: rule 13.01(2)).
2. Other factors to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the proceeding without causing injustice to the immediate parties. (See: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., supra).
3. The burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum, as opposed to those giving rise to broader constitutional issues. (See: Authorson, supra)
The judge noted the significance of the fact that the application was brought by a person still employed with the defendant:
This decision to allow Ms. Vieira to intervene in the action is intended to enable her to protect her integrity primarily in the context of her continued employment at ThyssenKrupp. My decision is therefore not to be interpreted as providing trial witnesses generally with the right to intervene and have their own counsel at trial. If Ms. Vieira did not still work for ThyssenKrupp, where she is required to continue to interact with the plaintiff’s former colleagues on a daily basis, I would not have ruled that her integrity was under sufficient threat to warrant her having her own counsel at trial.
[53] The moving party Linda Vieira is hereby granted leave to be added to this action as an intervener, and to be represented by her own counsel at trial, with limited rights of participation as follows:
1. Following the cross-examination of the plaintiff by counsel for the defendant, Ms. Vieira’s counsel shall have the right to cross-examine the plaintiff on matters related to Ms. Vieira’s personal interest in her reputation and integrity;
2. Ms. Vieira’s counsel shall have the right to object to questions asked of her on cross-examination and to re-examine following her cross-examination;
3. Ms. Vieira’s counsel shall have the right to make a brief opening statement to confirm his role at the trial and submissions in closing argument with respect to any factual and legal issues relating to Ms. Vieira’s credibility and integrity.
[54] My decision to grant Ms. Vieira leave to intervene in the action is based in part on my acceptance of her counsel’s proposed limitations with respect to his participation on her behalf and that his participation will not unduly delay the completion of the trial. The plaintiff should therefore be able to assume that Ms. Vieira’s counsel will not seek to participate in the trial to any greater extent than as proposed on this motion. Ultimately, of course, the extent of Ms. Vieira’s counsel’s participation is a matter for the trial judge.