“The test for intervention is well-established and needs no amplification. As Dubin C.J.O. held in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167:
Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters 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 appeal without causing injustice to the immediate parties.
I start with the proposition that this is a private dispute. Where intervention is sought in a private dispute of this nature, as opposed to one involving the state, the standard to be met by the proposed intervener is “more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
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Although the proposed intervener was under no obligation to do so, it is often the case that when a motion to intervene is brought, and especially when it is brought on such short notice, a draft proposed factum is provided with that application. While the proposed intervener provided a very high-level overview of their main arguments, bringing a draft proposed factum would have permitted the parties to know the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted. The date of the hearing of the appeal has been known for some time, certainly prior to JFCY’s first notice to counsel of their wish to seek intervener status.”