Halpern et al. v. Wong et al., (2000) 139 O.A.C. 300 (DC)

• Judge: Lang, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 28, 2000
• Jurisdiction: Ontario
• Citations: (2000), 139 O.A.C. 300 (DC)

Halpern v. Wong (2000), 139 O.A.C. 300 (DC)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. DE.011

Hedy Halpern and Colleen Rogers, Michael Leshner and Michael Stark, Michelle Bradshaw and Rebekah Rooney, Peter Magee and David Briggs, Dawn Onishenko and Julie Erbland, Carolyn (C.J.) Rowe and Carolyn Moffatt, Barbara McDowall and Gail Donnelly, Allison Kemper and Joyce Barnett (applicants/responding parties) v. Novina Wong, The Clerk of the City of Toronto, The Attorney General of Ontario, and The Attorney General of Canada (respondents/responding parties) and EGALE Canada Inc. (moving party)

(No. 684/2000)

Indexed As: Halpern et al. v. Wong et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lang, J.

November 28, 2000.

Summary:

Some same-sex couples desirous to get married applied to the City of Toronto for a marriage licence. The City held their appli­cations in abeyance while it sought a judicial determination as to the City's statutory power to issue same-sex marriage licences. The couples applied for an order directing the City to issue the marriage licences. The couples sought as well a declaration that any law, policy or practice that prohibited same-sex marriages violated the Charter and was void. The couples asked that both appli­cations be heard by a single judge sitting on the Toronto Region Family Team. The Attorney General of Canada brought a mo­tion to transfer both applications to the Divisional Court.

The Ontario Superior Court, in a decision reported [2000] O.T.C. 541, allowed the Attorney General's motion. EGALE Canada Inc. (Equality for Gays and Lesbians Everywhere), a national or­ganization with membership in every prov­ince and territory, moved for intervener status under rule 13.01(1) as an added party with rights to file material, to cross-examine, to submit a factum and to present argument and to otherwise conduct the proceeding as a party.

The Ontario Divisional Court allowed the motion and set conditions.

Practice - Topic 681

Parties - Adding or substituting parties - Intervenors - Persons who may apply - Same-sex couples desirous of getting mar­ried did not get the marriage licences they applied for from the City of Toronto - The couples applied for an order that the li­cences be issued and for a declaration that any law that prohibited same-sex marriages was void as violating the Charter - EGALE Canada Inc. (Equality for Gays and Les­bians Everywhere), a national organization with membership in every province and territory, moved for intervener status under rule 13.01(1) as an added party - The Ontario Divisional Court granted EGALE intervenor status because it could bring a useful contribution to the case in that it could present the perspective of those gays and lesbians who were not seeking the right to marry, but were seeking the right to be able to choose whether to marry - See paragraphs 28 to 36.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - The Ontario Divisional Court stated that a proposed intervenor's stated experience as an interest group and lobbyist was insuf­ficient to meet the test of interest that would allow it to be added as a party with rights to file material, to cross-examine, to submit a factum, to present argument and to otherwise conduct the proceeding as a party - The court added that lobbyists should not be given access to the courts since lobbyists sought to persuade govern­ments to change or implement laws and the courts did not - See paragraphs 22 to 25.

Practice - Topic 682

Parties - Adding or substituting parties - Intervenors - Interest in subject matter - Same-sex couples desirous of getting mar­ried did not get the marriage licences they applied for from the City of Toronto - The couples applied for an order that the li­cences be issued and for a declaration that any law that prohibited same-sex marriages was void as violating the Charter - EGALE Canada Inc. (Equality for Gays and Les­bians Everywhere), a national organization with membership in every province and territory, moved for intervener status under rule 13.01(1) as an added party - The Ontario Divisional Court granted EGALE intervenor status because it had an interest in the subject matter as being able to give factual context and present legal argument on the issues respecting equality rights for gays and lesbians - EGALE was positioned to speak about the denial of marriage rights to its members who would be per­sonally impacted by the results of the proceedings - See paragraphs 22 to 27.

Cases Noticed:

Ontario (Attorney General) v. Dieleman (1993), 16 O.R.(3d) 32 (Gen. Div.), refd to. [para. 6].

M. v. H. (1994), 20 O.R.(3d) 70 (Gen. Div.), consd. [para. 6].

Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 7].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1; 46 C.C.E.L. 1, refd to. [para. 7].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 7].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 7].

Little Sisters Book and Art Emporium v. Canada (Minister of Justice) et al., [1998] S.C.C.A. No. 448, refd to. [para. 7].

Rosenberg et al. v. Canada (Attorney Gen­eral) (1998), 108 O.A.C. 338; 38 O.R.(3d) 577 (C.A.), refd to. [para. 7].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey) et al., [1999] B.C.A.C. Uned. 153 (C.A.), refd to. [para. 7].

Ontario Federation of Anglers and Hunters et al. v. Ontario (Minister of Natural Resources) et al. (1999), 98 O.T.C. 341; 43 O.R.(3d) 760 (S.C.), refd to. [para. 8].

Adler v. Ontario (1992), 8 O.R.(3d) 200 (Gen. Div.), refd to. [para. 8].

Christian Horizons et al. v. Human Rights Commission (Ont.) et al. (1993), 64 O.A.C. 395; 14 O.R.(3d) 374 (C.A.), refd to. [para. 8].

Pattison (Jim) Enterprises Ltd. v. London (City) (1997), 29 O.T.C. 236; 32 O.R.(3d) 355 (Gen. Div.), refd to. [para. 15].

Doe v. Information and Privacy Commis­sioner (Ont.) (1991), 53 O.A.C. 236; 87 D.L.R.(4th) 348 (Div. Ct.), refd to. [para. 15].

Ethyl Canada Inc. v. Canada (Attorney General) et al. (1997), 45 O.T.C. 216 (Gen. Div.), refd to. [para. 15].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1990), 74 O.R.(2d) 164 (C.A.), consd. [para. 17].

Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 10 O.R.(3d) 203 (Div. Ct.), revd. (1993), 62 O.A.C. 371; 12 O.R.(3d) 646 (C.A.), consd. [para. 18].

Schofield v. Ontario (Minister of Con­sumer and Commercial Relations) (1980), 28 O.R.(2d) 764 (C.A.), refd to. [para. 18].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney Gener­al), [2000] O.T.C. 769 (Sup. Ct.), refd to. [para. 18].

Ward v. Canada et al. (1997), 153 Nfld. & P.E.I.R. 135; 475 A.P.R. 135 (Nfld. T.D.), consd. [para. 25].

Layland v. Ontario, [1992] O.J. No. 1963 (Gen. Div.), refd to. [Appendix].

Borowski v. Canada (Minister of Justice) (1983), 23 Sask.R. 259; 144 D.L.R.(3d) 657 (Q.B.), refd to. [Appendix].

Rothmans, Benson & Hedges Inc. v. Cana­da (Attorney General), [1990] 1 F.C. 74; 29 F.T.R. 272 (T.D.), varied in part [1990] 1 F.C. 90; 103 N.R. 391 (F.C.A.), refd to. [Appendix].

K. and B. et al., Re (1995), 23 O.R.(3d) 679 (Prov. Div.), refd to. [Appendix].

R. v. Lepage (1994), 21 C.R.R.(2d) 67 (Gen. Div.), refd to. [Appendix].

Ontario Federation of Anglers and Hunters et al. v. Ontario (Minister of Natural Resources) et al., [2000] O.J. No. 115; 98 O.T.C. 341 (Div. Ct.), refd to. [Appendix].

Statutes Noticed:

Rules of Civil Procedure (Ont.), R.R.O. 1990, reg. 194, rule 13.01, rule 13.02, rule 13.03(1) [para. 4].

Counsel:

Martha A. McCarthy, for the ap­plicants/responding parties;

Robert Charney, for the Attorney General of Ontario;

Roslyn J. Levine and Andrea Horton, for the Attorney General of Canada;

Steven Barrett, for the moving party.

This motion was heard on November 2, 2000, by Lang, J., of the Ontario Divisional Court.

Lang, J., released the following decision on November 28, 2000.