Navigating Interventions In Private Disputes: Lessons From Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

Also authored by: Gihan (Gigi) Joseph

The case of Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480 navigates the legal threshold applied to motions to intervene in private disputes, highlighting the delicate balance between facilitating meaningful interventions and maintaining procedural rigour within the judicial process.

BACKGROUND OF CASE

Vento Motorcycles Inc. ("Vento") brought a claim against Mexico under the North American Free Trade Agreement (NAFTA) alleging that Mexico's refusal to grant preferential import tariffs to motorcycles manufactured by Vento in the U.S. and sold to Mexico caused substantial harm, leading to the closure of Vento's operations. The tribunal dismissed Vento's claim, prompting Vento to challenge the decision on grounds of procedural unfairness, arguing a violation of Article 34(2)(a)(ii) of the Model Law adopted under Ontario law. The application judge upheld this dismissal. Vento appealed, arguing that the tribunal's decision to prevent one of its witnesses from presenting additional evidence denied procedural fairness. The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic ("CIPPIC") sought to intervene in this appeal, focusing on the appropriate test for procedural unfairness under the Model Law.

LEGAL INTERVENTIONS: ADVOCATING FOR PUBLIC INTEREST IN PRIVATE DISPUTES

Rule 13.02 of the Rules of Civil Procedure allows any person, with leave of the court to intervene as a friend of the court. A party seeking to intervene must demonstrate that their contribution will assist the court in resolving the issues on appeal, without causing injustice to the parties. In determining motions for leave to intervene, the court will generally consider "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" ¹.

Interventions can potentially span from purely private disputes to those with constitutional or public law implications. The court has recognized that even private disputes can provoke broader policy considerations, showcasing interventions' capacity to address significant social and legal issues.² That being said, it has also been recognized that "[t]he closer a case is to the purely private end of the spectrum the higher the burden will be on those seeking to intervene".³

In this case, CIPPIC sought to intervene in what was a private dispute, intending to make submissions in relation to issues which it said would have broader implications beyond the immediate parties involved. CIPPIC intended to argue that the threshold for setting aside an arbitral award is a "material" procedural fairness violation, where the outcome might reasonably have been different without the violation. CIPPIC proposed to support their position by referencing international authorities and statutory interpretation, contrasting the procedural fairness standard across various contexts, emphasizing the public importance of the issue.

Fairburn A.C.J.O. dismissed CIPPIC's motion to intervene. She determined that CIPPIC's proposed contribution would not sufficiently assist in resolving the specific issues on appeal and could potentially cause prejudice to the immediate parties by complicating the proceedings.

Fairburn A.C.J.O.'s determination was informed by the following factors:

1. Relevance and expertise: The court determined that CIPPIC did not sufficiently link its expertise in law and technology to the specific procedural fairness issue in this international trade dispute. The court noted that this case did not involve standard form contracts or under represented parties, which are central to CIPPIC's mandate. CIPPIC's previous interventions in the Supreme Court of Canada were distinguished on the basis that they directly related to their core areas of advocacy.
2. Narrow focus of the case: The court highlighted the narrow and specific nature of the dispute between Vento and Mexico. This case involved sophisticated parties and detailed arguments about the procedural fairness test. The court was not convinced that CIPPIC's broader perspective on international authorities and procedural fairness in other legal contexts would add meaningful value. The detailed arguments already presented by Vento and Mexico were deemed sufficient to address the issues on appeal.
3. Risk of expanding scope: The court shared Mexico's concern that CIPPIC's intervention could unduly expand the appeal's scope, thus increasing complexity and costs. By proposing to harmonize procedural fairness standards across different areas of law, CIPPIC risked diverting the court from the narrow factual and legal issues that were before them. The court found that the specific procedural fairness issue in this case did not engage broader public interest or access to justice concerns.

Interestingly, the absence of a draft factum by CIPPIC appears to have weakened their motion. The court noted in their reasons that CIPPIC did not submit a draft factum that it would deliver if permitted to intervene, particularizing these arguments, and that it also cited no authority, domestic or international, in support of its articulation of the appropriate legal test. The court suggested that a draft factum could have clarified CIPPIC's contributions more effectively, noting that "[w]hile CIPPIC provided a high-level overview of its intended submissions, providing a draft proposed factum would have identified the authorities, arguments, and references to the travaux préparatoires upon which CIPPIC would rely, and permit the parties and Court to know CIPPIC's precise position"⁴.

In light of the court's comments, it is worth considering whether any of the court's above-noted concerns could have been resolved and/or if the court may have reached a different outcome on the intervention motion had it had the benefit of a draft factum by CIPPIC. The Rules and relevant jurisprudence do not in fact mandate a draft factum in support of a motion to intervene. While a draft factum can certainly assist the court in enhancing the scrutiny of intervention requests, if a draft factum becomes a de facto requirement in interventions, this could pose barriers to participation by potential interveners. Funding for motions to intervene is often not available unless and until the intervention is granted; therefore, the time and resources spent on a motion to intervene is often done on a pro bono basis. Increasing the time and resources required on a motion to intervene may very well be prohibitive to potential interveners.

Given these potential barriers and considering the court's wide discretion in considering motions to intervene, we might expect that the court may adopt a more flexible approach in cases involving underrepresented parties and/or in cases where a there a dispute more clearly has broader public-interest implications. However, we can't help but note that this becomes somewhat of a cyclical issue, as the concern would be that without a draft factum, the court may not appreciate the extent of a case's broader implications and/or the value of a potential intervention. This brings us back to the benefit, if not the practical necessity, of a draft factum, but also to the inaccessibility that it may bring with it. Thus lies the very delicate balancing exercise that needs to be applied by the courts in such motions.

One thing, however, is for sure: where it is possible and accessible, it is certainly recommended for a potential intervener to submit a draft factum as part of their motion to intervene – the success of their motion may depend on it.

Footnotes

1 (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, 2 C.R.R. (2d) 327, 45 C.P.C. (2d) 1.

2 See for example Bhajan v Ontario (Children's Lawyer), 2010 ONCA 560;
Zoe Childs v. Desormeaux, 2003 CanLII 47870 (ON CA).

3 Bhajan v Ontario (Children's Lawyer), 2010 ONCA 560, at para 6.

4 Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480 at para 16