Application by public interest advocacy groups for leave to intervene as amicus curiae in an appeal from decision dismissing involuntarily detained patient’s habeas corpus application

22. July 2014 0

Administrative law – Hearings – Parties – Judicial review – Application for intervenor status – Adult in need of protection – Charter of Rights and Freedoms – Remedies – Habeas corpus

P.S. v. Ontario, [2014] O.J. No. 2853, 2014 ONCA 160, Ontario Court of Appeal, February 28, 2014, J.I. Laskin J.A.

The appellant was involuntarily detained at the respondent Waypoint Centre for Mental Health Care (the “Waypoint”) under the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”), from 1996 through to the date of the application. He brought an application for habeas corpus seeking a declaration that Waypoint breached his Charter rights and that the involuntary detention and review provisions under the MHA are inconsistent with the Charter and of no force and effect.

The appellant’s application was dismissed except for a finding that the appellant’s section 15(1) equality right was infringed by Waypoint’s predecessor institution. The appellant appealed that decision to the Ontario Court of Appeal. He requested the appeal be heard by a five‑judge panel so that the Court could revisit its earlier decision regarding the involuntary detention scheme under the MHA.

The Canadian Civil Liberties Association and the Mental Health Legal Committee sought leave to intervene in the appeal as amicus curiae. Their application for intervener status was opposed by the respondents Her Majesty the Queen in Right of Ontario, the Attorney General of Ontario, and Waypoint.

The respondents opposed the applicants’ intervener status on the basis that the Canadian Civil Liberties Association’s arguments would be duplicative of the appellant’s and not make a useful contribution to the appeal and the Mental Health Legal Committee’s involvement would cause an injustice because it proposed to raise a new issue not raised before the application judge.

A non-party may intervene as an amicus curiae for the purpose of rendering assistance to the court by way of argument where it is able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

With respect to the applicant, Canadian Civil Liberties Association, the Court held it would make a useful contribution to the Court’s understanding of the issues because, as a national organization concerned with the protection of civil liberties generally, it could offer its views on the systemic implications of the outcome of the case. That would be a perspective not otherwise addressed in the appellant’s submissions.

With respect to the Mental Health Legal Committee’s intevener status, the Court held that the issue raised by the applicant was not a new legal issue. Because the appellant raised on the initial application that the MHA is unconstitutional because its process is devoid of effective remedies, it was implicit in that argument that the Board lacked jurisdiction to grant section 24(1) Charter remedies. On that basis, the Mental Health Legal Committee’s position on the application of section 24(1) of the Charter related to issues raised and decided on the underlying application. It was strictly a matter of legal argument that would not require the parties to call any new evidence. If, as the Attorney General submitted, it would have led to the respondents leading different evidence had they known that to be an issue in the proceedings, that could be addressed through case management of the appeal.

On that basis, the Court granted intervener status to the Canadian Civil Liberties Association and the Mental Health Legal Committee as amicus curiae.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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