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Intervention - Federal
MORE CASES
Part 2
. Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour)
In Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour) (Fed CA, 2022) the Federal Court of Appeal, Stratas JA revisits to test for intervention:B. The test for intervention
[5] The most recent authority from a full panel of this Court on interventions is Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3. But, as we shall see, Sport Maska requires us to look to other authorities on intervention.
[6] The respondent submits that Sport Maska adopted the test in the older case of Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (T.D.), aff’d [1990] 1 F.C. 90 (C.A.) and so Rothmans remains the governing authority. Inexplicably and quite disappointingly, the respondent ignores the other jurisprudence of this Court, much of which ignores or downplays Rothmans.
[7] Sport Maska itself tells us that articulations and refinements of the test in other cases are also usable, indeed in some respects preferable. In particular, Sport Maska approved the discussion in Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253 on what makes an intervention in "“the interests of justice”", a discussion adopted in many other cases. It is not right to suggest, as the respondent does, that Rothmans remains the governing authority.
[8] Indeed, Sport Maska did not address certain critical issues and so we are driven to look at other authorities:. Rule 109. Rule 109 is paramount. This is the governing legislation. Legislation prevails over all court decisions: Canada (Attorney General) v. Utah, 2020 FCA 224, 455 D.L.R. (4th) 714 at para. 28; Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366 at para. 54; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at para. 82. As other cases cited below suggest, the assessment whether an intervener should be allowed into the proceedings must start with the requirements of Rule 109.
. Criticisms of Rothmans. Rothmans makes no sense in certain respects: Pictou Landing at paras. 6-9. For example, it injects a "“direct interest”" standard—one sufficient for standing as a party—into the test for intervention. But party status and intervener status are two entirely different things.
. The "“interests of justice”" criterion for intervention. Sport Maska left this undefined. Thus, it left it in the eyes of the beholder, i.e., the undefined, unstated, impossible-to-articulate impressions of individual judges. This is unacceptable, as we are governed by objective law and legal doctrine, not subjective inclinations and feelings: see Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at para. 11; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13, 481 C.R.R. (2d) 234 at paras. 8-9. [9] Since Pictou Landing, this Court has refined the test for intervention by working in and elaborating on the criterion of usefulness that is central to Rule 109: Canada (Attorney General) v. Kattenburg, 2020 FCA 164 and Canadian Council for Refugees. The most recent case, Canadian Council for Refugees, collects all the various strands in our jurisprudence—including those adopted by and left unaddressed in Sport Maska—and offers a compendious test. Quite appropriately, the three moving parties adopt Canadian Council for Refugees at paras. 6 and 9 as the test we should apply here.
[10] The test is as follows:I. Will the proposed intervener will make different and useful submissions, insights and perspectives that will further the Court's determination of the legal issues raised by the parties to the proceeding, not new issues? To determine usefulness, four questions need to be asked:
. What issues have the parties raised?
. What does the proposed intervener intend to submit concerning those issues?
. Are the proposed intervener's submissions doomed to fail?
. Will the proposed intervener's arguable submissions assist the determination of the actual, real issues in the proceeding?
II. Does the proposed intervener have a genuine interest in the matter before the Court such that the Court can be assured that the proposed intervener has the necessary knowledge, skills, and resources and will dedicate them to the matter before the Court?
III. Is it in the interests of justice that intervention be permitted? The list of considerations is not closed but includes the following questions:
. Is the intervention consistent with the imperatives in Rule 3? For example, will the orderly progression or the schedule for the proceedings be unduly disrupted?
. Has the matter assumed such a public, important and complex dimension that the Court needs to be exposed to perspectives beyond those offered by the particular parties before the Court?
. Has the first-instance court in this matter admitted the party as an intervener?
. Will the addition of multiple interveners create the reality or an appearance of an "“inequality of arms”" or imbalance on one side? [11] Often applications to intervene run afoul of the first part of this test—the usefulness of the intervener’s submissions. In some cases, the issues, viewed in light of the standard of review, are such that an intervener will have little room to be useful; in others, such as those involving broad and uncertain issues of law for which the standard of review is correctness, an intervener may have more room to be useful. The best applications to intervene concentrate on usefulness. They "“hone into the true nature of the case, locating the particular itch in the case that needs to be scratched, and telling us specifically how they will go about scratching it”" and "“investigate the evidentiary record and the specific issues in the case, enabling them to offer much detail and particularity on how they will assist the Court”": Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, [2016] 1 F.C.R. 686 at para. 10.
[12] As well, an intervener’s submissions must contribute to what we actually do as a court of law. As a court of law, we ascertain, interpret, and apply legal doctrine to the facts as found by a first-instance court. In interpreting legislation, we regard legislative purpose as "“the authentic aim of the legislation passed by the legislators, not what international authorities, judges, parties and interveners think is ‘best for Canadians’ or what they consider to be ‘just’, ‘right’ or ‘fair’”": Kattenburg at para. 26; Hillier v. Canada (Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556; Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120, 2019 D.T.C. 5062 at paras. 5-9. We draw on international law only where it properly arises before us and we reject those who cite it as if it is "“a series of tasty plates on a buffet table from which we can take whatever we like and eat whatever we please”": Kattenburg at para. 26; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras. 76-92. We do not draw upon policies at large, especially those untethered to proven facts and settled doctrine. Still less do we enshrine grand policies into law as if we are legislators or constitutional framers. Nor are we a running an open-line radio show or a roving commission of inquiry. We are running a court of law. See Ishaq at paras. 9 and 26-27 and Kattenburg at paras. 41 and 44.
[13] We deplore interveners who try to slip fresh evidence into the record through crafty, unprofessional means, such as smuggling into their books of authorities materials that contain facts and social science opinions not in evidence or sliding fresh evidence into their oral submissions: Public School Boards’ Association of Alberta v. Alberta (Attorney General), 1999 CanLII 640 (SCC), [1999] 3 S.C.R. 845, 180 D.L.R. (4th) 670; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85; Zaric at para. 14; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167 at para. 19. Here, experience is our teacher. We have seen falsehoods advanced by interveners seep uncritically into reasons for judgment, with damaging, real-life consequences: see the examples provided in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, [2021] 1 F.C.R. 53 at paras. 156-159, citing Teksavvy Solutions at para. 22, both referring to R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 and Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467. If at any time interveners or their lawyers have tried these sorts of things in this or in any other Court or if we sense from their submissions that they might, we will keep them out.
[14] As well, sometimes those applying to intervene seem to think that the superiority, rightness, and importance of their causes allows them to insert their issues—new issues—into a case that existing parties have prosecuted and defended often at great stress and expense for years. Some go so far as to transform the parties’ case, to turn it into something more than it is, or into something it is not. This we forbid. In our Court, interveners are nothing more than secondary participants in cases that already have parties. Thus, interveners must take the parties’ issues as they find them. This Court once put it this way:[I]nterveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell and taste. They cannot otherwise add food to the table in any way.
To allow them to do more is to alter the proceedings that those directly affected—the applicants and the respondents—have cast and litigated under for months, with every potential for procedural and substantive unfairness. (Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373 at paras. 55-56.) If interveners want to do more, if they want to advance their own issues, they must bring their own cases as parties with all that that entails, including legal expense and potential costs liability.
[15] Finally, for us, the fairness of our proceedings and our impartiality, both actual and apparent, is paramount, especially in the controversial cases that often attract many applications to intervene. But fairness and impartiality are damaged, sometimes severely, when the Court admits too many interveners on only one side of the debate, all pushing for the same outcome. If the Court ultimately adopts that outcome, fair-minded lay observers might well believe that the imbalance of voices on one side of the courtroom and their amplification through frequent repetition—all set up by the Court’s decisions on intervention—may have carried the day.
[16] Thus, in considering applications to intervene, we are careful to avoid the appearance of a court-sanctioned stacking in favour of one side or a court-sanctioned gang-up against the other side. The outcomes we reach must be seen to be the product of fair and impartial judicial thinking, nothing else. See Canadian Council for Refugees at para. 15; Teksavvy at para. 11; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 23.
[17] In offering the foregoing comments about interventions, the Court draws comfort from recent changes the Supreme Court has made to its policies on intervention: "“November 2021 – Interventions”" (15 November 2021), online: Supreme Court of Canada . Although not binding on this Court, the Supreme Court’s Notice underscores the importance and appropriateness of three fundamental policies of this Court evident from the above discussion: (1) intervention in another’s case is a privilege, not a right; (2) the focus is on what the intervener can usefully do to help the Court determine the issues already before it, not other issues; and (3) the proceeding must be scrupulously fair, both in reality and appearance. . Canada (Citizenship and Immigration) v. Canadian Council for Refugees
In Canada (Citizenship and Immigration) v. Canadian Council for Refugees (Fed CA, 2021) the Federal Court of Appeal (Stratas JA) considered several intervention motions (under the federal rules). Paras 2-11 sets out the law, and paras 12-40 apply it to the facts with detailed reference to the law - so it's all useful.
. Métis National Council and Manitoba Metis Federation Inc. v. Varley
In Métis National Council and Manitoba Metis Federation Inc. v. Varley (Fed CA, 2022) the Federal Court of Appeal considered the law of intervention:[7] As Justice Stratas of this Court found in Canada (Attorney General) v. Kattenburg, 2020 FCA 164, referred to in Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13, the usefulness of a proposed intervener’s submissions is a central part of the test for intervention under Rule 109 (Kattenburg, at para. 8). This is so because of the wording of Rule 109(2)(b), which requires the moving party to describe how their participation will assist the determination of a factual or legal issue related to the proceeding. Most recently, he stated that the best applications to intervene concentrate on usefulness (Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67 at para 11). The usefulness element of the test for intervention in turn requires that four (4) questions be asked:(1) What issues have the parties raised?
(2) What does the proposed intervener intend to submit concerning those issues?
(3) Are the proposed intervener’s submissions doomed to fail?
(4) Will the proposed intervener’s arguable submissions assist the determination of the actual, real issues in the proceeding?
(Canadian Council for Refugees, at para. 6; Kattenburg, at para. 9) . Canada (Attorney General) v. Kattenburg
In Canada (Attorney General) v. Kattenburg (Fed CA, 2020) the Federal Court of Appeal considered the elements of the test for an intervention motion:[9] This requires four questions to be asked. In some intervention motions, such as the ones presently before the Court, it is useful to consider them separately. The four questions are as follows:(1) What issues are live before the panel determining the proceeding? The issues are set by the originating document, here the notice of appeal, as explained by any memoranda of fact and law that have been filed: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373 at paras. 54-56. Here, the Court must determine the "“real essence”" and "“essential character”" of the proceeding and disregard those matters that are doomed to fail: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50. In doing so it must understand its role in the proceeding. For example, in the context of judicial review, often the Court is only in a reviewing role of the administrative decision-maker’s decision on the merits and the administrative decision-maker is the only one entitled to decide on the merits: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Robbins v. Canada (Attorney General), 2017 FCA 24; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at paras. 26-28; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 87 and 97. And to avoid disguised correctness review, the Court must not consider the merits itself: Vavilov at para. 83; Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at para. 28.
(2) What does the moving party intend to submit in the proceeding? The Court must not be taken in by tricky drafting by skilful pleaders. Instead, it must determine the "“real essence”" and "“essential character”" of what the prospective intervener intends to say. It does this by reading the motion materials "“holistically and practically without fastening onto matters of form”". See JP Morgan Asset Management, above at paras. 49-50.
(3) Are the moving party’s submissions doomed to fail? When considering an intervention motion, the Court should not venture too deeply into the merits of issues that are for the panel. That being said, the panel should not have to deal with submissions of an intervener that are doomed to fail or that are inadmissible. This includes submissions that are indisputably wrong in law or irrelevant to the live issues before the Court. Issues that require new evidence and new evidence itself are also not admissible: Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, 474 N.R. 268 at paras. 17 and 36; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167 at para. 19; Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at para. 14; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 11. Similarly submissions and academic articles that, in reality, contain new evidence intertwined with the legal discussion are prohibited: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 14; Zaric at para. 14.
(4) Will the moving party’s arguable submissions advance the determination of the panel determining the appeal? The Court should exclude submissions that duplicate those of others. It should also exclude those that make political points without law, pronounce freestanding policy positions untethered to law, or offer submissions irrelevant to the legal task the Court must perform. . Canada (Public Safety and Emergency Preparedness) v. Lopez Gaytan
In Canada (Public Safety and Emergency Preparedness) v. Lopez Gaytan (Fed CA, 2020) the Federal Court of Appeal set out the test for intervention:[6] The appellant and CARL agree substantially on the test applicable to a motion to intervene. They agree on the criteria set out in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1989] F.C.J. No. 446, at para. 12, [1990] 1 F.C. 74, aff’d [1989] F.C.J. No. 707, [1990] 1 F.C. 90:a) Is the proposed intervener directly affected by the outcome?
b) Does there exist a justiciable issue and a veritable public interest?
c) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
d) Is the position of the proposed intervener adequately defended by one of the parties to the case?
e) Are the interest of justice better served by the intervention of the proposed third party?
f) Can the Court hear and decide the cause on its merits without the proposed intervener? [7] The appellant and CARL also agree that these criteria are not exhaustive, and that the Court’s focus should be in the fourth and fifth criteria. Both sides cite the following passage from Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120 at para. 6, in this regard:. Is the position of the proposed intervener adequately defended by one of the parties to the case? This is relevant and important. It raises the key question under Rule 109(2), namely whether the intervener will bring further, different and valuable insights and perspectives to the Court that will assist it in determining the matter. Among other things, this can acquaint the Court with the implications of approaches it might take in its reasons.
. Are the interests of justice better served by the intervention of the proposed third party? In my view, this factor includes all of the factors discussed in Pictou Landing First Nation plus any others that might arise on the facts of particular cases:
- whether the intervention is compliant with the objectives set out in Rule 3 and the mandatory requirements in Rule 109 (provisions binding on us);
- whether the moving party has a genuine interest in the matter such that the Court can be assured that the proposed intervener has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court;
- whether the matter has assumed such a public, important and complex dimension that the Court needs to be exposed to perspectives beyond those offered by the particular parties before the Court;
- whether the moving party has been involved in earlier proceedings in the matter;
- whether terms should be attached to the intervention that would advance the objectives set out in Rule 3 and afford procedural justice to existing parties to the proceeding. . Teksavvy Solutions Inc. v. Bell Media Inc.
In Teksavvy Solutions Inc. v. Bell Media Inc. (Fed CA, 2020) the Federal Court of Appeal while considering multiple intervenor motions, takes the oppourtunity to set out what future intervenor applicants may expect in this time of COVID (and probably afterwards):[13] Having reviewed the moving parties’ submissions, the Court finds that they meet the criteria in Rule 109, the above authorities, and authorities such as Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3, Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120, 99 C.E.L.R. (3d) 78 and Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253. The Court does not agree with the respondents, Bell Media Inc. et al., that certain interveners do not offer a useful perspective on the issues in this appeal.
[14] However, certain terms must be imposed in addition to the terms usually imposed on interveners to ensure that the requirements of Rule 109 are actually met, to maximize the usefulness of the interventions to the Court and to further judicial economy.
[15] Six separately represented groups of parties move to intervene:(1) The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic;
(2) Canadian Internet Registration Authority;
(3) Fédération Internationale des Associations de Producteurs de Films--FIAPF;
(4) Canadian Music Publishers Association, International Confederation of Music Publishers, Music Canada and International Federation of the Phonographic Industry;
(5) International Publishers Association, International Association of Scientific, Technical and Medical Publishers, American Association of Publishers, The Publishers Association Limited, Canadian Publishers’ Council, Association of Canadian Publishers, The Football Association Premier League Limited and Dazn Limited; and
(6) The British Columbia Civil Liberties Association. [16] A number of these parties are making broadly similar submissions. They can be collected into three groups: moving parties (1) and (2); moving parties (3), (4) and (5); and moving party (6).
[17] Allowing all six to intervene separately with separate counsel would result in lack of economy and duplication. As well, choosing what appears to be the best intervener in each group and rejecting the others would be arbitrary; perhaps in the end a rejected intervener might have been more useful.
[18] In these circumstances, the best solution is to permit one memorandum of fact and law from each of the three groups. The collaboration of the related parties in each group is likely to create useful synergies and a more compact submission, which invariably happens to be a more persuasive submission: see the comments of this Court in McKesson Canada Corporation v. Canada, 2014 FCA 290, 466 N.R. 185 at para. 24. To the extent that the related parties disagree with each other or have a different take on a particular issue, they can express that in their memorandum. The parties’ related nature and the similarity of their positions suggest that major conflict is unlikely.
[19] Counsel for parties grouped with other parties will have to work out who does what. But in large, sophisticated files, counsel are used to collaborating. These particular counsel, who happen to be known to the Court, can be trusted to work together well. Multiple counsel may sign the group memorandum of fact and law to evidence and authenticate their contribution.
[20] The motion of the British Columbia Civil Liberties Association is the most problematic one of the six. The submissions it plans to make in this appeal are rather vague, particularly its submissions on international law. All too often interveners assert or imply, without demonstration, analysis or particulars, that Charter protections are automatically coextensive with whatever is found in some international instrument and that a relevant provision of domestic law, regardless of its authentic meaning, must automatically conform with that instrument. Both propositions are wrong. The Charter is not "“an empty vessel to be filled with whatever meaning we might wish from time to time”", including whatever meanings can be plucked from international law in support of a cause: Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161 at 394 S.C.R.; see also Erasmo v. Canada (Attorney General), 2015 FCA 129, 473 N.R. 245 at para. 45 and Galati v. Harper, 2016 FCA 39, 394 D.L.R. (4th) 555 at para. 43. And this Court has recently reaffirmed the relationship between international law and domestic law—in particular, the primacy of domestic law: Entertainment Software Assoc. v. Society Composers, 2020 FCA 100.
[21] In the end, the Court knows that the Association, mindful of maintaining its good reputation and its future ability to intervene in this Court, will understand and comply with these constraints on the use of international law. As well, it can be expected to make a useful contribution given its expertise in issues concerning freedom of expression. The Association’s involvement will benefit this Court in determining the issues in this appeal.
[22] All interveners must take the record as they find it. They cannot add to the evidentiary record either directly by stating evidence not in the record or indirectly by making propositions of mixed fact and law when there is no evidentiary support. We enforce this strictly and for good reason. We have seen some try to dupe us by smuggling academic articles containing untested social science evidence into a book of authorities: see the criticism of this in Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44. We have seen others try to slide submissions of mixed fact and law past us without any supporting facts in the evidentiary record. Recently, we have even seen some false and unsupported factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts make their way into reasons for judgment elsewhere: see, e.g., Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 at para. 66; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61.
[23] All interveners have asked to make oral submissions at the hearing of the appeal. This request is deferred to the consideration of the panel hearing the appeal. The panel will consider the interveners’ memoranda alongside the other memoranda and will assess whether submissions from them at the hearing will be useful and necessary. Its direction or order will follow. It is hoped this will incentivize the interveners to meet or surpass the promises they have made in their motions.
[24] The appellant requests the right to file a memorandum of fact and law replying to the interveners. This is not necessary. At the hearing of the appeal, the appellant will have two opportunities to reply fully to the interveners: first, it can reply to the interveners’ memoranda of fact and law in its submissions in chief and second it can reply to the interveners’ oral submissions in its reply submissions.
[25] This Court’s order will provide for the foregoing. It will also set the page limits and the timing for the interveners’ memoranda of fact and law and the respondents’ memorandum of fact and law. The page limits are tight but they will be adequate if the interveners go directly to what they can uniquely contribute to this appeal without duplicating others. I thank the parties for their helpful, prompt and focused submissions. . Canada (Attorney General) v. Witchekan Lake First Nation
In Canada (Attorney General) v. Witchekan Lake First Nation (Fed CA, 2022) the Federal Court of Appeal denies a motion to intervene, with detailed explanation:[5] The criteria governing whether or not leave to intervene should be granted have been considered in a number of decisions of a full panel of this Court (Métis National Council and Manitoba Metis Federation Inc. v. Varley, 2022 FCA 110, Gordillo v. Canada (Attorney General), 2022 FCA 23; Whapmagoostui First Nation v. McLean, 2019 FCA 187; and Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3).
[6] While the jurisprudence identifies a number of considerations that may be relevant to the exercise of discretion whether to grant leave, one criteria is invariable; the intervention must be useful, in the sense that it will, in the language of Rule 109, "“… assist the determination of a factual or legal issue.”" The requirement that submissions be useful requires, in turn, consideration of the issues on appeal, what the intervener proposes to say about those issues, whether those submissions assist in determining the issues in the proceeding, and how they are unique or different from the parties’ arguments.
[7] FSIN has not demonstrated that it will bring a unique or different perspective to the legal issues on appeal than that of the parties. Indeed, the motion for leave to intervene demonstrates that the interests and perspectives of FSIN are identical to those of the respondent WLFN whom it would support. The proposed intervener does not identify the nature of the arguments which it proposes to make and how those arguments would be unique or different from those of the respondent. The intervener says "“FSIN will argue that the Federal Court decision was correct and that there are a number of unsettled issues raised within the Record which would suggest a trial of the issues is required.”" As noted by the appellant, the motion record is silent on the substance of those issues, FSIN’s position on those issues, and how its position differs from that of the respondent. This concern is also reflected in the affidavit of Vice Chief Heather Bear filed in support of the motion. It simply speaks vaguely to FSIN’s ability to "“bring a perspective to this Appeal”".
[8] I do not suggest that a motion for leave to intervene necessarily include a draft memorandum of fact and law of the arguments the intervener would make. While possibly helpful, to require a draft memorandum could impose a significant financial cost on a presumptive intervener, and is inconsistent with the guiding principles that the rules and procedures should extend access to justice, not impede it (Rule 3). However, the Court must have some indication of the substance of the intervener’s position, otherwise there is no background against which the utility requirement can be assessed.
[9] The purpose of an intervention is to advance the intervener’s own perspective on a legal issue and not simply to duplicate the argument or support the result desired by one of the parties. This Court has consistently required proposed interveners to show that their submissions are different from the parties (Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120 [Prophet River]; Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 36 [Ermineskin Cree Nation]; Gordillo v. Canada (Attorney General), 2020 FCA 198).
[10] In Ermineskin Cree Nation, Monaghan J.A. considered a motion to intervene similar to that presently before the Court. There, the Court observed, at paragraph 10:The proposed interveners suggest their perspective on these submissions will be useful because they have collectively negotiated and signed many IBAs in different provinces and on lands covered by different treaties and because they represent some First Nations with historical treaties and others without. Yet they do not explain how this experience will assist the Court or distinguishes them from Ermineskin, which also has negotiated and signed several IBAs. Moreover, Coalspur’s memorandum of fact and law describes in some detail the purpose and prevalence of IBAs and the terms typically included in IBAs. To the extent relevant, the importance, purpose and content of IBAs appears to be adequately addressed by the respondents. [11] Justice Monaghan’s analysis applies equally here. Some precision is required, more than has been offered by the proposed intervener. The Court is being asked to make a leap of faith, and assume that the intervener will have something different or unique to say that will assist the Court. An intervention that is simply more of the same will not suffice, even if the intervener has an interest in the matter (Prophet River at para. 20). Here, FSIN has only given the Court some bones to chew on; some flesh is required.
[12] There are further problems with FSIN’s motion. The principal basis of FSIN’s intervention is that it wishes to intervene at trial and lead evidence. This argument presupposes both that the appeal is dismissed and that the trial judge grants FSIN leave to intervene. It invites speculation. Secondly, on the appeal itself FSIN proposes to make submissions "“related to the associated impacts to all Saskatchewan First Nations.”" This is a matter of evidence which is inadmissible on Rule 213 motions (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151 at para. 21).
[13] There is yet another problem. Vice Chief Heather Bear was an affiant in support of WLFN’s response to the motion for summary judgment. Vice Chief Heather Bear also made a subsequent reappearance, wearing a different hat as an affiant in this motion to intervene in support of FSIN. This reinforces the concern that the identity of interests and legal perspectives of the respondent and FSIN are identical. . Canada (Attorney General) v. Kattenburg
In Canada (Attorney General) v. Kattenburg (Fed CA, 2020) Stratas JA of the Federal Court of Appeal comments that the remedies of a case do not expand with the interests of intervenors:[34] Some moving parties ask this Court to award a remedy that the applicant for judicial review does not seek. This is doomed to fail. The case remains that of the applicant for judicial review; others cannot commandeer it and ask for remedies the applicant does not seek: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373 at paras. 55-56; Teksavvy Solutions at para. 11; Reference re subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, 2019 FC 261 at para. 50. In any event, on these facts, the relief sought by some interveners—non-remittal to the Agency and a positive pronouncement on the merits by this Court—is not available: D'Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 and Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency), 2017 FCA 45, 411 D.L.R. (4th) 175 at paras. 51-56 and 84, as discussed in Vavilov at para. 142. . Alliance for Equality of Blind Canadians v. AG Canada
In Alliance for Equality of Blind Canadians v. AG Canada (Fed CA, 2022) the Federal Court of Appeal extensively considered an intervention motion:[6] The criteria governing whether or not leave to intervene should be granted have been considered in a number of decisions of a full panel of this Court (Métis National Council and Manitoba Metis Federation Inc. v. Varley, 2022 FCA 110; Gordillo v. Canada (Attorney General) 2022 FCA 23 [Gordillo 2022]; Whapmagoostui First Nation v. McLean, 2019 FCA 187; and Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3 [Sport Maska]).
[7] There are also numerous orders of single judges of this Court arising from motions for leave to intervene (Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67; Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 36 [Ermineskin Cree Nation]; Air Passenger Rights v. Canada (Attorney General), 2021 FCA 201; Canada (Citizenship and Immigration) v. Camayo, 2021 FCA 20; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13 [Canadian Council for Refugees]; Gordillo v. Canada (Attorney General), 2020 FCA 198 [Gordillo 2020]; Canada (Attorney General) v. Kattenburg, 2020 FCA 164).
[8] All of these cases take, as their point of departure, the decision of this Court in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, 103 N.R. 391 [Rothmans].
[9] Rothmans identified a number of considerations to be taken into account, including, amongst others, whether the intervener is directly affected by the outcome, whether the intervener’s position is adequately advanced by one of the parties and whether the interests of justice are better served by the intervention. In Sport Maska this Court observed that none of the factors to be considered in Rothmans are, in and of themselves, determinative of the question. As Nadon J.A. said at paragraph 42:The criteria for allowing or not allowing an intervention must remain flexible because every intervention application is different, i.e. different facts, different legal issues and different contexts. In other words, flexibility is the operative word in dealing with motions to intervene. In the end, we must decide if, in a given case, the interests of justice require that we grant or refuse intervention. Nothing is gained by adding factors to respond to every novel situation which motions to intervene bring forward. In my view, the Rothmans, Benson & Hedges factors are well tailored for the task at hand. More particularly, the fifth factor, i.e. “[a]re the interests of justice better served by the intervention of the proposed third party?” is such that it allows the Court to address the particular facts and circumstances of the case in respect of which intervention is sought. [10] The Rothmans factors may, at times, need to be supplemented; at times they may also be of no relevance. Other considerations may come to the forefront. For example, whether an intervener has the knowledge and expertise necessary to support the argument it wishes to make is a pertinent consideration, one not identified in Rothmans, but one which is frequently advanced in argument. There is good reason for this; it is doubtful whether the utility requirement of Rule 109 can be met if the intervener does not have the background, experience or expertise to address the issue. Similarly, the Rothmans criteria which ask whether the appeal can proceed without the presence of interveners is arguably of little relevance. As noted in Gordillo 2020, if the appeal cannot proceed without the interveners, more fundamental problems are in play. So too is the requirement of a "“justiciable or veritable issue”"; if there is none, then that surely is an issue for the parties, and not an intervener, to identify.
[11] The fact that different factors or considerations play a greater role in one intervention motion than another does not mean that the test or criteria are ephemeral or that the law is not normative; rather it simply reflects judges doing what judges are required to do – exercising their discretion according to legally relevant criteria. Whether to grant leave to intervene is a discretionary decision, made in a unique legal, factual and procedural matrix. A grocery list approach to intervention criteria is to be avoided.
[12] One criteria is, however, invariable. It is required that the intervention be useful, in the sense that it will, in the language of Rule 109, "“… assist the determination of a factual or legal issue.”" The requirement that submissions be useful requires, in turn, a judge to consider the nature of the issue on appeal, what the intervener proposes to say about those issues, and whether those submissions assist in determining issues in the proceeding.
[13] This raises the question of perspective. From whose perspective is the question of utility considered? The starting point is the notice of appeal, and from there, the parties’ memoranda. These materials define what is in issue. As discussed in Gordillo 2022 at paragraph 99, an intervener must take the issues as framed by the parties, and not shape the case in a way that they prefer it to have been argued.
[14] I do not suggest that a motion for leave to intervene necessarily include a draft memorandum of fact and law of the arguments the intervener would make. While possibly helpful, to require a draft memorandum could impose a significant financial cost on a presumptive intervener and is inconsistent with the guiding principles that the rules and procedures should extend access to justice, not impede it (Rule 3). However, the Court must have some indication of the substance of the intervener’s position, otherwise there is no background against which the utility requirement can be assessed.
[15] A court must be satisfied that an intervention also furthers the interests of justice. This criteria broadens the scope of relevant considerations. In Canadian Council for Refugees at paragraph 14, Stratas J.A. identified a number of considerations which may arise under the broader question of whether the intervention is in the interests of justice. The timeliness of the intervention, whether the intervention will create an imbalance in the presentation of argument, and whether the intervener is prepared to accept the existing record and issues as framed by the parties are all considerations that may affect the exercise of discretion. I would add to these the question of prematurity: whether the intervention addresses the merits of the case when it is still at an interlocutory stage.
[16] These considerations are neither mandatory nor are they a definitive re-statement of the law on intervention. To treat them as such is inconsistent with diverse factual and legal matrices that characterize motions for intervention, and indeed with what Rule 109(2) requires. The criteria for determining whether or not to grant leave to intervene remain broad, and different cases will highlight different criteria based on their unique circumstances.
[17] It is suggested in argument that there is a divergence in the jurisprudence of this Court, best reflected in recent articulation of what is argued to be a new criteria, namely whether the intervention is "“doomed to fail”". While I disagree that there is a divergence, I agree that the proposed criteria, depending on how it is understood, could be problematic. I say this for several reasons.
[18] First, it presupposes a view on the ultimate merits of the issues on appeal before the parties have even presented their case to the panel. As motions for leave to intervene are most frequently addressed by single judges sitting alone, judges are careful to avoid making comments on the merits of an appeal. Further, as this Court does not require an extensive elaboration of the proposed arguments, it is impossible to say that the intervener’s argument is destined to fail. I note as well that most interventions before this Court, given the public and national dimension of its jurisdiction, are interest based. The purpose of the intervention is to advise the Court of the implication of the choices before it and how a decision may affect the intervener’s interests. It is impossible to assess, let alone conclude, that an intervention of this nature is destined to fail.
[19] In light of these considerations, I believe that that language simply captures interventions which are frivolous and vexatious, take a position on the merits of a proceeding while it is in an interlocutory stage, or comprises overt political or policy arguments. In other words, the intervention cannot be useful or assist and therefore cannot meet the requirement of Rule 109. In sum, it is preferable to focus on the question whether the intervention may assist the Court, and not import concepts and tests associated with motions to strike under Rule 221.
[20] The focus is on the controlling test and whether the intervention may "“assist”" the Court in determining a legal or factual issue. An intervention need not be conclusive or determinative of the issue and it need not address all the issues before the Court. A motions judge must also keep in mind that different members of the panel assigned to hear the appeal may have different views on the helpfulness of an intervention, which suggests a certain degree of latitude is appropriate in assessing a motion for leave to intervene.
[21] The purpose of an intervention is to advance the intervener’s own perspective on a legal issue and not simply to duplicate the argument or support the result desired by one of the parties. This Court has consistently required proposed interveners to show that their submissions are different from the parties’ (Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120 [Prophet River]; Ermineskin Cree Nation; Gordillo 2020).
[22] At no point has AEBC raised the Charter value of equality and the application of the Doré/Loyola (Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola]) framework as a distinct issue before the Commission or as ground of review before the application judge. In this Court, AEBC’s grounds of appeal allege that the application judge afforded "“too much deference”" to the Commission and that the Commission mischaracterized, misunderstood, or ignored the allegations. Neither the notice of appeal nor the appellant’s factum mention Charter values or the Doré/Loyola framework.
[23] Interveners do not have a right to make the case into something that it is not. They must take the record, and the issues, as they find them.
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