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Intervention - Practice. Canada (Attorney General) v. Benjamin Moore & Co.
In Canada (Attorney General) v. Benjamin Moore & Co. (Fed CA, 2023) the Federal Court of Appeal cited authority that an intervenor may not seek a fresh remedy, beyond that sought by the parties:[32] ... It is established that interveners cannot seek a remedy that was not sought by the parties themselves (Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174 at paras. 54-55; Zak v. Canada (Attorney General), 2021 FCA 80 at para. 4) . Le-Vel Brands, LLC v. Canada (Attorney General)
In Le-Vel Brands, LLC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Stratas JA) cites and responds to recent criticism of the role of intervenors, here with respect to an appeal of a judicial review case:[31] The Court is aware of recent criticism concerning recent judicial comments about the proper limits to intervention: see, e.g., R. v. McGregor, 2023 SCC 4 at paras. 98-115. This criticism is misplaced. It calls for response.
[32] At the root of the criticism is a view held by some — a wrong view — about how courts should decide cases.
[33] To some, courts should inject their view of what is right, just and reasonable into any case that comes before them. For example, some see legislative interpretation as an open-ended task where courts are free to do "“the right thing”", adopt the "“good ideas”" of academics and experts, and express what "“most”" would think is "“right”" or "“reasonable”". Others feel that interveners, with their "“valuable perspectives”", should be able to place before the Court academic articles full of untested social science assertions that are "“right”". Still others think that courts should wade in where legislatures fear to tread in order to correct "“injustices”".
[34] Often we see this in cases about legislative interpretation. When interpreting legislation, courts must identify the legislature’s purpose behind the text it adopted. But on occasion, interveners divert courts from that task by proffering their preferred policies as the purpose. This is heresy: see generally Mark Mancini, "“The Purpose Error in the Modern Approach to Statutory Interpretation”" (2022) 59:4 Alta L Rev 919. Some interveners go even further: they offer untested new evidence, make submissions without evidence, and commandeer cases that directly affected parties have prosecuted and defended for years at great cost and stress: Right to Life at para. 13; Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 14; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120, [2019] D.T.C. 5062 at para. 8; Canadian Council for Refugees at para. 27.
[35] Interveners admitted into our proceedings usually are those who have shown an understanding of the judiciary’s proper role. They advocate legal positions consistent with that role. The key is to understand the nature of that role.
[36] In our democracy, three branches of government—the legislative branch, the executive branch and the judiciary—share in our governance, each playing different and distinct roles. The judiciary decides legal disputes in accordance with legal doctrine. Over decades, the judiciary has shaped, settled and revised that doctrine based on the judiciary’s practical experience in real life cases, not based on the personal feelings, free-standing policy preferences or values of individual judges: Frederic R. Kellogg, "“Law, Morals, and Justice Holmes”" (1986), 69 Judicature 214; Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 22 and 23. Guarantees of freedom from interference by other branches together with a commitment to apply time-honoured doctrine allow the judiciary to resist result-oriented reasoning or populist pressures of the moment. See Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, [2016] 1 F.C.R. 686.
[37] In the case of judge-made law, the judiciary follows settled legal doctrine. Where the doctrine is underdeveloped or in need of revision, the judiciary develops it incrementally through accepted pathways of legal reasoning in accordance with sensible, widely accepted underlying principles: R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289; Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446, at paras. 116-117.
[38] In the case of statute law, the judiciary interprets it—exactly as drafted by those we elect—to ascertain and implement its authentic meaning, not to amend it: see TELUS, Rafilovitch, Michel, Williams, Cheema, Hillier, all above.
[39] And in the case of the Constitution, the judiciary fearlessly gives it force and effect but should follow precedent, moving incrementally, avoiding any temptation to treat the Constitution as just "“an empty vessel to be filled with whatever meaning [it] might wish from time to time”": Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 at para. 151.
[40] In all these areas, the judiciary, acting within its proper sphere, strives to make legal doctrine stable, simple and clear. This furthers freedom: it gives us certainty and predictability, it arms us with knowledge of what we can do, and it warns us about what we cannot do.
[41] In short, freestanding policy-making and law-making is not for the judiciary. Judges are nothing more than cloistered, well-off, tenured lawyers who happen to hold a judicial commission. Freestanding policy-making and law-making is for the politicians we elect. If we do not like their policies and laws, we can vote them out of office.
[42] What is the take-away here for those bringing motions to intervene? Those who understand the proper role of the judiciary and show how they can help the Court on the real issues in a case are more likely to be admitted. And once admitted, their submissions can be decisive. . Le-Vel Brands, LLC v. Canada (Attorney General)
In Le-Vel Brands, LLC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal (Stratas JA) stresses the importance of intervenors moving quickly to seek intervention status, and not delaying the primary case:(3) The third element: the interests of justice
[26] Those who have a valuable perspective and who are "“[k]een for their important viewpoint to be heard”" act quickly and "“jump off the starting blocks when they hear the starter’s pistol”": Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167 at para. 28. This minimizes delay and furthers the quick and orderly progression of the case.
[27] This appeal began in April 2022. The parties filed their memoranda of fact and law in September and November 2022. But the proposed interveners did not announce their intention to intervene until December 2022. They did not get around to filing their motion material until February 2023.
[28] This appeal has been ready for hearing since November 2022. However, it has been put on hold because of this intervention motion. Were the motion granted, more delay would ensue: the interveners would file their submissions and then the other parties would have to respond.
[29] Overall, the delay is contrary to the imperatives of Rule 3. It militates against granting leave to intervene. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2022) the Court of Appeal considered the test for intervention, and a practice point:[12] When deciding motions for leave to intervene, as a friend of the court, pursuant to r. 13.03(1), the court will generally consider (1) the nature of the case and issues that are to be addressed, and (2) the likelihood the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167 and Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 21.
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[17] Imperial Oil is also concerned that granting the Motion may interfere with the appeal being heard as scheduled. At the oral hearing of this Motion, the HRTO provided information about why that hearing date may be in jeopardy, for reasons unrelated to this Motion. In any event, this possible prejudice can be addressed by establishing a tight framework for the submission of further materials.
[18] In my view, this concern is also somewhat mitigated because, although the proposed intervener did not provide a draft factum, it clearly set out the matters on which it would make submissions and its position on those matters, in its notice of motion and, more recently, in its factum on this Motion. Having said that, I reiterate the exhortation of this court in prior decisions that putative interveners include a draft factum in their motion materials, particularly when bringing intervention motions on short notice: see, for example, Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 19. Providing a draft factum would have permitted the parties and this court to better understand the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted. . ClubLink Corporation ULC v. Oakville (Town)
In ClubLink Corporation ULC v. Oakville (Town) (Ont CA, 2019) the Court of Appeal states useful practice points regarding submissions and delay when denying an application for leave to intervene:[2] While I do not doubt the proposed intervener’s expertise and interest in the matters at issue, I am not satisfied that it will make a useful contribution to the appeal without unfairness to the opposing party.
[3] There are two reasons. First, the proposed intervener’s factum on this motion does not set out in any detail or with clarity what submissions it will make if granted leave to intervene, how those submissions will differ from the submissions made by the appellant, or how its unique perspective on the issues will assist the court. Having heard the submissions of counsel for the proposed intervener, I am not satisfied that there is any material difference between the submissions it proposes to make, and the submissions that will be made by the appellant on the appeal: see, in particular, the submissions in the factum of The Corporation of the Town of Oakville, at pp. 18-23. Nor am I satisfied that the respondents have been given any clear indication of what case they will be required to meet if leave to intervene is granted.
[4] In a case such as this, I would expect to see in the intervener’s factum a clear summary of what its arguments will be on the appeal, and how those arguments are informed by its unique perspectives on the issues. In some cases, an intervener should file on the motion a draft of the factum it proposes to file on the appeal, if granted leave. Doing so will permit the court to assess both the uniqueness of the submissions made by the proposed intervener, as well as any issues of redundancy with respect to the submissions made by the other party.
[5] The second reason why I would dismiss the motion is that an intervention motion should generally be brought with dispatch in order to avoid unfairness to the opposing party. I realize that this case is unusual in the sense that the appeal has been perfected and scheduled on an expedited basis. Nevertheless, I am concerned that granting leave to intervene would cause unfairness to the respondents.
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