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Standing - Intervenors

Rule 13 - Intervention

. Baldwin v. Imperial Metals Corporation

In Baldwin v. Imperial Metals Corporation (Ont CA, 2021) the Court of Appeal considered an intervention application under RCP R13:
[2] The test for intervention is well established. In determining whether an application for intervention should be granted, the matters to be considered are: “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”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167.

[3] What constitutes “a useful contribution” will depend on the circumstances of the case. The fact that an intervenor’s submissions reflect one or both of the parties’ positions is no bar to intervention provided the intervenor can make a useful contribution. No useful contribution can be offered by an intervenor who essentially repeats the position advanced by a party, even with a different emphasis: Jones v. Tsige, 2011 CanLII 99894 (ON CA), [2011] O.J. No. 4276 (C.A.), at para. 29; Stadium Corp. of Ontario Ltd. v. Toronto (City), 1992 CanLII 7475 (ON SCDC), [1992] O.J. No. 1574 (Div. Ct.), at para. 14, rev’d on other grounds, 1993 CanLII 8681 (ON CA), 12 O.R. (3d) 646 (C.A.).

[4] Rule 13 provides that a person may obtain leave to intervene in proceedings as an added party or as a “friend of the court”. The Clinic seeks to intervene as a friend of the court under rule 13.02 “for the purpose of rendering assistance to the court by way of argument”. The language of rule 13.02 reflects the historical role of a friend of the court as a neutral “person or bystander…who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point in law or fact which escaped its notice”: Nakonagos v. Humphrey, [1996] O.J. No. 2002 (Gen. Div.), at para. 24. A friend of the court serves the court, not the parties. The role connotes “an element of impartiality or altruism”: Peixeiro v. Haberman, 1994 CanLII 7322 (ON SC), [1994] O.J. No. 2459 (Gen. Div.), at para. 19.

....

[8] In these circumstances, granting intervenor status to the Clinic would create an imbalance or the appearance of an imbalance between the parties: Dunkin’ Brands Canada Ltd. v. Bertico inc., 2013 QCCA 867, at paras. 23-24; Raibex Canada Ltd. v. ASWR Franchising Corp., 2017 CarswellOnt 21537, at para. 34.
. 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.

. Canadian Federation of Students v. Ontario (Colleges and Universities)

In Canadian Federation of Students v. Ontario (Colleges and Universities) (Ont CA, 2020) the Court of Appeal considers factors to be assessed on a motion to intervene:
[10] Turning to the balance of the proposed interventions, multiple criteria are considered when deciding whether to grant leave to intervene as a friend of the court. These considerations include the general nature of the case, the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22. As Dubin C.J.O. put it in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167:
Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are 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.
. 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.
. Schuyler Farms Limited v. Dr. Nesathurai

In Schuyler Farms Limited v. Dr. Nesathurai (Div Ct, 2020) the Divisional Court considered intervenor applications in an interesting case where the order of the medical officer of health under the HPPA required no more than three farm workers per bunkhouse during the COVID crisis:
[11] Rule 13.02 of the Rules of Civil Procedure provides for intervention as a friend of the court:
Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
[12] The Court of Appeal and this Court have established the following considerations for deciding whether to grant leave to intervene as a friend of the court:
a. The nature of the case;

b. The issues involved;

c. The likelihood that the proposed intervenor will make a useful and distinct contribution not otherwise offered by the parties; and

d. Whether the intervention will cause injustice to the parties or undue delay.

See: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; S. (P.) v. Ontario, 2014 ONCA 160, at para. 5; and Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), at para. 8.
....

a) Nature of the case and the issues

[13] The first two factors are often considered together.

[14] The cases have held that granting leave to intervene may be warranted in cases that involve constitutional issues or issues of public interest that transcend the dispute between the parties: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 CanLII 4382 (ON CA), [2001] O.J. No. 2768 (C.A.), paras. 7-8; and Jones, paras. 23-24.

....

b) Likelihood that the proposed intervenors will make a useful and distinct contribution

[18] In Elementary Teachers' Federation, this Court described what constitutes a useful contribution:
10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers' Compensation Act 1983 (Nfld), [1989] 2 SCR 335, 1989 CanLII 23 (SCC) at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having "all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court." This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, [2003] O.J. No 3800 (QL), 2003 CanLII 47870 (OCA) at para 15.)
[19] Therefore, when considering whether the proposed intervenor will make a useful contribution, the court focuses on (i) the proposed intervenor and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervenor proposes to make.
. 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.
. Errol Massiah v. Justices of the Peace Review Council

In Errol Massiah v. Justices of the Peace Review Council (Div Ct, 2020) the Divisional Court considered an intervenor motion under R13.01 by former counsel to a judicial review applicant:
15. The criteria for intervention as an added party are set out in Rule 13.01:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
16. In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), Dubin C.J.O. held that the essential matters to be considered are: 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.

17. Appellate and review courts have occasionally exercised this discretion in favour of lawyers whose conduct has been impugned, but not every lawyer whose conduct is criticized has an automatic right to party status on appeal. Rule 13.01 is discretionary and requires a consideration of all the circumstances, with a focus on the requirements of the Rule itself and those matters articulated by Dubin C.J.O. in Peel.
. ClubLink Corporation ULC v. Oakville (Town)

In ClubLink Corporation ULC v. Oakville (Town) (Ont CA, 2019) the Court of Appeal states as follows on 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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