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Stratas - Intervention. Talukder v. Canada (Public Safety and Emergency Preparedness)
In Talukder v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2025) the Federal Court of Appeal (Stratas JA) dismissed an intervention motion [see para 34 especially]:[5] First a few background words about interventions. Some—not the proposed interveners here—think we are like some other courts that just about always grant intervener motions. Those courts welcome just about anyone into a case and let them raise just about anything loosely or remotely connected to the case, often with little legal content. That is not how we roll.
[6] We focus on the legal issues raised by the parties or those issues we think are necessary to decide the parties’ case—not issues that others think should have been raised—and ask whether a proposed intervener’s presence will advance our work. A narrow view? Perhaps, at least in the eyes of some, particularly the louder, more partisan voices in the intervener community. But we are mindful that cases belong to the parties who often have sacrificed so much to get them ready for hearing, not late-arriving special interest groups and other outsiders whose agendas might be different from the parties and the Court.
[7] We are also a court of law that applies governing law, not policy views, less still our inclinations and feelings. Here, the governing law is Rule 109 of the Federal Courts Rules, S.O.R./98-106 and its associated case law: see most recently, Canada v. DAC Investment Holdings Inc., 2025 FCA 37; Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66; Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13.
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[10] In intervention motions like this, the first step is to identify the arguments and issues in the appeal. This being an immigration appeal, we must begin with a little more background.
[11] For an appeal to be brought in this Court, the Federal Court must first state a question of serious importance: Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 74(d). The appeal, however, is not restricted to that question. An appellant can raise all issues that might affect the result: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 at para. 25; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50.
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[25] The Court has regard for the proposed interveners as experts in immigration and the international law that bears on it. But, in this case, the Court is not persuaded that the proposed interveners will be useful to the actual, real issues in this appeal, beyond duplicating the appellant’s submissions. They have not met the all-important requirement of "“usefulness”": see the case law at para. 7, above.
[26] Without commenting at all on the correctness or otherwise of the submissions the appellant makes in its memorandum, it is well-researched, extremely detailed and comprehensive. It very much covers the waterfront and beyond, as far as the issues relevant to this case as defined in the notice of appeal, properly construed, are concerned. Still, the proposed interveners have not persuaded the Court that their help is needed.
[27] Both interveners fail to restrict themselves on the central legal issue in this case and, rather, make submissions relevant to issues not before us. Thus, in some respects, the submissions are unnecessary and verge into new issues. It is not open to interveners—strangers to the proceeding—to add to those issues. Interveners must remember that they are guests at a table that has already been set.
[28] 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; see also Right to Life Association, above, at para. 14.) If interveners want to raise issues of interest to them, they must bring their own cases as parties, with all that that entails, including legal expense and potential costs liability. [29] Often when interveners go beyond the defined issues in an appeal, recharacterize those issues, or raise new issues, they start citing fresh evidence—evidence not admitted below and not properly in the evidentiary record on appeal—to set up or influence those issues. This seems to have happened here: the Canadian Council for Refugees cites government websites, academic articles, Internet blogs and other reports—matters not in evidence—to raise processing times and grant-rates of matters such as Ministerial relief.
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[31] As well, the appearance of fairness of the hearing matters. Admitting both interveners on similar issues to those the appellant raises might mean that the Court will receive the same submission on international law from one side of the courtroom up to three times, twice from parties admitted into the proceedings by the Court. Although three is not bad—the figure in some other courts can reach into double digits—this Court tries in its intervention decisions to avoid the appearance of a court-sanctioned gang-up on one side of the courtroom: Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at para. 12; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 11; Right to Life Association, at para. 16.
[32] Finally, this appeal is ready for hearing. All the filings are complete. If the proposed interveners are admitted into the appeal, they will each file memoranda and the respondent will need to file a responding memorandum. All of this will delay the hearing of the appeal.
[33] This is relevant under Rule 3 of the Federal Courts Rules. Those who are "“[k]een for their important [and useful] viewpoint to be heard” "tend to" “jump off the starting blocks when they hear the starter’s pistol”": Canadian Doctors for Refugee Care, at para. 28. That did not happen here. The existence of the appeal and the issues in it were known from the date of the filing of the notice of appeal, September 23, 2024. These motions were brought on April 17, 2025 and May 1, 2025. While not a major factor, it does bear on the matter.
[34] One last reflection, if I might. In over 38 years of life in the law, I have learned that the most honourable and impactful contributions are often quiet and unsung. Reputable and public-spirited organizations, like the proposed interveners, who do not meet the legal test for intervention but feel they can help, might still be able to do so: they can help the appellant behind the scenes, if the appellant is fine with that. True, this does not add a court appearance to counsel’s public profile or a line supporting a fundraising pitch. But it might still add to the appellant’s case, which ostensibly was the point of applying for intervener status in the first place.
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