Appellate Judge Addresses "Political Or Ideological" Intervention Motions (and Other Judges)

• Published date: 16 October 2020
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation, Human Rights
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Mark Gelowitz and W. David Rankin

The Federal Court of Appeal recently addressed the role of interveners and, in doing so, the proper role of the courts. In Canada (Attorney General) v. Kattenburg, 2020 FCA 164 Justice Stratas dismissed multiple motions for leave to intervene in an appeal from a judicial review decision. The underlying judicial review was narrower than the submissions that many of the proposed interveners intended to make. For Justice Stratas, this reflected a "growing, regrettable tendency in public law cases" for "those seeking political and social reforms to see the courts as unfettered decision-making bodies of a political or ideological sort that can give them what they want". Justice Stratas attributed at least some blame to judges who veer into the political or ideological sphere.

Background

Kattenburg is an appeal from a Federal Court judgment which had set aside an administrative decision of the Complaints and Appeals Office (CAO) of the Canadian Food Inspection Agency. The CAO had affirmed an earlier administrative decision that certain wines produced in the West Bank could be sold in Canada labeled as a "Product of Israel". The Federal Court set aside that decision and remitted it for reconsideration. The central issue was whether the administrative decision-maker interpreted and applied the food-labeling laws in a defensible and acceptable way.

Numerous moving parties sought leave to intervene on the appeal to address, among other issues, the status of the West Bank, the territorial sovereignty of Israel, human rights and humanitarian issues, international law, and section 2(b) of the Canadian Charter of Rights and Freedoms. As Justice Stratas viewed the appeal, many of these issues exceeded what was properly before the Court. Following Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, it was certain that the applicable standard of review was reasonableness, meaning that the Court's role was to review the administrative decision actually made, not to determine for itself the merits.

Test for intervener status

Justice Stratas rearticulated the test for intervener status in the Federal Court of Appeal under Rule 109 of the Federal Courts Rules. The fundamental question is whether the moving party's submissions will be useful to the panel determining the appeal, taking into account four questions:

1. What issues are live before the panel determining the appeal? The Court must determine the "real essence" and "essential character" of the proceeding based on the notice of appeal, as explained by the written submissions, disregarding any matters that are doomed to fail.
2. What does the moving party intend to submit in the appeal? The Court must determine the "real...