Intervening In The ‘Interests Of Justice' In The Federal Courts

Introduction

In a recent article, Part One of this series, I described the "(Nearly) New Approach" to interventions in Federal Court and Federal Court of Appeal proceedings. The recap, despite a recent attempt by Stratas J.A. to modernize the test for leave to intervene (Pictou Landing), the test for leave to intervene in the Federal Court and the Federal Court of Appeal remains the six factor test set in 1989 (Rothmans, Benson & Hedges). The criteria that the court will consider are: (1) Is the proposed intervenor directly affected by the outcome? (2) Does there exist a justiciable issue and a veritable public interest? (3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? (4) Is the position of the proposed intervenor adequately defended by one of the parties to the case? (5) Are the interests of justice better served by the intervention of the proposed third party? (6) Can the Court hear and decide the cause on its merits without the proposed intervenor?

This article explores how these factors have been interpreted and the importance of the "interests of justice" for interventions at the Federal Court and Federal Court of Appeal.

Summary

It is clear from the jurisprudence that these factors are neither cumulative nor exhaustive. The criteria are meant to be applied flexibly to account for the different factors at play in different interventions (Sport Maska). Thus, it is not necessary for a proposed intervenor to satisfy each criteria, depending on the circumstances. However, courts have placed much emphasis on the "interests of justice" factor and the requirement in Rule 109(2) that the proposed intervenor must demonstrate how its "participation will assist the determination of a factual or legal issue related to the proceeding." The Federal Court of Appeal has held that it is "undeniable" that "the salient question is whether the intervenor will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter."

The Rules

Rule 109 of the Federal Courts Rules, Can. Reg. 98-106, sets out the authority to grant leave to intervene in a Federal Court proceeding:

109(1) Leave to intervene The Court may, on motion, grant leave to any person to intervene in a proceeding.

109(2) Contents of notice of motion Notice of a motion under subsection (1) shall

(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and

(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.

109(3) Directions In granting a motion under subsection (1), the Court shall give directions regarding

(a) the service of documents; and

(b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.

Interventions in the 'public interest'

In setting out the six Rothmans, Benson & Hedges factors, Rouleau J. was specifically considering when the Court should grant standing and allow the full participation of an intervener in a "public interest" debate: at para. 12.

The six factors were applied ubiquitously by the Trial Division and the Appeal Court1 for the next two decades without revision, in cases of "public interest" debates, as considered by Rouleau J...