Interventions In Federal Court: A (Nearly) New Approach

Introduction Earlier this year, the Federal Court of Appeal clarified, confirmed, and settled the law applicable to interventions in Federal Court and Federal Court of Appeal proceedings, which, for the previous two years appeared to be in flux.

Rule 109(1) of the Federal Court Rules1 gives the courts discretion to grant leave to any person to intervene in proceedings, but do not set out a test to be applied in exercising that discretion. In 1989, a common law test was established by the Federal Court and Federal Court of Appeal to be applied in determining whether or not to grant leave to intervene Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (1989), 29 F.T.R. 267 (Fed. T.D.), affirmed (1989), 103 N.R. 391, [1990] 1 F.C. 90 (C.A.).

Time for a new approach? After 25 years of applying the same test, at least one judge thought it was time to update and modernize the test for leave to intervene. In 2014, Justice David Stratas, sitting as a single judge on a motion for leave to appeal argued only in writing, purported to modify and modernize the test for intervention. In Canada (Attorney General) v. Pictou Landing Band Council, 2014 FCA 21, Stratas J.A. was of the view that some of the factors set out in Rothmans, Benson & Hedges were outmoded and did not meet the exigencies of modern litigation and the real issues at stake in interventions. He summarized his opinion in Pictou Landing at paras. 11-12:

11 ... To summarize, in my view, the following considerations should guide whether intervener status should be granted:

1. Has the proposed intervener complied with the specific procedural requirements in Rule 109(2)? Is the evidence offered in support detailed and well-particularized? If the answer to either of these questions is no, the Court cannot adequately assess the remaining considerations and so it must deny intervener status. If the answer to both of these questions is yes, the Court can adequately assess the remaining considerations and assess whether, on balance, intervener status should be granted.

2. Does the proposed intervener have a genuine interest in the matter before the Court 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?

3. In participating in this appeal in the way it proposes, will the proposed intervener advance different and valuable insights and perspectives that will actually further the Court's determination of the matter?

4. Is it in the interests of justice that intervention be permitted? For example, has the matter 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? Has the proposed intervener...