Intervention in Judicial Proceedings
Canadian courts and some administrative tribunals allow non-parties, such as
individuals, trade associations and advocacy groups, to seek leave to participate in
ongoing cases if it is in the interests of justice. This is known as an “intervention”. Each
jurisdiction has its own rules for determining whether to grant relief.
The Federal Courts usually apply six “non-exhaustive and flexible” factors to decide if it is in the interests of justice
to allow an intervention, namely:
- Is the proposed intervenor directly affected by the outcome;
- Is there a justiciable issue and a veritable public interest;
- Is there a lack of any other reasonable or efficient means to submit the question to the Court;
- Is the position of the proposed intervenor adequately defended by one of the parties to the case;
- Are the interests of justice better served by the proposed intervention of the proposed party; and
- Can the Court hear and decide the cause on its merits without the proposed intervenor.
The Court exercises its discretion in light of the unique factual, legal and procedural matrix of each case. A proposed intervenor must “take the issues as framed by the parties, and cannot reshape the case in a way that they prefer.” Leave to intervene is often sought on appeal and has been allowed at first instance in some cases.
The Ontario Court of Appeal and Superior Court of Justice of Ontario permit a non-party
to file a motion for leave to intervene if that person claims:
- An interest in the subject matter of the proceeding;
- That they may be adversely affected by a judgment in the proceeding; or
- That there exists between the person and one or more of the parties a question of law or fact in common with one or more of the questions at issue in the proceeding.
The Court considers whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, as well as “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.” A person may seek leave to intervene as a friend of the Court to render assistance to the Court by way of argument, without becoming a party.
In the Supreme Court of Canada, non-parties may seek leave to intervene on an
appeal, a reference, or an application for leave to appeal. Specific time limits and procedural rules apply. The proposed intervenor must describe its interest in the proceeding, including any prejudice that it would suffer if the intervention is denied. The proposed intervenor must also
identify the position they intend to take, the submissions they intend to make, and the reasons for believing that those submissions will be useful to the Court and different from those of the other parties. An intervenor
is not permitted to raise new issues unless otherwise ordered by a judge.
Some federal and provincial administrative tribunals have procedures relating to
interventions. For example, the Patented Medicine Prices Review Board allows
“any person who claims an interest in the subject-matter of a proceeding” to bring a
motion for leave to intervene. In deciding whether to allow this relief, the Board
considers whether the proposed intervenor has an interest in the proceeding,
whether the intervention will prejudice any party to the litigation, and whether the
intervention will interfere with the fair and expeditious conduct of the proceeding.
The Board may grant or deny a motion to intervene, and may impose any conditions
on the intervention that it determines to be appropriate.