Intervening in the Supreme Court of Canada


Advocates' Quarterly Volume 16, No. 2 May, 1994
(All footnotes have been deleted from the original article)

Table of Contents

1. Introduction

2. Origin of the Supreme Court of Canada Rules

3. Recent Historical Background

4. Current Rules

  1. General Procedure
    1. Application for Leave to Intervene
    2. Procedures for Filing an Application for Leave to Intervene
    3. Contents of an Application for Leave to Intervene
    4. Order Granting Leave to Intervene
    5. Rights and Privileges of an Intervener
  2. Attorneys-General as Interveners
    1. Rule 18: Intervention by Application
    2. Rule 32: Intervention As a Right
      1. Raising a Constitutional Question
      2. Notice of Constitutional Questions to Attorneys-General and Territorial Ministers of Justice

5. Internal Process

  1. Rule 18
  2. Rule 32

6. Statistics

7. Intervening in Leaves to Appeal

8. Considerations in Deciding Whether to Intervene

  1. As of Right: Rule 32
    1. Risk to Legislation
    2. Allocation of Resources
    3. Other Intervening Parties
    4. Usefulness of Submission
  2. Applying for Leave to Intervene: Rule 18
    1. Ensuring Representation
    2. Public v. Private Interest Interventions
    3. Allocation of Resources
    4. Type of Appeal
    5. "Interest Test"
    6. "Useful and Different" Test
    7. Likely Outcome

9. Points to Consider when Structuring an Application for Leave to Intervene

10. Points to Consider when Structuring an Intervention Factum

11. Reference Interventions

12. Conclusion

1. Introduction

An "intervention is a procedural device which allows strangers to a judicial proceeding to participate in some fashion in that proceeding". The rules governing interventions in the Supreme Court of Canada form a separate regime different from those in other courts or jurisdictions.

This article will briefly look at the history and origin of the Supreme Court Rules which govern the process of intervention, and will provide an overview of the current rules. This will be followed by an outline of recent statistics compiled by the writer regarding the number of interventions filed under s. 32 by the various provinces and territories.

Finally, this article will address some of the more practical considerations in deciding whether to intervene and in structuring an application or factum once the decision to intervene has been made. For the reader's convenience, a bibliography of relevant articles is attached. In addition, excerpts of the Supreme Court Rules are appended.

2. Origin of the Supreme Court of Canada Rules

The process of intervention in the Supreme Court of Canada is regulated by the Supreme Court of Canada Rules. While these rules are statutorily approved, they actually originate from the judges of the Supreme Court themselves. Section 97 of the Supreme Court Act empowers the judges, or any five of them, to make the rules of court. Section 97(4) requires that copies of all rules must be laid before each of the Houses of Parliament. This must be done on any of the first 15 days after the making of the rules on which that House is sitting. As long as the Supreme Court Rules are not inconsistent with the express provisions of the Supreme Court Act, they have the force of statute pursuant to s. 97(3) of the Act.

3. Recent Historical Background

In 1983, amendments to Rule 18 provided that any person who had intervener status at the lower court was granted an automatic right to intervene at the Supreme Court of Canada. In R. v. Oggmoss, however, this rule was declared to be inapplicable to purely criminal appeals, and in 1987, the automatic right to intervene was abolished by further amendments to the Supreme Court rules. In other words, one now has to apply for status, even if one had status in the court below.

4. Current Rules

The rules regarding interventions in the Supreme Court have undergone some significant changes in the past few years. The most recent amendments to the Supreme Court Rules were made in 1987, 1991 and 1992.

(1) General Procedure: Rule 18

  1. Application for leave to intervene
    The general rules for interventions in the Supreme Court of Canada are found in Rule 18. This rule provides that a person interested in an appeal or reference can intervene by leave of a judge. As noted above, there is no longer an automatic right to intervene for those parties who had intervener status at the lower level court.
  2. Procedures for filing an application for leave to intervene
    Pursuant to Rule 18(2), an application for leave to intervene must be made within 60 days after the filing of a notice of appeal or reference. This is done by filing and serving a notice of motion in Form B.2 together with a supporting affidavit.
  3. Contents of an application for leave to intervene
    Rule 18(3) outlines the required contents of an application for leave to intervene. The criteria listed in 18(3) are all factors which will be considered by the court in deciding whether an application for leave to intervene will be allowed. These criteria will be discussed in more detail below.
  4. Order granting leave to intervene
    Under Rule 18(6), where leave to intervene is granted, the court order specifies the date by which the intervener's factum must be filed. Furthermore, the court order may make provision for the additional disbursements incurred by the parties to the appeal as a result of the intervention.
  5. Rights and privileges of an intervener
    Pursuant to Rule 18(1), the judge has the discretion to determine the terms and conditions on which an application for leave to intervene will be granted as well as the rights and privileges of an intervener. Subject to Rule 18(1), 18(4) and (5) outline the basic rights and limitations of an intervener. Under Rule 18(4), an intervener has the right to file a factum and Rule 18(5) provides that:

    18(5) Unless otherwise ordered by a judge, an intervener

    1. shall not file a factum that exceeds 20 pages;
    2. shall be bound by the case on appeal and may nor add to it; and
    3. shall not present an oral argument.

    In other words, if one wishes to file a factum in excess of 20 pages, not be bound by the case of appeal, or present an oral argument, one has to specifically apply for same.

(2) Attorneys-General as Interveners

  1. Rule 18: Intervention by applicationB On issues other than constitutional questions, the Attorneys-General of Canada and of the provinces as well as the Ministers of Justice of the two territories must apply for leave to intervene just like any other party. Because of the circularity between Rules 18(8) and 32(7), there is some ambiguity as to whether an Attorney-General or Minister of Justice is limited by Rule 18(5)(a) and (c). Therefore the safest approach when applying for leave under Rule 18 on a non-constitutional issue is to apply for leave to file a factum that exceeds 20 pages or to present an oral argument.
  2. Rule 32: Intervention as of right Under Rule 32, the Attorneys-General and the Territorial Ministers of Justice are entitled to intervene without leave on constitutional questions.
    1. Raising a constitutional question: Where a party raises a question as to the constitutional validity, applicability or inoperability of a statute, a constitutional validity, applicability or inoperability of a statute, a constitutional question may be stated by a judge on a motion brought by one of the parties pursuant to Rule 32(1). The motion must be brought within 60 days from the filing of the notice of appeal unless the Chief Justice or judge allows for an extension of this time under Rule 32(3).

      It should also be noted that, under Rule 32(7), an Attorney-General who has been granted intervener status under Rule 18 can bring a motion to state a constitutional question within 15 days after leave to intervene has been granted.

      The Supreme Court's decision in Tétrault-Gadoury v. Canada(Employment & Immigration Commission) provides some useful insight into the court's decisions whether or not to state a constitutional question. The court in Tétrault-Gadoury outlined five circumstances in which, as a matter of policy, a constitutional question would not be stated. The court refused to state such questions when:

      1. the question proposed did not comprehend the degree of generality which would justify the application of Rule 32,
      2. the issue raised was essentially one of evidence,
      3. the question arose from the facts of the case,
      4. there was no attack on the validity of a law, but when the court was being asked to construe a law in light of a section of the Charter, or
      5. that the alleged infringement or denial of guaranteed rights arose from particular facts as opposed to a law or regulation.
    2. Notice of constitutional question and of Attorney-General's right to intervene: Pursuant to Rule 32(4), all of the Attorneys-General and the Territorial Ministers or Justice are to be served with any constitutional questions stated by the court. Notice of the question is to be served together with a notice that any Attorney-General or Minister of Justice who wishes to intervene shall file a notice of intervention in Form C and serve same on the parties. By virtue of Rule 18(7), an Attorney-General or Territorial Minister of Justice intervening under Rule 32(4) has a number of advantages which others seeking to intervene do not. The Attorneys-General and Territorial Ministers of Justice:
      • need not apply for leave to intervene;
      • need not describe their interest in the appeal or reference;
      • need not state the position they will take in the appeal or reference;
      • need not persuade the Court of the relevance, usefulness or difference of their submission;
      • are not limited by the 20 page maximum for a factum;
      • are not subject to the prohibition on oral argument.

5. Internal Process

(1) Rule 18

An application for leave to intervene is treated as a normal motion before the court, such that one files a notice of motion and affidavit [Rule 18(2)]. The notice of motion and affidavit in support, together with opposing affidavits if any, are referred to the judge handling interlocutory motions that particular week for determination, with or without counsel and with or without reasons.

(2) Rule 32

For a Rule 32 application, one also commences with a notice of motion and affidavit specifically stating the constitutional question with the particular alleged constitutional infringement being a separate question from the s. 1 justification. This is, of course, served on all parties and then filed with proof of service. Then the local agent is informed by the court of the date that the Chief Justice will hear the motion, if the Chief Justice is not prepared to sign as is.

Upon the order being granted (generally in writing on the notice of motion itself), the constitutional question(s) is translated by professional legal translators in the court and upon receipt of same, the local Ottawa agent prepares a notice of constitutional question and order, arranges for the Registrar to sign the latter, and then arranges for all Attorneys-General and Territorial Ministries of Justice to be served. As a courtesy, one should also serve the parties. As a further (and now almost uniform) courtesy, a copy of the reasons for judgment of the Court of Appeal below is also served on all Attorneys-General and Territorial Ministries of Justice. Of course, proof of service is then filed with the court.

6. Statistics

7. Intervening in Leaves to Appeal

It is possible to intervene at two stages in the appeal process. The more common route is to make a motion for leave to intervene after leave to appeal has been granted. Interventions on application for leave to appeal are rare, and have been generally dismissed.

And example of leave being granted at the leave stage occurred in Gamble v. The Queen. In this case, the Ontario Court of Appeal had refused to grant habeas corpus against Gamble's committal for a crime which occurred in Alberta. The Attorney-General of Alberta, however, was permitted to intervene at the leave stage.

8. Considerations in Deciding Whether to Intervene

In deciding whether or not to allow an intervention, the courts must weigh the desire to preserve judicial resources against their desire to allow the interests of individual Canadians or groups, greater voice in the judicial process. On the side of the intervener, a number of factors must be considered.

(1) As of Right: Rule 32

  1. Risk to legislation
    In a constitutional intervention, the overriding consideration must be to ensure that the government is represented in those actions where the constitutional validity and applicability of legislation is challenged. Clearly if one's legislation is at danger of being struck down, then it is important to intervene. If your legislation is at risk, it is necessary to consider how important it is that the legislation be preserved. For example, the province may have been considering an amendment or repeal anyway and no intervention would be necessary.
  2. Allocation of resources
    Another key factor is the allocation of resources. What is the value or benefit of intervening in one case as opposed to another? Clearly, in this day and age, a government cannot afford to intervene in every case that is challenged. It must pick those cases which are the most relevant. Is the province's own legislation directly challenged, or is the impugned legislation similar to one's own? If it is similar only, then it is possible that one's own legislation could be challenged at a later time?
  3. Other intervening parties
    Further, the other intervening parties must be taken into account. What other provinces are intervening in the case and what position are those provinces likely to take? With the great regional diversity in policy and legislative opinion across Canada, a province must ensure that it's own regional interests are being adequately represented. How many, and which provinces are intervening?
  4. Usefulness of submission
    Ultimately, in any intervention, the objective is to influence judicial opinion. As such it is important to consider whether or not the Supreme Court will consider one's point of view. Since the province or territory is intervening as of right, the court will always hear their submissions. This does not mean, however, that the court will necessarily give great deference or weight to same. As with all interventions, the usefulness of the submission and the potential strengths must always be considered.

(2) Applying for Leave to Intervene: Rule 18

  1. Ensuring representation The purpose is allowing public interest intervention is to give individual Canadians great influence in the courts. As in a constitutional reference then, the primary consideration must be to ensure that an affected interest group is represented and that their voices are heard.
  2. Public v. private interest interventions Distinguishing between public interest and private interest interventions is also an important consideration, since it "provides a context for the court to determine both the relevance of the interventions and the criteria upon which the intervention applications should be considered".
  3. Allocation of resources Again, the allocation of resources is important, perhaps more so than in Rule 32 intervention, since resources are especially limited in some public interest groups. The case must be chosen carefully. Who are the other parties applying for intervener status? How different are their perspectives from those of the parties to the appeal and of the other interveners. Are there some who may represent your view adequately? What are the chances of costs being awarded? Or worse, awarded against you?
  4. Type of appeal (e.g., criminal) The nature of the case on appeal may also be a significant factor in determining whether to apply for leave to intervene. For example, the courts is often reluctant to grant intervener status in criminal appeals. Thus an applicant seeking to intervene would have to satisfy a more stringent test since exceptions are made only where important public law issues are considered.
  5. "Interest" test
    It is also of vital importance that a public-interest group satisfy the requirements set out by the Supreme Court. Rule 18(3)(a) of the Rules of the Supreme Court of Canada sets out an "interest" test which must be met:

    18(3) An application for intervention shall briefly

    (a) describe the intervener and the intervener's interest in the appeal or reference [Emphasis added.]

    A public interest group must consider its stake in the outcome of the appeal. Does the group have a direct stake in the result? If they do not, then it is unlikely that they will be granted intervener status. In the appeal of R v. Finta, Mr. Kenneth Narvey was denied intervener status because of his interest in the appeal was "solely of having a serious preoccupation with the subject matter".

  6. "Useful and different" test
    Once the applicant establishes a sufficient interest in the field they must then demonstrate that their submissions are "useful and different".

    18(3) An application for the interventions hall briefly (c) set out the submissions to be advanced by the intervener, their relevancy to the appeal or reference and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties [Emphasis added.]

    In this case, R v. Finta, Madam Justice McLachlin found that the Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada and Interamicus all offered useful and novel submissions. "In particular, these applicants each have distinctive contributions to make in the area of international law theory, comparative law, the Nuremberg principles, and the criminal justice obligations and position of Canada vis-Ã -vis the victims of war crimes." Hence these applicants were granted leave to intervene.

  7. Likely outcome
    As always, the likely outcome, with or without the intervention, as well as whether or not the likely outcome will be opposed to, or in favour of, the interests of the potential intervener, must be considered. When all is said and done, if the intervention will likely accomplish very little, then there is little point in intervening.

    Intervening simply to agree (whether by paraphrase or otherwise) with one side or another may not be welcomed by the court. If one does agree with one side, it is better simply to so state and go on to set out why, from the intervener's perspective â€": for example, if the Northwest Territories intervenes, to speak from the local territorial perspective of the Northwest Territories.

9. Points to Consider when Structuring an Application for Leave to Intervene

The Supreme Court has historically been reluctant to publish written reasons for its exercise of discretion in making decision on intervention applications. For many years, this made it difficult to know how to best structure an application for leave to intervene. The few cases where reasons were given were all that could be relied on for some guidance or insight into what considerations would be given the greatest priority by the judges of the court.

In 1997, however, amendments to the Supreme Court Rules helped to clarify what the court was looking for in an application for leave to intervene. As noted above, Rule 18(3) provides that:

18(3) An application for intervention shall briefly:

  1. describe the intervener and the intervener's interest in the appeal reference;
  2. identify the position to be taken by the intervener on the appeal reference; and
  3. set out the submissions to be advanced by the intervener, their relevance to the appeal or reference and the reasons for believing that submissions will be useful to the Court and different from those of other parties.

It should also be remembered that some of the written reasons both from before and after the 1983 amendment, are useful in interpreting the meaning of those statutory requirements. For example, in Norcan Ltd v. Lebrock, the Supreme Court made clear that it was not necessary for an applicant to have legal interest in the appeal of reference: "any interest is sufficient to support the application under that rule subject always to the exercise of discretion".

Another more recent decision which s useful in interpreting the requirements of Rule 18(3) is the Reference re: Worker's Compensation Act, 1983 (Nfld) where the court placed the greatest emphasis on Rule 18(3) (a) and (c) which require the applicants establish an interest and make submissions which are useful and different from those of other parties. The write has also traced several unreported Supreme Court reasons in motions for leave to intervene which elaborate further in these basic requirements. If the reasons suggest that some of the court's considerations are:

  • the nature of the case on appeal â€" for example, the court has consistently displayed reluctance in granting intervening status in criminal cases;
  • a direct stake in the outcome of litigation is important in satisfying the "interest" requirement under Rule 18,
  • "distinctive contributions" and "useful and novel submissions" in several areas relevant to the case considered to "supplement the appellant's submissions in a manner suitable to satisfy the second criterion under Rule 18". (The second criterion is the "relevance, usefulness, and difference" of the intervener's submissions.)

10. Points to Consider when Structuring an Intervention Factum

Rule 18(4) provides that interveners have the right to file a factum. If the intervener is other than an Attorney-General intervening on a constitutional issue, there will be a 20-page maximum for factum and a prohibition on oral argument under Rule 18(5) unless a judge provides otherwise. It is important in structuring the factum to keep its maximum length in mind because 20 pages leaves little room for including background materials or reports. It is also important to remember that the factum may be an intervener's only opportunity to address the court and will be with the judge before the appeal, during the appeal and when reasons are being written. What is in the factum is therefore key, and every word counts, particularly the opening paragraphs.

Rule 18(1) makes clear the degree of judicial discretion to attach conditions and terms when granting an application for leave to intervene. Such terms and conditions can affect the structure of the factum. A common example is where the judge directs than an intervener is only allowed to address one of several issues involved in an appeal or reference.

11. Reference Interventions

Rule 18 also applies to a reference pursuant to s. 53 of the Act. In other words, one can apply to intervene in a reference, either a "provincial" reference (where the Lieutenant-Governor in Council has referred a matter to the provincial Court of Appeal, and the same is then being heard by the Supreme Court of Canada) or a "federal" reference (where the Governor-General in Council refers a matter directly to the Supreme Court of Canada.)

12. Conclusion

The Supreme Court of Canada has very clearly put out the welcome mat for interventions, and with recent decisions from the court, one now has more insight as to why interventions are or are not granted.

It is hoped this brief article assists the reader with a useful overview of this increasingly important area.