Court of Appeal Decision of the Week

Intervening at the Federal Court of Appeal: Essential Criteria for Proposed Interveners

Case: Canada (Attorney General) v. Shakov, 2016 FCA 208

Keywords: Intervener, Rule 109, Leave to Intervene, Public Interest

Synopsis:

The Director of International Programs for the Office of the Commissioner for Federal Judicial Affairs (FJA) quit. The FJA approached Oleg Shakov to take a one-year appointment. The position was created with an “English Essential” language requirement.

The Public Service Commission, an independent agency charged with making appointments to the public service, investigated the appointment. The PSC concluded the language requirement, “English Essential”, had been tailored to fit Mr. Shakov’s profile. It recommended the appointment be revoked.

The Federal Court, in a strongly worded judgment, allowed the application for judicial review and set aside the decision of the PSC: “…there was no favouritism in the appointment of Mr. Shakov. The best person available was chosen for a short term in order to quickly resolve an urgent problem….The PSC’s conclusion of “improper conduct” was unreasonable as it totally disregarded the context in which the decision of the Acting Commissioner was made.”

The Attorney General appealed. The Commissioner of Official Languages for Canada brought a motion for leave to intervene under Rule 109. Justice Webb of the Federal Court of Appeal dismissed the motion.

Importance:

This short decision provides a clear summary of the criteria the Federal Court of Appeal will consider in determining whether or not to allow an intervention. The Court cited Bauer Hockey Corp. v. Easton Sports Canada Inc., 2016 FCA 44 which confirmed that the criteria from Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, [1989] F.C.J. No. 707 & [1990] 1 F.C. 74, [1989] F.C.J. No. 446 are still applicable:

In order for the Court to grant standing and to justify the full participation of an intervenor in a “public interest” debate, certain criteria must be met and gathering from the more recent decisions the following is contemplated:

  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? (para. 6)

The Court focused on the fourth criteria above and stated the proposed intervener had not established that its position would not be adequately defended by one of the parties. The Court examined the proposed position of the Commissioner and compared it with the memorandum of fact and law filed by the Attorney General of Canada. It concluded, “Repeating the arguments of the Attorney General by rephrasing them in its own words, does not warrant the right to intervene in an appeal … and does not establish that the Commissioner’s position could not be adequately addressed by the Attorney General.” (para. 9)

The Federal Court of Appeal has previously made it clear that it is not necessary that all of the factors be met by a proposed intervener (Canadian Pacific Railway Company v. Boutique Jacob inc., 2006 FCA 426 at para. 21). However, it may be an error to not refer to any of the factors (Canadian Taxpayers Federation v. Benoit, 2001 FCA 71 at para. 16).

Also, the Court has reminded proposed interveners to keep in mind Rule 109(2), which requires a proposed intervener to show how the intervention “will assist the determination of a factual or legal issue related to the proceeding” (Canadian Airlines International Ltd. v. Canada (Human Rights Commission) (F.C.A.), [2010] 1 FCR 226, 2000 CanLII 14938 (FCA) at para. 9).

Counsel for the Proposed Intervener: Kevin Shaar & Mathew Croitoru (Commissioner of Official Languages of Canada)

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Posted: Tuesday, February 28, 2017