On January 29, 2014, Stratas J.A. of the Federal Court of Appeal granted two motions to intervene in Canada (Attorney General) v. Pictou Landing First Nation. In deciding those motions, Stratas J.A. commented on the factors to consider in granting or dismissing a motion to intervene under Rule 109 of the Federal Courts Rules.

Stratas J.A. is of the view that the factors articulated in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 at para. 12 (T.D.), aff’d [1990] 1 F.C. 90 (C.A.) for the determination of a motion to intervene need to be reconsidered. He observed that:

[6] … a number of the Rothmans, Benson & Hedges factors seem divorced from the real issues at stake in intervention motions that are brought today. Rothmans, Benson & Hedges also leaves out other considerations that, over time, have assumed greater prominence in the Federal Courts’ decisions on practice and procedure. Indeed, a case can be made that the Rothmans, Benson & Hedges factors, when devised, failed to recognize the then-existing understandings of the value of certain interventions … Now is the time to tweak the Rothmans, Benson & Hedges list of factors.

Stratas J.A. commented on the current factors, and proposed modifications as well as two new factors:

[9] The Rothmans, Benson & Hedges factors, and my observations concerning each, are as follows:

  • Is the proposed intervener directly affected by the outcome? “Directly affected” is a requirement for full party status in an application for judicial review – i.e., standing as an applicant or a respondent in an application for judicial review: Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236. All other jurisdictions in Canada set the requirements for intervener status at a lower but still meaningful level. In my view, a proposed intervener need only have a genuine interest in the precise issue(s) upon which the case is likely to turn. This is sufficient to give the Court an assurance that the proposed intervener will apply sufficient skills and resources to make a meaningful contribution to the proceeding.
  • Does there exist a justiciable issue and a veritable public interest? Whether there is a justiciable issue is irrelevant to whether intervention should be granted. Rather, it is relevant to whether the application for judicial review should survive in the first place. If there is no justiciable issue in the application for judicial review, the issue is not whether a party should be permitted to intervene but whether the application should be struck because there is no viable administrative law cause of action: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250.
  • Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court? This is irrelevant. If an intervener can help and improve the Court’s consideration of the issues in a judicial review or an appeal therefrom, why would the Court turn the intervener aside just because the intervener can go elsewhere? If the concern underlying this factor is that the intervener is raising a new question that could be raised elsewhere, generally interveners – and others – are not allowed to raise new questions on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraphs 22-29.
  • Is the position of the proposed intervener adequately defended by one of the parties to the case? This is relevant and important. It raises the key question under Rule 109(2), namely whether the intervener will bring further, different and valuable insights and perspectives to the Court that will assist it in determining the matter. Among other things, this can acquaint the Court with the implications of approaches it might take in its reasons.
  • Are the interests of justice better served by the intervention of the proposed third party? Again, this is relevant and important. Sometimes the issues before the Court assume such a public and important dimension that the Court needs to be exposed to perspectives beyond the particular parties who happen to be before the Court. Sometimes that broader exposure is necessary to appear to be doing – and to do – justice in the case.
  • Can the Court hear and decide the case on its merits without the proposed intervener? Almost always, the Court can hear and decide a case without the proposed intervener. The more salient question is whether the intervener will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter.

[10] To this, I would add two other considerations, not mentioned in the list of factors in Rothmans, Benson & Hedges:

  • Is the proposed intervention inconsistent with the imperatives in Rule 3, namely securing “the just, most expeditious and least expensive determination of every proceeding on its merits”? For example, some motions to intervene will be too late and will disrupt the orderly progress of a matter. Others, even if not too late, by their nature may unduly complicate or protract the proceedings. Considerations such as these should now pervade the interpretation and application of procedural rules: Hryniak v. Mauldin, 2014 SCC 7.
  • Have the specific procedural requirements of Rules 109(2) and 359-369 been met? Rule 109(2) requires the moving party to list its name, address and solicitor, describe how it intends to participate in the proceeding, and explain how its participation “will assist the determination of a factual or legal issue related to the proceeding.” Further, in a motion such as this, brought under Rules 359-369, moving parties should file detailed and well-particularized supporting affidavits to satisfy the Court that intervention is warranted. Compliance with the Rules is mandatory and must form part of the test on intervention motions.

Since his comments were made in the context of a motion, Stratas J.A. recognized they were not binding on the Court. It will be for the Court to assess the merits of his reasons.