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,  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:
I. 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.
II. 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?
III. 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?
IV. 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 been involved in earlier proceedings in the matter?
V. 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"? Are there terms that should be attached to the intervention that would advance the imperatives in Rule 3?
12 In my view, these considerations faithfully implement some of the more central concerns that the Rothmans, Benson & Hedges factors were meant to address, while dealing with the challenges that regularly present themselves today in litigation, particularly public law litigation, in the Federal Courts.
Justice Stratas then advanced and clarified this new test as the test to be applied in a number of cases where he sat as a single judge on motions for leave to intervene.2 Some Federal Court decisions followed this lead.3 Others treated the Pictou Landing factors as a supplement to the Rothmans, Benson & Hedges factors.4
Still other Federal Court decisions took issue with applying the Pictou Landing factors. In Bauer Hockey Corp. v. Easton Sports Canada Inc., 2014 FC 853, Harrington J. declined to choose between the two tests but noted at para. 22: “Justice Stratas stated at paragraph 11 that he was sitting as a single motions judge and that his reasons did not bind his colleagues. It should be noted that the Court of Appeal is very reluctant to reverse itself.” Harrington J. suggested the appropriate forum to resolve the dispute was the Supreme Court of Canada. In Curtis v. Bank of Nova Scotia, 2015 FC 976, Zinn J. was more direct. At paras. 5-6 of Curtis, Zinn J. observed that in Pictou Landing, Stratas J.A. acknowledged that he was a single motions judge and his reasons did not bind the Federal Court of Appeal, therefore “[u]ntil a full panel of the Federal Court of Appeal adopts this new slightly revised approach, I prefer to rely on the test previously enunciated by a full panel of the Federal Court of Appeal in C.U.P.E. v. Canadian Airlines International Ltd.,  F.C.J. No. 220 (Fed. C.A.), at para 8 [citing Rothmans, Benson & Hedges].”
Leave well enough alone...
Then, in February 2016, in a case affirming Harrington J.'s decision in Bauer Hockey Corp., the Federal Court of Appeal reaffirmed that Rothmans, Benson & Hedges was the governing case with respect to motions for leave to intervene. In Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, Nadon J.A. (Pelletier & Gauthier JJ.A. concurring) rejected Stratas J.A.'s attempt to reform the test in Pictou Landing. Justice Nadon explained at para. 38:
38 I wish to make it clear that this panel, or for that matter any other panel of the Court, cannot prevent a single motions judge from expressing his view of the law if he is so inclined. In my view, parties may use a single motions judge's reasoning, if they wish, and make it part of their argument in order to convince the Court that it should change or modify its case law. But all should be aware that a single judge's opinion does not change the law until it is adopted by a panel of the Court.
In deciding not to adopt Stratas J.A.'s opinion of the factors to be considered on a motion for leave to intervene, Nadon J.A. commented at paras. 41-43:
41 In my opinion, the minor differences between the Rothmans, Benson & Hedges factors and those of Pictou Landing do not warrant that we change or modify the factors held to be relevant in Rothmans, Benson & Hedges. As the Rothmans, Benson & Hedges factors are not meant to be exhaustive, they allow the Court, in any given case, to ascribe the weight that the Court wishes to give to any individual factor.
42 The criteria for allowing or not allowing an intervention must remain flexible because every intervention application is different, i.e. different facts, different legal issues and different contexts. In other words, flexibility is the operative word in dealing with motions to intervene. In the end, we must decide if, in a given case, the interests of justice require that we grant or refuse intervention. Nothing is gained by adding factors to respond to every novel situation which motions to intervene bring forward. In my view, the Rothmans, Benson & Hedges factors are well tailored for the task at hand. More particularly, the fifth factor, i.e. "[a]re the interests of justice better served by the intervention of the proposed third party?" is such that it allows the Court to address the particular facts and circumstances of the case in respect of which intervention is sought. In my view, the Pictou Landing factors are simply an example of the flexibility which the Rothmans, Benson & Hedges factors give to a judge in determining whether or not, in a given case, a proposed intervention should be allowed.
43 To conclude on this point, I would say that the concept of the "interests of justice" is a broad concept which not only allows the Court to consider the interests of the Court but also those of the parties involved in the litigation.
In April 2016, Stratas J.A. closed the chapter that he had opened in Pictou Landing, accepting the Sport Maska decision. In Prophet River First Nation v. Canada (Attorney General), 2016 FCA 120, at paras. 2-4, Stratas J.A. reluctantly accepted the judgment of his colleagues on the Federal Court of Appeal:
2 The factors to be considered on an intervention motion are set out in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General),  1 F.C. 90, 103 N.R. 391 (C.A.), recently reaffirmed in Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44.
3 Prior to Sport Maska, Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21,  2 F.C.R. 253 tweaked and reformulated the Rothmans, Benson & Hedges factors. One of the reasons for that was to provide greater guidance concerning the “interests of justice” factor in Rothmans, Benson & Hedges. The danger of a broad “interests of justice” factor is that it can be taken to mean “whatever the judge assigned to the motion thinks.”
4 In the end, the Court in Sport Maska found there was not enough of a difference between Rothmans, Benson & Hedges and Pictou Landing to warrant a departure from the former: para. 41. Instead, the panel held that a number of the Pictou Landing factors are the sorts of factors that the Court may consider within the flexible “interests of justice” factor: Sport Maska, para. 42. That is how I shall proceed with these motions.
The Rothmans, Benson & Hodges test for leave to intervene
Therefore, despite some attempted movement, the test for leave to intervene in Federal Court and Federal Court of Appeal proceedings remains the test established in Rothmans, Bentham & Hodges 27 years ago with the qualification and explanation provided in Sport Maska.
At the application for leave to intervene at the trial court in Rothmans, Benson & Hodges, Justice Rouleau stated at para. 12:
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?
On appeal, Hugessen J.A writing for the Federal Court of Appeal said at para. 3: “We are all of the view that Rouleau J. correctly enunciated the criteria which should be applicable in determining whether or not to allow the requested interventions.
It is clear this list is not meant to be exhaustive, and the “interests of justice” is a flexible concept which will allow courts to take into account the unique circumstances or exigencies of any situation.
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109(1) Leave to intervene
The Court may, on motion, grant leave to any person to intervene in a proceeding.
2Zaric v. Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 36, at paras. 5-14; Canada (Minister of Citizenship and Immigration) v. Ishaq, 2015 FCA 151, at paras. 5-6; Gitxaala Nation v. R., 2015 FCA 73, at paras. 4-5; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, at paras. 11-15; Lukács v. Canadian Transportation Agency, 2014 FCA 292, at paras. 8-10; ViiV Healthcare ULC v. Teva Canada Ltd., 2015 FCA 33, at para. 4.
3Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at para. 6.
4Girouard c. Conseil canadien de la magistrature, 2015 FC 307, at para. 13