In the recent Federal Court of Appeal decision Teksavvy Solutions Inc. v. Bell Media Inc. 2020 FCA 108, the court considered motions from six parties to intervene. The court took a new and modern approach to granting interventions while commenting on the modernization of the legal system in light of the COVID-19 pandemic.
Direction of the court
Specifically, in this case, the court commenced on the use of brief and pointed case management directions to focus and improve the quality of submissions. At the outset of this appeal, three of the ultimately six parties filed motions to intervene. Before all submissions were received and before other intervention motions were brought, the court issued a written direction to assist the parties seeking intervener status.
The direction informed the parties about certain key features of the court’s law on intervention. Those who had already filed their motions could revise or supplement their submissions by informal letter in light of the direction.
The direction from the court emphasised Rule 109, the relevant rule for interventions before the Federal Court of Appeal. Further, the direction noted that not all who applied to intervene would be admitted as individual interveners. For any party granted intervener status, the direction provided that they would have to take the issues as set by the appellant and as disclosed in the reasons of the Federal Court and could neither add to them nor the evidentiary record.
Finally, the direction was clear that freestanding policy submissions would not be entertained. The court believed that this approach would result in better interveners noting that “[b]y announcing the law in this case in advance without closing our ears to correction and supplementation, we received not a dry recital of law already known to the Court but rather focused submissions on the real issue: how the moving parties’ submissions would further the Court’s practical consideration of the issues.”
Decision granting intervener status
Ultimately, the court found that all six interveners met the criteria in Rule 109. However, the court also found that certain terms should be imposed on the interveners to ensure that the requirements of Rule 109 are met and to maximize the usefulness of the interventions and furt er judicial economy.
First, the court found that the six parties could be collected into three groups. The court was reluctant to allow all six parties to make individual submissions as interveners noting that “allowing all six to intervene separately with separate counsel would result in lack of economy and duplication.”
Second, the court ordered that each of the three groups would be permitted to file one memorandum of fact and law noting “The collaboration of the related parties in each group is likely to create useful synergies and a more compact submission, which invariably happens to be a more persuasive submission.”
Third, the court noted that interveners could not add to the evidentiary record either directly or indirectly by making propositions of mixed fact and law when there is no evidentiary support.
The court appeared critical of one of the interveners, the British Columbia Civil Liberties Association (BCCLA), noting that its proposed submissions were vague, especially its submissions on international law. However, recognizing the BCCLA’s long-standing reputation and history of intervening before the courts, the court noted, “it can be expected to make a useful contribution given its expertise in issues concerning freedom of expression. The Association’s involvement will benefit this Court in determining the issues in this appeal.”
Finally, instead of determining which interveners would make oral submissions, the court deferred this consideration to the panel that will ultimately hear the appeal. The court noted “the panel will consider the interveners’ memoranda alongside the other memoranda and will assess whether submissions from them at the hearing will be useful and necessary.
This decision demonstrates one of the many ways in which the courts are modernizing and adapting to the new legal landscape in the wake of COVID-19. The creative steps taken by the court in this case, which created a streamlined process focused on the issues most important to the court, could actually increase the number of interveners in appropriate cases. By making the process more efficient, it also becomes more accessible by decreasing the time and cost involved in a motion.
Further, requiring focused submissions that do not restate the already well known law will no doubt lead to more effective intervener participation. The decision also underscores the importance of credibility with the court. Intervener status is not granted to everyone who applies, and parties should be sure to put their best foot forward when seeking leave to intervene, including their expertise and the useful contribution they intend to bring to the matter.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.