The Federal Court of Appeal's recent decision in Canada
(Citizenship and Immigration) v. Ishaq, 2015 FCA 194 has
attracted national attention. On September 15, 2015, the Court of
Appeal upheld the decision of the Federal Court that had the effect
of permitting the respondent, Zunera Ishaq, a devout Muslim, to
wear a niqab veil while taking the oath of citizenship. But before
the Court released this decision on the merits, Justice Stratas of
the Federal Court of Appeal authored a strongly-worded decision (2015 FCA
151) in response to the motions of six parties who sought to
intervene in the appeal. Justice Stratas's decision lays out a
roadmap for a successful intervention motion, and warns against
certain practices on these motions that have become increasingly
The six prospective interveners sought to make submissions on
certain Charter issues that could have been relevant in the appeal.
In assessing the motions, Justice Stratas referred to the test
established in Canada (Attorney General) v. Pictou Landing
First Nation, 2014 FCA 21, which sets out five questions
for the Court to consider. Included among these questions is
whether the proposed intervener will "advance different and
valuable insights and perspective that will actually further the
Court's determination of the matter."
Justice Stratas found that all six motions failed on this
ground, which he characterized as "perhaps the most important
factor" for the Court to consider on an intervention motion.
He held that the six moving parties provided submissions that were
"too general and diffuse to be persuasive," giving rise
to the concern that "nothing much different from the
submissions of the parties already before the Court will be
said." Justice Stratas also cautioned against the practice of
"bootlegging" fresh evidence on the motion for leave to
intervene by slipping social science papers or other evidence into
supporting affidavits or books of authorities.
To be successful on a motion for leave to intervene, Justice
Stratas said that prospective interveners must go about
"locating the particular itch in the case that needs to be
scratched, and telling us specifically how they will go about
scratching it." He set out a four-point list of the steps an
applicant for intervention should take when preparing its motion
identify one or more specific controlling idea(s) on which the
case will turn;
offer, with specificity, the submission(s) it will make on the
controlling idea(s), showing why it will advance the Court's
appreciation of the controlling idea(s);
ensure that its submission(s) will not need to go beyond the
evidentiary record; merely saying so is not good enough; and
distinguish its submission(s) from those of others already
before the Court, e.g., on the ground that the submission(s) have
not been made, or that its perspectives, experience or
expertise—specifically identified—will cast a different
light on the matter.
The decision is required reading for any party who wishes to
obtain intervener status in an appellate proceeding.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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