Canada: Interventions In Federal Court: A (Nearly) New Approach

Last Updated: December 6 2016
Article by Jacob R.W. Damstra


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, [1990] 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., [2000] 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), [1990] 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, [2015] 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.


1. Federal Courts Rules, Can. Reg. 98-106:

109(1) Leave to intervene
The Court may, on motion, grant leave to any person to intervene in a proceeding.

2. Zaric 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.

3. Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at para. 6.

4. Girouard c. Conseil canadien de la magistrature, 2015 FC 307, at para. 13

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jacob R.W. Damstra
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions