Appellate judge addresses “political or ideological” intervention motions (and other judges)

The Federal Court of Appeal recently addressed the role of interveners and, in doing so, the proper role of the courts. In Canada (Attorney General) v. Kattenburg, 2020 FCA 164, Justice Stratas dismissed multiple motions for leave to intervene in an appeal from a judicial review decision. The underlying judicial review was narrower than the submissions that many of the proposed interveners intended to make. For Justice Stratas, this reflected a “growing, regrettable tendency in public law cases” for “those seeking political and social reforms to see the courts as unfettered decision-making bodies of a political or ideological sort that can give them what they want”. Justice Stratas attributed at least some blame to judges who veer into the political or ideological sphere.

Background

Kattenburg is an appeal from a Federal Court judgment which had set aside an administrative decision of the Complaints and Appeals Office (CAO) of the Canadian Food Inspection Agency. The CAO had affirmed an earlier administrative decision that certain wines produced in the West Bank could be sold in Canada labeled as a “Product of Israel”. The Federal Court set aside that decision and remitted it for reconsideration. The central issue was whether the administrative decision-maker interpreted and applied the food-labeling laws in a defensible and acceptable way.

Numerous moving parties sought leave to intervene on the appeal to address, among other issues, the status of the West Bank, the territorial sovereignty of Israel, human rights and humanitarian issues, international law, and section 2(b) of the Canadian Charter of Rights and Freedoms. As Justice Stratas viewed the appeal, many of these issues exceeded what was properly before the Court. Following Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, it was certain that the applicable standard of review was reasonableness, meaning that the Court’s role was to review the administrative decision actually made, not to determine for itself the merits.

Test for intervener status

Justice Stratas rearticulated the test for intervener status in the Federal Court of Appeal under Rule 109 of the Federal Courts Rules. The fundamental question is whether the moving party’s submissions will be useful to the panel determining the appeal, taking into account four questions:

  1. What issues are live before the panel determining the appeal? The Court must determine the “real essence” and “essential character” of the proceeding based on the notice of appeal, as explained by the written submissions, disregarding any matters that are doomed to fail.
  2. What does the moving party intend to submit in the appeal? The Court must determine the “real essence” and “essential character” of the proposed intervener’s intended submissions.
  3. Are the moving party’s submissions doomed to fail? Without going too deep into the merits of the appeal, the Court must determine whether the proposed intervener intends to make submissions which are doomed to fail (e.g., wrong in law or irrelevant to the live issues) or that are inadmissible (e.g., where they require new evidence that is itself inadmissible).
  4. Will the moving party’s arguable submissions advance the determination of the panel hearing the appeal? The Court must determine whether the moving party’s submissions would be useful and not duplicative. The Court should “exclude those [submissions] that make political points without law, pronounce freestanding policy positions untethered to law, or offer submissions irrelevant to the legal task the Court must perform.”

Applying this test, Justice Stratas denied each of the motions for intervener status.[1] After characterizing the real essence of the appeal and moving parties’ intended submissions, Justice Stratas concluded that the latter were doomed to fail or were unhelpful. The international law issues were not relevant to the proper interpretation of the food-labeling legislation underlying the judicial review application. The underlying decision also did not raise the issue that some of the interveners sought to raise that the labels violated the section 2(b) Charter rights of those who read them. Many of the proposed interveners also sought to rely on evidence that was not before the Court or the administrative decision-maker, including online reports, opinions, and news articles.

Commentary on intervention motions

The articulation and application of the test for intervener status in Kattenburg will be useful for future parties considering whether to seek intervener status in the Federal Court of Appeal. Proposed interveners should focus on assisting the court with useful submissions that are neither duplicative nor beyond the scope of the issues on the appeal. Where these considerations are in tension, there may not be a role for interveners. Prospective interveners should consider whether they can truly assist the court if they cannot speak to the live issues without duplicating the submissions of the parties. This assessment is particularly important in narrow appeals, such as where the only issue is the application of the reasonableness standard to an administrative decision.

Justice Stratas’ commentary goes further and is worth reproducing in full (citations omitted):

[42]  I do not want to be too hard on the moving parties. I suspect that some of them have been lured to this appeal by torqued-up press reports distorting what the Federal Court decided. And once one group applies to intervene on a controversial issue like this, others feel they also have to apply.

[43]  But many of these intervention motions illustrate a growing, regrettable tendency in public law cases in Canada: the tendency of those seeking political and social reform to see courts as unfettered decision-making bodies of a political or ideological sort that can give them what they want. What accounts for this? Alas, I fear that in part some courts and some judges may be to blame.

[44]  Some courts admit into an appeal just about anyone who wants to offer any views, even political or ideological ones oblivious to the legal doctrine that binds the Court: […]. And sometimes upwards of twenty or more special interest or political advocacy groups are allowed to pile in, giving appeals the appearance of a sprawling Parliamentary committee hearing or an open-line radio show, and often a one-sided one at that: […]. So much of their loose policy talk, untethered to proven facts and settled doctrine, can seep into reasons for judgment, leading to inaccuracies with real-life consequences: […]

[45]  As for judges, some give the impression that they decide cases based on their own personal preferences, politics and ideologies, whether they be liberal, conservative or whatever. Increasingly, they wander into the public square and give virtue signalling and populism a go. They write op-eds, deliver speeches and give interviews, extolling constitutional rights as absolutes that can never be outweighed by pressing public interest concerns and embracing people, groups and causes that line up with their personal view of what is “just”, “right” and “fair”. They do these things even though cases are under reserve and other cases are coming to them.

[46]  They should not act in this way. They should stay in their proper place. Their place is not in the public square amongst the partisans and the politicians, participating in the fray. Instead, their place is inside their courthouses, hearing each side, weighing and assessing the admissible evidence and discerning and applying the relevant legal doctrine, all in a rational, open-minded and neutral way, both in appearance and actual fact.

It is likely that Kattenburg will be better known for these words than the articulation and application of the test for intervener status. Both are worth reflection before applying to intervene.

 

[1]      Justice Stratas did grant status as a party respondent to the winery at issue to address certain fairness issues.

Subscribe to this blog
Via RSS Feed

Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

Buy the book

Learn more
Editors

Mark Gelowitz

Partner, Litigation