The Role of Intervener


The Role of Intervener

The term intervener (or intervenor) refers to a non-party that is permitted to “intervene” or participate in a legal proceeding with a view to providing the decision-maker with a perspective going beyond what the parties themselves can offer. Applications for leave to intervene are most common in appellate and superior courts engaged in judicial review.

Appellate courts have developed rules and a rich body of jurisprudence governing whether and how prospective interveners will be granted leave to intervene. There are two bases upon which leave to intervene may be granted. The first requires an applicant to demonstrate that it has a direct interest in the outcome of the proceeding. The second — and far more common — requires an applicant to demonstrate that the appeal or proceeding raises an issue of public law in which the proposed intervenor has an indirect interest, and in relation to which it can bring a unique perspective that will be of assistance to the court.1

The prevalence and use of intervention in Canadian courts increased significantly following the advent of the Charter, when the impact of a particular law, government action or remedy took on renewed importance. Intervener participation at the Supreme Court of Canada is now routine and seems to be trending upward.2

There is no shortage of academic literature considering why courts entertain interveners. Whatever the rationale, there is little question that the impact of interveners on Charter and human rights jurisprudence over the past 35 years has been significant. It is impossible, in so few words, to review the specific impacts that interveners have had in any depth. However, I offer a few examples below to illustrate the role that interveners can play in advancing the law and what may be lost without their perspective.

In Carter v. Canada, 2015 SCC 5, the Supreme Court of Canada allowed an appeal challenging the constitutionality of ss. 24(1)(b) and 14 of the Criminal Code in relation to physician assisted-suicide — reversing its decision of two decades earlier in Rodriguez v. British Columbia, [1993] 3 SCR 519. Before the hearing, the Court granted leave to no fewer than 27 interveners who brought a variety of perspectives for the Court’s consideration. While not all members of Canadian society share equal appreciation for the Court’s decision, it is clear that the Court had a strong sense of the impact its decision would have on all sides of the debate — a vantage point achieved in large part as a result of the many interveners.

In contrast, the absence of certain types of interveners in two recent cases may have been a factor contributing to more limited perspectives being reflected in the Court’s reasons. In Ward v. Quebec, 2021 SCC 43, the Supreme Court of Canada grappled with an appeal juxtaposing a disabled child’s right to safeguard his dignity against a comedian’s right to freedom of expression (targeting the youth in his comedy routines) without hearing from a single disability rights or major equality rights intervener. A majority of the Court concluded that the expression was unlikely to incite others to hate the youth or to lead to his discriminatory treatment — two findings which might have benefited from broader intervener involvement.

Finally, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, the Court considered whether labour arbitrators have exclusive (as opposed to concurrent) jurisdiction to deal with human rights complaints arising out of unionized employment relationships. The Court concluded that an arbitrator’s jurisdiction to deal with such matters was exclusive without hearing from a single union or organization representing the interests of unionized workers.

In a world where the lived experience of many decision-makers remains more privileged than much of Canadian society, and where the parties themselves often have no obligation or ability to address broader impacts, interveners will continue to have an important role to play in the evolution and development of equality and human rights jurisprudence.

  1. J.P. v. British Columbia (Children and Family Development), 2016 BCCA 124 (Chambers) at para. 3. |
  2. Geoffrey D. Callahan, Intervenors at the Supreme Court of Canada, (2020) 43:1 Dal LJ 33 at 34. |