Supreme Court of Canada Interventions: A How-To Guide for Advocacy Organizations

Interveners regularly participate in cases before the Supreme Court of Canada(SCC). Their role is to provide the SCC with useful and different perspectives on the law, grounded in their own experience or expertise. In doing so, interveners provide context to the law and its broader effects, which can assist the SCC in rendering high-quality decisions that are responsive to the lived realities of Canadians.

Many non-profit advocacy organizations represent some of the most well-known interveners at the SCC. As interveners are strictly limited in how they can participate and what they may argue, understanding the requirements and the steps involved in the process, from application to submission, is crucial to making an intervention count.

Why might an organization want to intervene?

As the highest court of law in Canada, the effects of the SCC’s decisions are rarely confined to the parties involved. An intervention is the most direct way for an affected non-party to have their perspectives considered in the development of the law.

Interventions are also an important access to justice mechanism for under-represented interests or marginalized segments of society. Organizations may want to consider an intervention in cases where the issue(s) fall within their mandate or if the outcome will affect the population or interests that they represent.

The Canadian Civil Liberties Association (CCLA), the British Columbia Civil Liberties Association (BCCLA) and the Women’s Legal Education and Action Fund (LEAF) are three such examples. The CCLA and the BCCLA frequently intervene in cases involving civil liberties and human rights, including many leading constitutional law cases at the SCC. As a feminist legal advocacy organization, LEAF pursues gender equality through both law reform and constitutional litigation, focusing on reproductive justice, sexual assault and consent law, gender-based violence and family law. In the last 40 years, LEAF has intervened in almost every precedent-setting SCC case involving the law of sexual assault.

What are the rules for seeking an intervention at the Supreme Court?  

Under the Rules of the Supreme Court of Canada, any person interested in an appeal, leave for appeal, or a reference before the SCC can bring a motion for intervention to a judge. This motion must explain:

• your interest in the case and any prejudice you might suffer if the intervention is denied;

• the position you intend to take;

• the submissions you will advance and their relevance; and

• how those submissions will be useful and different from other parties (Rules 55-59).

Interventions are typically granted on fairly standard terms: a 10 page written submission and (if requested in your application) 5 minutes for oral argument. However, the SCC retains the discretion to determine the terms and conditions of an intervention as it sees fit, including to prevent any unfairness to the parties arising from an intervener’s participation. Following the COVID-19 pandemic, interveners have been required to make their submissions virtually through Zoom.

How does the Court decide whether to grant an intervention?

The SCC exercises its discretion to grant interventions in accordance with several factors.

(1) An interest, and useful and different submissions

At a minimum, an intervener must have an interest in the proceeding, and offer submissions that are useful and different from those of the parties (Reference Re Workers’ Compensation Act, 1983, [1989] 2 SCR 335). An interest requires having some stake in the outcome of the case beyond a mere “serious preoccupation with the subject matter” (R.v. Finta), while the second criterion can be met by demonstrating “a history of involvement in the issue giving the applicant an expertise which can shed fresh light or provide new information on the matter” (Reference re Workers Compensation).

(2) Operating within the limits of an intervention

The SCC is increasingly vocal about the proper boundaries of an intervention at both the application stage and in giving submissions, and may deny leave to applicants who overstep such limits:

• The purpose of an intervention is not to support a party, but to advance the intervener’s view of the legal issue;

• Interveners must not take a position on the outcome of an appeal; and

• Interveners must not challenge findings of fact, introduce new evidence or try to expand the case.

Organizations must approach an intervention understanding the limits of their role, the scope of the issue(s) on appeal and the parties’ arguments. Interveners must take the case as they find it and ensure that their submissions are relevant to the existing record. 

(3) Timing of the application

The timeliness of a motion to intervene can also influence its success, as the SCC is reluctant to grant interventions at the leave for appeal stage. Applicants may have more success waiting until leave is granted to bring a motion to intervene in the appeal.

(4) The participation of other interveners

The SCC may be less inclined to grant an intervention where there is a large number of proposed (or accepted) interveners, especially where they overlap in their interests and/or submissions. Organizations with common ground may consider jointly intervening, which involves adopting a common position and being represented by the same counsel. The SCC may be more likely to grant leave to a joint intervention because it will reduce delays and costs, while the workload and expenses of intervening can be distributed across multiple organizations. 

While these factors are not exhaustive and do not guarantee that an intervention will be granted, organizations should keep them front of mind in deciding whether to intervene and in preparing their application to maximize their chances of success. 

Upcoming cases to watch at the Supreme Court

English Montreal School Board, et al. v. Attorney General of Quebec, et al.

The SCC will hear the Charter challenge (s. 28 and 23) to Quebec’s Bill 21, which prohibits certain public sector workers from wearing religious symbols at work and requires them to perform their duties with their faces uncovered. This case has already attracted a considerable number of interveners across governments and civil society, with 30 granted leave and 38 more applications pending.

Hemmings et al. v. Padmore et. al:  

A case involving a negligence lawsuit against several healthcare providers,Hemmings may be of interest for medical advocacy associations, patients’ rights and reproductive rights groups. The SCC denied leave to intervene to two reproductive rights groups at the leave for appeal stage, who may re-apply for intervener status at the appeal. 

Cave Law prioritizes practical and cost-effective legal and policy advisory services for charities and non-profit organizations. If you have any questions about our services or a potential intervention, learn more about our legal and policy practice at www.cavelaw.ca.