In Weir’s Construction Limited v Warford, the Newfoundland Court of Appeal considered an application for intervenor status under Rule 38 of the new Court of Appeal Rules, NLR 38/16. Rule 38 of the new rules provides:

38. (1) A person who did not participate in the court appealed from may apply to be added as an intervenor for purposes of the appeal. (2) The application shall state the intervenor’s interest in the appeal, explain the failure to apply to intervene in the court appealed from, and indicate the position the intervenor intends to take on the appeal. (3) In addition to the factors set out in subsection (2), the Court may consider any relevant factors, including whether intervention would delay or prejudice adjudication of the rights of the parties and whether the record of the court appealed from is sufficient for purposes of the intervention. (4) The Court may define or limit the scope of participation by an intervenor in an appeal.

The Attorney General of Newfoundland and Labrador applied for intervenor status in an appeal dealing with the interpretation of ss. 44 and 44.1 of the Workplace Health, Safety and Compensation Commission Act.

In interpreting the new rule, the Court highlighted that Rule 38 applies only in the Court of Appeal, in contrast to the previous rule which applied to both the Court of Appeal and the Trial Division. The Court found that Rule 38 can therefore be interpreted and applied in a manner that is suitable to appellate proceedings, recognizing the fact that the proposed intervenor did not participate in the hearing below.

The Court held that there are two circumstances where intervention may be appropriate based on the applicant’s “interest” in the appeal: (i) where the applicant’s specific legal interests will be affected by the decision on the appeal; and (ii) appeals with broader public interest considerations. If an applicant establishes an “interest” in the appeal, Rules 38(2) and (3) require the court to consider a number of other factors, including: (i) the explanation for failing to apply to intervene in the court appealed from; (ii) the position the applicant intends to take on appeal; (iii) whether the intervention will delay or prejudice the adjudication of the rights of the parties on appeal; and (iv) whether the record of the court appealed from is sufficient for the purposes of the intervention. None of these factors alone is determinative. Each factor, and any other relevant factors, should be balanced to determine whether an intervention is appropriate.

After balancing all of the above factors, the Court denied the Attorney General’s application for intervener status. The Attorney General had asserted that a ruling on the interpretation of ss. 44 and 44.1 would likely determine the results in other litigation in which the province is a party. The Court held that an interest that is purely regarding the precedential value of a decision is not sufficient for intervention. There was a real risk that granting intervener status on this basis would result in the other parties in the province’s other litigation also seeking intervener status to oppose the Attorney General’s position. Moreover, the Attorney General’s explanation for not seeking intervener status earlier was “wanting”, and the intervention would have delayed the appeal.